author: Follett, J. Johnson, C. J. McIlvaine J.

text:
    Peters, Ricker & Co. v. Railroad Co.
    1. Whether the rate of freight fare fixed by a railroad company, under § 12 of the act -of February 11, 1848 (S. & C. 271), for distances less than thirty miles, be reasonable or not, is a question of fact to be determined by the circumstances of each case.
    2. A, shipper has a right to have his goods transported at legal rates over the usual fine of a common carrier of such goods; and if, to procure the services of such carrier, the shipper is compelled to pay illegal rates established by the carrier, the payment is not such a voluntary payment as will preclude recovering back, the illegal charge ; nor will it preclude such recovery, if the payments, by arrangement of parties, are made at the end of each month.
    ERROR to the District Court of Scioto county.
    This case is one of twelve cases, each of which has similar facts and questions of law.
    The plaintiffs owned iron blast furnaces for the manufacture of pig iron, and the furnaces were located along the line of the Scioto and Hocking Yalley Railroad between Portsmouth and Hamden. All but five of them were built after the construc-tiojn of the road, and after that time all the furnace companies relied exclusively upon it for transportation.
    This part of the S. & H. Y. R. R. was purchased about Dec. 1, 1863, by the defendant, the Marietta and Cincinnati Railroad Co., and possession taken. By the act of Eeby. 11, 1848 (S. & C. 271), the S. & H. Y. R. R. Co. was limited in its rate charges for the transportation of freight to five cents per ton per mile as a maximum charge for distances of thirty miles or more, and for distances of less than thirty miles, to “ reasonable rates.” This limitation was not on the defendant' as to its original road, but it might charge for the transportation of property “ such rates of toll as the corporation may determine.”
    After this purchase the defendant claimed the right to charge the same rates over the purchased road that were charged over its own road, and advanced the rates under dates of Jan’y 26, 1864, March 7, 1864, March 28, 1864, Aug. 1, 1864, Sept. 12, 1864, Dec. 12, 1864, and March 16,1865. This caused objection and remonstrance, and in 1867, the suits were commenced.
    The petition further avers, that plaintiffs were entitled to have their freight carried at limited rates to be charged by the S. & H. Y. R. R. Co., but that the defendant has disregarded plaintiffs’ rights and has taken advantage of plaintiffs’, necessities, and has required unlawful and unjust rates, which plaintiffs have been compelled to pay by the necessities of their business, and that plaintiffs remonstrated against the unjust exactions and protested against the payment of the same, and that the defendant, although requested so to do, has neglected and refused to account with the plaintiffs as to the payments in excess of legal rates, and that defendant has so received to and for the use of the plaintiffs the several sums of money set forth in the exhibit, and prays judgment.
    The answer has three defenses : The first denies that the defendant is restricted, in charging freight and fare, to the charter of the S. & IT. Y. R. R. Co., and claims, as purchaser of that road, to be authorized to charge any “ fair and reasonable rates the second alleges that all sums paid were so paid voluntarily, after the services for which the same were demanded had been fully rendered, and when defendant’s demand for the same could not have been enforced withoiit giving plaintiffs a day in court, with full knowledge, or the means of knowledge, of the change in the ownership of said railroad, and of the charges demanded by the defendant for the transportation of the property upon its said purchased road, and of all other facts connected with said demand ; and that said sums were not exacted as a condition of the performance of said service, nor as an inducement of such performance ; and denies all allegations which charge that the same were paid involuntarily or by coercion ; and the third denies that the sums charged were in excess of amounts authorized by the charter of the S. & II. Y. R. R. Co., and says the charges so made included compensation for warehouses, grounds and facilities furnished, storing, handling, etc.
    The reply to the first defense denies that, as purchaser of the said road, the defendant has any other right or power to charge fare or freight otherwise than as prescribed for the original owner, the S. & H. Y. R. R.
    The reply to the second defense denies that the payments were voluntary, and avers that they were cqerced and illegally exacted by defendants.
    The reply to the third defense denies defendant’s right to charge for anything but transportation.
    The defendant demurred to the reply to the first defense. The denvurrer was sustained in the court of common pleas and in the district court, and came to this court on the question, whether the M. & C. R. R. Oo. is restricted on this purchased branch in charging for freight; and the judgment below was reversed for error in sustaining the demurrer.
    In Campbell v. M. <& C. H. H. Co., 23 Ohio St. 168, this court held that section 12 of the act of February 11, 1848, applied to this case, and sent it back to th'e court below for further proceedings.
    The cases were then sent to a special master to take testimony and report. The master took the evidence and reported it, and found and reported certain rates “ to be reasonable rates for the distances named, during the period covered by the report, and that, from and after March 28, 1864, the defendant had charged plaintiffs rates in excess of legal rates allowed by the charter of the S. & II. V. R. R., and that from March 28, 1864, to February 1, 1867, the plaintiffs paid defendant excessive and illegal charges; and“ that the payment of such excess was compulsory in the sense that plaintiffs and defendant did not stand on a footing of equality, that said sums exacted were illegal and unauthorized, and that plaintiffs were required to pay the same to procure the transportation of their property, without which the plaintiffs in each of said cases by reason of their manirfacturing business would have suffered great loss.”
    The court of common pleas, from the report and evidence, also found, u that said payments in excess of rates authorized by law, and inclusive of interest to the first day of the present term, amount to the sum of § , but that the payments were voluntarily made and under such circumstances that they cannot be recovered back ” ; and rendered judgment for the defendant. Plaintiffs excepted, and the cases are here on their bill of exceptions.

      Edward F. Hunter, W. A. Hutchins and M. A. Daugherty, for plaintiffs in error :
    Were the excessive payments by plaintiffs to defendant, voluntary and with full knowledge, or under such circumstances of coercion or restraint as to render them, in law, involuntary payments, or in such ignorance of fact or law, as, for that reason, to authorize their recovery back? We claim that the recovery may be had on either ground. Moses v. Maofar-lan, 2 Burrow, 1005 ; Notes to the case of Marriot v. Hampton, in 2 Smith’s L. Cas. 455 and authorities there cited ; Ashmole v. Wainvóright, 2 Adolph. & Ellis, 837 (42 E. C. L. 938); Barrett v. Stockton, Ac. Railway Go., 2 Man. & Gr. 134 (40 E. C. L. 528); s. c., 3 Id. 956 ; Parker v. Great Western Ry. Go., 7 M. & Gr. 253 ; Qa/i'twright v. Rowley, 2 Esp. N. P. 0. 723 ; Waterhouse v. Keen, 4 B. & C. 200; Parker v. Bristol, Ac. Railway Go., 6 Exch. 702; Oates v. Hudson, 6 Excli. 34C; Gaston v. B. A E. Railway Gompany, 1 Best & Smith 112; Glose v. Phipps, 7 M. & G. 586 ; 3 J. Scott, 205 ; 79 E. C. L. 205; Gates v. Hudson, 6 W. 11. & G. 346 ; 5 E. L. &E. 469 ; Alston v. Durant, 2 Strobliart, 264 ; Shaw v. Woodcock, 7 Barn, and Cress. 13; 14 E. C. L. 14; Railway Go. v. Lockwood, 17 Wall. 357; Maxwell v. Griswold, 10 Howard, 242; Harmony v. Bingham, 12 N. Y. 99; Preston v. Boston, 12 Pick. 7; Boston v. Sandwich Glass Go., 4 Met. 181; Astly v. Reynolds, 2 Str. 916; Joyner v. Egremont, Cush. 576; Corkle v. Maxwell, 3 Blatchford, 413; Ogden v. Maxwell, Id. 319 ; American Steamship Co. v. Young, 89 Pa. St. 186; Great Western Railway Go. v. Sutton, Law Reporter 4 II. of L. 226 ; Evershed v. London, Ac. Railway Go., 20 Eng. Rep. 323; First National Bank v. Watkins, 21 Mich.' 483 ; Atwell v. Zeluff, 26 Mich. 118 ; McKee v. Campbell, 27 Mich. 497; Robinson v. Ezzell, 72 N. C. 231 ; Harvey v. Olney, 43 Ill. 336 ; Schooley v. Mumford, 60 N. Y. 498 ; Dana v. Kimble, 17 Pick. 545 ; Railroad Co. v. Cook, 37 Ohio St. 273.
    The following authorities are cases in which the payment was made after the service was performed, but with reference and under the pressure of, and coerced by the force of future service that was expected, and which was necessary to the party' paying. Dana v. Kemble, 17 Peck, 545 ; Chicago A Alton R. R. Co. v. Chicago Vir. A Wil. Goal Co., 79 Ill. 121; Lafayette, Ac. R. R. Co. v. Pattison, 41 Ind. 312 ; Mobile, Ac. Railway Co. v. Steiner, dl Ala. 559 and cases there cited ; Telegraph

