author: Buricet, J.

text:
    In the Matter of the Estate of Amanda L. Hinton, Deceased.

      ■Judgment of court in trial upon conceded facts — Motion for new trial not necessary- — Children under fifteen entitled to allowance from estate of deceased m-other as from father — Law of infancy.

    1. Where the facts are conceded or agreed upon in a trial, me judgment of the court rendered upon such facts, may be reviewed in a higher court by petition in error, without a motion for a new trial.
    2. Children under fifteen years of age, are entitled to have set off and allowed to them out of the estate of their deceased mother, sufficient provisions or other property, or money, to support them for twelve months, in like manner as they are entitled to such support out of the estate of their deceased father.
    (Decided May 7, 1901.)
    Error to the circuit court of Belmont county.
    On the 27th day of December, 1898, Joseph T. Hinton departed this life intestate, leaving Amanda L. Hinton his widow, and Maud Hinton over fifteen years of age, and four other children under the age of fifteen years, his only heirs. An administrator was appointed on his estate and there was set off to the widow and said four children under the age of fifteen years the sum of thirty dollars each for one year's support, and also certain personal property named in the inventory.
    On the 26th day of July, 1899, said Amanda L. Hinton died intestate leaving said five children her only heirs at law, said four children being still under the age of fifteen years. Theodore Chappell was duly appointed administrator of her estate, and the appraisers set off to said four minor children for one year’s support tlie sum of $150.00, to each, and also some of the personal property which had been set off to the widow by the other administrator, as being exempt under the statute.
    Thereupon George W. Hance, the duly appointed guardian of said Maud Hinton, who was over fifteen years of age, filed exceptions to said inventory, claiming that said four children under fifteen years of age Avere not entitled to a year’s support out of the estate of their mother, and were not entitled to have said personal property set off to them under the statute as not being assets of their mother’s estate.
    The probate court sustained the exceptions, and the administrator appealed to the court of common pleas, where the case was heard upon an agreed statement of facts from which tiie above facts are taken. The common pleas overruled the exceptions. Thereupon the guardian of Maud filed his petition in error in the circuit court, and that court reversed the judgment of the common pleas and held the exceptions well taken. Thereupon the administrator of the estate of Mrs. Hinton filed his petition in error in this court, seeking to reverse the judgment of. the circuit court, and for an affirmance of the common pleas.

      Petty é Grew, for plaintiff in error,
    cited the folio Aving authorities:

      Sears v. Hanks, 14 Ohio St., 298; McConville v. Lee, 31 Ohio St., 447; Smyth on Homesteads and Exemptions, Sec. 519; True v. Morrill, 28 Vt., 674; State v. Harmon, 31 Ohio St., 250; Tracy v. Card, 2 Ohio St., 431; Pollock v. Speidel, 27 Ohio St., 86; Brower v. Hunt, 18 Ohio St., 311; State v. Buchanan, Wright, 233; Brown v. Hemphill, 74 Ga.,795; Starr & Curtis, Annotated Stats, of Illinois, Vol. 1, pages 223-5; Lesher v. Worth, 14 Ill., 39; 46 Cal., 259; 22 Pa. St., 191; 9 Allen, 156; 4 Conn., 455; 7 Mo., 286; 17 Mo. App., 593; Statutes of Penn., Brightly’s Purdon’s Digest (12th ed.), Vol. 1, page 584; Himes’ Appeal, 94 Pa. St., 381; King’s Appeal, 3 Norris, 345.

      G. A. Golpitts, for defendant in error,
    cited the following authorities:

      State v. Commissioners, 36 Ohio St., 326; Conger v. Barker, 11 Ohio St., 1; Sedgwick Stat. and Const. Law, 299, 365; Williams v. State, 35 Ohio St., 175; Ash v. Ash, 9 Ohio St., 387; Van Camp v. Board of Ed., 9 Ohio St., 408; Bank v. Ayers, 16 Ohio, 282; Earp v. Railway Co., 12 Ohio St., 621; Westfall v. Dungan, 14 Ohio St., 276; Brown v. Mott, 22 Ohio St., 149; McGonnigle v. Arthur, 27 Ohio St., 251; Lockwood v. Krum, 34 Ohio St., 1.
   Buricet, J.

There was a motion made in the common pleas court to dismiss the appeal taken by the administrator, for the reason that he filed no appeal bond. The motion was overruled and exceptions taken. There was no error in overruling this motion. The record sIioavs that the administrator was duly appointed and qualified. He therefore gave bond in this state for the faithful discharge of his duties. The record also discloses that his appeal was in the interest of the trust, and not for his own interest. In such cases no bond is required under section 6408, Revised Statutes, but he shall be allowed an appeal by giving written notice to the court of his intention to appeal, within the time limited for giving bond. He gave written notice of appeal, and thereby availed himself of the statute, and was not required to give an appeal bond.

There was also a motion .filed in the circuit court by counsel for the administrator to strike the bill of exceptions, taken in the common pleas, from the files, for the reason that no motion for a new trial was filed in that court. The circuit court overruled the mo-, tion and an exception was noted. There was no error in overruling this motion, for the reason that a motion for a neAV trial Avas not necessary. The facts were agreed upon, that is conceded, and all that was necessary was for the court to apply the law to the conceded facts. There was no evidence to be weighed or considered, the only question being whether the court rendered the right judgment upon the facts as conceded and agreed upon by both parties. In such cases a motion for a new’’ trial is not necessary. Brown & Co. v. Mott Bros., 22 Ohio St., 149; McGonnigle v. Arthur, 27 Ohio St., 251, 257.

Having disposed of these questions of practice, we come now to the real contention in the case. The administrator of the estate of Mrs. Hinton claims that the children under fifteen years of age are entitled under the - statute to have set off to them a year’s support and other personal property, out of the estáte of their mother, as well as out of the estate of their father, that is that they are entitled to such allowance out of each estate; while the guardian of Maud claims that the children under fifteen years of age are entitled to such year’s support and other personal property out of the estate of the father only, and having had set off to them a year’s support and other personal property, not deemed assets under the statute, out of the estate of their father, they are not entitled to a second such allowance out of the estate of their mother, even though she died possessed of a separate estate.

The first statute in this state providing for a year’s support was section 43 of the act relating to the administration of estates of deceased persons passed March 23,1840, S. & C., 574, and provided as follows: “When a man having a family, shall die leaving a widow or a minor child, the following articles shall not be deemed assets.” Then follows a list of personal property.

This section 43 was amended March 12, 1861, 58 O. L., 45, and provided that: “When any man shall die leaving a widow or mifior child under the age of fifteen years, etc.” It changed the list of property not to be deemed assets, and for the first time provided for property to the amount of one hundred dollars to be retained by the widow and children.

This section 43 was again amended April 9, 1863, 60 O. L., 67, so as to read as follows: “That when any person shall die leaving a widow or minor child under the age of fifteen years, the following property shall not be deemed assets, or administered as such, etc.” This amendment changed the words of the section, “When any man shall die,” to, “That when any parson shall die, etc.” And there was very good reason for this change. After the amendment of the section, March 12,1861, in which the word “man” was retained, the general assembly on April 3, 1861, passed the statute concerning the rights and liabilities of married women, 58 O. L., 54, under which it became evident that married women would accumulate property and estates in their own right, and therefore it became necessary to provide for the disposition of such property and estates upon the death of such women. Before the passage of the Married Woman’s Act, in 1861, the marital rights of husbands at common law obtained in this state, and married women rarely had any property to be administered at their death, but the act of 186,1 changed this, and as it became evident that women would leave property to be administered at their death the same as men, the statute relating to such administration was amended to fit the change caused by the said married woman's act.

Said section 43 was again amended May 12, 1868, 65 O. L., 180, and was carried into the Revised Statutes as section 6038, as follows: “When any person shall die, leaving a widow or minor child, or children under the age of fifteen years, the following property shall not be deemed assets or administered as such, but shall be included and stated in the inventory of the estate, and signed by the appraisers, without appraising the same.” (Here follows a list of personal property.)

Section 6040, Revised Statutes, reads as follow^: “The appraisers shall also set off and allow to the widow, and children under the age of fifteen years, if any there be, or if there be no widow, then to such children, sufficient provisions or other property to support them for twelve months from the death of the decedent; and if the widow or such children have, since the death of the deceased, and previous to such alio Avance, consumed for their support any portion of the estate, the appraisers shall take the same into consideration .in determining the amount of the alio Avance.”

