author: By the Court.

text:
    Himelright v. Johnson.
    Error to the District Court of Summit County.

      Humphrey Stewart for plaintiff in error.

      Kdgerton Kohler for defendant in error.
   By the Court.

September 23, 1876, the plaintiff in error executed and delivered to Steese & Co., his promissory note for the sum of $800, due in sixty days. This note was accommodation paper and given without consideration. Samuel Steese was a member of the firm of Steese & Co. On the 12th of October, 1876, Samuel Steese, having first endorsed said note with the firm name, ‘delivered it to Cornelius Johnson, as collateral security for an individual debt of Samuel Steese to Johnson. On the failure of Samuel Steese to pay his debt, Johnson brought an action upon this note against Himelright, as maker, and the members of the firm of Steese & Co., as indorsers.

On the trial in the court of common pleas, the counsel for Himelright requested, among other things, that the court should charge the jury as follows:

“In order to have acquired title to the note, the plaintiff must establish, by testimony, that Samuel Steese had a right to transfer the title to secure his individual debt.”

This proposition the court gave to the jury, after adding thereto the following words :

“ If he, as a member of the firm, held that note and transferred it to the plaintiff, then it is good as against the defendant.”

To the action of the court, in adding these words to the request of the defendants’ counsel, said counsel excepted.

Held: This proposition, as amended by the court and given to the jury, was misleading. Railway Co. v. Krouse, 30 Ohio St., 222; followed and approved.

Judgment reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Clements v. Noble.
    Error to the District Court of Morrow County.

      A. K. J. G. Dunn for plaintiff in error.

      Dalrymple Powell for defendant in error.
   By the Court.

In 1867, M., in writing, agreed to convey to C., in fee_ simple, a parcel of land for a price named. C. paid the price and instructed the scrivener to so draw the deed as to convey the land to C. for life, remainder to certain named children and grandchildren of C. in fee. The scrivener, by mistake, omitted the grant of a life estate to C.; M. executed the deed, and it was placed on record before C. learned of the mistake. C. meanwhile, entered into possession, claimed and exercised all the rights of a tenant for life, and the grantees named in M’s deed acquiesced therein for ten years. After the ten years N., with actual notice of C.’s possession and claim, took quit claim deeds, for valuable considerations, from all of M’s grantees except two; claimed title adverse to C., and began proceedings in partition looking to an eventual ouster of C. C., thereupon sued N. and all the grantees of M. praying to be quieted in his possession; that the defendants should be enjoined from interfering with it; and also that the mistake in the deed should be corrected.

The district court declined to hear evidence for the defense ; found that C was not entitled to any relief, and dismissed the action at his costs.

Held: Neither N., nor any of M.’s grantees should be permitted to disturb C.’s possession as tenant for life. Although, technically, M. was a necessary party to a decree correcting the deed, he had no concern with a judgment forcing his grantees and N. to refrain from disturbing C.

Judgment of the district court reversed and new trial granted.


text:
    Farmers Insurance Company v. McCluckin.
    Error to the District Court of Morrow County.

      A. K. J. Q. Dunn for plaintiff in error.

      Olds §• Hichey for defendant in error.
   By the Court.

In an application for insurance, M. covenanted and agreed that the insurance asked for on his dwelling did not exceed two thirds of its actual cash value. The policy insured it for the sum asked for and made the application part of the contract. During the term a fire destroyed the building. In a suit on the policy issue was joined upon an averment by the company that said covenant was untrue, as the applicant well knew when he made it. At the trial conflicting evidence on this issue was before the jury, but the court directed a verdict for the plaintiff for “the value of the property destroyed by fire covered by the policy of insurance described in this case, not exceeding the amount of insurance upon the part thus destroyed,” and refused to give any instruction applicable to the issue as to the covenant.

Held: This was error.

Judgments of the district and common pleas courts reversed and a new trial granted.


author: McCauley, J.

text:
    Rantz v. Barnes
    In an action by a wife, under the seventh section of the act of May 1,1854, to provide against the evils resulting from the sale of intoxicating liquors, as amended April 18, 1870, against two persons for injury to her means of support resulting from the habitual intoxication of her husband, caused by intoxicating liquors sold and furnished him by the defendants, and where, from the facts found, it appears that the defendants each sold intoxicating liquors to the husband, and that they were in no way connected in business, and that neither of them was in any way interested in the sales made by the other; but that the husband of the plaintiff, during the time in which the sales were made, was habitually intoxicated, and that the sales were made by both defendants with knowledge of this fact, and the sales thus made contributed to keep up said habit. Held, That the defendants are jointly liable.
    Error. Reserved in the District Court of Hamilton County.
    Martha A. Barnes, the wife of Abraham F. Barnes, brought an action in the court of common pleas of Hamilton county, against John Rantz and Jacob Westerman, on November 24th, 1872. In her petition she alleges that from about the first day of January, 1869, until the commencement of the action the defendants sold intoxicating liquors to Abraham F. Barnes, her husband, to be drank on the premises where sold, knowing at the same time that the said Abraham F. Barnes was a person in the habit of getting intoxicated, and that the liquor they so sold equally contributed to make the said Abraham F. Barnes intoxicated.
    After verdict, on the suggestion of the court the plaintiff filed an amendment to her petition and alleged: That the liquor so sold contributed to make the said Abrabam F. Barnes intoxicated, and confirmed, contributed to and augmented said habit of intoxication.
    A verdict was returned' for the plaintiff for $1,500. A motion for a new trial was overruled and a bill of exceptions taken embodying all the evidence. A petition in error was afterwards filed in the district court, assigning among other errors that the verdict was not sustained by sufficient evidence, and was contrary to law.
    The district court in 1879, under the 9th section of the first chapter of Title IV. of the Code of Civil Procedure, passed May 14th, 1878, (75 O. L., 805), made and embodied in the record a finding of the facts, and then reserved the case for decision here. The finding of the facts is as follows:
    “ That from and after the first day of January, A. D. 1869, till the 24th day of October, Á. D. 1872, the time of the filing of the petition of said Martha Ann Barnes, in the court below, each of said plaintiffs in error, John Rantz and Jacob Westerman, kept a coffee-house and drinking-saloon in Hamilton county, Ohio, said coffee-houses and drinkingsaloqns being at a distance of more than a mile from each •other; but, that at no time during the said period, were the said John Rantz and Jacob Westerman partners in keeping either of said coffee-houses and drinking-saloons, nor were they in any way connected in business, nor was either in any way interested in the coffee-house and drinking-saloon kept by the other; that on several occasions during said period, said John Rantz unlawfully sold intoxicating liquors to Abraham F.. Barnes, the husband of said Martha Ann Barnes, whereby he became intoxicated, and that said Jacob • Westerman, on several other occasions during said period, also sold intoxicating liquors to said Abraham F. Barnes, whereby he became intoxicated; but that said Jacob Westerman had no knowledge of or connection with said sales of intoxicating liquors of said John Rantz, and that said John Rantz had no knowledge of or connection with said sales of intoxicating liquors of said Jacob Westerman; and that the sales of either were in no wise induced or caused by tbe other of said plaintiffs in error, and that said John Rantz and Jacob Westerman, in making said unlawful sales of intoxicating liquors, did not, in any manner, act in. concert; that the evidence did not show that intoxicating liquors sold by either of said plaintiffs in error, contributed to a particular state of intoxication caused by intoxicating liquor sold by the other; but, that the husband of said defendant in error was habitually intoxicated, and that said sales of intoxicating liquors made by plaintiff in error were with knowledge of this fact, and contributed to keep up said habit; that said John Rantz when remonstrated with by the defendant in error in regard to selling liquor to her husband, spoke to her harshly and indecently, and did not desist from selling; but of this Jacob Westerman had no knowledge, and he had in no way caused or induced such conduct.”

      Stallo, Kittredge f Shoemaker, for plaintiff in error,
    cited Kirchner v. Myers, 35 Ohio St., 85; 'La France v. Kragers, 42 Iowa, 143; Jewett v. Wanshurn, 8 Ch. L. N., 324; Jackson v. Brookins, 5 Hun., 530.

      Samuel F. Carey and Henry M. Cist, for defendant in error,
    cited Boyd v. Watt, 27 Ohio St., 259.
   McCauley, J.

Counsel on both sides argue and submit this case on the facts found by the district court. The part of the facts upon which the liability of the defendants is supposed to turn, is, “ that the husband of said defendant in error was habitually intoxicated and that said sales of intoxicating liquors made by plaintiff in error, were with knowledge of this fact and contributed to keep up said habit.”

The 7th section of the act of May 1, 1854, as amended April 18th, 1870 (67 O. L., 102), provides, “that a wife * * * who shall be injured * * * in means of support * * * in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in her own name, severally or jointly, against any person or persons, who shall by selling or giving intoxicating liquors, have caused the intoxication in whole or in part.”

The intoxication mentioned in the statute is “ habitual or otherwise,” so that, whoever by selling intoxicating liquors, causes habitual intoxication, does just what the statute provides shall make him liable. The statute further provides that the person injured shall have a right of action severally or jointly against the person or persons who by selling, have caused the intoxication, that is, the habitual intoxication, in whole or in part.

The facts found show that the husband of the plaintiff was habitually intoxicated, that the sales of intoxicating liquors to him, by the defendants, was with knowledge of this fact and contributed to keep up said habit. This is equivalent to saying that the defendants by the sales of liquors to the husband contributed to keep him in a condition of habitual intoxication.

All persons who so contribute are, under this statute, jointly and severally liable.

Counsel for plaintiffs in error urge that the question determined in Kirchner v. Myers, 35 Ohio St., 85, is decisive of this case.

The question in that case was, whether after the plaintiff had offered evidence tending to prove that for three years the defendants continuously sold to Myers intoxicating liquors, upon which he frequently became intoxicated, the defendants might prove that during the same time, he became intoxicated by liquors he purchased of other persons. It was there held that such evidence on the part of the defendant was proper, for the reason, says Judge Okey in his opinion, “that it would have been for the jury to say, whether the sales at other saloons had simply contributed to or increased the intoxication produced by liquors sold by the defendants below, in which case the evidence could not have aided them; or whether in fact, the liquors procured of persons other than the defendants caused independent intoxications, to which the defendants below did not contribute, in which case the evidence should have been considered in their favor.” This reasoning supports the liability of the defendants below in this case, upon the facts found, that they by their sales contributed to keep up the habitual intoxication of the plaintiff’s husband.