      Co. v. Meyer, 28 Ohio St. 521; Stephen v. Daniels, 27 Ohio St. 527; Balter v. Cincinnati, 11 Ohio St. 534.
    As to the ground of recovery, that the parties plaintiff acted under ignorance or mistake of fact or law. Northrop v. Cranes, 19 Conn. 548; Fuller v. Chicago & N. W. R. R. Co., 31 Iowa, 187; Northrop's Mors. v. Craves, 19 Conn; 548; Mo Naughton v. Partridge, 11 Ohio, 223 ; Evarts v. Strode, Id. 480 ; Harmony v. Bingham, 2 Kernan, 99, 109, 113; Finley v. G. (& S. R'y Co., 34 E. C. L. & E. 12; Edwards v. Morris, 1 Hamond, 531; Claton v. Brest, 10 Ohio St. 544. Common carriers as public officers, Sandford v. R. R. Co., 24-Pa. St. 378-381 ; N. J. S. N. Co. v. Kerch's Bit., 6 How. 344-382; Story on JBaihnents, § 508 ; Bennett v. Dutton, 10 N.; H. 426 ; McDuffree v. P. ds R. R. R. Go., Id. 430 ; Messenger v. P. R. R. Co., 36 N. J. (7 Vroom) 407 ; Young v." Miller, 10 Ohio, 90; Davenport v. Sovil, 6 Ohio St. 463; Ormsby v. Longworth, 11 Ohio St. 666 ; Ins. Co. v. Boyle, 21 Ohio St. 119; Kenneth v. S. C. R. R. Co., 15 Rich. 284; Kerr on Fraud and Mistake, 399.

      McClintic & Smith and Harrison, Olds <& Marsh, for defendant in error:
    I. This court upon error should not, we submit, set aside or reverse a finding of the court below, upon the evidence, that the charges sought to be recovered back were made by the railroad company in good faith under an honest belief that they were reasonable and legal; that they were paid by the plaintiffs, without remonstrance or protest or any notice of an intention to sue to recover them back, and after the services for which the same were demanded had been fully rendered and performed, and when the defendant’s demand for the same could not have been enforced without giving the plaintiffs a day in court to contest the same; that, when the plaintiffs sometimes complained of increased rates, they were satisfied by the explanations and reasons given by the officers of the company for the necessity therefor ; that the payments were not exacted as a condition of the performance of said services, nor paid by the plaintiffs as an inducement of such performance; that during the period of these payments there were no threats made by the officers of the defendant, and the plaintiffs were not intimidated, and that the plaintiffs were not mistaken as to any material matter of fact or law, and were . not influenced by any mistaken belief of a liability to pay. That payments made under such circumstances cannot under the rules of law be recovered back, would seem to be too well settled to admit of much argument. But if the circumstances fell far short of this, there could be no recovery. These suits are not brought on any statutory right of action, or for a penalty. A right of action to recover for injuries from overcharges was first given by the act of April 25, 1873 (Ohio Laws, vol. 70, p. 151), almost six years after these actions were commenced. The case of R. R. Go. v. Gook, 37 Ohio St. 285, has no bearing on any question here. The right here, if any, must rest on the principles of the common law. These actions are not for damages for a tort or wrong. These are not actions on express contracts, or for a breach of any express contract. They are actions on alleged implied promises to pay back to the plaintiffs money which the plaintiffs paid to the defendant. The rule is, where money has been paid without the influence of a mistake of a material fact, and without fraud or duress on the part of the payee, such moneys are, in contemplation of law, paid voluntarily, and cannot be recovered back. Broome’s Legal Maxims, *273; 2 Smith’s L. Cas. (5th Am. Ed.), note to Marriott v. Hampton, 238, 241; Stephan v. Daniels, 27 Ohio St. 538; Brisbane v. Daeres, 5 Taunton, 143 ; Lester v. Mayor of Baltimore, 29 Md. 419 ; Elbert v. Swartwout, 10 Pet. 137; Mays v. Cincinnati, 1 Ohio St. 275 ; 1 Parsons on Contracts, 466; Lambornv. Commissioners, 97 U. S. 181.
    II. As to payment under mistake. Leake on Contracts, 101, 103; Chi tty on Contracts, 628 ; Fr ambers v. Risk, 2 Brad well (Ill.) 499; Kelly v. Solari, 9 M. & Welsby, 75; Southwick v. Bank, 84 N. Y. 420 ; Buckley v. Stewart, 1 Day, 133; 3 Parsons on Contracts,* 398 ; City of Marietta v. Slocomb, 6 Ohio St. 472; Arnold v. R. R. Go., 50 Ga. 304 ; Bateman on Com. Law, 26 ; 1 Story Eq. § 140 ; 12 East, 38 ; 2 Id. 469 ; 8 "Wheaton, 215 ; 2 Johns. Ch. 51; 9 Cow. 674 ; 1 Wend. 855 ; 10 Pet. 138 j 38 Md. 226 ; 3 Hurl.& Colt, 800 ; 1 Best & Smith, 112 ; 15 Rich. (S. C.) 284.
    III. As to duress: All the cases which stand on the ground of duress, will be found to be embraced within one of the following classes : 1. When the payment is made to release or get rid of an actual and existing duress of person or property, or when seizure of the person or property can only be prevented by making the payment. Mays v. Cincinnati, 1 Ohio St. 268; Marietta v. Slocomb, 6 Ohio St. 471; ’Williamson v. Cole, 26 Ohio St. 207; Baltimore v. Leffer-man, 4 Gill, 425 ; Morris v. Baltimore, 5 Gill, 244; Smith v. Redfidd, 27 Maine, 145. 2. When the payment is made to an officer armed with process of law, and clothed witli power, and charged with the duty to enforce summary payment. Stephen, Treasurer v. Daniels, 27 Ohio St. 527-538 ; and cases cited, 541, 542. 3. When the payment is exacted or extorted by a party, who has come under a present legal duty to perform a given service, as the condition of tiie service, or to induce the performance of such service. Baker v. Cincinnati, 11 Ohio St. 534; Robinson v. Ezzell, 72 N. C. 231. In all cases the payment must be made under an immediate and urgent necessity. The cases under consideration do not fall within either class. 1. When the payments were made, the property was not in the possession of the railroad company, but had been previously delivered to the owners, after the performance of the service. There was no seizure of it threatened, and no lion was assertéd upon it; and the payments were not made to free the property from any custody or control of the railroad company or its agents. 2. The agents of the company, who demanded the money, after the performance of the service, were not officers of the law, or clothed with authority, and charged with the duty to enforce summary payment, without suit, and an opportunity to defend. 3. In every case there was a credit given, after the transportation was completed, and the goods had been delivered, and payments were never exacted before the service; and such payments could not have been a condition of or induce-rnent to the performance of the services paid for. These facts are proved beyond all question, and there is no room for dispute about them. On this subject see, 59 N. Y. 603 ; 40 Ill. 514; 5 Gush. 117; 61 Me. 227; 13 Me. 146; 17 Id- 338; 2 Kent’s Com. 453 ; Story’s FI. 249, 250; 2 Green!. Ev. § 301, n.; 5 Otto, 210 ; 18 Oal. 265. The plea of business necessity will not avoid. Ooebel v. Linn, 47 Mich. 489.
   Follett, J.

The plaintiffs aver that the defendant from time to time has received to and for the use of the plaintiffs several sums of money specified and set forth in tabular statements ; and that the several sums so received were for freight charges in excess of legal rates.

It is admitted that the amounts charged were paid.

The matters set up in the first defense were disposed of by this court in Campbell v. M. & C. R. R. Co., 23 Ohio St. 168; by holding: “ Where the railroad of one company is purchased by another railroad company, in pursuance of a statute authorizing the purchase, in the absence of any provision of law to the contrary, the road passes to the purchasing company subject to the same restrictions and limitations as to rates chargeable for transportation as attached to it in the hands of the vendor.” And section 12 of the act of February. 11,1848 governs this case.

In that case this court also held that : “Where a railroad company is authorized to demand and receive compensation for transportation of property 1 not exceeding five cents per ton per mile, when the same is transported a distance of thirty miles or more, and in case the same is transported for a less distance than thirty miles, such reasonable rate as may be from time to time fixed by the company,’ it is unreasonable as a matter of law, that the company should fix a greater sum for a less distance than thirty miles than the maximum allowed for full thirty miles.”