Section 6041, Revised Statutes, reads as follow-s: “When there is not sufficient personal property, or property of a suitable kind, to set off to the widow or children,, as proAlded in the preceding section, the appraisers shall certify what sum or further sum, in money, ÍkS necessary for the support of such widow or children.”

The said sections 6040 and 6041 are the same now as when originally passed in 1840. The duties of the appraisers varied under each amendment of the statute in 1861, 1863 and 1868 as the personal property not deemed assets but required to be included and stated in the inventory, varied. Their duties as to setting off sufficient provisions or other property to support the widow and children under fifteen years of age, for twelve months, or if there was no widow, then to support such children for twelve months arose and applied only to cases in which “a man having a family died,” or a “man died leaving a widow or minor children, etc,” until the amendment of 1863 changed the statute and made those duties of the appraisers apply, “when any person died leaving a widow or minor child or children under the age of fifteen years.” Under the statute of 1840 the limitation was to “a man having a family,” and under the amendment of 1861, the limitation was to “any man leaving a widow and minor child.” Under the amendment of 1863 and 1868 the limitation is to, “any person” If “a man having a family,” or “any man,” and “any person,” are one and the same individual, the contention of the defendant in error is right, but if, “any person,” is a broader term than, “a man having a family,” or, “any man,” then his contention is wrong. A man may die leaving a widow or child, and yet not be a man having a family as the word family is usually understood. To be entitled to certain exemptions under Section 5435, Revised Statutes, the husband and wife must be living together, and for a widow or widower to be entitled to such exemption on account of Ms unmarried daughter or unmarried minor son, he must be living with such child. The amendment of said section 43, in 1861, was therefore* broader than the same section in the original act, and was evidently intended by the general assembly to be broader. The amendment of the same section in 1863 was broader still, and included “any person,” male or female, leaving a child at his or her death. And in our opinion the words “any person” include both men and women. This seems to us too clear for argument or the citation of authorities. The general ■ assembly having changed the limitation from “a man having a family,” first to, “any man,” and then to, “any person,” and having good reasons for making the latter change, in view of the Married Woman’s Act, of April 3, 1861, we must conclude that it meant what it said, and that children under fifteen years of age are entitled to a year’s support out of the estate of their mother, the same as such children are entitled to such support out of the estate of their father, and that this is so even though the father and mother should both die leaving estates. Such are the plain words of the statute, and it is not for this court to attempt to get rid of them, by a strained construction conforming to a supposed hidden and unexpressed intention of the general assembly. The general assembly must be credited with understanding the meaning of plain words, and when so. radical a change is made in plain language by amendment, not by revision, as was done in this instance, it must be presumed that a change in meaning was intended, otherwise the general assembly would be compelled to add to each amendment, of a statute, a declaration that the amendment was intended to linean what it says, and was intended to change the former statute. We are fully content with the rule of construction, as to revision of statutes, laid down in State ex rel. v. Commissioners, 36 Ohio St., 326; Conger v. Barker, 11 Ohio St., 1, and other cases cited by defendant in error, but they do not apply in this case, because here it is too plain that the amendment of 1863 was intended to work a change in the meaning of the statute; Collins v. Miller, 57 Ohio St., 289.

The circuit court erred in its construction of the statute, and its judgment will be reversed, and the judgment of the court of common pleas affirmed.

Judgment reversed.

Minshall, C. J., Williams, Spear, Shauok and Davis, JJ., concur.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Markle v. Newton, Treasurer, Etc.

      Authority of county auditor to enter tip omitted taxes — In liquor business — Not restricted to current year — Omissions of previous years may be entered and collected — Act of April 12, WOO (9j-O. L., 133) — Dow tax law.

    The authority of the county auditor to enter upon the duplicate omitted taxes on the business of trafficking in intoxicating liquors is not restricted to those of the current year. Except as otherwise provided by the amendatory act of April 12, 1900 (94 O. L., 133), such taxes omitted in previous years may be entered on the duplicate of the current year, and collected as other taxes.
    (Decided May 7, 1901.)
    Error to the Circuit Court of Medina county.
    Action to enjoin collection of Dow law tax. Demurrer to petition sustained, and action dismissed. Judgment, affirmed by circuit court. Affirmed.
    Guy Markle brought his action in the common pleas of Medina county, against James Newton, the treasurer of that county, to enjoin the collection, by the latter, of taxes charged against the plaintiff on his business of trafficking in intoxicating liquors in that county for the years 189G, 1897 and 1S98. The allegations of the petition are as follows:
    “Plaintiff says: That the defendant is the duly elected, qualified and acting treasurer of said Medina county, Ohio. That the plaintiff is a resident and taxpayer in said Medina county, and that he duly paid all the taxes assessed against him on the duplicate of said county for the years 1896, 1897 and 1898, when the same became due and payable. That notwithstanding the plaintiff had duly paid all of said taxes for said years as aforesaid, the auditor of said Medina county, assuming and pretending to correct the returns of the plaintiff for taxation in said years, but wholly without authority of law for so doing, on the 24th day of June, 1899, charged the plaintiff on the duplicate for said year, 1899, with the sum of $313 as the tax on the business of trafficking in intoxicating liquors from the third day of July, 1896, to the fourth Monday in May, 18.97; with the sum of $350 as the tax on the business of trafficking in intoxicating liquors from the fourth Monday of May, 1897, to the fourth Monday of May, 1898; and with the sum of $350 as the tax on the business of trafficking in intoxicating liquors from the fourth Monday of May, 1898, to the fourth Monday of May, 1899. That said several amounts were so charged by said auditor against the plaintiff on said duplicate without any evidence before him that the plaintiff was engaged in the business of trafficking in intoxicating liquors in either of said years, or any part of any of said years. That said duplicate, with the several amounts illegally charged thereon against the plaintiff as taxes on the business of trafficking in intoxicating liquors in said several years, as aforesaid, is now in the hands of said' defendant as such treasurer for collection, and, unless restrained by the process of this court, said defendant as such treasurer, threatens to and Avill compel the plaintiff to pay said illegal tax, to the great and irreparable damage of the plaintiff.
    Plaintiff therefore asks that a temporary restraining order be granted enjoining said defendant as such treasurer from proceeding to collect said illegal taxes from the plaintiff, or in any way compelling plaintiff to pay the same, until the final hearing of this cause, and that on such final hearing that said injunction may be made perpetual, and for such other and further relief as plaintiff is, in equity, entitled.”
    A general demurrer to this petition was sustained by the common pleas and final judgment rendered against the plaintiff; and from the affirmance of that judgment by the circuit court, error is prosecuted here.

      Lee Elliott, for plaintiff in error,
    cited the following authorities:

      Insurance Co. v. Hard, 59 Ohio St., 248; State v. Akins, 63 Ohio St., 182; Adler v. Whitbeck, 44 Ohio St., 539; Brewing Co. v. Talbot, 59 Ohio St., 511.

      E. TP. Woods, with whom was the Attorney General, for defendant in error,
    cited the following authorities :

      Brewing Co. v. Talbot, 59 Ohio St., 511; Wasteney v. Schott, 58 Ohio St., 410; Kellogg v. Ely, 15 Ohio St., 64; Goodwin v. Canal Co., 18 Ohio St., 169,
      Bank v. Hubbard, 98 Fed Rep., 465; Spangler v. Cleveland; 43 Ohio St., 526; Van Valkenburg v. Kingsbury, 14 Ohio St., 353; Whitaker’s New Annotated Ohio Civil Code, 364; Badger v. Badger, (2 Wall.), 87; McBlair v. Gibbes (17 How.), 232, 105 Mass., 334; Insurance Co. v. Hard, 59 Ohio St., 248.
   Williams, J.

The petition contains no allegation that the plaintiff was not engaged in carrying on the business of trafficking in intoxicating liquors in the county of Medina during the years for which the tax complained of is charged against him, nor that he did not become legally chargeable with the tax in each of those years. The sole ground upon which his right to the relief sought is predicated, is, that the action of the county auditor in placing the tax for the preceding years on the duplicate of 1899, was without authority of law, and, consequently, that duplicate constitutes no lawful warrant for the collection of the tax by the county treasurer. This question, though involved in the case of Jung Brewing Co. v. Talbot, 59 Ohio St., 511, was not there presented by counsel, nor considered by the court; and we regard that case as presenting no obstacle to the consideration of the question here, as an original one. Nor, can a tax be justified merely upon equitable considerations. Public burdens of that nature can be sustained only when authorized by positive lawn And when such burden is illegally imposed, it is a statutory right of the party against whom it is charged to stay its collection by injunction.