Judgment affirmed.


author: Martin, J.

text:
    Donley v. Bank.
    D. and others executed 3 penal bond conditioned that they would pay to the obligee any sum or sums, which D. may owe to or thereafter become indebted to the obligee, upon bond, bill, note, draft, check, account or otherwise ; and would indemnify the obligee and save him harmless “from all loss, damage and expense, by reason of said or any indebtedness incurred by D.” Subsequently a promissory note was made and-delivered to the obligee for value by a firm of which D. was a member, and for its use, and which was at its inception indorsed by D. in his individual name.

      Held: The note is not within the condition of the bond, and the action is not maintainable.
    Error to the District Court of Coshocton county.
    Plaintiff in error was one of the original defendants. The action was brought in the Coshocton common pleas on a bond and two promissory notes. The bond was executed on the 23d day of October, 1876, to the defendant in error, by Joseph Donley, Hugh Heaton and T. B. Donley, three of the defendants. It is as follows:
    “ Know all men by these presents, that we Joseph Donley, of the county of Allegheny, and state of Pennsylvania; Hugh Heaton, county of Yermillion, and state of Illinois; and T. B. Donley, city of Pittsburgh, county of Allegheny, and state of Pennsylvania, are held and firmly bound unto the Liberty Improvement Bank, of the city of Pittsburgh, in the county of Allegheny, and state of Pennsylvania, in the sum of ($3,000) three thousand dollars, to be paid to the said bank, its certain attorney, successors or assigns; to which payment, well and truly to be made, we do bind ourselves, our heirs, executors and administrators, and every of them jointly and severally firmly by these presents.
    “ Witness our hands and seals the twenty-third day of October, in the year of our Lord one thousand eight hundred and seventy-six.
    “The condition of the above obligation is such, that if the above bounden Joseph Donley, Hugh Heaton and T. B. Donley, their heirs, executors, administrators and assigns, do well and truly pay or cause to be paid unto the said bank, its successors and assigns, any sum or sums of money, which the said Thomas B. Donley may owe to, or hereafter may become indebted to the said bank, upon bond, bill, note, draft, check, account or otherwise, and shall indemnify and save harmless the said bank, from all loss and expense by reason of said or any indebtedness incurred by the said Thomas B. Donley, — It is also understood, that this bond is, and shall be security to the firm of Donley, McNabb & Co., ‘Live Stock Brokers,’ for any sum or sums of money the said Thomas B. Donley owes or may owe the said firm, without any fraud or further delay, then this obligation to be void, otherwise to be and remain in full force and virtue.”
    “ Witness for J. Donley, F. M. Darling; for H. Heaton and T. B. Donley, George W. Humbert.
    “ Joseph Donley. [Seal.]
    “Hugh Heaton. [Seal.]
    “ T. B. Donley. [Seal.]”
    On the 21st day of March, 1877, the firm of Donley, McNabb & Co., composed of Thomas B. Donley, (one of the obligors) John McNabb and George W. Humbert, made ‘and negotiated for value its promissory note to the said’ bank the same having been first indorsed in blank by the members of the firm in their individual names and also in the firm name.
    The note is as follows:

      “$2,000.00. “ Pittsburgh, Pa., March 21, lSU.
    “Four months after date we promise to pay to the order of John McNabb, two thousand dollars at Liberty Improvement Bank, Pitts., Pa., without defalcation, value received.
    Donley, McNabb <& Co.” ■
    The following are the only endorsements thereon :
    “ John McNabb,” “T. B. Donley,” “ Geo. W. Humbert,” “ Donley, McNabb & Co.”
    On the 12th day of April, 1877, the said firm made and negotiated for value to the bank another note for the sum of $1,0.00, in all other respects similar to the first note and similarly indorsed. After their maturity the bank brought suit on the bond and notes, averring that by reason of the non-payment of the notes, a cause of action accrued to the bank on the bond and writing obligatory against the members of the firm and the obligors on the bond to recover the amount due on the notes.
    To the petition, the obligor Joseph Donley, filed a general demurrer, which was overruled. Thereupon he filed an answer setting up several alleged defenses, which it is unnecessary to state here; and to which the bank filed a general demurrer, which was sustained. At the April term, 1878, judgment was rendered in favor of the bank for the amount claimed against Joseph Donley and McNabb, the-only defendants served with process. On error to the-district court the judgment was affirmed. To reverse the judgment of the district court this proceeding is prosecuted..

      Spzngler $ Pomerene, for plaintiff in error,
    cited Palmer-v. Y-irrington, 1 Ohio St., 253; Ins. Co. v. Bold, 6 Adol. & Ellis, N. S., (51 E. C. Law,) 514; Blair v. Elsworth, 34 Campbell, 52; 20 Ohio, 93.; 17 Ohio, 565; 27 Ohio St., 499; 30 Ohio St., 662; 9 Ohio St., 17; Bill v. Barker, 16; Gray, 62 ; Bank v. Eddy, 7 Met., 181; Bank v. MitchellY 15 Conn., 206; Brandt on Suretyship, 138, § 97; Burge on Suretyship, 68; 61 N. Y., 39; 3 Saunders, 415; Bright v. Carpenter, 9 Ohio, 139; Robinson v. Abell and another, 17 Ohio, 36-42; Sage v. Olds, 12 Ohio, 158-167; Champion & Lathrop v. Griffith, 13 Ohio, 228-239; John F. Seymour & Co. v. Mielcey, 15 Ohio St., 535.

      Gr. K.-Bargar and Nicholas James for defendant in error,
    cited 2 Daniel on Neg. Inst., § 1755, 1752, 1753, 1754; 1 Id., 527; Parsons on Part., 389; Bawson v. Taylor, 80 Ohio St., 389; Alexander v. Morgan, 31 Ohio St., 550.
   Martin, J.

The plaintiff in error claims that there was error in the overruling of his demurrer to the petition. The petition contains two counts, each of which is planted on the bond and one of the notes. The parties to the notes respectively are the same; whilst only one of them is an obligor on the bond. The demurring defendant is an obligor, but not a party to the note. No objection was raised to the petition on account of this defect. The notes being similarly executed and indorsed, the disposal of either count serves for the other. This issue is as to the meaning of the condition. The defendant in error claims that because Thomas B. Donley is a member of the firm of Donley, McNabb & Co., and as such is bound for its engagements, a note of the firm falls within the terms of the condition; and further, if that claim be untenable, that his indorsement of the firm note at its inception effects that result. The condition is that the obligors Joseph Donley, Hugh Heaton and Thomas B. Donley do pay to the bank “ any sum or sums of money which the said Thomas B. Donley may owe to or hereafter may become indebted to the said bank upon bond, bill, note, draft, check, account or otherwise,” and shall indemnify and save harmless the said bank from all loss and expense by reason of said or any indebtedness incurred by the said Thomas B. Donley.” The indebtedness to be paid is that of Thomas B. Donley to the bank. It is to be evidenced by bond, bills, &c. This specific enumeration is of course restricted. And the general term, otherwise must be held under the maxim noscitur a sociis to cover only evidences or forms of debt of the same class as may accidentally have been omitted.

The indemnity elapse against “loss and expense by reason of said or any indebtedness incurred by said T. B. Donley,” was obviously intended to enlarge the measure of the liability already described, — to stipulate for the recovery of expenses and undefined loss, in addition to reimbursement to the amount of the debt. It is rather repetitional than copulative. As to the creditor and debtor features of the description, there is no strained effort. The statement is simple. The creditor is the bank and no one else. The only debtor named is Thomas B. Donley. In the condition to pay, the debt is one which he might then or thereafter owe; and in the indemnity condition the indebtedness is one incurred or to be incurred by him. If the intention were to include the debts of any trading firm of which he was or might become a member, it could have been easily expressed. Without calling to our aid or considering the old rule, that such a condition of defeasance is . the language of the obligee, and to be taken most strongly against him, we are fully satisfied that the clear meaning of the condition is to give credit to Thomas B. Donley individually, and not to a firm of which he may happen to be a member.

The further claim is, that by7 reason of the indorsement the debt became his individually7 within the meaning of the guaranty. The indorsement before delivery generally makes the indorsee- a maker. But here he was already- a maker, and no indorsement was needed to fix his liability as such. Generally, if not always, the only7 purpose tobe served by such double execution is to dispense with the necessity of proof of membership. As between the partner and his firm he is surety for the firm debt. And in case of the total insolvency of the firm and its members, a guarantor of a firm debt would be excluded from the assets of the individual members. Surely such exclusion was not contemplated here. The claim amounts to this, that the condition is broad enough to include a suretyship assumed by Thomas at his pleasure. The indorsement being merely formal, if the guaranty attaches, it is because of its letter only. We cannot reverse the rule and allow the guarantee to stand on the letter of his contract. The guarantor is surety merely, and for his own protection, may stand, strictly within the spirit of his engagement.

We are clearly of the opinion that the intention of the condition is, to require the obligors to answer only, for the debts of Thomas B. Donley to the bank, incurred by him individually and for his own benefit. The demurrer to the petition should have been sustained.

Judgment reversed and cause remanded.


author: Dickman, J.

text:
    Weybright v. Fleming.
    1. In an action to recover damages for an injury to the person through the. alleged carelessness of another, it is error to use language in the charge from which the jury might reasonably infer that the court assumed the existence of material facts that were in dispute.
    2. A special exception to the charge is not in all cases necessary, before a reviewing court will look to the charge, and reverse the judgment, and award a new trial. Baker v. Pendergast, 32 Ohio St., 494, approved and followed.
    Error to the District Court of Miami County.