In Smith v. P. Ft. W. & C. Ry. Co., 23 Ohio St. 10, this court also held : “ Whether the rate oí passenger fare fixed by a railroad company under section 12 of the act of February 11, 1848, (S. & C. 271), for distances less than thirty miles, be reasonable or not, is a question of fact for the jury, to be determined under such instructions by the court as the circumstances of the particular case may require.”

In that case Mcllvaine, J., said : “ Whenever, therefore, the determination of the question whether the rate be reasonable, involves the necessity of hearing testimony, it falls within the province of the jury.” We think the reasonableness of freight fare may be determined in the same manner.

In this case the special master heard the testimony and found the facts, and also reported the evidence, and from the peculiar facts of the case the master found a certain amount due for “ the payments in excess of rates authorized by law and the court below, from the same evidence, found the same facts, and added interest to that amount and found a definite sum. These findings seem conclusive; and, whether or not these particular findings be before this court for review, the majority of the court think there was no error in finding that such payments were for charges in excess of rates authorized by law. The defendant should have known what were legal rates and should have charged no more.

The plaintiffs have paid to defendant these illegal charges— money unjustly obtained; and the remaining question is, can the plaintiffs recover back the same ?

The defendant denies the plaintiffs’ right to recover back, on the ground that these illegal charges “ were so paid voluntarily^ after the services for which the same were demanded had been fully rendered and performed,” &c.

The plaintiffs paid the charges for each month at the end of the month, and as the plaintiffs and defendant did not stand on terms of equality, they so paid to secure transportation for the succeeding month.

The defendant prescribed its own rates, and would carry the plaintiffs’ freight only at the established rates, though these rates were illegal and unreasonable, and when, as á common carrier, it should have carried this freight at legal rates. The special master found that, “ the sums exacted were illegal and unauthorized, and plaintiffs were required to pay the same to procure the transportation of their property, without which, tlie plaintiffs, in each of said cases, by reason of tbe character of their manufacturing business, would have suffered great loss.”

The defendant did not require the payments to be made in advance of carrying each shipment of freight, but the charges of each month were required to be paid at the end of the month or future freight would not be carried.

Plaintiffs could compel the defendant to carry their freight only by a resort to the courts and at the end of litigation. The history of these suits, begun in 1867 and just ending in 1884, shows that plaintiffs could not obtain speedy and adequate redress, such as would save their business and prevent loss, simply by a resort to the courts to enforce legal rights. And as defendant would not accept the payment of legal rates, and required the full payment-of its illegal charges, the plaintiffs, complaining and objecting to the increased and illegal charges, were forced to pay them. Their choice and volition were compelled. Such payments are not voluntary. We will refer to some of the authorities ánd reasons of this position.

“ The common principle is that if a man chooses to give away his money, or to take his chance whether he is giving it away or not, he cannot afterwards change his mind; but it is open to him to show that he supposed the facts to be otherwise or that he really had no choice.” Pollock’s Principles of Contract, 523. These plaintiffs really had no choice.”

In 1760, in Moses v. Macfarlan, 2 Burr. 1005, Lord Mansfield said: “ This kind of equitable action, to recover back money which ought not, in justice, to be kept, is very beneficial, and therefore much encouraged. It lies only for money which, ex aequo et l>ono, the defendant ought to refund ; . . . But it lies for . . . money got through . ... an undue advantage taken of the plaintiff’s situation, contrary to laws made for the protection of persons under those circumstances.”

The plaintiffs paid this money in like situation.

In Parker v. Great Western Ry. Co., 7 M. & Gr. 253, the court held that payments made to a common carrier to induce it to do what by law, without them, it was bound to do, were not voluntary, and might be recovered back. Addison on Contracts, *1043, approves this principle. Mr. Justice Matthews, in Swift Co. v. United States, 111 U. S. 29, approves the doctrine, and calls it a “ wholesome principle.” And in Baker v. City of Cincinnati, 11 Ohio St. 558, Gfholson, J., approves the same authority. In Maxwell v. Griswold, 10 How. 242, the court said : “ Now it can hardly be meant, in this class of cases, that to make a payment involuntary, it should be by actual violence or any physical duress.”

In the case of Railroad Co. v. Lockwood, 17 Wall. 379, Mr. Justice Bradley says: The carrier and his customer do not stand on a footing of equality. The latter is only one of a million. He cannot afford to higgle or stand out and seek redress in courts. His business will not admit such a course. He prefers rather to accept any bill of lading or sign any paper the carrier presents; often, indeed, without knowing what the one or the other contains. In most cases he has no alternative but to do this, or abandon his business.”

In Beckwith v. Frishie, 32 Vt. 559-566, it was said : “ To make the payment a voluntary one, the parties should stand upon an equal footing.”

This is not a case of individuals dealing with each other on terms of equality ; nor a case of payment of illegal charges to obtain possession of property; nor payment of illegal taxes to prevent the sale of property. ■

Here, the defendant was a common carrier of such freight as plaintiffs had for transportation ; the state had given the defendant, through its purchase of this part of its road, its right to use this road, and had limited its rate of charges. The plaintiffs’ business was dependant on transportation by the defendant, and they were entitled to have their freight carried at legal and reasonable rates. The defendant prescribed rates illegal and unreasonable, and required its agents to demand and receive such rates, or not carry the freight.

Plaintiffs, objecting and protesting against the basis and the amount of the changes, paid them at the end of each month, and they so paid the illegal charges to procure the future carriage of their freight.

The case of Swift Co. v. United States, 111 U. S. 22, is very much like this. There the commissioner of internal revenue had acted upon a wrong basis in charging for stamps for friction matches. The Swift Co. gave orders for stamps and paid for each purchase within sixty days from the delivery of the stamps; and thus dealt from 1870 to 1878. No protest had been made by the company, though years before, in 1866, a member of the company “ made repeated protests to the officers of the Internal Revenue Bureau against its methods of computing commissions,” in similar cases.

The court held : A course of business and a periodical settlement between the commissioner of internal revenue and a regular periodical purchaser of revenue stamps entitled by statute to commission on his purchases payable in money, which shows that the commissioner asserted and the purchaser accepted that the business should be conducted upon the basis of payments of the commissions in stamps at their par value instead of in money, does not preclude the purchaser from asserting his statutory right, if he had no choice, and if the only alternative was to submit to an illegal exaction or discontinue his business.” And the court also held : “ When the commissioner of internal revenue adopted a rule of dealing with purchasers of stamps which deprived them of a statutory right to be paid their commissions in money and obliged them to take them in stamps, and made known to 'those interested that the rule was adopted and would not be changed, the 'rule dispensed with the necessity of proving, in each instance of complying with it, that the compliance was forced.” Mr. Justice Matthews said: “No formal protest, made at the time, is, by statute, a condition to the present right of action, as in cases of action against the collector to recover back taxes illegally exacted :” and the court did not require any protest. The rule was adopted by the commissioner, and would not be changed on further application ; and business could be transacted only on that footing ; and they paid within sixty days. Mere the rates were fixed by the defendant, and the shipper must pay or forego shipment; and plaintiffs paid within thirty days. In principle the cases are alike. In McGregor v. Erie Railway Co., 35 N. J. Law 89-113, plaintiff recovered back from defendant certain moneys unlawfully demanded and taken for transportation of merchandize from Paterson to Jersey City. Bedle, J., having cited certain cases, said : In these cases there was an express refusal, but I do not consider it necessary that the refusal should be express. It is sufficient if the person has just and reasonable ground to apprehend, that unless the money is paid his goods will not be carried, or .will be withheld. Where a corporation or person has the power to refuse a right to which a party is entitled, unless he complies with an unjust demand, they do not stand on an equal footing.” And the court held : “ J3ut when they are not on an equal footing and money is paid, not by compulsion of law, but by compulsion of circumstances, as when it is paid to release goods from illegal restraint, which cannot otherwise be reasonably effected, or to compel the performance of a duty by others in order to enjoy or obtain a right, it may be recovered back. Under this head may be classed moneys paid under color of title or charges on turnpikes and railroads.”

“ Courts will not be illiberal in allowing a person to act upon his reasonable apprehension of such refusal, where the circumstances fairly show that unless he does so submit to the demand, his right will be withheld.”