Looking to our statutes, then, for the. necessary authority for the imposition and collection of the tax in question, we find it provided by Section 4364-9 of the Revised Statutes, that: “Upon the business of trafficking in spiritous, vinous, malt, or any intoxicating liquors there shall be assessed yearly, and shall be paid into the county treasury, as hereinafter provided, by every person, corporation or co-partnership engaged therein, and for each place where such business is carried on, by, or for such person, corporation or> co-partnership the sum of three hundred and fifty dollars.” It is further provided by Section 4364-10: “That said assessment together with any increase thereof, as penalty thereon, shall attach and operate as a lien upon the real property on and in which such business is conducted, as of the fourth Monday of May of each year, and shall be paid at the times provided for by law for the payment of taxes on real or personal property within the state, to-wit: one-half on or before the twentieth day of June, and one-half on or before the twentieth day of December of each year.”

The first of these sections, in positive and direct terms, imposes a tax of a specific amount, unconditionally upon every place where the business of trafficking in intoxicating liquors is carried on, and in like terms requires the pérson, corporation or co-partnership, by or for whom the business is carried on, to pay into the county treasury, each year the business is so carried on, the amount of the tax so imposed. The times when the tax shall be paid are definitely fixed by the next section, namely, “one-half on or before the twentieth day of June, and one-half on or before the twentieth day of December of each year.” The proceeding provided by statute for the assessment of taxes on real or personal property has no analogy or application to a tax of this character. To assess a tax upon property, its valuation must be brought before the county auditor in the mode provided by law, from which, and the rate of taxation, he ascertains and charges up on the duplicate the appropriate amount of taxes against the property and its owner. So, in bringing upon the duplicate additional property, where there have been omissions or false returns, the auditor must ascertain the value of the omitted property and assess upon it taxes according to the required rate. Obviously, the term “ assessed” in Section 4364-9, above quoted, is not there used in that sense, but rather in the sense of “charged,” as if the provision read, there shall yearly stand charged against each place where the business, etc., is carried on, the sum of three hundred and fifty dollars, which shall be paid into the county treasury by the person, etc., by and for whom the business is carried on. No ■official action of the county auditor is necessary to the creation or ascertainment of this specific debt to the state, nor to the obligation of the person charged with its payment. Both are created, and the amount fixed, by the express provision of the statute, and both continue until discharged by payment. With respect to such tax, provisions like those contained in Sections 2781, and 2782, of the Revised Statutes are unnecessary and inappropriate.

The mode of procedure for enforcing payment of this tax is prescribed by other provisions of the statute. Section 4364-12 provides: “That if any person, corporation or co-partnership shall refuse or neglect to pay the amount due from them under the provisions of this act within the time therein specified, the county treasurer shall thereupon forthwith make said amount due with all penalties thereon, and four per cent, collection fees, and costs, by distress and salé, as on execution, of any goods and chattels of such person, corporation or co-partnershipand that section' contains further provisions which give the levy of the treasurer priority over all other liens on the chattel property of the delinquent, and denies any exemption of his property from such levy and sale; and then it provides that: “In the event of the treásurer, under the levy provided for under this act,- being unable to make the amount due thereunder, or any part thereof, the county auditor shall place the amount due and unpaid on the tax duplicate against the real estate in which said traffic is carried on, and the same shall be collected as other taxes and assessments on said premises.” It seems clear' from these provisions that the amount of the tax imposed by Section 4364-9 becomes at once, by force of the statute, an existing debt of the person who carries on the designated business, and that the statute itself is‘ not only a sufficient warrant to the treasurer for the collection of the tax, before it is entered on the' duplicate against the real estate where the business was carried on, but enjoins on him the explicit duty to make such collection. The method provided by Sections 4364-13 and 4364-14, for getting the tax on the duplicate, briefly is, that the district assessors make returns to the county auditor of the places, within their respective jurisdiction, where such business is carried on, with the name of the person engaged therein, a description of the premises where the same is conducted, and the name of the owner of the premises. From these returns the county auditor makes up and preserves in his office a duplicate, alphabetically arranged, showing the amount of the tax, by whom to be paid, and the premises whereon the same is a lien; and he is required to deliver a copy of the duplicate to the county treasurer for collection, by the first Monday of June of each year. And Section 4364-14 contains the provision that: “Upon receiving satisfactory information of-any such business liable to-assessment or increased assessment, as aforesaid, not returned by the assessor, he (the auditor) shall forthwith enter the same upon such duplicate, and upon the county treasurer's copy thereof.” It is not made essential to the lawful action of the auditor in supplying the omission under this clause of the statute that the omission shall be one which was made by the assessor in his return for the current year. The language is broad enough to authorize the entry of an omission of a preceding year which has been brought to the knowledge of the auditor. The action of the auditor in making the entry is a mere ministerial and clerical act whose performance, we believe, is not essential to the validity of the tax. Nor, can the right of the state to the tax which it has directly imposed by statute for its legitimate purposes, be defeated in Consequence of the omission of the assessor to make return to the auditor within a specific time, nor of the latter to enter it upon the duplicate within such time. But, if such entry were necessary, authority therefor, without restriction to the current year, is conferred by the statute.

This has been the legislative interpretation of the statute. The proviso inserted in the amendatory act of April 12, 1900 (94 O. L., 133), which constitutes the only amendment made by that act, exempts certain classes of liquor dealers therein mentioned from the. tax on their business for any year prior to June 1, 1898, where no return thereof had been made to the county auditor, nor entry made by him on the duplicate, before that date. This provision made in 1900, for the exemption from any tax which had not been entered on .the duplicate against the-'designated class of dealers prior to June, 1898, was unnecessary and without effect, if, without such provision the auditor was destitute of authority, in entering omissions on the duplicate against any class of dealers, to go back of the current year. The amendment is, therefore, a distinct legislative recognition that, except as therein provided, the auditor is clothed with such authority. The plaintiff’s case is not within the exception.

An argument is made in behalf of the plaintiff, founded upon supposed inconveniences and hardships that would arise under the lien clause of the statute, if his contention be not sustained. That clause provides, as has been seen, that the tax shall attach as a lien on the premises where the business is conducted “as of the fourth Monday of May .of each year ;” and it is urged that, the traffic may have been carried on for a past year so secretly as to elude detection, and that a person ignorant of such use of the premises, and of any tax thereon on account of such business, could not with safety purchase the property. If the commencement of the lien, as against third persons dealing with the property, be limited to the year in which the tax is entered upon the duplicate, the apprehended consequences could not result. The duplicate would have the effect of notice by public record, and a person thereafter acquiring the property could not claim the protection of a bona -fide purchaser. What the rights of a purchaser may be, against the state, must depend upon the facts of his case. We have no such case before us, and until one is presented for determination, a discussion of the question is best forborne. The existence of the lien is not necessary to the validity of the tax, but is only an additional means of .securing its payment.

Judgment affirmed.

. Minshadd, C. J., Btjrket, Spear, .Shauck and DÁvis, JJ., concur.


author: Minsk all, 0. J.

text:
    Brockschmidt v. Archer et al.

      Devise by testator of certain lands to son for Kfe and at Ms , . -.death to his heirs — Buie in Shelley’s case — Land mortgaged by life devisee in fee simple — Foreclosure of mortgage and. order of sale for life of mortgagor — Sheriff’s deed to purchaser — Purchaser held possession over forty years — Action ■ by heirs of mortgagor against occupant — Held sheriff’s deed-conveyed legal title.

    1. Before the rule In Shelley’s case was, as to wills, abrogated in this state by 'the statute of 1840, a testator devised certain lands to his son for life, and at his death to go to his heirs, and, there being nothing else in the will to show that the testator used the word “heirs” to designate a more lim- ' ited class — as children: Held, That, as the lands passed under the will precisely as they would have descended at law, the son took an estate in fee simple in the lands- so devised.
    2. A mortgage in fee simple of certain lands was made to secure ■ an obligation of the mortgagor to the mortgagee; it was foreclosed and an order made for the sale of the land for the life of the mortgagor, and was so sold; on confirmation, a deed ■in fee simple was ordered to be made to the purchaser, and such deed was made to him by the sheriff; the purchaser went into possession under his deed, and he and his successors in title continued in the adverse possession of the property ' for over forty years when an action was commenced by the •■ heirs of the mortgagor against the present occupant under . .the title derived from the sheriff’s deed, to recover the land :• Held, That “the sheriff’s deed conveyed the legal title to the land, and the plaintiffs having at most but an equitable title, could not recover, without first obtaining a reformation of the deed. Held, further, That the right of reformation of the deed accrued to the mortgagor upon its execution and was barred long before the commencement of the action by the heirs to recover"the land.
    (Decided May 1, 1901.)
    Error to the Circuit Court of Montgomery county.