      G-unclcel Rowe, for plaintiff in error.
    The ground of error was the refusal to grant a new trial for the reason that the verdict was against the law and the evidence. The bill of exceptions in this case was taken under the act in Yol. 75, Ohio Laws, page 668, sec. 5. This act is identical with the act of April 12, 1858 (S. & C., 1155) which the court passed upon in determining that it had the legal right to review the charge. M. $ Q. R. R. Oo. v. Strader, 29 Ohio St., 448; P. G. St. L. Ry. v. Porter, 32 Ohio St., 328. In such case the charge can be reviewed even though no exception was reserved thereto. Baker v. Pendergast, 33 Ohio St., 494.

      The court erred in using language in its charge which was calculated to lead a jury to infer a state of facts not warranted by the evidence, and which in fact were in dispute. (Thompson on charging the jury, sec. 47, and the various authorities cited.)
    The charge undeniably had a tendency and was calculated to influence the jury, and should be reversed. Washington Ins. Oo. v. Merchants Ins., 5 Ohio St., 450; Key v. Denney, 18 Ohio St., 254; L. M. JR. JR. Oo. v. Wetmore, 19 Ohio St., 110; MJowry v. Kirie, 19 Ohio St., 383 ; Schneider v. Hosier, 21 Ohio St., 98; Mulford v. Qlewell, 21 Ohio St., 191; M. $ O. JR. JR. Oo. v. Piclesley, 24 Ohio St., 654.

      A. JR. Dyrleett, also for plaintiff in error.

      Qraighead ‡ Oraighead, for defendant in error.
    There is no proper exception to the charge complained of. All that is shown by the record in reference to the matter is that “ the charge was reduced to writing, a copy of which is hereunto attached marked exhibit ‘ H.’ and made a part hereof — to which charge the defendant excepted.” This we insist is not sufficient. It is too general. It is unfair to the court and to opposing counsel. It does not inform either of the particular objection intended to be made, or of the reason for such objection. Adams v. The State, 25 Ohio St., 584, 587; Servis v. Stoclestill, 30 Ohio St., 419; Railway Oo. v. Probst, 30 Ohio St., 104; Powers v. Railway Oo., 33 Ohio St., 430.
    It is said however, that the want of a proper exception to the charge in this case is of no consequence, because the record shows all the proof, the charge of the court, and that a motion for a new trial, based partly on the allegation that the verdict was against the law and the evidence, was overruled, and exceptions thereto saved — and that, in such, case, the whole record, including the charge, whether excepted to or not, is open for examination.
    Within certain limitations this is true. It is admitted that, under such circumstances, the whole record may be looked into for the purpose of ascertaining — not merely whether the precise law was given in the charge or elsewhere — but whether, in view of everything connected with the case, error, to the prejudice of the complaining party has intervened. It is no difference what errors are found, the court will not disturb the judgment below unless the justice of the matter’clearly requires it; 10 Ohio St., 228. And, so far as the charge is concerned in such case, there is really nothing for review other than what we must assume was considered upon the motion for a new trial, under the general objection that the verdict was against the law; 32 Ohio St., 330.
   Dickman, J.

This case comes before us lipón a petition in error, to reverse the judgment of the district court affirming a judgment of the court of common pleas in favor of the plaintiff, in an action wherein Zelora Fleming, an infant by his next friend Silas W. Coble was plaintiff, and Benjamin Weybright was defendant. In the original petition, it was alleged, that the defendant was the owner and in possession of a heavily loaded wagon drawn by two horses, which by himself and his servant he managed so carelessly and negligently, as to cause the plaintiff, an infant aged four years, to be thrown with great violence from the brake of the wagon upon the ground, and to be run over by the wagon, whereby his right leg was broken and his person in other respects greatly bruised and wounded, and his health and strength permanently impaired. The plaintiff further alleged, that there was no negligence or carelessness on his part; that from the injuries he received he became and was sick for seventeen weeks, and suffered great bodily pain, and was forced to expend a large sum of money in endeavoiing to be cured of his pain and injuries; that notwithstanding his said endeavors, he still remained and would continue to remain a cripple for life — the result of the defendant’s carelessness and negligence.

The defendant denied each and every allegation in the plaintiff’s petition, except that the plaintiff was hurt and injured. Upon the trial in the court of common pleas, the jury rendered a verdict for the plaintiff, and assessed his damages in the sum of twenty-five hundred dollars, upon which judgment was entered.

Among the material facts in dispute before the jury, were the facts that the plaintiff had been crippled for life, that his health and strength had been permanently impaired, and that he would not consequently be able to perform man ual labor in the future as well as he would if the accident bad not occurred.

These facts the court virtually assumed to exist, and accordingly gave in charge to the jury, the following instructions:

“You may allow him (the plaintiff) for all the injuries and damages he has sustained, taking into consideration the expenses necessarily attending his illness and clisabilitj'-, for the services of physicians and others, and all other necessary expenses, the physical pain endured by.him and yet to be endured, the mental suffering arising necessarily out of his brooding over and dwelling upon the injury received, and its effect upon his future health and prospects; the effect of his injuries in the future; in depriving him of the use of his crippled limb; his certain inability to labor and attend to his affairs, and generally to pursue the course of life he might have done except for this disability, growing out of the defendant’s negligence. The plaintiff may recover, not only the amount of damage which he suffered prior to the commencement of the action, but-also all the damage, proceeding continuously from the injury complained of, either in body or in mind, which he has suffered up to the verdict, and which it is reasonably certain, that he will suffer in the future, naturally and necessarily arising from the injury received by him.”

In thus charging the jury we are of opinion that the court erred, and that the charge was prejudicial to the plaintiff in error.

Without intimating an intention on the part of the court to bias the jury, we are constrained to the belief, that the aforegoing portion of the charge, alone and in connection with the remainder thereof, tended to mislead and bias the jury in favor of the plaintiff, and to impress upon them as proven, material facts in the case that were in dispute.

It is contended by the defendant in error, that the exception by the defendant to the charge of the court was a general one, and therefore not sufficient. The exception it is true was not special. But the record shows, that a motion for a new trial was made on the ground that the verdict was against the law and the evidence, and that the overruling of that motion’was assigned for error; and that all the evidence offered on the trial, together with the charge of the court, has been properly brought up by a bill of exceptions. When such is the case, a reviewing court will, in connection with the evidence, look to the chaz-ge of the court, whether excepted to or not; and if there is reason .to believe that the verdict was the result of erroneous instructions, will reverse the judgment and award a new trial. Baker v. Pendergast, 32 Ohio St., 494, approved and followed.

Judgments reversed, and cause remanded.


author: Nash, J.

text:
    Cummings v. Fitch.
    1. In 1871 tlie city council of T. was authorized to levy, not to exceed fifteen mills on the dollar, for all municipal purposes. On the twenty-fourth of May, 1871, said council passed an ordinance making a levy of fifteen mills for such purposes. On the nineteenth of June following, said council passed another ordinance levying two mills additional for the purpose of creating a sinking fund, for the payment of bonds issued for the construction of the Toledo and ’Woodville railroad.

      Held: The ordinance of May twenty-fourth was valid, but, in passing it, council exhausted its power. The ordinance of June nineteenth was void, but this void act did not invalidate the previous ordinance which was within the power conferred by statute upon said council.
    2. In 1874 the council of said city had the same power in levying taxes as in 1S71. On June first, of said year, it passed an ordinance making levies for various purposes, authorized by law, amounting to ten and five tenth mills. On June eighth, having no longer power to levy exceeding four and one half mills, it passed another ordinance levying sixteen mills additional.

      Held: The first ordinance was valid, and the second ordinance was entirely void. The levy made by it was in excess of the jurisdiction of the council, and was as deficient in legal competency as if made without any authority whatever.
    Error. Reserved from the District Court of Lucas County.
    The defendant in error, John Fitch, was the owner of a large number of lots of land in the city of Toledo, and also of certain tracts of land in Lucas County, Ohio. The petition which was filed in the court below on the 16th of August, 1876, recited that said lands stood charged upon the tax duplicate of Lucas County for the year 1875, with taxes and assessments amounting in the aggregate to $24,-233.64, and that said taxes and assessments were long past due and unpaid. The petition was filed by the Treasurer of Lucas County, by virtue of an act of the General Assembly of Ohio, passed April 11, 1876, (73 O. L. 218) and he asked that the defendant be ordered to pay the said taxes and assessments within a day to be named by the court, with interest from June 20, 1876, and in default thereof, that an order be issued for the sale according to law, of said several lots and parcels of land, or so much thereof as should be necessary to satisfy and pay said taxes, and assessments and interest and costs.
    The defendant, Fitch, filed his answer on the 25th of November, 1876, and afterwards, on the 28th of May, 1878, an amendment to said answer. In these papers forty-one separate defenses were set up.
    The issues were made up by a reply to these defenses. William A. Collins was appointed a referee, on the 10th of April, 1877, to try the issues both of law and fact arising between the plaintiff and the defendant, and was ordered to report “ his findings of fact and decisions thereon to the court.”

      The report of the referee was filed on the loth of March, 1879. Exceptions were taken by the plaintiff and the defendant, to the conclusions and opinions of law given by the referee, based upon the facts as found by him.
    On the same day, March 15th, 1879, the plaintiff and the defendant moved the Court of common pleas for an order setting aside and vacating tire report and decree of the referee and for a new trial, which motions were overruled and judgment thereupon entered on the report, to all of which exceptions were taken by both parties.
    On the 9th of April, 1879, the said plaintiff filed in the district court, a petition in error, to reverse the judgment and decree of said court.
    On the 29th of April, A. D., 1879, on motion in the district court, the case was reserved to the supreme court for its decision upon the matters involved therein.
    In the petition in error it is claimed :
    1st. That the referee in said cause erred in his conclusions and opinions of law upon the facts found by him in his several findings, including amounts as shown in his report attached hereto, and which several findings are specifically referred to by numbers in the exceptions made by plaintiff, noted in said report to which reference is made.
    2d. That the referee erred in refusing the motion of the said plaintiff to set aside his report and grant a new trial therein.
    8d. That the court erred in refusing the motion of plaintiff to set aside the report of said referee and grant a new, trial in said cause.
    4th. That the court erred in approving and confirming the said report of said referee.
    5th. That the referee and court erred in their decisions upon the several amounts due upon the several pieces and parcels of property set out and described in the schedule in the report of the referee.
    6th. That the judgment given in favor of the plaintiff, treasurer of said county, against said defendant, John Fitch, should have been, according to the law of the land, for larger amounts than was found due therein.