In Lafayette & Indianapolis R. R. Co. v. Pattison, 41 Ind. 312, the excessive charges were recovered back. The syllabus contains the following : “ During the rebellion, A. had a contract to furnish the government with a certain number of beef cattle during two months, and for the purpose of filling such contract went to Chicago and made a contract with a railroad company to ship cattle for him to Indianapolis at sixty-five dollars per ear ; and, leaving an agent to ship, he returned to Indianapolis to receive the cattle. The cattle of the first shipment of two ear loads were sent to the cattle yard of A., and after a few days a bill for two hundred and one dollars and two cents was sent to A., which he refused to. pay, and informed the agent of the railroad company that he had a contract for the shipment at sixty-five dollars per car; the agent denied knowledge of any such contract, and insisted that the bills must be paid as presented, and that he would not deliver any future car loads of cattle until the freight was paid, as he made it up from the way bills, and that the bill included other things besides freight, which he could not itemize. It was agreed that A. should pay under protest and also future freight, and the cattle should be delivered as they arrived, and A. should reserve the right to recover any sum so paid unjustly. In pursuance of this agreement, the agent delivered the cattle at the yard of A. as they arrived from time to time, and as soon as the bills were prepared they were paid by A.: Held, that the payments were not voluntary, and that A. could recover all sums so paid in excess of his contract price.” And Bustirk, J., says: “ We are of opinion that the money so paid could be recovered back if there had been no valid agreement that ’ it might be. While the appellants were not in the actual possession of the cattle of the appellee, they possessed such power and control over the shipment and delivery thereof as gave them an undue advantage over the appellee, and the necessity of the appellee was so gréat and pressing as to deprive him of the freedom of his will.”

The case of Chicago & Alton R. R. Co. v. C. V. & W. Coal Co., 79 Ill. 121, is as follows :

“ 1. Certain individuals constructed a railroad twelve miles long, extending from a coal mine, belonging to a coal company, to a station on the Illinois Central Railroad, and, on April 30, 1869, they sold the same to a railroad company and turned it over to them, and, on the same day, the company purchasing turned it over to another railroad company. The last named company operated the road in pursuance of the contract of sale between the first owners and the purchasers from them, for three years, complying with the terms of said contract as to rates of freight to be charged to the coal company for transportation of its coal. The individuals building and selling the road, and the coal company, were the same. Held : that the railroad company last purchasing, by taking the road and recognizing the rates of freight established by the contract of sale, adopted the contract, and were bound by its terms, and that the coal company could maintain an action against them for a breach of it.”
“ 2. In such case, where the coal company had no other outlet for its coal, and the railroad company exacted more freight than, by the terms of the contract, they were entitled to, the coal company should be considered as under a kind of moral duress, and the payment by them of the freight demanded, under such circumstances, cannot be considered voluntary, and they would have the right to sue upon the contract and recover back the excess of freight paid over the contract rate.”

Mr. Justice Broese said : It can hardly be said these enhanced charges were voluntarily paid by appellees. It was a case of ‘life or death ’ with them, as they had no other means of conveying their coals to the markets offered by the Illinois Central, and were bound to accede to any terms appellants might impose. They were under a sort of moral duress, by submitting to which, appellants have received money from them which, in equity and. good conscience, they ought not to retain.”

In Mobile & Montgomery Ry. Co. v. Steiner, 61 Ala. 559, illegal charges for transporting cotton were recovered back. The court held : “ The nature of the business considered, the shipper does not stand on equal terms with the carrier, in contracting for charges for transportation ; and if the shipper pays the rates established in violation of law by the carrier, rather than forego his services, such payment is not voluntary, in the legal sense, and the shipper may maintain his action for money had and received, to recover back the illegal charge.”

To the objection that the payments were voluntarily made, and, therefore, could not be recovered back, Stone, J., said: “ Railroads have so expedited and cheapened travel and transportation ; have so driven from their domain all competing modes of transportation, that the public is left no discretion but to employ them, or suffer irreparable injury in this age of steam and electricity. They have their established rates of charges, and these the shipper must pay, or forego their facilities and benefits. To object or protest would be an idle waste of words. The law' looks to the substance of things, and does not require useless forms or ceremonies. The corporation and the shipper are in no sense on equal terms, and money thus paid to obtain a necessary service is not voluntarily paid, as the law interprets that phrase.”

The above citations are sufficient.

The foregoing principles 'and authorities show, that the payments made in this case should not be regarded as voluntary, and that no principle of equity shown by defendant can aid the defendant in withholding from plaintiffs the money so unjustly obtained by the defendant.

There was error in the courts below, and this court enters judgment for the plaintiffs for the amount found by the court below, together with interest on the same from the first day of that term of court, and costs of suit.

Judgment reversed and judgmentfor plaintiffs.

Johnson, C. J.

Concurs in holding that under the facts disclosed, the excessive charges may be recovered back, but he dissents from the construction placed on section 12, of the act of 1848, which limits the rate of freight to five cents per ton per mile for distances of 30 miles or more, and reasonable rates for less distances. He does not think that section applies to packages and parcels weighing less than a ton, and which by the usual custom are not shipped by weight.

McIlvaine J.

Dissenting. I differ from my brethren on the weight of testimony in this case. I think the payments of illegal rates were voluntary. The payments were not made at the time goods were carried, but at the end of the month, for past freights, and I have been unable to find any testimony satisfactorily showing that payments were exacted as a condition of future freightage, or paid on any reasonable belief that future freights would be refused unless payments were made.


source: Caselaw Access Project

author: Owen, J.

license: Public Domain

text:
    Reed v. Radigan.
    TVIiere a judgment debtor pays the judgment in full, after a sheriff’s sale of his lands to satisfy it, it is error in the court thereafter to confirm such sale against the debtor’s objection.
    Ebeoe to the District Court of Licking county.
    On March, 8, 1881, the sheriff of Licking county, by virtue of an order of sale issued to him from the common pleas court of his county, to satisfy certain decrees which were the only liens upon certain real estate of Townsend Reed, the plaintiff in error, sold to Michael Radigan, the defendant in error, such real estate for the sum of $3,250, who paid the same into the hands of the sheriff. On March 10, 1881, the sheriff made his report to the court of the sale. The proceedings up to and including the sale, were, in all respects, in conformity to law. During vacation and before any motion had been filed to confirm the sale, Reed paid the decrees in full, with all interest and costs. On April 5, 1881, Reed filed a motion to set aside the sale, upon the ground that the decrees, with interest and costs, had been paid in full.
    Thereafter, at the April Term of the court, 1881, this motion was overruled, and the motion of Radigan to confirm the. sale was allowed, the sale confirmed, and the sheriff ordered to convey to the purchaser. The several rulings of the court upon these motions were excepted to by Reed. The district court, on error, affirmed the judgments and rulings of the common pleas; and to reverse the judgment of affirmance the present proceeding is prosecuted.

      J. B. Jones, for plaintiff in error.

      Dennis db Dennis, for defendant in error.

      M. A. Daugherty, for plaintiff in error, in reply.
   Owen, J.

The sale by the sheriff was made, in all respects, in conformity to the provisions of the statutes. If there was any reason why the sale should not have been confirmed, or why it should have been set aside, it is to be found in the fact that, after sale and before confirmation, the debtor, whose lands were sold, satisfied the decrees upon which they were sold.

Section 5398 (Rev. Stat.), provides that: “ If, upon the return of any writ of execution, for the satisfaction of which lands have been sold, it be found by the court, on careful examination of the proceedings of the officer, that the sale has been made, in all respects, in conformity to the provisions of this title, the clerk shall be directed to make an entry on the journal that the court is satisfied of the legality of such sale, and that the officer make to the purchaser a deed for the lands,” etc. It is maintained by the defendant in error that, the proceedings having conformed to the requirements of this enactment, there was no discretion in the court, and that it was its plain duty to confirm the sale and order a deed to the pui’chaser; and that, having paid the purchase money in full, he became invested with an interest in the land which could not be subsequently divested by any act of the debtor or of the court. If this construction of the provision above cited is to prevail, it will follow that in all cases where the purchaser is misled as to the title of the lands sold; in all cases where the lands are appraised at a sum far below their true value ; in all cases where, without the fault of either party to the proceedings, competition in bidding is prevented, whereby the sale is at a sacrifice; where the judgment is suspended by appeal after the sale; and in a variety of cases where a confirmation of the sale will work hardship and sacrifice, the court is powerless to avert the wrong by the easy and simple means of setting aside, or refusing to confirm the sale. Such a construction of the statute and of the powers of the court is not only against the common understanding of the profession, and at variance with the uniform practice of the courts, but we believe it is, both upon principle and authority, untenable.