      Young & Young and McMahon & McMahon, for plaintiff in error.
    At the date of the will, Edward A. Peasley was a minor, and manifestly without children then living. There was no one living in whom the estate in remainder could vest. At the date of the deed he was not yet married and had no children. Carter v. Reddish, 32 Ohio St., 1; Smith v. Hankins, 27 Ohio St., 371.
    The rule in Shelley’s case was a rule of property and in full force as to wills at the date of this will; also as to deeds. McFeely v. Moore, 5 Ohio, 464; Armstrong v. Zane, 12 Ohio, 287.
    The rule laid down by Judge Read in the case of King v. Beck, 15 Ohio, 559, the case relied upon by defendant in error, is as follows:
    “If the estate for life, created in the devisee or donee, is limited precisely as it would descend at law, the rule in Shelley’s case vests the entire fee in the first devisee or donee.”
    By this rule we are willing to be governed. In the case of King v. Beck, supra, the will contained other provisions giving to the estate devised á different direction under certain circumstances. Yet this same will was unanimously held to convey a fee simple by a supreme court somewhat differently constituted. King v. King, 12 Ohio, 390.

      The application of the rule, in a case where it properly applies, is never excluded by explicit declarations that the title is for life only, etc. The . text books teach this as Avell as the cases.
    The title of Ed. Peasley being a fee simple, two questions are noAV to be considered:
    1. The possession under a tax deed and judicial sale under Avhich parties, since 1852, have been claiming and exercising ownership in fee simple.
    2. The title conveyed by the judicial sale, independent of the possession.
    Under the first heading: In 1852, Avhen Sullivan took possession under his tAvo deeds, the seven-year limitation laAV Avas in force. It Avas passed in 1849 and repealed in 1853 by the practice act. It can-be; found in 1 SAvan & Cr. Rev. Stat., p. 943 (notes) ; Scott v. Hickox, 7 Ohio St., 88.
    This was eminently a statute of repose. When the law Avas repealed existing rights were saved. 2 Swan & Cr., p. 941, Sec. 6.
    Under the second heading — as to the judicial sale: Edward Peasley gave a Avarranty fee simple mortgage. The court ordered a deed in fee simple. And such a deed was executed. Having the full legal title, and having so warranted, can his heirs now be heard to say that the proceeding conveyed only a life estate?
    If such a deed was improperly made, it Avas the act. of the court. Does not the legal title pass subject to equitable correction? In such case ejectment will not lie. •
    Assuming that Edward Peasley had but , a life estate, Avhat is the situation? He had no chil-. dren until after 1866, his first marriage. The will is. not to his “children” in remainder, ñor the deed, but to his “heirs.” The devise in remainder was not, therefore, to his “children.” Had he died prior to 1866 his brother, or nephew's, or wife, etc., wrnuld have taken as “heirs,” unless the devise and deed created only a life estate and left the remainder undisposed of by reason of no person to take; and, in that case, his share would be fee simple by merger in so much as descended undisposed of. What became of the estate in remainder said to be created by the.deed? Who w7as heir? Where wras it?
    When the proceedings to quiet title were brought, the suit w7as against the unknowns “heirs'of Edward A. Peasley.” This is the language of the will — also of the deed. Whoever wore “heirs of Edwmrd Peasley” answered the description of “devisees of Aaron Peasley,” and the notice was vastly better. One might know7 himself to be the heir of his father, and not know7 he was the devisee of his grandfather or other person. Hence if the advertisement can be sustained as within the law7, it would be better than the one claimed to be right.
    If an estate in remainder w7as created in the children of Edw7ard Peasley after they came into existence,. it w7as a vested estate, Edwrard having a life estate.
    A person in possession can have his estate quieted as against an estate in remainder prior to the expiration of the life estate. Rhea v. Dick, 34 Ohio St., 420.
    Now7 when counsel for Brockschmidt washed to make a better title how7 else could they proceed? Peasley had vanished and had not been heard of for years. It was not known where he was, or whether he was alive, or had children, or other heirs.
    . The law in such case provides a remedy, based upon such want of information.

      The “heirs of Edward Peasley,” whoever they might be, were the persons whose title was to be taken out of them. At the time of the suit the two children were in existence. If the title in remainder became executed at any time, it was then a vested estate in them, liable to be opened up to admit other Children, if born afterwards. This vested estate was not contingent. It could have been sold. Now suppose that Edward had had no children, but nephews and nieces? If the suit had been brought against the “children of Edward Peasley,” under the impression that he had children, the publication would have been worthless as against nephews and nieces. The law, knowing that it was sometimes impossible to find out “heirs” provides for such cases in general terms intended to cover every case. And it seems to us that to describe such persons in the exact language under which they must take is a complete compliance with the statute. They are a class of persons to be discovered by ascertaining their heirship to Edward Peasley. When that is accomplished they are devisees.
    As to the alleged irregularities in the tax deed. Sheldon’s Lessee v. Coates, 10 Ohio, 278; Ward v. Barrows, 2 Ohio St., 241; Sec. 4114, Rev. Stat., 66 Ohio Laws, 338.
    After the lapse of forty years accompanied by open and notorious adverse possession, courts will make many presumptions in favor of repose. See 7 Am. L. Rec., 411; Fitzpatrick v. Forsythe, 6 Dec. (Re.), 682.

      Humphrey Jones, for defendants in error.
    There are two apparently conflicting provisions in this will. Under the first provision Edward A. Peasley in unquestionably given a fee simple estate in said premises, the following language- being used to create the same: “The whole to the said Edward and his heirs in fee simple.”
    But in the concluding clause of .the will and immediately preceding the testatum clause the testator declares in explanation of Ms intention, that the devises to his sons, Edward and Theodore, are, “to be to them respectively during their natural lives, but so that they nor either of them cannot in their lifetime dispose of the same for any longer period than during their respective lives — giving each of them only a life estate in the land so devised to them, and after their deaths, the property to be to their respective heirs at law in fee simple.”
    It is a familiar rule in the construction of wills that in cases of apparent repugnancy and conflict between two provisions of the will, that, the last one shall be given effect in preference to the first one appearing in the will. Jarman on Wills, 473; Coonrod v. Coonrod, 6 Ohio 114; Young v. McIntire, 3 Ohio, 498; Parker v. Parker, 13 Ohio St., 95.
    It is the last clause of this wrill, therefore, which is of controlling importance, in its construction.
    The ordinary and usual import of the language, employed in this clause, uncontrolled and unrestricted by any technical rules of construction, would vest, a life estate in Edward A. Peasley, and a fee simple estate in remainder in his heirs at law. By statute in Ohio now, such would be its effect: (Sec. 5968, Rev. Stat.)
    This provision was first enacted- in 1840 (Swan’s Statutes, 999), but as the will in question took effect in 1837, it is not controlled by the provisions of this legislation.