      Haynes $ Potter for plaintiff in error.
    Claimed that the levy which is legal, if separable from that which is illegal, should be held valid. Mix v. People, 72 111., 242 ; O'Hone v. Treat, 25 111., 557 ; Briscoe v. Allen, 43 111., 291; State v. Allen, 43 111., 456; Allen v. Railroad, 44 111., 85; People v. Nichols, 49 111.,517 ; Cooley on Lim. 521, note 3; Conway v. Yrukin, 28 Iowa, 295; Bond v. Kenosha, 17 Wis., 296.

      Everett Cone for defendant in error.
   Nash, J.

The referee erred in some of the findings about which complaint is made by the plaintiff in error, and in others he was correct. It is only necessary for us to review those which were erroneous.

The referee found that in the years 1869 and ’70, the commissioners of Lucas County, each year, levied two mills on the dollar for roads and bridges, and that said commissioners were without authority to do so.

The act of March 9, 1868, (65 O. L., 14) was in force during those years. Section 17 of said act authorized commissioners in counties, where the taxable property exceeded ten million dollars, and was less than thirty million, to levy at their March session not less than two-tenths of a mill, nor more than two mills for road and bridge purposes. In 1869 the aggregate valuation of real and personal property in Lucas County for taxation, was $12,435,480, and -in 1870 $20,990,480.

The levies made by the commissioners of Lucas County for road and bridge purposes, in 1869 and ’70, were within the authority of this act.

In each of the years 1869, 1870, 1871, 1872 and 1873, the commissioners of Lucas County levied five-tenths of one mill for a special bridge fund, and these levies the referee pronounced illegal,. The act of May 4, 1869, (66 O. L., 96) provides, among other things, that in case any important bridge or bridges, belonging to, and maintained by any county, shall be destroyed by any casualty, and the restoration thereof is necessary for public accommodation, the commissioners may levy a special tax for that purpose, not exceeding one-half mill on the dollar of taxable property of such county, the proceeds of which tax shall be applied solely to the restoration of such bridge or bridges. The referee found that the commissioners did not specify for what particular bridge or bridges, destroyed, these levies were made.

The county commissioners were clothed with power, each year, after finding that a certain state of facts existed, to make a levy not exceeding one-half of one mill. They were officers acting for the benefit of the general public, and having made the levy, we must presume that they found the precedent facts to exist, until the contrary is shown. The report of the referee did not show that such facts did not exist, and he erred in pronouncing the levies void, without evidence overthrowing this presumption in favor of the commissioners.

In the year 1870 the Commissioners of Lucas County levied one and five-tenth mills “ for infirmary,” and this levy the referee found to be five-tenths of a mill in excess of their power. In this matter there is a lack of fullness of statement on the part of the referee.

The act of May 4, 1869, authorized commissioners in counties having a tax duplicate of the size of that of Lucas County in 1870, to levy one and five-tenth mills “for the purpose.of building public county buildings and purchasing sites therefor, and lands for -infirmary purposes.” Infirmary buildings are “ public county buildings.” If this levy was for the purpose of building infirmary buildings, or purchasing sites therefor, it was within the power of the com-j missioners. If it was for any other purpose the finding of the referee was correct.

On the 24th of May, 1871, the city council of Toledo passed an ordinance, by which an aggregate levy of fifteen mills was made for various purposes of the city government. By section 648 of the municipal code, as amended May 2, 1871, (68 O. L., 135) the aggregate of all taxes levied or ordered by any corporation- over and above the tax for county, state, school, and school-house purposes, could not exceed in any one year, in a city of the first-class, having a population of over thirty and less than eighty thousand inhabitants, fifteen mills on the dollar.

On the 19th of June, 1871, by another ordinance, the council of Toledo in addition to the levy of May 24, attempted to make a levjr of two mills, to provide a sinking fund for the redemption of certain bonds issued by the city of Toledo, and known as the Toledo and Woodville railroad bonds. This made the aggregate levy of the city council of Toledo, for all purposes in 1871, seventeen mills. This ordinance and levy was clearly void. Ohio ex rel etc., v. Humphries Auditor, 25 Ohio St., 520. Because of this the referee declared the ordinance of May 24, and the levy made thereby, illegal. In this he erred. The attempt of council, after having exhausted its power, to make another levy, did not invalidate its action previously taken within the scope of its power.

The proposition, which we have announced in paragraph four, will govern in the matter we are about to examine. On the 20th of May, 1872, an ordinance passed the council of Toledo, making a total levy of fifteen mills for the purposes of the city government. On the same day another ordinance passed, making a levy of one and five-tenth mills, for Toledo and Woodville railroad bonds. A third ordinance was passed on the same day, making a levy of one mill for water works bonds. The referee does not inform us which ordinance was acted upon first by the council. We infer that they were acted upon in the same order as mentioned in the referees report. If so, the council acted with authority, when it made the ordinance creating the levy of fifteen mills, and wholly without authority when it acted upon the other two ordinances. The first ordinance was valid. The other two were void.

On the 2d of June, 1873, the council of Toledo passed an ordinance levying fifteen mills for city purposes. On the same day, and afterwards, said council passed three other ordinances, levying two, two and five-tenths mills respectivety. Applying the rule heretofore laid down, the first ordinance was valid, and the last three were void.

The levies made by the city council of Toledo in 1874, present another question. On the first of June, the council by ordinance, made a levy of ten and five-tenths mills, for the pui'poses following :

MXLI.S.
For interest on floating debt bonds, - - 1.0
For sinking fund, .... 3.0
For Toledo and Woodville R. R., ... 2.0
For water works, .... 40
For public library, ..... 0.5
Total, ..... 10.5
By another ordinance passed June 8, the council made a levy of sixteen mills, for the purposes following :
MILLS.
For general fund, ..... 2.00
For fire department, .... 3,00
For infirmary, ..... 0.55
For bridges, ..... 0.50
For sanitary and street cleaning, ... 0.50
For street improvements and repairs, - - 2.30
For interest, - - - - - 3.25
For corporation lighting, - - • - 0.40
For police department, .... 2.00
For house of refuge, .... 0.50
For general river fund, - - - 1.00
Total, ..... 16.00

At the time of the passage of the first ordinance, the city council of Toledo had power to make a levy not to exceed fifteen mills for all purposes. ■ The first ordinance was valid, but it exhausted the power of council, except as to four and one-half mills. Possessing this limited power, council attempted on the 8th of June, to make a total lev3r of sixteen mills, mentioned above. The ordinance of June 8 was wholly void. The levy attempted to be made was in excess of the jurisdiction of the council, and was as deficient in legal competency as if made without any authority whatever.

Judgment of the court of common pleas reversed.


author: Grander, C. J.

text:
    Thomason et ux. v. The City of Dayton.
    1. A recital in a deed made by one of two tenants in common, to a stranger, referring to the joint estate as a street bounding the land conveyed by said deed, cannot affect any right of the other tenant in common, although the grantor, afterwards, conveys her share of the joint estate to said co-tenant, who then sues to recover the entire joint estate.
    2. Such recital will not estop the plaintiff in such suit.
    3. A city, that, before the making of said first deed, had unlawfully seized said land and improved it as a street, can neither use said recital to estop the plaintiff, nor defeat her recovery because, for a time, inconvenience to the public will result therefrom.
    Error to the District Court of Montgomery County.
    The city of Dayton, in 1852, unlawfully took possession of a parcel of land, improved it as a street and has ever since continuously used it, as such street. From 1847 to August 8, 1876, Matilda Pickell, a married woman, held a life estate in said land, and her daughters, Ann E. Shartel and Mary C. Shartel (afterwards Thomason), as co-heirs of their father (Mrs. Pickell’s first husband), owned the fee simple in remainder. In 1854, Ann, by warranty deed, for a valuable consideration, conveyed to .one A. B. Johnson, his heirs and assigns, a parcel of land adjoining the premises in controversy, and described the parcel so conveyed as bounded by the north line of said street, naming it. Johnson sold his said parcel, in lots, to purchasers for value, who built dwellings thereon, and used said street as the only access to their homes, other than an alley in rear of their lots.
    The other daughter, Mary, became of age February 27, 1858, and, on April 7, 1858, for one hundred dollars, conveyed to her mother a parcel of land, describing its south line as parallel to said Chestnut street, and forty feet northward from it. Mary on April 8, 1858, married William W. Thomason. On November 4, 1876, her sister Ann made to Mary a quit claim deed, for certain land, including the premises in controversy. On March 15, 1877, Mary and her husband brought suit against the city of Dayton to recover possession of so much of said street as lay upon the land so inherited by and conveyed to her. The city answered denying her title and right to possession; set up the twenty-one years statute of limitations as a bar; and, by way of cross petition, alleged title in the city by “ open, notorious, continued and adverse possession for more than twenty-one years prior to the commencement of this action,” and prayed a decree quieting the city’s title “ for street purposes.”
    On trial the jury having found for the plaintiffs, the superior court overruled a motion for a new trial and gave judgment that the plaintiffs recover the land in controversy. A bill of exceptions embodying all the testimony was duly taken, and a petition in error filed in the district court. That court reversed the judgment and remanded the cause for a new trial. The plaintiffs ask this court to reverse the action of the district court.