It should be borne in mind that the primary object of the sale by the sheriff is to make the money due the creditor (Borer on Judicial Sales, § 20), and when this is accomplished, there is no substantial reason why the proceedings should go farther. The purchase money paid at a sheriff’s sale is held by the officer making the sale “ as security that the purchaser will fulfill his contract in case the sale shall be confirmed by the court.” Welch, C. J., in Fiedeldey v. Diserens, 26 Ohio St. 314. “ The power of the court is limited to a confirmation or vacation of the sale, as to which they are to exercise sound legal discretion, and in which all parties— the plaintiff, the defendant, and the purchaser — may be heard.” Peck, J., in Trust Co. v. Gibbon, 10 Ohio St. 566. It will be found upon an examination of the authorities, that in states where confirmation is required, the purchaser obtains no vested rights until after the sale is confirmed, and if the confirmation (which depends upon the sound discretion of the court,) is refused, the ‘rights of the purchaser fall to the ground. Taylor v. Gilpin, 3 Met. (Ky.) 544; Hunting v. Walter, 33 Md. 60; Rorer on Judicial Sales, § 10; Sowards v. Pritchett, 37 Ill. 517; Fiedeldey v. Diserens, 26 Ohio St. 312. In the latter case it was held that: "When land is sold on execution or order of sale, and before continuation of sale by the court, the judgment or decree is satisfied by payment to the plaintiff, and the sale is therefore set aside, the officer making the sale is not entitled to poundage on the purchase money for which the land was so sold, the same not being money actually made and paid, within the meaning of the statute.”

In Bassett v. Daniels, 10 Ohio St. 617, judgment was rendered against the defendants, and an order of sale of real estate allowed. Notice of intention to appeal was entered. Sale was duly made by the sheriff under this order. The proceedings were regular. After report of the sale, the defendants perfected the appeal by bond. At the next term of court the purchasers moved for confirmation of the sale. Confirmation was refused and the purchasers prosecuted error.

The court say: “ An appeal perfected suspends all proceedings upon the judgment appealed from. An order confirming a sale of lands on execution and ordering the sheriff to make a deed to tbe purchaser, is a part of the proceedings to enforce a judgment; and a sale of real estate made before an appeal bond is filed, will not be confirmed after the appeal is perfected.” If the order of confirmation is a part of the proceedings to enforce a judgment, and a proceeding which suspends the operation of the judgment will defeat the confirmation of a sale made under it, it is difficult to see why payment and satisfaction in full, which actually extinguishes the judgment, should be less operative to defeat a confirmation of the sale made under it.

Upon all the facts appearing by the record in this case, it was the duty of the court to refuse confirmation of the sale, and in its action in confirming it after the judgment had been satisfied in full, there was error.

Judgment reversed.


author: McIlvaine, J.

text:
    Blandy v. Benedict.
    1. A mortgage of chattels, given to indemnify the mortgagee against a liability as surety for the mortgagor, is void as against the creditors of the mortgagor, unless the mortgagee, his agent or attorney shall enter on the mortgage a true statement, under oath, of his liability as surety and that the mortgage was taken in good faith to indemnify against any loss that may result therefrom. 66 Ohio Laws, 346.
    2. A defect in such statement can not he cured by the conditions contained in the mortgage unless reference is made thereto in the statement Gardiner v. Parmalee, 31 Ohio St. 651.
    3. A mortgage void as to creditors is void as against an assignee for the benefit of creditors. Manes v. Tiffany, 25 Ohio St. 549 ; Lindemann v. Ingham, 36 Ohio St. 1.
    4. A deed of assignment for the benefit of creditors, which excepts from the operation of the assignment “all existing liens,” does not give priority to a mortgage lien which is void as against creditors although valid as against the assignor.
    Error to the District Court of Muskingum county.

      On the 9tb of February 1867. John L. Taylor executed to Henry Blandy a chattel mortgage on certain property therein described to indemnify Blandy as surety for Taylor on certain indebtedness therein specified. On this mortgage was entered a statement verified under oath as follows.
    “ The State of Ohio, MusKihguh CouNty, ss.
    Henry Blandy, mortgagee, being duly sworn, upon his oath says that the within named mortgagor, John L. Taylor, is indebted to him in the sum of ten hundred and thirty dollars, with interest; that the said claim is just and unpaid ; and that to secure the payment of the same, the within mortgage has been executed to him in good faith.
    HeNRY BlaNdy.”
    . On the 31st of March and the 16th of April 1877 respectively Taylor executed to Blandy other chattel mortgages similar in all respects to the foregoing except as to names, dates, amounts and description of property. These several mortgages were duly filed.
    On the 19th of April 1877, Taylor executed to one Alexander Johnson a deed of assignment for the benefit of his creditors, describing certain property real and personal. This deéd contains the following clause:
    “ This conveyance includes all the real and personal property owned by me, whether specifically described herein or not, excepting from the operation of this assignment all existing liens, which are not to be affected hereby, excepting therefrom, and saving and reserving to the said John L. Taylor his homestead, and all other rights and property to which he may be entitled under the homestead exemption or other laws of Ohio.” •
    This deed was duly filed in the probate court, in Musking-um county, and subsequently Henry Blandy was appointed trustee for the benefit of creditors in the place of Alexander Johnson, assignee.
    Henry Blandy, as successor of Johnson, converted the assigned property, including the chattels embraced in the foregoing mortgages, into money, and filed, in tbe probate court, bis account, claiming a credit of $1,082.78 on account of moneys paid as surety for Taylor, under tbe chattel mortgages aforesaid.
    Tbe probate court allowed tbe credit claimed by Blandy, bolding tbe mortgages to be valid liens against tbe general creditors of tbe assignor.
    Tbe creditors, Benedict, Hall & Co. and others, appealed from this judgment to tbe court of common pleas, Muskingum county, where tbe preference of Blandy’s mortgages over the claims of general creditors was denied. Tbe judgment of tbe common pleas, on error, was affirmed by tbe district court. ■

      Moses M. Granger and A. W. Train, for plaintiff in error.

      John Ming, T. J. Taylor, and J. T. Crew, for defendant in error.
   McIlvaine, J.

Two questions are presented in this case: 1. In tbe administration of the assigned estate did tbe mortgages of Blandy have priority over tbe claims of other creditors ? 2. If not, did the exception of liens in tbe deed of assignment give precedence to Blandy over tbe other creditors ?

1. At tbe time these mortgages were executed it was provided by statute that every mortgage of goods and chattels shall be absolutely void, as against tbe creditors of tbe mortgagor, unless the mortgagee, his agent or attorney, in case tbe said instrument shall have been given to indemnify tbe mortgagee against a liability as surety for tbe mortgagor, shall enter' thereon a true statement of such liability and that said instrument was taken in good faith to indemnify against any loss that may result therefrom,” &c. S. & C. p. 475, section 1, and 66 Ohio Laws, 345, section 2.

In Hanes v. Tiffany, 25 Ohio St. 549, it was held that the omission to enter upon a chattel mortgage tbe statement required by tbe statute renders tbe mortgage void as against tbe creditors of the mortgagor, and that a mortgage void as to creditors is void as against the assignee for tbe benefit of creditors. But in Gardiner v. Parmalee, 31 Ohio St. 551, it was held where the affidavit (statement) refers to matters contained . in the mortgage, the matters thus referred to are to be regarded as part of the affidavit (statement). These cases are referred to and approved in Nesbit, v. Wortz, 37 Ohio St. 378, and we think are conclusive on the question now under consideration. These mortgages of Blandy were given to indemnify him against a liability as surety for the mortgagor. This fact is stated in the mortgages, but such statement is not entered on the mortgage nor verified by the affidavit of the mortgagee, nor is it referred to in the affidavit. The statement in the affidavit simply is that the mortgagor is indebted to the mortgagee in a sum named; that the said claim is just and unpaid; and that to secure the payment of the same the within mortgage has been executed to him in good faith. This is not a true statement of the liability as surety against which the mortgage purports to be indemnity, and no reference is made in the affidavit to any matter that can supply the omission.

"We admit that a substantial compliance with the requirement of the statute is sufficient. What does the statute require ? That the mortgagee shall state, under oath, what the liability is for which he is bound as surety, and the mortgage was given in good faith to indemnify him against loss as surety from such liability. The affidavit states the mortgagor is indebted to the affiant, and that the mortgage was given in good faith to secure the payment of such debt. No reference is made to the contents of the mortgage, and for that reason we think the mortgage is void as against the creditors of the mortgagor.