      This statute had the effect to abolish, as to wills, the rule in Shelley’s case in Ohio.
    It is contended that under the rule in Shelley’s case Edward A. Peasley took a free simple estate by virtue of the will in question, and the real question involved here is, whether the construction of this, will shall be controlled by the technical provisions of this rule, or whether effect shall be given to the plain, clear intention of the testator as evidenced by the language employed, giving to the words used their ordinary nsuál meaning. ^
    The rule in Shelley’s case may be stated as follows:
    “Where a freehold is limited to one for life and by. the same instrument the inheritance's limited, mediately or immediately, to his heirs, or to the heirs of his body, the first taker takes the whole estate either in fee simple or in fee tail, and the words, ‘heirs’ or ‘heirs of his body,’ are words of limitation and not words of purchase.” King v. King, 12 Ohio, 390.
    Coke states the rule in somewhat different language, as follows: “When an ancestor by any gift or conveyance' taketh the estate of freehold, and in the same gift or conveyance the estate is limited, either mediately or immediately, to his heirs in fee or in tail, the heirs are words of limitation of the estate and not words of purchase.”
    This rule has been recognized by this court and ap-. plied with considerable strictness to deeds, but less strictly to wills. .The earlier .decisions of this court favored a stricter and more technical application of the rule. McFeely v. Moore, 5 Ohio, 464; Armstrong v. Zane, 12 Ohio, 287.
    This court, as we. think, in the case of King v. Beck, 15 Ohio, 559, abandoned the former strict and technical application of the rule in Shelley’s case and adopted the opposite rule of construction, and the decision in this case has stood unquestioned for more than fifty years, and must now he accepted as the settled law of Ohio on the subject. Preston on Estates, 271; Shriver’s Lessee v. Lynn, 2 Hen., 43.
    It is a principle of law that where one, by his will, gives to another who is his heir at law, precisely, what that heir would take by descent if his ancestor liad died intestate, he will be treated as teiking it by descent, instead of by devise.
    ‘ The rule in Shelley’s case is another application of the same legal principle. This court, in King v. Beck, supra, has taken that view, for it says, at page 582 of said case: “If the estate for life, created in the devisee or donee, is limited precisely as it would descend at law, the rule in Shelley’s case vests the entire fee in the first devisee or donee.”
    One is not the “heir” of another in this sense as to the property or rights not derived from that other or which never belonged to the other, though he may be the person upon whom descent would be cast upon the death of the other.
    It is wrell settled that if the word “heir” is used by the testator in this latter sense, that is, simply as dcsignatio personae, it does not have the effect to vest ■in the first devisee the entire fee, but he has only a life, estate. Stevenson v. Evans, 10 Ohio St., 307; Jones v. Floyd, 33 Ohio St., 572; Collier v. Collier, 3 Ohio St., 369.
    The divergence between courts in the interpretation and application of the rule in Shelley’s case arises largely from their differing views as to what circumstances surrounding the testator and what language in the testament will be allowed to control the meaning of the -word “heir,” as employed in the will so tliat it shall be interpreted otherwise than in its strict legal sense.
    This is well illustrated by the views of this court in reference to the language of the will of William King, in the two cases of King v. King, 12 Ohio, 390, and King v. Beck, 15 Ohio, 559.
   Minsk all, 0. J.

The suit below was an action in ejectment brought by the children of Edward A.Peasley, Flora Archer and Willi am E. Peasley, against William Broclcschmidt, to recover- the possession of some twenty acres of land, claiming to be the owners of it, — situate in Montgomery county. The defendant in his answer denied the averments of the petition; and, in an amended answer, claimed that the plaintiffs were estopped from setting up their claim by a judgment rendered in his favor in a suit to quiet title instituted in 1890, to which they were made parties as “the unknown heirs of Edward A. Peasley.”

The plaintiffs claim title under the will of their grandfather, Aaron M. Peasley, admitted to probate April 29, 1837, he having died in that year. The provisions of the will applicable to the case are as follows :

“I devise to my son Edward A. Peasley all the rest and residue of said tract of land as purchased of said Brown, * * * the whole to the said Edward and his heirs in fee simple * * * I hereby in explanation declare it to be my will that the parcels of land herein-before devised to my two sons, Theodore and Edward, is to be to them respectively during their natural lives, but so that they nor either of them cannot in their lifetime dispose of the same for any longer period than during their respective lives, giving each of them' only a life estate in the land so-devised to them, and after their deaths, the property to be to their respective heirs at law in fee simple.”

The lands in dispute are covered by the devise. Edward A. Peasley died in December, 1893, leaving the plaintiffs as his only children' and heirs.

In 1850 Edward A. Peasley executed a ' mortgage upon the premises to one Shonenberger; it conveyed the land in fee simple to the mortgagee with covenants of warranty to secure an obligation of the mortgagor to the mortgagee. The obligation not having been pérformed suit was brought in 1851 to foreclose it. A decree was taken for the sale of the life estate of Peasley in the land, the land Avas sold to one Sullivan, the sale was confirmed and a deed in fee simple was ordered and made to him by the sheriff. He also had an auditor’s deed made upon a sale of the land for delinquent taxes of the same date of his sheriff’s deed. He at once took possession of the land, Avhieh re1 mained in him and his successors in title down to and including the defendant Avho purchased and took possession in 1885. The suit Avas commenced in 1894. The possession of the defendant and his predecessors from 1852 Avas open, notorious and exclusive and under color of title. These facts are not disputed; and the following questions arise: 1. What estate in the land did Edward A. Peasley take under the will óf his father, Avas it a life estate or a fee simple under the rule in Shelley’s case, the will having been made and probated before this rule was . abrogated by statute in 1840; and, 2, if under this rule he took a fee simple, have the children on the undisputed facts the right to maintain the action? The court of common pleas rendered judgment for the plaintiffs and the judgment was affirmed on error by the cireuit court.

1. As stated, at the time the will of Aaron M. Peasley was made, the rule in what is known as Shelley’s case was still in force as to wills as well as to deeds and other conveyances of land. It was not a rule of construction but of property. The rule is accurately stated by Lane, J., in McFeely v. Moore, 5 Ohio, 466, as follows: “Where the ancestor takes a freehold for life, and by the same conveyance, whether a deed or devise, is limited, either mediately or immediately, to his heirs, the word ‘heirs’ is a word of limitation, not of purchase, and the fee- vests in the ancestor,” citing 1 Rep., 104. See also, King v. Beck, 12 Ohio, 471, and Armstrong v. Zane, 12 Ib., 287.

The rule is «said to be of feudal origin, and was intended to secure to lords the fruits incident to inheritances ; but it was also not without other reasons of considerable force. (Perrin v. Blake, Harg. Tracts, 493.) In the limitation of estates it was felt among other things to be a matter of importance that there should be words to which a definite meaning could be attached to avoid the confusion and uncertainty that would otherwise arise, and for the purpose of designating the limitation of a fee simple, the largest estate a freeholder could have in lands, the word “heirs” was adopted, so that when an estate was made to one and his heirs, he acquired the full and absolute dominion over the land, and could dispose of it as he saw fit. The heirs acquired no vested interest in the estate; they had a mere expectancy, or the right to inherit the land at his death if he had not disposed of it in his lifetime by deed or will.

In the application of the rule the intention of the testator, as .to. the estate to be taken by the ancestor has never been a. matter of consideration. It is said. by Justice Blackstone in Perrin and Blake: “I believe there never was an instance when an estate for life was expressly devised to the first taker, that the devisor intended he should have anything more. But if he afterwards gives an estate to the heirs of the tenant for life, it is the consequence or operation of the law that in this case supervenes his intention and vests a remainder in the ancestor: which remainder, if it be immediate, merges his estate for life, and gives him the inheritance in possession; but if mediate only, by reason of some interposing estate, then it vests the inheritance in the tenant for life, as a future interest, to take effect in possession when the interposition is determined. And therefore it has frequently been adjudged, that though an estate be devised to a man for life only,' or for life et non aliter, or with any other restrictive expressions; yet, if there be afterwards added apt and proper words to create an estate of inheritance in his heirs, or the heirs of his body, the extensive force of the latter words shall overbalance the strictness of the former, and make him tenant in tail or in fee.”

In conveyances made by,deed the rule was rigidly adhered to, because such instruments were generally made on mature consideration, as well as under the advice of counsel, but it was somewhat relaxed at common law in favor of wills where the same opportunity did not always exist in the case of testators. This relaxation, however, extended only to the use of the word “heirs,” for however explicit the purpose of the testator may be shown to have been, from the language of the will, to give only a life estate to the ancestor, if the estate is then limited, mediately or immediately, to heirs, without anything else in the will to show that he had used the word .“heirs” in a limited sense, the devisee took an estate in fee simple. Thus where the estate is limited to the ancestor for life and at his death to his heirs, with a further limitation, that in case he should die without heirs, then over to his brothers and sisters and their heirs, the limitation over was held to show that he had used the word “heirs” not in its technical sense, but as embracing children only; and so the will in such case was construed as if the .testator had used the word “children” instead of the word “heirs” in connection with the estate limited to the ancestor. The case of King v. Beck, 15 Ohio, 559, determined on a rehearing of the same case, 12 Id., 390, illustrates this rule of construction. There it will be observed, that the devise was to the testator’s brother Christian of all his property,, to be used by him while he lives, and at his death to go to “his heirs or heirs born in lawful wedlock,” and should he die without such heirs, then over to the children of two of his sisters, naming them. This devise over, as the court held, showed that the testator had used the word “heirs” in the sense of children, for if he had used it in its technical sense there could have been no devise over to the children of his two sisters, and the estate would have gone to his heirs general; and although the rule in Shelley’s case then applied to wills, the brother of the testator was held to have .taken a life estate only. One of the four situations pointed out in Perrin v. Blake in which the word “heirs” may be construed as a word of purchase, is where the testator has added fresh limitations, and grafted words of inheritance upon the heirs to whom he gives the estate, whereby it appears that these heirs were meant by the testator to be the root of a new heritance — -the stock of a new descent; and it will be observed that the ease of King v. Beck falls within this category. The judge in delivering the opinion in the case says: “If the estate for life created in the devisee or donee is limited precisely as it would descend at law, the rule in Shelley’s case vests the entire fee in the first devisee or donee.” Such is the fact in the case before us and distinguishes that case from this. The testator first gives to his son Edward an estate for life in the land, and at his death it is to go to his heirs. There is no devise over in case he should die without heirs, nor is there anything in the will to show that he used the word “heirs” in any other than the usual sense in law, except that he gave a life estate to his son, which as we have already shown, in no way affects the application of the rule. On the death of Edward the property is to go precisely as it would at law — to his heirs. It therefore follows that under the will of his father, Edward took a fee simple estate in the land devised to him.