      Q-eorge W. Malamhre, for plaintiff in error.
    1. There is no estoppel against any one in favor of the defendant. Bigelow on Estoppel, 252, 442; 2 Smith’s Lead. Cas., 584; Hermon on Estoppel, 18, 234, 239; 4 Comyn Dig., 203; Coke Litt., 352; 3 Bacon’s Abr., 442, 444.
    2. Washburn on Real Property, 466, 467,'487; Lamar v. Turner, 48 Geo., 329; Mackey v. Coates, 70 Pa. St., 350; Chope V. Loman, 20 Mich., 327; Simpson v. Pearson, 31 Ind., 1; Wilder v. St. Paul, 12 Minn., 192; 8 B. Monroe, 237; 8 Ohio St., 446; Walrath v. Bedfield, 4 Smith, 457; Sornbeck v. Westbrook, 9 John., 73; Clark v. Owens, 4 Smith, 434; Borst v. Corey, 16 Barb., 136, 138; 2 Coke Litt., 476;
      Ford v. Gray, 1 Salk.,- 285 ; 6 Mod.., 44; 1 Saunders PI. & Ev., 42, 43; JeioellY. Harrington,19 Wend., 471; Sunderlin y. Struthers, 47 Pa. St., 423; Deery y. Cray, 5 Wallace, 803 ; 1 A. K. Marshall, 494, Kercheval v. Triplett; Allen y. Allen, 45 Pa. St., 468, 473; HoltY. Sargent, 15 Gray, (Mass.), 102; Walreth v. Redfield, 18 N. Y., 457; 3d Grant Cas., (Pa.), 177; 16 Cal., 100; Lansing v. Montgomery, 2 Johns., 382; Bolling y. Mayor, 3 Rand. (Va.), 563. Estoppels bind only parties and privies, and can be taken advantage of only by those who are bound by them; and to be binding they must be mutual. Griffin v. Richardson, 11 Ired. (N. C.) L., 439; Nutioell v. Tongue, 22 Md., 419; Williams v. Chandler, 25 Texas, 4 ; Braintree v. Hingham, 17 Mass., 438; Worcester y. Green, 2 Pick., 425 ; Langer v. Filton, 1 Rawle, (Pa.), 141; Griggs v. Smith, 12 N. J. L., (7 Hals.), 22; Willdns v. Dingley, 29 Maine, 76.
    There can be no estoppel where there is no privity of estate. Langston v. McKinnie, 2 Murph., (N. C.), 67. A stranger is not bound by, nor can he take advantage of an estoppel. Massure v. Noble, 11 111., 531.
    A deed creates no estoppel, except between those who are parties to it. Glidden v. Unity, 30 N. H., 104; Cottle v. Sydnor, 10 Mo., 763; Miller v. Holman, 1 Grant (Pa.)Cas., 233; Weidman v. Kohr, 4 Serg. & Rawle, 174; Schuman v. Garrett, 16 Cal., 100; Hempstead v. Bastón, 33 Mo.,. 143; 44 N. H., 71, Greeny. Davis; 32 N. Y., 455.
    It has been repeatedly decided in Ohio that as there-must be mutuality in an estoppel, one not a party to the instrument or the transaction, can not set it up. Kitzmiller y. Rensselaer, 10 Ohio St., 63; Holt v. Lamb, 17 id., 374,. 387 ; Bradford v. Beyer, 17 Id., 395; 24 Id., 150, 163, 164,. 165; 14 Id., 102, 240; 8 Id., 445-6.
    A stranger to the deed can derive no benefit from it-.. Rice y. Tavenier, 8 Minn., 279; 5 Johns., 500; Dawson v.. St. Paul Ins. Co., 15 Minn., 109, 136.
    In a writ of entry, it is not competent for .the tenant to give in evidence a deed from the demandant or his ancestor, made after the disseisin committed, to a stranger. Walcot v.
      Knight, 6 Mass., 417 — 421; Williams v. Jackson, 5 Johns., 491, 501.
    2. There is no estoppel in favor of any one against the plaintiffs, because of the nature of the tenancy in common. Walcot v. Knight, 6 Mass., 417,421; Washburn on Easements, 89, 90, 152, 156; 17 Ohio St., 375 — 386; State v. Atherton, 16 N. H., 280; Washburn on Easements, 36, 37, 180; Scott y. State, 1 Sneed, 629; Watkins y. Peck, 13 N. H., 360, 381; 15 Conn., 423; 28 Id., 183.
    3. As to the rights of a tenant in common, see Carpenter y. Webster, 20 Cal., 150; Mahoney y. Van Winkle, 21 Id., 555; 15 Id., 183; 19 Id., 617; 21 Id., 633; 27 Id., 524; 35 Id., 576.
    One tenant in common cannot, without authority from his fellows, make a lease that will bind them. Mussey v. Holt, 24 N. H., 248; Burnham y. Porter, 24 Id., 570; 27 Id., 550, Moulton y. Robinson; WhittonY. Whitton, 38 Id., 133; 4 Conn., 495; 5 Id., 363; Creat Falls Co. y. Worcester, 15 N. H., 414; 28 Wis., 108; Marks y. Sewall, 120 Mass., 174; Painter v. Cole, 120 Id., 162; 4 Gray, 486; 99 Mass., 248; 9 N. H., 502; 7 Cush., 369; 21 Pick., 283; 2 Ohio, 113 ; 6 Id., 398 ; 9 Id., 130; 13 Id., 547.
    4. No part owner can create an easement in land. Wash-burn on Easements, 2d ed. sec. 3, chap. 1, page 37; Port-more y. Bunn, 3 Dowl. & R., 145; Collins y. Prentice, 15 Conn., 423; Marshall y. Trumbell, 28 Id., 183; Watkins y. Peck, 13 N. H., 360, 381; State y. Atherton, 16 Id., 280; Washburn on Easements, 2d ed. p. 180; Creen y. Chelsea, 24 Pick., 71; Child v. Chappel, 5 Seld., 256; Scott v. State, 1 Sneed., 629; Sehenly v. Com., 36 Penn. St., 29; Ward v. Davis, 3 Sand., 502; Centleman y. Soule, 32 111., 279; State y. ■Atherton, 16 N. H., 208; 8 Ohio St., 446; 4 Smith, 460; 12 Minn., 202-3; 19 Wend., 371; 47 Penn. St., 423; 18 N. Y., 457; 15 Gray, (Mass.), 102; 1 A. K. Marshall, 494; Watkins y. Peck, 13 N. H., 377-8; Mabie y. Mattison, 17 Wis., 1; and the California cases cited under the head, “ The right of a Tenant in Common.”

      Alvin W. Humler, city solicitor, and A. A. Thomas, for defendant in error.
    1. The grantees of Ann E. Shartell are estopped from claiming that Chestnut street is not a street as described in said deed. Dillon on Mun. Corp., § 503; WieJcliffe v. Gity of Lexington, 11 B. Mon., 162; Wisby v. Bronte, 19 Ohio St., 238; Roioen's Bxrs.y. Portland, 8 B. Mon., 236-7; Stone v. Broohs, 35 Cal., 491; Wyman v. Mayor of New York, 11 Wend., 487.
    2. The city after use, and in possession, may take advantage of and claim all such rights of estoppel held by private owners.
    See cases above cited, particularly Wisby v. Bronte, 19 Ohio St., 238.
    We do not claim that one joint owner, as to his co-tenant’s interest, or so as to affect his co-tenant’s interest, can cast any burden or servitude on a joint estate by grant. But we claim that while he can not affect the joint estate by grant, or estoppel, either, he may affect his own interest in a joint estate, by grant or estoppel. Suppose he had power to pass no such interest by grant, one may frequently be estopped to deny that he has done that which in fact he had no power to do. The co-tenant’s interest is still an undivided half of this ground unaffected by street uses; but he can onty acquire from the other the undivided half, subject to whatever burdens may have been previously imposed upon such estate. Otherwise, Mrs. Swaynie may get, in the conveyance to Johnson, by the enhanced price' received, the value of this ground, and get paid for the same thing a second time by her conveyance to plaintiff below — which is a fraud. By the rule, as we claim it, no injury is done the co-tenant, and justice is meted out to all parties. Wendell et al. v. Belano, 7 Metcalf (Mass.), 179; Varnum v. Abbott, 12 Mass., 475 ; Rising v. Stannard, 17 Id., 282; Bartlett v. Harlow, 12 Id., 348 ; White v. aSayre, 2 Ohio, 110; 6 Id., 392 ; 9 Id., 126.
    3. That when real estate has in fact become a necessary and connecting part of a public highway, and has been improved and is occupied as such, the owner of the property can not break the continuity of the highway by ousting the public from the possession of such real estate in an action of ejectment; he is remitted and limited in such case to an action for damages, the measure of damages being the value of the property. Coodwin v. Canal Co., 18 Ohio St, 179; Cooley on Torts, 45 ; B. X. & B. B. B. Co. v. Lawton, 20 Ohio St., 412.
   Grander, C. J.

The record shows a clear title in Mary Thomason, and the plaintiffs must recover unless she is estopped by her own deed to her mother, or by her sister’s deed to Johnson.

' Less than forty days after she became of age, she conveyed to her mother a lot in a growing and prosperous city, having a street front of almost one hundred and fifty feet and a depth almost equally great, for the small sum of one hundred dollars. As Mary was an infant when her father died, the grantee in this deed was the parent who had controlled her childhood and youth. In favor of such a grantee the recital referring to Chesnut street will not be permitted to estop such a grantor, without proof that the latter used that recital with knowledge of her title to the ground covered by the street, and of all the material facts bearing thereon. We do not say that even then such a recital would have any effect as an estoppel.

Ann’s deed to Johnson conveyed to him no interest or estate in any of the land in controversy. Equitably, as some courts of repute have held, Ann would be estopped from preventing the use of the street by Johnson and his grantees. But it is well settled that Ann’s deed cannot, in any way, lessen Mary’s rights as a co-heir. As Mary owned as heir of her father one-half of every inch of the ground, the land cannot be used as a street without confiscating Mary’s undivided half of the land.

Estoppels of this kind are based upon equitable considerations. But no equity against Ann can be used to destroy Mary’s inherited estate. Hence, when the court, whose aid is sought to enforce the estoppel, discovers that it is impossible to sustain it without, at the same time, depriving Mary of her clear legal rights, it finds itself without power to grant the aid sought for.