2. As to the next question. The deed of assignment excepts from the operation of the assignment .all existing liens, which are not to be affected hereby.” By no fair interpretation of this clause can it be said that the assignor intended to except from the operation of the assignment his equity of redemption in the mortgaged property. The assigned estate was administered on the theory that the equity of redemption passed to the assignee for the benefit of creditors. What then was the purpose of this clause ? We think there can be no doubt that the intention was to secure the mortgagees the full amount of their liens to the extent that such liens were valid as against the assignor. Can such purpose be accomplished by such means? We think not. Undoubtedly these mortgages were valid as against the assignor, but void as against his creditors. By the assignment, the rights of creditors passed to the as-signee as matter of law. The possession of the assignee was the possession of creditors. The right of creditors to seize the property in the hands of the assignee did not exist, but the assignee was bound, in law, to administer the trust for their benefit. Every right which the creditors might have asserted against the property before the assignment, the assignee is bound to secure for their benefit after the assignment. Liens invalid as against creditors at the time of assignment remain invalid. These mortgages were void as against creditors at the time of the assignment, unless they were made valid by the clause of the deed of assignment now under consideration. The validity or invalidity of an alleged lien is a question of law. It does not depend on the will of the grantor in an alleged mortgage. This clause neither validated nor invalidated the mortgages in any respect; nor did it except or assume to except from the operation of the assignment the mortgaged property.

, The property was assigned subject to the liens upon it, and it is the law, not the dictation or convention of the parties, Which determines the validity of the liens, and against whom they exist.

Judgment affirmed.

JohNSON, C. J., took no part in the decision of the case.


author: Okey, J.

text:
    Weil v. Guerin.
    1. In Ohio, as well as in England and many states, pleas in abatement are abolished ; but the principle that the pendency of a former suit, legal or equitable, between the same parties for the same cause, is matter of defense to a second suit in a court of the same state, has its foundation in justice, and remains firmly established.

      2. Where an action for services rendered to a partnership composed of two persons is brought in this state, in the court of common pleas, against one of the members of the firm as the surviving partner, and it appears from the answer, that at the commencement of the action, another suit for the same identical cause of action was pnd still is pending in the court of common pleas of another county in this state, in which action the same plaintiff is plaintiff, and the same defendant as such survivor, and also the administrator of the deceased partner, are defendants, and in which action the same judgment might be rendered and relief granted, as against such surviving partner, that might be rendered and granted in the action last brought, such answer, by way of abatement, is, in view of the statutes of this state, a defense to the action.
    ERROR to tbe District Court of Franklin county.
    William E. Guerin, on November 16, 1880, brought suit in the court of common pleas of Franklin county, against Julius H. Weil, surviving partner of Walker & Weil. The petition,omitting caption, signature of counsel, and verification, is as follows:
    “The plaintiff says that William Walker and Julius H. Weil were late partners as Walker & Weil, and engaged as partners in the merchandise business at Gallia county, Ohio. That in the fall of 1878, the said William Walker died. That Weil is the surviving partner in said late firm. That on or about May 1, 1878, and during the lifetime of William Walker, and during the time said firm was engaged in business, the plaintiff, in his capacity as an attorney, was employed by the said firm of Walker & Weil to attend to and collect or secure, if possible, a certain claim of about $11,630, then owing to said firm by Messrs. Hill & McKeckney, who were then the contractors for the construction of the Columbus & Gallipolis Railway. The plaintiff says he accepted said employment and did and performed all the conditions of said contract, and all things necessary and that could be done in the premises. That the services so rendered and performed were reasonably worth the sum of $1,163. That said amount is reasonable, and not more than is usually charged at the Franklin county bar, where said contract was made and said services performed, for similar and like services.

      “ The plaintiff says he is an attorney at law, and engaged in the practice of his profession at Columbus, Ohio.
    “ That he was duly admitted to the bar of this state in January, 1870.
    “ The plaintiff says that there is justly due him from said defendant, as such surviving partner of Walker & Weil, the sum of $1,163, with interest from September 20, 1879, for which amount, with costs, he asks judgment against the said defendant as such surviving partner.”
    The answer was filed December 18, 1880, and, omitting caption, signature of counsel, and verification, is as follows: “ The defendant says' that the plaintiff ought not to be permitted to further prosecute this action, because heretofore and on March 5, 1880, the plaintiff commenced an action in the court of common pleas of Gallia county, Ohio, against this defendant, and one Edward Delatombie, as the administrator of the said William Walker, deceased, for the same cause of action in plaintiff’s petition set forth, and which said action at the commencement of this action, was and still is, depending and undetermined in said court.”
    A demurrer to the answer was sustained, and judgment rendered February 8, 1881, in favor of Guerin, on default for answer, for $1,258.95 and costs, which judgment was affirmed in the district court, and this petition in error is prosecuted to obtain a reversal.

      S. A. Wash, for plaintiff in error.

      W. J. Gilmore, for defendant in error.
   Okey, J.

1. In Ohio, as well as in England and a majority of the states, pleas in abatement are no longer in use; but the principle, that the pendency of a former suit, legal or equitable, between the same parties for the same cause, is matter of defense to a second suit in a court of the same state, has its foundation in justice, and is firmly established. Rev. Stats. §§ 5062, 5064, 5069, 5071; Gardner v. Clark, 21 N. Y. 399; Erb v. Perkins, 32 Ark. 429; Bond v. Wagner, 28 Ind. 462; Woody v. Jordan, 69 N. C. 189; Pomeroy’s Rem. §| 698, 711. In Insurance Co. v. Brune, 96 U. S. 588, and. Spence v. Insurance Co., 40 Ohio St. 517, the rule is recognized and the exceptions thereto are stated. Whether in the latter case an exception to the rule was properly applied, .is a question upon which we express no opinion.

2. The answer in this case, alleging that at the time suit was brought another action was pending, as therein stated, for the same cause of action, was, according to approved precedents, in due form. Swan’s Code PI. & Pr. 510 ; 2 Bates’ PI. 905 ; 2 Este’s PI. & Pr. (2 ed.) 432.

3. The firm of Walker & Weil being indebted as partners to Guerin for services rendered to and for them, the indebtedness was joint, and, under the former practice, on the death of Walker, Guerin’s only remedy at law would have been a suit against Weil as surviving partner. But by the statute a change in this respect was effected, so that on the death of Walker and the appointment of his administrator, the debt became, in effect, a joint and several obligation, and Guerin had an election to sue Weil as surviving partner of Walker, or Delatombie as administrator of Walker, or both the surviv-,. ing partner and the administrator. Rev. Stats. §§ 6102,5009; Burgoyne v. Trust Co., 5 Ohio St. 586; Clinton Bank v. Hart, 5 Ohio St. 33.

4. Guerin elected to sue Weil as surviving partner and Delatombie as administrator, in an action in the court of common pleas of Gallia county; and thereby that court was fully authorized to render and enforce against Weil, in that suit, any form of judgment which the court of common pleas of Franklin county might lawfully render and enforce against him in the action brought in the latter court. Ib.; Rev. Stats. § 5311.

5. If the suit in Gallia county had been prosecuted against Weil (as surviving partner) alone, and this had been so stated in the answer, there can be no doubt whatever that such answer would have afforded ground of defense to the action in Franklin county. No case can be found in opposition to this statement. The sole question is, therefore, whether the fact, stated in the answer, that Delatombie, as administrator of Walker, was joined with Weil as a defendant, renders the answer insufficient. But the fact that Guerin could obtain, in the Gallia county suit, relief as ample, indeed the same relief, as in the Franklin county suit, furnishes satisfactory reason for holding that the presence of the administrator, as a party in the Gallia county suit, in no way affects the sufficiency of the answer, except to strengthen it. And this upon well settled principles. The election which the law gave to Guerin was to pursue his remedy against the parties jointly or severally. “It is clear,” said Ranney, J., in Clinton Bank v. Hart, supra, “ that both remedies cannot be pursued at the same time ; and, if it is attempted, the first commenced may be pleaded in abatement of the last.” P. 36. “The law,” said Grier, J., in U. S. v. Archer, 1 Wall. C. C. 173, 184, “appears to be well settled, that if two or more are bound jointly and severally, the obligee may elect to sue them jointly or severally. But having once made his election and obtained a joint judgment, his bond is merged in the judgment quia -transit in rem judioatam. Indeed, it is essential to the idea of election, that the obligee cannot have both a joint and a several action ; and no case can be found to countenance the doctrine that he can.” In Exp. Rowlandson, 3 P. Wms. 405, Talbot, L. C., said : “When A. and B. are bound jointly and severally to J. S., if J. S. sues A. and B. severally, he cannot sue them jointly, and on the contrary, if he sues them jointly he cannot sue them severally, but the one action may be pleaded in abatement of the other.” In Exp. Brown, 1 Ves. & B. 60, 65, it was said : “ Under a joint and several bond, the obligee, though he might have several executions, could not bring a joint and also two several actions.” In Gould’s Pleading it is said : When “ one of two or more defendants in the first action is omitted in the second, as if the first action is against A. and B. and the second against A. only, it seems manifest that the second must abate, the case being plainly within the general rule.” Chap. 5, § 127. Ritter v. Worth, 58 N. Y. 627 (reversing 1 T. & C. 406), was an action to recover real estate. The plaintiffs claimed as heirs at law of R. Answer, that another suit, brought by the plaintiffs and widow of R., to recover possession of the same land, was then pending. Evidence offered to prove the answer having-been rejected, the court of appeals reversed the judgment, holding “ the fact that R.’s widow was co-plaintiff in the former action was no obstacle to the recovery by them of their interest in the lots, and that proof of the former suit would abate this action.”