2. We come then to the question whether the action of the plaintiffs can be maintained under the circumstances of the case. We think not. The sheriff’s deed, notwithstanding the fact that a life estate had been ordered sold, was made in pursuance of the order of court, and conveyed to the purchaser the legal title in fee simple; and, without a reformation, the plaintiffs cannot recover the land against one having the legal title. They have but an equity at most. They did not ask for a reformation of the deed, and a recovery on.it as reformed; and, had they done so, the def^daut might have well plead the statute of limitations to such an action. The deed was executed in 1852, and the purchaser then went into possession, and he and his successors in title • down to and including the defendant, have ever since •been in the open and notorious adverse possession of the land claiming title in fee simple.

■ The right to reform the deed accrued to the mortgagor on the execution of the deed, for it deprived him of his reversionary estate in the land, which he might, otherwise, have disposed of for value, although it could only take effect in possession on the termination' of his own life. One who takes in the quality of heir takes no new estate in the land; he simply succeeds to the estate of his ancestor. This is the legal distinction between an heir and a purchaser. When Edward Peasley died in 1893, his heirs simply stepped into his shoes with such rights in regard to the land as he had at his death. They were his real representatives, and if his right to recover the land or reform the deed in any form of action was barred, they Avere likewise precluded from doing so by the same bar. This makes it unnecessary for us to consider any of the other grounds of defense relied on by the defendant below.

Judgment reversed; and judgment on the undisputed facts for the defendant below.

Williams, Burket, Spear and Shauck, JJ., concur; Davis, J., absent.


author: By the Court :

text:
    The National Home for Disabled Volunteer Soldiers v. Overholser.

      P-ower of common pleas court to set aside its judgment — May .do, so by consent of parties, when.

    T.he court of common pleas having by statute authority to set - aside its judgments at a subsequent term, such judgments; may be set aside by the consent of both parties without state-. ' ment of the grounds for such action.
    (Decided May 7, 1901.)
    Error to the Circuit Court of Montgomery county.
    Upon the trial of the action in the court of common pleas, in which Overholser was plaintiff and the National Home defendant, the jury returned a verdict in favor of the plaintiff on the 25th day of November, 1898. Judgment in favor of the plaintiff immediately followed the verdict. Within three days, as required by statute, the defendant there filed a motion for a new trial. This motion was not disposed of by the court until the 27th day of March, 1899. On the 25th day of March, 1899, as appears from the record, by consent of the parties plaintiff and defendant, the judgment which had been entered in the previous November, and at a former term of the court, was set aside, the order being expressly made by the consent of the parties. Thereupon on the 27th day of March, the court upon consideration of the motion for a new trial, overruled the same and rendered judgment in favor, of the plaintiff for the amount of the verdict, to which ruling the defendant excepted and took a bill of exceptions which was filed May 10, 1899. On the 5th of June, 1899, plaintiff in error here filed its petition in error in the circuit court for the reversal of the judgment of the court of common pleas. On the 13th day of June, 1899, as appears from the record of the circuit court, that court, finding that it was without jurisdiction to hear and determine the cause for the reason that the petition in error was not filed within four months after the rendition of the judgment, ordered that the petition in error be dismissed and to this order plaintiff in error excepted. To reverse that order of dismissal is the object of this petition in error.

      Patterson <& Murphy and McMahon & McMahon, for plaintiff in error,
    cited the following authorities: Lambert v. Mustard, 18 Ohio St., 419; Elliot v. Plattor, 43 Ohio St., 198; Benedict v. State, 44 Ohio St., 679; Jarrett, In re est. of, 42 Ohio St., 199; Secs. 5354 and 5357, Rev. Stat.; Reynolds v. Stansbury, 20 Ohio, 344; Huntington v. Finch, 3 Ohio St., 445.

      Young é Young, for defendant in error,
    cited the following, authorities: Thatcher v. Dickinson, 2 Circ. Dec., 82; 3 C. C. R., 144; Watson v. Paine, 25 Ohio St., 340; Wellman v. Wellman, 6 Circ. Dec., 61 (9 R., 72); Exposition Building & Loan Co. v. Spiegel, 4 Circ. Dec., 474 (12 R., 761); Botkin v. Pickaway Co., 1 Ohio, 375; McVickar v. Heirs of Ludlow, 2 Ohio, 246; Critchfield v. Porter, 3 Ohio, 518; Landon v. Reid, 10 Ohio, 202; Greene v. Dodge, 3 Ohio, 486; Huntington v. Finch, 3 Ohio St., 445; Commissioners v. Cambridge, 3 Circ. Dec., 669; 7 C. C. R., 72; Hettrick v. Wilson, 12 Ohio St., 136; Braden v. Hoffman, 46 Ohio St., 639; Frazier v. Williams, 24 Ohio St., 625; Ralston v. Wells, 49 Ohio St., 298; 1 Black on Judgments, Sec. 306; Bronson v. Schulten, 104 U. S., 410; Allen v. Wilson, 21 Fed. Rep., 881; Egan v.

      Sengpiel, 46 Wis., 703; Donnell v. Hamilton, 77 Ala., 610; Little Rock v. Bullock, 6 Ark., 282; Anderson v. Thompson, 7 Lea., 259; Black on Judgments, supra, See. 306; Young v. Shallenberger, 53 Ohio St., 291; Wasson v. Heffner, 13 Ohio St., 573; Gilliland v. Sellers, Admr., 2 Ohio St., 223; Dayton & Western R. R. Co. v. Marshall, 11 Ohio St.,, 497; Note 2, Beach v. Botsford, 40 Am. Dec., 45.
   By the Court :

The circuit court acted upon its own motion, and apparently upon the impression that the court of common pleas oh March 25, 1899, was without jurisdiction to set aside the judgment which it had rendered in the 25th of November, 1898, although the parties consented thereto. That view of the subject is erroneous. It was not an agreement to confer upon the court of common pleas jurisdiction of a subject matter. That court is vested by statute with authority to set aside its judgments after the terms at which they are rendered for specified reasons, and when counsel consented that that jurisdiction should be exercised in this case, they did no more than to waive the allegation of a statutory ground for such action. That judgment having been set aside, the judgment of March 27, 1899, upon the overruling of the motion for a new trial, is the only final judgment of the court of common pleas in the case, and the petition in error having been filed within four months of the rendition of that judgment it was the duty of the circuit court to consider it.

The order of the circuit court dismissing the petition in error is reversed and the cause remanded to that court for further proceedings.


text:
    Palmer v. Darby.

      Action to recover damages for usurpation of office — Only damages recoverable are emoluments or salary of office during time unlawfully withheld.