We think Mary did not lessen her rights by accepting a quit claim deed from Ann. That occurred long after the city had completed its expenditures on the street, and after Johnson and his grantees had built upon their lots. If Ann had conveyed to Johnson by metes and bounds a part of the ground within the street, her deed would have vested him with a title to the undivided half of the parcel so conveyed ; the courts holding, rightly, that in such a case no right of Mary would be affected. But an examination of the cases will show that conveyances by one owner of an undivided interest are upheld only so far as they do not injuriously affect the rights of the holders of the other undivided shares. Certainly an estoppel cannot accomplish what a deed could not do.

It is claimed, by the city, that great inconvenience to the public, and to the dwellers on the Johnson lots, will be caused by a judgment restoring to the plaintiffs possession of the ground, and that, therefore, no such judgment should be rendered. This fact does not constitute a defense to Mary’s legal claim. If it possesses any available merit, it could do no more than support an application, properly made, asking the court to delay execution. But, of course, in such case, the applicant must offer to do, without delay, everything that, on equitable principles, ought to be done to make full amends to Mary.

The judgment of the district court is reversed, and that of the superior court affirmed.


text:
    Bever v. Beardmore.
    W. B. took judgment in the court of common pleas for more than was due against J. B., the principal and others, liis sureties, on warrant of attorney. The defendants were not summoned or otherwise legally-notified of the time and place of taking the judgment. In a proceeding at a subsequent term of the court, to vacate the judgment on account of its excessive amount, by petition under section 536 of the code (S. & C. 1115), brought by J. B. alone against W. B. alone, within the statutory limit of one year after he had notice of the judgment ; and in which proceedings the sureties were made parties, but not until more than a year had elapsed after each of the judgment defendants had notice of the judgment, Held: It is error to dismiss the proceedings, on motion of the judgment creditor, for an alleged want of jurisdiction in the court.
    Error to the District Court of Monroe County.

      J. P. Spriggs and John. W. Doherty for plaintiff in error.
    A proceeding to vacate a judgment is not a civil action. Taylor v. Fitch, 12 Ohio St., 169. As to what is an adverse party, see Fitzgerald v. Cross, 30 Ohio St., 204.
    It is claimed, however, on the authority of the cases of Smetters and Harris v. Rainey et al., 13 Ohio St., 568, and 14 Id., 287, that Mann, Booth and Foreaker were necessary parties, but we think a careful examination will show that the cases referred to are not analogous to the present one, and that they are not necessary parties in this case.
    The court in those cases state three reasons why all the judgment debtors should be parties to the proceeding to reverse the judgment: 1. “To prevent a multiplicity of
    suits.” 2. “ To protect the interest of those jointly bound in the judgment;” and 3. “To secure the judgment credit- or against unreasonable delay and expense in enforcing his judgment.”
    Not one of these reasons exist in the present ease, for
    1. The statute of limitation had already expired as to Mann, Booth and Foreaker, hence there was no danger of their commencing a separate action.
    2. The co-juidgment debtors could not be placed in a worse condition by vacating or modifying the judgment as sought, for it was already paid off and cancelled as to them; and
    3. The judgment creditor could not be unreasonably delayed in enforcing his judgment, for it was already paid off and discharged.
    The reason for the rule as expressed in those cases having no application to this case, we think is a sufficient reason why the rule itself should not be applied.
    But the court found there was a defect of parties, and on leave of court, the petition was amended, and Mann, Booth and Foreaker were made parties — see section 40 of the code —and as their consent to be made parties had not been obtained, they were made defendants — see section 36 of the code.
    “ The petition may be amended and new parties made.” Knox County Bank v. Doty et al., 9 Ohio St., 505; Biddle, Rutland Kendy v. Canhy et al., 4 W. L., 124, and cases there cited; Smetters and Harris v. Rainey et al., 13 Ohio St., 568, and 14 Ohio St., 287; Bradford v. Andrews et al., 20 Ohio St., 208.
    If the action was not barred when Bever filed the original petition against the defendant Beardmore, and obtained service on him, the action was not barred when service was obtained on Mann, Booth and Foreaker, on the amended petition, for if the right of action was saved to one it was saved to all. See Wilkins et al., v. John Philips, 3 Ohio 40, in which the court say, “ Where one party to a writ of error is within the saving clause of the statute of limitation, the case is saved as to all the parties.”
    This case is settled in law, and is cited and approved in Moore v. Armstrong, 10 Ohio, 17; Messe v. Keef ?, Id., 364; Massie’s Heirs v. Matthews’ Hx., 12 Ohio, 353; Sturges v. Longworth, 1 Ohio St., 562; Trimble v. Longworth, 83 Ohio St., 442 ; Wells v. Childs, 17 Ohio St. R., 319 : Bradford v. Andrews, 20 Ohio St. R., 208; Buckingham v. The Commercial Bank of Cincinnati, 21 Ohio St. R., 131; Riddle Parker v. Roll et al., 24 Ohio St. R., 572; and Miller et al., v. Longaere, 26 Ohio St. R., 291.

      It is claimed, however, that a departure from the rule laid down in the case of Willcins v. Philips, 3 Ohio. 49, hereinbefore referred to (and the numerous cases citing and approving the same) was made in the case of Smetters Harris v. Rainey et al., 13 Ohio St. R., 568, and 14 Ohio St. R., 287, and the case of Jones v. Marsh, 30 Ohio St., 20, and that these cases are decisive of the present case.
    There are, we think, some marked distinctions between the cases of Smetters Harris v. Rainey et al., and the present case.
    1. The judgment in that case was founded on a joint obligation, and in this case the obligation was several as well as joint.
    ■ 2.' In that case the plea of limitation was interposed by one of the judgment debtors, who had an interest in sustain-' ing the judgment, and who had been made a party after the limitation had expired. In the present case, the judgment debtors who were made parties after the limitation had expired, make no objection to the vacation of the judgment, and the judgment creditor undertakes to plead the limitation for them.
    3. In that case the proceeding was in error to reverse the judgment, and perhaps, ultimately release one or more of the judgment debtors from all liability on the judgment, and thereby change the liability of the endorser, Dildine. In the present case it is only sought to modify the judgment, by requiring the judgment creditor to refund the usurious interest included in the judgment, and paid by mistake.
    “ The plea of the statute of limitations is a defense not to be favored.” Sheets v. Baldwin's Ad'mrs, 12 Ohio, 120; Bradford v. Andrews, 20 Ohio St., 208, per Judge Welch, page 220.
    We think the cases of Smetters Harris v. Rainey et al., go to the very verge, and should not be extended further; for while they have been cited and approved in so far as who are necessary parties, in 16 Ohio St., 284, 288, and 21 Ohio St., 320, 629, and in Jones v. Marsh, 30 Ohio St., 20, as to the right to plead the statute of limitation they seem to be a departure from the case of Wilkins v. Philips, 4 Ohio, 46; and the cases hereinbefore referred to citing and approving the same, decided before the decision of this case; but since these decisions a different doctrine, as to the limitation, has been held in the case of Wells y. Childs, 17 Ohio St., 319; Bradford, v. Andrews, 20 Ohio St., 208; Buckingham v. The Commercial Bank of Cincinnati, 11 Ohio St., 131; Btiddle Parker v. Roll, et al., 24 Ohio St., 572, and Fitzgerald v. Cross, 30 Ohio St., 444.

      Wm. Okey ¿f- Son and David Okey for defendant in error.
    As to who are necessary parties.
    The judgment in this case was joint; (Hempy v. Ransom, 33 Ohio St., 312, 316; Roby v. Rainsberger, 27 Ohio St., 674,) and the rule is well settled that all the defendants to a joint judgment are necessary parties to a petition filed by one of their number to reverse or modify it. Smetters

      Harris v. Rainey, 13 Ohio St., 563; same, 14 Ohio St., 287; Jones y. Marsh, 30 Ohio St., 20 ; Buckingham v. Bank, 21 Ohio St., 131; Robinson v. Orr, 16 Ohio St., 284-288; Wood Co. y. Junkins, 19 Ohio St., 348; Hammond y. Hammond, 21 Ohio St.,'620; Tod v. Stambaugh, 37 Ohio St., 469.
    As to the question of limitation:
    The time limited for filing a petition to vacate a judgment (old code, § 541) is rather a condition qualifying the right of action, than a mere limitation on the remedy. Railway v. Hiñe, Adm'r, 25 Ohio St., 629 ; Schooner Mar■inda v. Dowlin, 4 Ohio St., 500.
    There is no saving to any one under the limitation of sub-division 9, section 534. The proceeding must be commenced within the time limited, and not after § 541.
    The question made in the record is probably more strictly a question of jurisdiction, than of limitation.
    The original petition filed by Bever against Beardmore alone, was defective, and was bad on general demurrer.
    The authorities in this class of cases, in effect sustain the proposition, that whenever a general demurrer would have been well taken, the court would have no jurisdiction over the subject matter of the action. Smetters $ Harris v. Rainey, 14 Ohio St., 287; Jones v< Marsh, 30 Ohio St., 20.
    The right to amend the petition, and make new parties, under proper circumstances, is conceded. But before such .amendment can be made, the court must have acquired jurisdiction of the subject matter. See two cases last above cited.
    Now, the power to bring in additional parties under section 5013, R. S., (old code, § 40) does not apply where the plaintiff's right to maintain the action depends on the presence of such additional party. Nor, it seems, does § 5114 apply, though the statute of limitations has run in the meantime. Pomeroy Rem. and Rem. Rights, § 420, discussing the provisions of section 122, of the N. Y, code, which are the same as § 5013, R. S.^
    But aside from the question of the right to add new parties by amendment, we insist that the amendment to the petition making Mann, Foreaker and Booth parties, after the expiration of the time limited in which either of the defendants in the judgment could have filed an original petition, does not cure the defect in the original petition, and confer jurisdiction to vacate the judgment. Smetters Harris v. Rainey, 14 Ohio St., 287; Jones v. Marsh, 30 Ohio St., 20; Robinson v. Orr, 16 Ohio St., 285.
    But it is said by counsel for plaintiff in error, that the authority of Smetters ¡f- Harris v. Rainey, Supra, was disapproved in the case of Bradford v. Andrews, 20 Ohio St., 208. The disapproval, however., is a mere dictum. The case was a will contest, in which the statute made special saving to certain persons. The cases are not identical, and so stated by Judge Welsh, p. 220.
    And the same learned judge, who delivered the opinion in the case of Buckingham v. Bank, 21 Ohio St., 131, — a case somewhat analogous to the case of Smetters $ Harris v. Rainey, — makes no reference whatever to either of the above cases.
    It will be observed that the case of Smetters Harris v. Rainey, 14 Ohio St., has frequently been cited as authority since the decision of Bradford v. Andrews.