Many other cases might be cited in support of the view I have stated. See Bedford v. Bishop of Exeter, Hob. 137; Streatfield v. Holliday, 3 D. & E. 779, 782; Graves v. Dale, 1 T. B. Monroe, 190; Atkinson v. State Bank, 5 Blackf. 84. And, indeed, it is shown by the authorities I have cited, that oppressive and vexatious litigation can only be prevented, in any case, by strict adherence to rules well established, “ and prominent among these is the duty to avoid multiplicity of suits, and to attain a final and complete determination of all the questions involved in it with the least delay and at the least possible expense.” Penn v. Hayward, 14 Ohio St. 302, 306.

Turner v. Whitmore, 63 Maine, 526, is opposed to our decision in this case. But that case is based mainly on a remark of Story, J., in U. S. v. Cushman, 2 Sum. 426, 441, which remark was disapproved by Ranney, J., in Clinton Bank v. Hart, supra, and by Grier, J., in U. S. v. Archer, supra; and in U. S. v. Price, 9 Howard U. S. 83, U. S. v. Cushman is overruled.

It is plainly our duty to reverse the judgment of the district court and that of the court of common pleas, and, rendering the judgment which should have been rendered by the latter court, overrule the demurrer to the answer. As the record now stands, Guerin is not entitled to prosecute his action in Franklin county; but, possibly, he may desire to reply to the answer, and hence we remand the cause to the court of common pleas.

Judgment reversed.


author: JOHNSON, C. J.

text:
    Sternberger v. Hanna.
    1. As between successive purchasers in fee, and for full value, of separate parcels of land, incumbered by a prior mortgage on the whole, a sale of the same to satisfy the mortgage will be made in the inverse order of alienation.
    2. In a contest between such purchasers as to whose lands shall he first sold, the dates when their respective legal titles vested, prima facie determines the order of such sales, but the holder of a junior conveyance or his grantee, may show that prior to the taking effect of either conveyance, he was in the actual and open possession of the parcel of land purchased by him, under a contract of purchase, and had so far performed his contract as to entitle him to a specific performance, prior to the title acquired by the senior conveyance.
    3. In such a case, the equitable interest of the holder of the junior conveyance has precedence, but the equitable interest of the mortgagor, in the land so agreed to be conveyed, at the taking effect of the senior deed, is liable to be charged before recourse can be had to the land conveyed by the senior deed.
    4. "Where, under such unexecuted prior contract of purchase, part only of the purchase money has been paid, and the holder of the senior deed has paid in full, the land covered by the junior deed is first chargeable with the mortgage incumbrance, to the extent of the amount due the mortgagor, before resort can be had to the land covered by the senior conveyance.
    5. Where the mortgagor died insolvent and no relief is sought against his estate, the sole question being between the several purchasers, as to whose land shall be first charged, either party claiming under his conveyance from the deceased mortgagor, is a competent witness against the other.
    Error to the District Court of Jackson county.
    The parties above named were co-defendants in an action in the common pleas relating to the land in controversy. Mrs. Hanna by a cross petition set up a prior lien on the land, to wit, Lots 67 and 68 in the Scioto Salt Eeservation, in Jackson county, by virtue of a mortgage on said lots, executed to her by John H. Stephenson and wife and recorded March 21,1868. This mortgage remains unsatisfied in part, and her prayer is for a sale of both lots to pay the same.

      Sternberger and Leonard Stephenson were each purchasers of separate pacéis of the lots covered by the mortgage. Eacli lot contains SO acres. The former is the purchaser of 70 acres of Lot 68, and the latter, of Lot 67, and by a subsequent contract, as is claimed, of 10 acres of Lot 68. Morgan is a subsequent grantee of Leonard Stephenson.
    On the 28 th of March, 1873, John II. Stephenson executed two deeds: one to Sternberger for the 70 acres, and one to his son Leonard for the remaining 90 acres. Each of these deeds was in fee, and the consideration named in each was the full value of the parcels conveyed, though both were covered by the mortgage to Mrs. ITanna.
    The deed to Sternberger was first delivered, and took effect as a conveyance of the fee.
    Morgan, who is a purchaser from Leonard Stephenson by deed of June 28, 1879, in order to establish an equity to have the Sternberger tract first sold, to satisfy the mortgage, though his deed is’later in taking effect, alleges that his grantor Leonard Stephenson was in the actual possession of the 90 acres, under verbal contracts of purchase from John II. Stephenson, some two years prior to either conveyance.
    This is denied by Sternberger, who also alleges that he was the bona fide purchaser of his 70 acres, and paid full value at the time, by canceling a debt of $2,100, which John H. Stephenson owed him, and that this purchase was made without any knowledge of the Hanna mortgage. He further alleges that his title is prior to that of Morgan, or his grantor Leonard Stephenson,who had actual knowledge of the Hanna mortgage; further, that though the consideration named in Leonard Stephenson’s deed was $3,500, yet $2,000 of that was a gift.
    The court found from the pleadings and evidence that Sternberger’s parcel should be first sold.
    Upon the bill of exceptions two questions are made, and are here urged as grounds for a reversal:
    1st. In order to establish his right to have the lands of Sternberger first sold to satisfy the prior mortgage to Mrs. Hanna, Morgan called his grantor, Leonard Stephenson, who was not a party to the action, to prove the verbal agreement made with John H. Stephenson, prior to the deeds to Sternber-ger and himself, under which he took possession, and made payments of the purchase money. Neither Leonard Stephenson, nor his father John H. Stephenson are parties to the action. Indeed, it appeal’s that the latter died insolvent before the commencement of this action. Counsel for Sternberger object to the competency of the witness to testify to matters between himself and his grantor, relating to such parol contract.
    2. The court erred in finding from the evidence that Sternberger’s land should be first sold to pay the Hanna mortgage.

      O. F. Moore and Irvine Fungan, for plaintiff in error.

      W. A. Hutchins and David Davis, for defendant in error.
   JOHNSON, C. J.

Sternberger’s deed was delivered and took effect prior to that to Leonard Stephenson. Both parcels covered by the respective deeds were subject to the lien of Mrs. Hanna’s mortgage. As this mortgage is in part unsatisfied, and she is asking a sale for its payment, the contest between Sternber-ger and Morgan is, whose land shall be first sold to satisfy the same ?

Morgan’s claim is, that although his deed is later than Sternberger’s, yet his equity to have Sternberger’s land first sold is the better. He founds this claim upon the alleged fact that he was in actual possession of the land covered by his deed under a prior verbal contract of purchase from their common grantor.

He seeks to establish this equity by the evidence of his grantor Leonard Stephenson.

1. Assuming for the present that such an equity would give priority, the first question is, was Leonard Stephenson a competent witness ?

It is claimed that under Revised Statutes sections 5241, and 5242, and by the spirit and reason of those sections, he was incompetent.

Section 5241 relates to the incompetency of witnesses in certain respects, which do not embrace the case at bar. This is a contest between Morgan, who stands in the shoes of Leonard Stephenson, and Sternberger. Neither Leonard nor his grantor John H. Stephenson are parties to this action, nor is any relief sought against either. The latter died insolvent, after having parted with all his title and interest in both tracts.

In such a contest both Sternberger and Morgan are competent witnesses. It is not sought to charge the estate of Stephenson with any liability. The sole question being whose land shall be first subjected to the satisfaction of a prior mortgage. Both are to be regarded as grantees of an absolute title to different parts of the land covered with mortgage. Section 5242 prohibits a parly from testifying where the adverse party occupies any of the fiduciary relations named, or claims or defends as lieir, grantee, assignee, devisee or legatee of a deceased person except in cases therein specified.