    In an action to recover damages for the usurpation of an office, the only damages recoverable are the emoluments or salary pertaining to the office during the time it was unlawfully withheld from the rightful claimant.
    (Decided May 7, 1901.)
    Error to tlie Circuit Court of Lucas county.
    The plaintiff sued the defendant in the court of common pleas of Lucas county alleging that on the 12th day of April, 1884, he ivas a resident of the village of Wauseon and eligible to the office of councilman in that village; that on and prior to said date while the plaintiff was a duly appointed, qualified and acting councilman of said village of Wauseon, the defendant wrongfully, oppressively and maliciously, without cause, usurped plaintiff’s said office of councilman, and wrongfully, unlawfully and maliciously, without cause or reason, deprived and kept the plaintiff out of the possession of said office until the 5th day of . November, 1894; that thereafter such proceedings were had in the circuit court of Fulton county and in the Supreme Court of Ohio, that it was adjudged that the defendant was not entitled to the said office, and that he had usurped the same, and the defendant was accordingly ousted therefrom and the plaintiff was restored to said office; and the plaintiff also alleged that by reason of the wrongful and malicious usurpation of said office of councilman by the defendant, the plaintiff was obliged to employ attorneys and was put to great expense of time and money in ousting the defendant from said office, to the damage of plaintiff $1,187.56, no part of which has been paid by the defendant. The plaintiff attached to his petition an itemized account of said damages; and prayed for judgment against the defendant in the sum of $1,187.56, with interest from October 21, 1894, for costs and for all further relief. The defendant demurred to the petition on the ground that the same did not state facts sufficient to constitute a cause of action against the defendant and in favor of the plaintiff. The court of common pleas sustained the demurrer, and, the defendant not pleading further, rendered judgment for the defendant. On a petition in error the circuit court affirmed the judgment of the court of common pleas, and this proceeding in error is prosecuted to reverse the said judgment of the circuit court.

      Hurd, BrumbacJc & Thatcher and Orville 8. Brumback, for plaintiff in error.
    The case is prosecuted on the strength of the section of the Revised Statutes, Sec. 6778.
    That the rule of the Common Law thus stated is correct cannot be doubted. The form of action in such cases was on the assize, or an action for money had and received. Boyder v. Dodsworth, 6 Term Rep., 681; Lightly v. Clouston, 1 Taunt., 112; Allen v. McKean, 1 Sumner, 276; Douglass v. State, 31 Ind., 429; Auditors v. Benoit, 20 Mich., 176; Bier v. Gorrell, 30 W. Va., 95; Mayfield v. Moore, 53 Ill., 428.
    We make the very pertinent inquiry: What was the purpose of the statute, if it did not change the rule of the common law? The whole action of the Legislature under such a construction was nugatory and absolutely useless.

      A wrongful intrusion into an office is a tort. People ex rel. v. Miller, 24 Mich., 458.
    The case is closely assimilated to those in Ohio where counsel fees are allowed in actions sounding in tort by way of compensatory damages. Finney v. Smith, 31 Ohio St., 529; Stevenson v. Morris, 37 Ohio St., 10; Peckham Iron Co. v. Harper, 41 Ohio St., 100.
    The undoubted purpose of the statute is to make good the loss to the party ousted, by the wrongful usurpation of the office.
    The usurper takes the office with full knowledge of the rights of the party ousted. He voluntarily assumes the burden of making good all his loss and damage. He knows when he usurps the office his adversary’s only relief is to resort to law and incur lawyer’s fees, court costs, etc., to obtain the office from which he has been wrongfully ousted. It would seem remarkable if the statute was not intended to make good this loss and damage.
    How far a recovery of salary comes short of doing justice is seen in the case at bar, where there is no salary attached to the office of councilman.
    If such is the law, the rightful occupant of the office had better, and doubtless will, quietly yield up bis office rather than undergo a thousand dollars or more expense to maintain bis right to the office. State v. Taylor, 10 Ohio, 378; Shelton v. Gill, 11 Ohio, 417.
    It is true a statute affixing a penalty or liability will be fairly but strictly construed; but the same rule applies in affixing the liability of sureties upon an injunction bond. Roberts v. Dust, 4 Ohio St., 503; Williamson v. Hall, 1 Ohio St., 190; Hall v. Williamson, 9 Ohio St., 17; Smith v. Huesman, 30 Ohio St., 662; Krug v. Bishop, 44 Ohio St., 221.

      And it is settled in Ohio that fees and expenses necessarily incurred in obtaining a dissolution of the injunction may be recovered on the bond. Noble v. Arnold, 23 Ohio St., 264; Riddle v. Cheadle, 25 Ohio St., 278.
    The language of the liability of the surety prescribed by statute is substantially the same as the liability prescribed by section 6778 in question, viz.: binding him to pay “the damages sustained,” etc.
    To the same effect is the liability on an attachment bond construed in connection with the statute governing such bonds. The compensatory damages recoverable include attorney fees. Alexander v. Jacoby, 23 Ohio St., 358; Roberts v. Mason, 10 Ohio St., 278; Railroad Co. v. Bartram, 11 Ohio St., 457; Pope v. Pollock, 46 Ohio St.,367; Smith v. Railway Co., 23 Ohio St., 10.
    Where it is alleged that an office was wrongfully and maliciously usurped and the rightful incumbent ousted therefrom, requiring legal proceedings to be prosecuted through all the courts of Ohio for his removal, it certainly makes a case involving wilful malice, oppression and vexation. State v. Kromer, 38 Wis., 547; Douglass v. State, 31 Ind., 429; Kreitz v. Behrenmeyer, 149 Ill., 496.
    Applying this same principle here, is it not wise to construe the statute so as to make it a menace to any one usurping or wrongfully retaining a public office; in other words, by requiring him to pay the expense of counsel fees which he has unjustly and unlawfully paused the rightful occupant of the office to incur?
    As said in a case where the usurper of an' office was held liable for the salary. Sigur v. Crenshaw, 10 La. Ann., 297; Gates v. Toledo, 57 Ohio St., 105.

      The second amended petition pleads that Darby “wrongfully, oppressively and maliciously, without cause, usurped plaintiff’s said office of councilman, and wrongfully, unlawfully and maliciously, without cause or reason, deprived and kept this plaintiff out of said office.”
    We fail to see wherein further facts could be alleged to make the action of Darby malicious. The character of his action in usurping the office is a fact, being a question of purpose and intent on his part, to be alleged the same as any other fact.
    There is no presumption about it. It is purely a question of fact to be alleged and proven whether in committing the tort of usurping the office it was done with “actual malice, oppression or vexation.”
    To plead that such an ingredient of malice and oppression exists is to plead a fact. Sutor v. Wood, 76 Tex., 403; 4 Enc. Pl. & P., 473; VanIngen v. Newton, 12 Dec. Re., 732; 1 Disn., 482.
    It would be most improper to plead the evidence by which such malice is to be established. Work v. Mitchell, 12 Dec. (Re.), 761; 1 Disn., 506; Waller v. Robinson, 2 Dec. (Re.), 16 (1 W. L. M., 90).
    Malice being a fact as to a mental state, is to be plead like any other like fact, e. g., intention. Bartholomew v. Bentley, 15 Ohio, 660; Bank v. Beebe, 6 Ohio, 497; 1 Bates Pl., 114.
    It is like a replevin case where it is sufficient to allege ownership of the goods, not the evidence to show-ownership. Wilmot v. Lyon, 7 Circ. Dec., 394; 11 C. C. R., 238.
    Counsel are simply confused in attempting to draw a distinction in this case relative to malice not being presumed. 1 Kinkead Code PL, 722; Klein v. Thompson, 19 Ohio St., 569.

      It follows that our first petition may have been good, although no malice was expressly alleged, since the act of usurping the office was unlawful and so determined in. the quo toarranto case, McCracken v. West, 17 Ohio St., 16; Bartholomew v. Bentley, 15 Ohio, 660.
    The case at bar is closely assimilated to a case of malicious prosecution, where malice is plead in the same manner as we have done in the case at bar, and where under proof to sustain the allegations, attorney fees can be recovered. 1 Kinkead Code PL, 751.
    The damages sought to be recovered were consequential and so proximately caused by the wrongdoing as to render the defendant liable therefor. 1 Sedgwick on Damages, Sec. 111.
    We insist the reasonable expense of employing attorneys and the other expenses sustained in redressing the injury is as proper an element of damages in this case as is the expense sustained in the employment of a physician and purchase of medicines in a personal injury suit. Sedgwick on Damages, Sec. 217.
    Nor are we claiming attorney fees in this “action by way of exemplary damages,” as counsel argue. (Deft’s Brief 3-4.) Upon the contrary, the attorney fees are claimed by way of compensatory damages, well established, as such by the decisions of this court. Finney v. Smith, 31 Ohio St., 529; Railroad Co. v. Bartram, 11 Ohio St., 457.
    An act which if innocently done would not constitute an injury in law, if maliciously or negligently done and damages result, may afford ground for recovery in damages. 8 Am. & Eng. Ency. Law, (2nd Ed.), 549.