      See Hammond v. Hammond, 21 Ohio St., 627; Jones v. Marsh, 30 Ohio St., 20 ; Hempy v. Ransom, 33 Ohio St., 319; King v. Bell, 36 Ohio St., 468; MeKinstry v. Threw, decided on motion, on authority of Smetters Harris v. Rainey, 14 Ohio St., December term, 1877, and not reported.
    It will also be observed that the learned judge, who delivered the opinion in the case of Smetters Harris v. Rainey, also delivered the lengthy and able opinion of the court in the case of Trimble v. Longworth 13 Ohio St., 431, in which he brings in review the following cases cited by counsel, as authority for plaintiff in error:

      Wilkins v. Philips, 3 Ohio; Meese v. Keefer, 10 Ohio; Massie's Heirs v. Mathews, 12 Ohio; Kay v. Watson, 17 Ohio; Sturgess v. Longworth, 1 Ohio St., Moore v. Armstrong, 10 Ohio.
    In these cases, the rule that “ if the right of action is saved to one it is saved to all,” was followed and approved. The counsel for plaintiff in error attempts to apply this rule to the case at bar, but it is evident that the learned judge, who delivered the opinion in Smetters Harris v. Rainey, and who had recently so ably reviewed the authorities, did not regard the rule as applicable in that case, for not one of the cases is cited in the opinion.
   Martin, J.

Plaintiff in error, Bever, was plaintiff below. In the common pleas his petition was dismissed, and on error the district court affirmed the judgment. To reverse this judgment of affirmance this case is here. The object of the proceeding in the common pleas, was to vacate a judgment rendered at a former term of the same court of common pleas, as provided in section 536 of the code (S. & C., 1115). The judgment was taken on warrant of attorney in favor of the defendant in error, Beardmore, against plaintiff herein and Abram Mann, William Foreaker and John Booth, his sureties, and without legal notice to them of the time and place. It was rendered jointly against them all on joint and several promissory notes, and was subsequently paid by tbe sureties who had notice of the judgment about the time it was taken. The ground assigned was, under the 9th sub-division of section 134, that it was taken for more than was due. The petition was filed more than a year after the rendition of the judgment, and alleged that the plaintiff first had notice of the judgment within the year next before the filing. The sureties were not made parties to the original petition. They were subsequently brought in as defendants, and the case was heard on a second amended petition, embodying in substance the foregoing facts, and an answer and reply. The sole issue was whether the proceeding was barred under section 541 of the code, which provides that it must be commenced within one year after the defendant has notice of the judgment. On the hearing the common pleas made special findings and judgment as follows :

“ This cause came on for hearing, and was submitted to the Court on the pleadings and evidence. And the court being fulty advised in the premises, on the request of the plaintiff that its conclusions of fact be stated separately from its conclusions of law, with a view to excepting to the decision of the court upon the questions of law involved in the trial, finds as its conclusions of fact, that there was included in the notes upon which judgment was taken by confession, a large amount of usurious interest, and that the plaintiff John Bever was the principal in said notes, and the defendants,. John Booth, Abram Mann and William Foreaker were his sureties only, which was known to the said William Beardmore, at the time he received and accepted said notes and powers of attorney. And that said defendants had a valid defense to said notes upon which said judgment was taken by confession, to the amount of the usurious interest included therein, amounting to several hundred dollars ; and the court further finds that the defendants, Mann, Foreaker and Booth had notice of the rendition .of the judgment upon confession, at or about the day of its rendition. That at the date of the execution of the note and warrant last mentioned in the petition upon which said judgment was taken, to wit: January 24, 1874, it was agreed between the said John Bever, William Beardmore, Abram Mann, William Foreaker and John Booth, that judgment should be taken at the then next term of this court to commence February 3, 1874, upon all the notes and warrants of attorney, which were included in said petition and judgment. That said term closed on the 16th day of February, 1874; that no summons or other further notice was served upon or given to said Beaver of the rendition of said judgment, and that he had no notice that said judgment had been rendered, or the amount thereof, until the 18th day of March, 1874. That proceedings were commenced by said Bever against said Beardmore only, on the 20th day of February, A. D., 1875, and that said Mann, Foreaker and Booth were not made parties to the proceeding until the 13th day of June, 1876. And as to its conclusions of law upon the above found facts the court finds that the proceedings herein were not commenced within the period required by law, and dismiss the same with costs. It is therefore considered by the court that said cause be, and the same is hereby dismissed at the costs of the said plaintiff, which costs are here adjudged against said plaintiff.”

The question to be decided is, Was the proceeding brought within the time limited in section 541, that is, “ within one year after the defendant has notice of the judgment.” We think there can be no doubt, that, if the plaintiff had made the sureties parties to his original peti-. tion, or brought them in by amendment within the year after notice to him, the proceeding would have been duly commenced as to all. The petition was filed within the year after the plaintiff had such notice, but more than a year after each of the sureties had the notice. To that petition the sureties were not parties. And when they were brought in more than a year had elapsed after notice to all the judgment defendants, including Bever. All the defendants in a joint judgment are necessary parties to a petition in error to vacate it. Smetters’ case, 14 Ohio St., 287. This is the well settled rule of courts restricted to the exercise of appellate jurisdiction ; and when an omitted party is brought in after the statute has run in his favor, he may plead the bar, and it is held such plea will oust the jurisdiction of the court. The proceeding under review here is of the court of common pleas, in or connected with an action on promissory notes, within its general original jurisdiction. It is not of itself a civil action ; but a special proceeding in an action to effect a judgment rendered therein at a former term of the same court. Taylor case, 12 Ohio St. 169. It. is professedly an application for a new trial. In a civil action delay in bringing in a defendant whose presence is indispensable to a recovery may well control the question as to the true time of the commencement of the action. If such effect can properly be given to an application like this for a new trial, it can be only in a case where the omitted defendant has an undoubted interest, in maintaining the judgment, and not simply that he is a necessary party because he is a defendant in the judgment and bound by it. In our opinion the sureties were necessarj1- parties to the petition. They would be so, even if the petition by statement showed that the vacation of the judgment would do them no harm. Their real interest might nevertheless require a denial of the allegations of the petition or an averment of new matter. In the case at bar the sureties set up no defense whatever ;CMid the allegations of the petition and the findings of fact by the court, are admitted by all the parties. The judgment had been paid in full by the sureties. This operated an assignment to them of the judgment with its incidents of process and lien to compel reimbursement from their principal. But it does not appear in the record that this right was valuable or desired by them. If the judgment had been vacatéd, a claim to the amount of the usurious excess included in their involuntary payment, would thereupon have enured to them against the judgment creditor; with the risk however of another trial. It does not appear inferentially or otherwise, that they were interested in resisting the vacation.

The judgment creditor may not complain of the delay because the judgment was fully paid to him before the time began to run against Bever. In the Fitzgerald case, 30 Ohio St., 444, it is held that in a proceeding under section 75 of the code, to open up a judgment rendered without further service than by publication in a newspaper, the notice to be given to the adverse party must be given to such party as is interested in maintaining the judgment.

In that case the holding related to a party shown on the face of the judgment to be merely formal. In that respect it differs from this case. But the principle of that case has weight here, because the sureties as parties are concluded by this record, made since the rendition of the judgment, and in which record no adverse interest in their behalf is shown. Be this as it may, we are not prepared to say that the analogy between a petition in error in an appellate court and this proceeding in the common pleas, is so perfect as to require us to hold the delay under consideration, a circumstance affecting the jurisdiction of the court. We think the district court erred in affirming the judgment of the common pleas.

Objection is made in argument that the sureties are not styled as parties in the petition to this court. Their appearance is duly entered and service of process waived as appears in the printed record. This is sufficient.

Judgment reversed and cause remanded.


author: Granger, C. J.