      ' Of like character is the claim that the word “damages” used in section 6778 means salary or emoluments of office. Grogan v. Garrison, 27 Ohio St., 50.
    To say the word “damages” had acquired a fixed legal signification of salary or emoluments of an office only, is to beg the question. The word has no such fixed legal signification. On the contrary, the fixed legal meaning of the word “damages” is, as stated by Bouvier:
    “The indemnity recoverable by a person who has sustained an injury, either in his person, property or relative rights, through the act or default of another.”
    Counsel assert that statutes similar to ours “have been passed in New York, California, Michigan, Louisiana, Indiana and North Carolina.”
    We do not know Avhere they get authority for this statement. We have been unable to find any similar statute except in NeAv York and Indiana.
    In Nichols v. McLean, 101 N. Y., 526, such a statute is referred to, but in none of the other cases cited is any statute except in New York and Indiana.
    While it is true that in Ohio attorney fees are not ordinarily recoverable, yet it is well settled that where in an action of tort the ingredient of fraud, malice or insult is involved in defendant’s conduct, attorney fees are not against public policy, but on the com t-ary are awarded as compensatory damages. It follows that the Wisconsin case (38 Wis., 547), comes nearer to the case at bar, — since attorney fees were there claimed — than any other case cited.
    The attempt to distinguish this case on the ground that the attorney fees and other expenses sought to be recovered Avere sustained in the quo 'warranto case, and not directly from the usurpation of the office, is not well founded. Kelly v. McKibben, 54 Cal., 195.

      This case is for the recovery of damages for the malicious usurpation (conversion) of the office. 1 Sedgwick on Damages, Sec. 216; Merrill v. How, 24 Me., 126; Boomer v. Flagler, 51 N. Y. Super., 208; Sprague v. McKinzie, 63 Barb., 60; Miller v. Garling, 12 How. Pr., 203.

      Doyle & Lewis, for defendant in error.
    Counsel have the impression, evidently, that they may make a case for exemplary damages and hence recover attorney fees where there are no actual damages, as there are none in this case. The rule, however, is that there must be actual damages alleged and proved, or legally presumed, before the question of exemplary damages can be considered. This rule will be found stated, with the authorities to support it, in 12 Am. and Eng. Ency. Law (2 ed., pp. 29 and 30). In this case, there being no emoluments of any kind, even nominal damages are not recoverable.
    The claim is made under section 6778,, Revised Statutes. Well, one very manifest purpose of the statute is to limit the time within which the action can be brought to one year after the date of the judgment of ouster. But counsel must know that there are a great many statutes which are merely declaratory of the common law, and it will hardly do now, in this state, to insist upon a forced construction of a statute which declares a right which existed at common law.
    The “damages” which a party might recover for being unlawfully kept out of an office to which he was entitled, had a very well known and established rule at the time this statute was passed. “Damages” meant the salary or emoluments of the office, and the authorities in Ohio well sustain the proposition, that the General Assembly used the word “damages” with that well defined meaning. Gray v. Askew, 3 Ohio, 466; Turney v. Yeoman, 14 Ohio, 207; Grogan v. Garrison, 27 Ohio St., 50; Bank v. Railroad Co., 20 Ohio St., 259.
    Statutes similar to ours, in most cases indentical, have passed in New York, California, Michigan, Indiana, Louisiana and North Carolina. Under these statutes (like our section 6778) many cases have arisen, and the rule of “damages” has been limited to the recovery of the emoluments of the office received by the intruder. In none of them have attorney fees or expenses incurred in recovering the office been allowed. Nichols v. McLean, 101 N. Y., 526; People v. Nolan, 101 N. Y., 539; Kessel v. Zeiser, 102 N. Y., 114.
    The statute in New York is quoted in the opinion in 101 N. Y., at page 536, apd is that the rightful officer might recover “damages sustained by reason of the usurpation of the defendant.” Stoddard v. Williams, 65 Cal., 472; People v. Miller, 24 Mich., 458; Glascock v. Lyons, 20 Ind., 1; Douglas v. State, 31 Ind., 429; State v. Tate, 70 N. C., 161; Bier v. Gorrell, 30 W. Va., 95; United States v. Addison, 73 U. S. (6 Wall.), 291; Mayfield v. Moore, 53 Ill., 428; Sigur v. Crenshaw, 10 La. Ann., 297; Petit v. Rousseau, 15 La. Ann., 239; Cooley on Torts, 351; Throop on Public Officers, Secs. 256, 521, 522, 523, 663 and 786.
   By the Court :

Section 6778 of the Reviséd Statutes provides that, where one recovers a judgment of ouster in quo warranto proceedings against the usurper of an office, “sneh person may, at any time within one year after the date of such judgment, bring an action against the party ousted, and recover the damages he sustained by reason of such usurpation.” At the time this statute was enacted, the measure of damages in such an action, as understood and applied at .common law, was the salary or emoluments pertaining to the office during the time it was unlawfully held by the intruder; and the legal presumption is that the legislature used the phrase, “the damages he sustained by reason of such usurpation,” in this fixed legal signification. Turney v. Yeoman, 14 Ohio, 218. Grogan v. Garrison, 27 Ohio St., 63. Therefore, in the absence of any express change in the rule of damages, the statute must be interpreted as authorizing the. recovery of the salary or emoluments of the usurped office, as damages, but limiting the action to one year after the date of such judgment of ouster. The office has no salary and no emoluments attached. The petition, therefore, does not state a cause of action, and the judgment of the circuit court is.

Affirmed.

MlNSHALL, C. J., WILLIAMS) BURKET, SPEAR, •Davis and Shauck, JJ., concur.


text:
    Hurst et al. v. Fisher et al.

      Land bid in at sheriff’s sale — By one who served as appraiser— And prevented other bidders — Such sale may be set aside on petition of judgment debtors — Even though purchase money paid into court and deed delivered.

    Where land has been bid in at sheriff’s sale, by one who, unknown to the judgment debtor, owner of the land, had served as appraiser, and it is shown besides, that such bidder undertook to prevent others from bidding at the sale, and that the land brought less than its probable value, such sale will, on the petition of the judgment debtor, be set aside and a new sale ordered even though the purchase money has been paid into court and distributed, a deed delivered by the sheriff, and no guaranty is afforded that the land will bring more at a re-sale.
    (Decided May 7, 1901.)
    Error to the Circuit Court of Ashland county.
    The action below7 w7as commenced by petition in the common pleas to set aside a sale of lands by the sheriff. The case w7as tried on appeal in the circuit court, where findings and judgment were rendered for the defendants. It appears from the record that the defendant in error, George Fisher, was one of the freeholders selected by the sheriff as appraisers, and that he, with his father-in-law7 and brother-in-law7 appraised the land; that it w7as sold by the sheriff upon that appraisement and was brought by said Fisher at that sale. The evidence introduced by plaintiffs w7as to the effect that Fisher contemplated being a purchaser before he urns called as an appraiser; that he endeavored to prevent, and probably did prevent some others from bidding, and that he made an arrangement with a prospective bidder to share the purchase with him. Also that the land sold for less than its real value, and no evidence was offered by defendants in contradiction of either of these facts, nor did Fisher go upon the stand at all to testify. The sale was reported to the court and approved, and the purchase money paid in and distributed to lien-holders, and a sheriff’s deed made to Fisher, but the owners of the land (the judgment debtors) did not have notice at that time, nor until just before the commencement of the present suit to set aside the sale, that the purchaser, Fisher, was an appraiser on whose appraisal the land was sold, nor of the facts respecting his efforts to prevent competition at the sale.

      Wm. T. Devor and E. IT. 'Noel, for plaintiffs in error.

      E. A. Myhnmis, for defendants in error.
   By the Court :

Where it appears, as in the present case, that the successful bidder at a sheriff’s sale of land was one of the appraisers on whose appraisal the land was valued for sale; that the purchaser attempted to discourage other bidders at the sale and prevent them from bidding; that the land probably did not bring its real value, and that the owners (the judgment debtors) Avere not aAvare of the facts as stated until after confirmation of the sale, execution of a deed and distribution of the purchase money, a proper enforcement of the. policy expressed in section 5404, Revised Statutes, requires that the sale be set aside and the land again offered for sale, even though no guaranty is offered that the land will bring more. The remedy may prove somewhat harsh upon the purchaser, but if so, he has only himself to blame for the dilemma in which he finds himself placed.

Judgment, reversed and judgment for plaintiff in error. ,

All concur.