text:
    Carey v. Kemper.
    A fund was held for the use of C., a married woman, for her life, the principal, at her death, to go to her adopted son, a minor. In a propel case a court of competent jurisdiction ordered the investment of this fund in improved city property. On the premises selected no buildings existed, but K. agreed to complete six houses thereon for a stipulated price, to he paid out of the said fund. Said sum was added to the price agreed upon for the ground alone, and the aggregate sum was placed in the deed as the consideration of the purchase, with the approval of the court. K. completed the houses, but no part of the fund was paid to him, and no part of said consideration, except the price of the ground alone, was paid to any one. Held: The balance of said purchase money, with interest, not exceeding the sum (with interest) due to K. should be paid to him out of the property so purchased; the interest of the tenant for life and the remainder man sharing the burden in proportion to their respective values.
    Error, to the District Court of Hamilton County.
    At the beginning of October, 1875, the estate disposed of by the will of James Richardson, was in charge of Joseph S. Richardson. Besides other property, it embraced some lots on Everett and Clark streets, Cincinnati, and certain lots in the sub-division of the estate of Samuel Snively, being 150 feet frontage on the Colerain pike in said city. The will gave to Jane Richai’dson, who by a second marriage became Jane Carey, a life estate in this property, and placed the remainder in fee in a trustee for the benefit of Jacob J. Richardson, a minor. Joseph S. Richardson, the father of said minor, was executor of the will, and by virtue of a lease from Jane Carey, held possession of her life estate, subject to forfeiture for non-payment of rent. Thomas L. Young was guardian of the estate of said minor. The lots on Everett and Clark streets and the Colerain pike property were unproductive. Acting in all his capacities, Joseph S. Richardson tried to benefit the entire estate by selling the lots on Everett and Clark streets, and building on the Colerain pike land. He induced Bernard Kemper to begin the buildings, promising pajunent out of the proceeds of the other lots, — Jane Carey consenting. The other lots were duly sold for $8,900, but Kemper became doubtful about pa3rment and refused to go on unless satisfied on that head. Therefore, on October 23, 1875, Jane Carey brought an action, in Hamilton common pleas, making the executor, the minor and the guardian defend ants; stating that the Colerain pike property was worth '$6,000, but was unimproved, a great burden to the estate, not likety to increase in value, and that a sale would be for the benefit of the life tenant and do no injury to the remainderman. The prayer asked for the sale, and for the reinvestment of the proceeds. In due course the court ordered a sale, of tire 150 feet on the Colerain pike, which was made December 13, 1875, for $7,125, to Herman P. Goebel, who had no interest in the affair except to lend the use of his name as grantee in one deed, and grantor in another. On December 24, 1875, the court found that a fund of $15,473.86 was in hand for reinvestment, (the proceeds of the Everett and Clark street lots and of said Cole-rain pike land), and ordered the purchase of 90 feet of the same Colerain pike land as improved property for $15,000, expressly including “the six houses thereon erected.” This price was fixed by adding to the value of the ground so much as was required to pay Kemper for completing the houses, and he was assured that, if he would build them, he would be paid out of said purchase money. The court approved the purchase, and Goebel conveyed lots 11, 12 and 5 feet off the north part of lot 10, by proper deed in fee simple, to Jacob J. Richardson, the minor, subject to the life estate of Jane Carey. No money was paid. She joined with Joseph S. Richardson in the assurances to Kemper. The guardian said nothing, but he was a party to the suit and acquiesced in the sale and reinvestment. Kemper, relying upon said arrangement, built the houses. On June 3, 1878, there was due to him $9,705.42, of which $1,457.95 Was to go to John W., Thomas G., and William L. Robinson, partners as J. W. & T. G. Robinson, and $551.19. to Henry Wagner, they being sub-contractors under him. The' work was finished in October, 1876. Kemper, finding that the other parties were, for some reason, not willing, or not able, to pay him out of said purchase money, on December 29, 1876, perfected a mechanic’s lien on said lots, and, in January, 1877, brought suit in Hamilton common pleas against the minor, his guardian, the executor, the life tenant, her lessee, and the sub-contractors; setting out the facts and praying a finding of the sum. due him, a sale of the premises and other relief, etc. Prior to said suit, Jane Care3r had, b3r another suit, procured a decree forfeiting her lessee’s rights under his lease, and the lessee having become insolvent and having riiade an assignment for the benefit of his creditors to W. G. Mayer, Kemper made. Mayer a defendant and charged that the forfeiture of said lease was a fraud upon him. Jane Carey and the minor, by his guardian, answered separately, denying any contract with Kemper and averring that he must look to Joseph S. Richardson alone for his pay. The minor answered also by guardian ad litem in the usual form. The sub-contractors filed cross petitions asserting their claims in due form of law.
    The common pleas held that the builders had no claim on the minor’s interest; that Jane Carey was estopped from denying that her interest was liable to them for said debt; dismissed the action as to the minor and his guardian, rendered a personal judgment against Joseph S. Richardson and subjected Jane Carey’s life estate in the Colerain pike land to the payment of the judgment and costs. Jane Carey, Kemper and the sub-contractors excepted to the respective .findings, etc., against them. A motion for a new trial made by Jane Carey was overruled. Proper bills of exception were duly made part of the record, and, on January 30, 1879, the case was heard in the district court. That court reversed the judgment of the common pleas, on Jane Carey’s petition in error; dismissed Kemper’s cross petition ; declared void the decree forfeiting the lease to Joseph S. Richardson as to Kemper and bis sub-contractors; held said lease subject to the payment of the cost of the buildings; appointed a receiver; directed him to take charge of the premises and rent them until a sale could be made of said lessee’s interest; ordered such sale and directed a distribution of the rents and proceeds: first, to costs (except on Kemper’s cross petition); second, taxes; third, a proportionate share of rents to Jane Carey; fourth, to the subcontractors ; and fifth, to Kemper.
    The case is in this court upon the petition in error of Jane Carey and the- cross petition in error of Kemper. Kemper alleges error (amongst other things): 1, in dismissing his cross petition ; 4, and 6, in not subjecting the interests of the minor and of Jane Carey to the extent that they had been benefitted by his improvements.
    The record contains a special finding of facts made by the court of common pleas at the request of Jane Carey. In addition to the foregoing facts, said finding showed that said buildings added materially and permanently to the value of the estate, and produced a rental exceeding $1,400 from premises theretofore unproductive.

      Samuel T. Crawford, for plaintiff in error.

      Q-asser Spangenberg, for defendant in error — Kemper.

      Sayler Sayler, for Robinson.

      Z>. Wulsin, James U. Perkins, and Frank O. Suire, for Wagner.
   Granger, C. J.

The solution of the problem presented by these facts is easy. Although the court may lack power to render a personal judgment against a minor, or a married woman, upon a contract for the purchase of real estate, it has full power to apply the realty so purchased to pay for itself. When the common pleas on December 24, 1875, ordered the purchase as improved property for $15,000 of nine-fifteenths of the realty that, only eleven days before, it had caused to be sold for $7,125 as unimproved property, it well knew that no rubbing of Aladdin’s lamp had in that brief time placed houses thereon. It is very plain that both court and parties treated the arrangement with Kemper as a sufficient substitute for the houses themselves, and solely because of that arrangement ordered the purchase as a proper investment of the fund. It was competent for the parties to purchase suitable property covered by a lien, and to agree to pay the debt secured by the lien, as a part of the purchase money. In substance that is precisely what was done in this case. The completion of the houses was an essential part of the purchase. Kemper consented to complete them on the faith of the assurances made to him that he would be paid out of the fund ordered to be invested in the purchase. The fact that Young, the guardian, said nothing is immaterial. He was a party to the suit, and thereby a party to the purchase made under the order of the court. He cannot hold for his ward the benefit secured by that purchase and escape its burden. The finding of facts made by the common pleas, fairly considered, satisfies the mind, that the transaction with Kemper, from the outset, was intended for the benefit of the whole estate, and of all parties interested in it; that no one purposed that Joseph Richardson should pay for the houses; and that the action brought by Mrs. Carej7, in October, 1875, was, by common consent, used as a means for legally paying for the houses out of the estate. It could have had no other purpose. That court sanctioned the plan. Kemper in good faith fulfilled his part. It would work a fraud, were we now to permit any party to that suit to defeat the full enforcement of the decree therein made. As the price of the ground alone was $4,275, the remainder of the sum ordered by the court to be invested amounts to $10,725— enough (with its interest) to pay Kemper in full. It seems probable that Mrs. Carey has, never paid anything for the 60 feet deeded to her. She will not suffer if the rents collected by the receiver shall be promptly paid to those who built the houses that produced the rents, provided we reserve to her full right to interplead with J. J. Richardson and his guardian, so that the burden may be shared in the ratio of the values of their estates. It follows that the judgments of the district court and common pleas must be reversed, (without disturbing the report of the master, or the appointment of the receiver and his power to rent and collect the rents), and a decree for the plaintiff for $9,705.42 and interest from June 8, 1878. As between Mrs. Carey and J. J. Richardson the costs and the balance due for the buildings should be paid in the proportion of their interests. Her share should be fixed by the aid of annuity tables treating the total cost and expense at the date of the completion of the buildings as the principal of a fund in which she held a life interest and the minor the remainder. The net rents collected by the receiver may be applied first, to pay the costs of this suit including the receiver’s proper fee; next, to the sub-contractors pro rata up to the sums found due them by the master with interest from June 3, 1878; next, to Kemper, until he shall have been paid the sum found due to him by the master with like interest, and any balance to Jane Carey. If any balance shall then remain due to the sub-contractors, or to Kemper, unless it shall be paid within thirty days from the decree, with the interest, the premises conveyed to J. J. Richardson by Goebel under the order of December 24, 1875, should be sold by the sheriff as upon execution, and the proceeds applied to pay the remaining costs, taxes, interest and debt. The case should remain pending in the common pleas for adjustment between Jane Carey and J. J. Richardson of their respective shares of the liability imposed by this decree.

Decree accordingly.


text:
    Neff v. Crumbaker.
    Error to the District Court of Muskingum County.

      G. M. Vandenbarlc and W. J. Mnley for plaintiff in error.

      A. W. Train for defendant in error.
   By the Court.

The defendant, Crumbaker, sold a lot of land to one Robinson for $800, upon an agreement that he would convey to Robinson when $500 was paid, and take a second mortgage for the remaining $300. Robinson at the time he purchased paid $200, and afterwards when pressed for further payment, told Crumbaker he could not pay any more unless he could raise it on a mortgage of the land.

Crumbaker to enable Robinson to borrow money on a mortgage of the land, made and delivered a deed to Robinson, upon the agreement by Robinson to return the deed to Crumbaker within a given time, if he failed to get the money.

Robinson failing to get the money within the time, returned the deed, and afterwards gave a mortgage on the land to Neff to secure $300 borrowed of her. This $300 was paid to Crumbaker, making up the $500, on the payment of which, Crumbaker had agreed to convey the land to Robinson.

Seld: That as between the lien of Crumbaker for the balance of the purchase money and the mortgage of Neff, the mortgage is the prior lien.

Judgment of district court reversed and judgment of common pleas affirmed.


text:
    Wilkinson v. Culp.
    Error to the District Court of Jefferson County.

      Trainer & Go oh and W. P. Says for plaintiff in error.

      Mg Glauslin & Martin for defendant in error.
   By the Court.

In 1876 the commissioners of Jefferson County were attempting, upon petition of Robert Wilkinson, to appropriate certain land belonging to John Culp for a roadway, under an act “to authorize the making of roads and bridges in certain cases,” passed February 8, 1847, and an amendatory act passed March 8, 1850, 1 S. & C., 526 and 527. In the court below the defendant in error sought to restrain Wilkinson and the commissioners from proceeding in this attempt.

Seld: Said acts were in violation of section 19, article 1 of the constitution of the state, and were void.

Judgment of district court affirmed.