If Leonard Stevenson was in possession under a parol agreement partly performed, the other tract remaining in John II. Stephenson, then Leonard’s right to have the unsold tract first subjected to the mortgage as against John H. would be clear. So, if the part conveyed to Leonard had remained unsold, Sternberger’s right to have it first subjected to sale is equally clear. Both parties are claiming and defending as grantees in a certain sense, but neither in the sense of this sec.-, tion. The scope and purpose of section of 5242 is to provide for mutuality. As each are competent against the other, that purpose is subserved. Strictly speaking, section 5242, relates to cases where the matter in litigation is directly involved, as where the title to the thing granted is directly attacked. Where this is the case a party is not competent when the adverse party is acting in a representative capacity, or claims or defends as heir, grantee devisee or legatee. Sternberger’s title is to a tract of land different to that claimed by Morgan. This controversy does not impeach the title of either grantee. Morgan’s claim is to establish a prior equity which will protect his land from sale, and so is Sternberger’s. The claim of each to the tract conveyed by him is not in controversy. The judgment on the issue will not affect the estate of John H. Stephenson. It is immaterial to this estate whose land shall be first sold. The general rule is in favor of the competency of all persons, except those specially named in section 5240; and we are unwilling to make further exceptions where the terms of the statute do not expressly require it. Some reliance is placed on the latter clause of section 5242, which reads : “ Where a case is plainly within the reason and spirit of the last three sections though not within the strict letter their principle shall be applied.” In the recent case of Cochran v. Almack, 39 Ohio St. 314; this clause was under consideration. The conclusions there reached are in harmony with the foregoing view. It is enough to say that to warrant the application of this clause, it must be plainly within the reason and spirit of section 5240, which makes all persons competent except those therein named, as well as within section 5241 and section 5242, which relate to the exclusion of certain named persons, under the special-circumstances therein stated.

2. The next and principal question is,-whose land shall be first sold ?

It appears that Sternberger purchased his land without reference to the mortgage incumbrance. He paid its full value without actual knowledge of the mortgage, though charged with constructive notice of it, the same having been duly recorded. His deed took effect prior to that to Leonard Stephenson which though executed on the same day, was subsequently delivered. It further appears, that this latter deed had a consideration equal to the full value of the land conveyed. Upon this state of fact alone, Morgan’s land should be first subjected to the satisfaction of Hanna’s mortgage, the rule being that where lands incumbered by a mortgage are sold in different parcels, to different purchasers at different times, each paying full value without regard to the mortgage incumbrance, the different parcels shall be sold to satisfy the same, in the inverse order of alienation.

It remains to be determined what effect, if any, the proof offered in this case of a prior vested contract of purchase' executed by a junior conveyance, has upon this rule. That proof tended to show, and for the purposes of this ease we will assume it does show that there existed a prior parol agreement between the mortgagor, John H. Stephenson, and his son Leonard Stephenson under which the latter agreed to purchase, at first, eighty acres, and after that the additional ten acres, for the consideration of $3,500, and that he entered into possession and partly performed this contract as to payment before Stern-bei’ger’s deed took effect. We will further assume that Leonard Stephenson had so far performed this contract as that at the date of said deed he would have been entitled to a specific performance as against John H. Stephenson upon full payment of the purchase money. Such verbal contract and part performance coupled with actual and notorious possession would have been constructive notice to Sternberger of his equitable title. It would have made it the duty of the latter’, to have inquired and ascertained the extent of Leonard’s interest in the tract so occupied, and would have charged him in the event of his purchase of the same tract with the nature and extent of his equitable title. Sternberger was chargeable in law, though having no actual notice of the mortgage incum-brance. Being the first purchaser, however, and having paid full value and obtained his deed he had right to assume that John H. Stephenson intended to charge the unsatisfied mortgage debt, upon the balance of the land remaining in his hands, which he afterwards conveyed to Leonard Stephenson. At that time the extent of his interest, assuming the verbal contract and part performance to be shown, in the ninety acres, consisted of the legal title and the unpaid purchase money due from Leonard. As Sternberger was chargeable with notice of Leonard’s equity arising from his possession and part performance of the verbal contract, he had no right to assume that liis grantor intended to charge not only his own remaining interest in this parcel, but also that of Leonard, with the mortgage burden. Leonard being a purchaser who had acquired by part performance an equitable interest, notice of which was chargeable to Sternberger, he could not be divested of this by subsequent purchase of another tract, covered by the same mortgage.

Sternberger’s purchase was completely consummated by full payment and receiving a deed. Leonard’s purchase was partly consummated before Sternberger’s, and was finally consummated by the junior deed. To the extent of the interest which John H. Stephenson had in the ninety acres, now held by Morgan, which is measured by the unpaid purchase money, due at the date of Sternberger’s deed, this tract should first be subjected to the satisfaction of the mortgage. All payments made by Leonard to the mortgagor after the delivery of Stern-berger’s deed were at his peril. As a vendee of the mortgagor he was advised of the existence of the mortgage and of the conveyance to Sternberger. These subsequent payments, without insisting that they should apply to the satisfaction of the mortgage, subordinates his equity to that extent, to that of Sternberger, who had paid in full and first acquired the legal title.

In reaching this conclusion we need not notice that class of cases, where purchasers of a mortgagor purchase and pay for the equity of redemption merely, as in the case at bar both vendees were purchasers of respective tracts for their full value, and neither was -.as between them and their vendor bound to satisfy the mortgage. The district court in determining that Morgan’s land should be last sold, went upon the ground doubtless, that as his verbal contract was prior in date it should have precedence over a later deed, though only part performed. In this we think there was error. Priority of verbal contract, possession and part payment sufficient to take the case out of the statute of frauds, did give him precedence to the extent of his then equitable interest. It is the equity thus vested in Leonard Stephenson which Morgan acquired by his purchase. We hold therefore that to the extent of the interest of John II. Stephenson in the ninety acres, at the date of Sternberger’s deed, this land is first chargeable. That interest is to be determined by ascertaining the amount then due from Leonard to John H. Stephenson. This we cannot now determine.

By the admission of Leonard Stephenson, he then owed at least fifty dollars-on the eighty acre tract, and four hundred on the ten acre tract. Tbe judgment of tbe district court will be reversed, and tbe cause remanded with instructions, to ascertain if there was such prior verbal contract with possession and part performance and bow much was due from Leonard to Jolin H. Stephenson, and to order him or bis grantee Morgan, to pay that amount, and upon default to subject Morgan’s land to such payment and satisfaction of tbe Hanna mortgage before resorting to tbe tract sold to Sfcernberger.

In support of the foregoing, we cite Kyle v. Thompson, 11 Ohio St. 616; Lefferson v. Hallas, 20 Ohio St. 74; James v. Hubbard, 1 Paige, 228; Hunt v. Mansfield, 31 Conn. 488; Chapman v. West, 17 N. Y. 125; Brown v. Simons, 44 N. H. 475; Chase v. Woodbury, 6 Cush. 143.

If it be a fact that tbe subsequent contract of purchase of tbe ten acres was not so far performed as to give Leonard an equitable estate therein at the date of Sternberger’s title, then it should be first subject to sale as the property of John H. Stephenson, before resorting to the prior purchase of lot No. 67.

Judgment reversed.


author: By the Court.

text:
    Moore v. Boyer
    1. Where an award of arbitrators is filed in the court of common pleas, exceptions thereto overruled, and judgment upon the award under Rev. Stat. §§ 5608, 5612, the case is not appealable to the district court under Rev. Stats. § 5226.
    2. While a court reversing a judgment for the reason that the court below had no jurisdiction, must render judgment for costs on error, a court dismissing a cause for want of jurisdiction has no power to render such judgment for costs.
    MotioN for leave to file a petition in error to reverse the judgment of the District Court of Muskingum county.
    Boyer claimed there was an indebtedness to him from Moore for services rendered from 1872 to 1879, and for money received' by Moore from the sale of lands. The parties being unable to agree .as to the state of their accounts, entered into bonds, on October 13, 1881, for the submission of the matters in controversy to the arbitrament of persons therein named. On November 3,1881, the arbitrators made their award, finding due from Moore to Boyer $809.51, and costs. This award was filed in the court of common pleas of Muskingum county, on January 7, 1882, as authorized by the terms of the bonds, and at the second term (May, 1882), Moore having excepted to the award on the various grounds specified in the statute for which an award may be set aside, the court overruled the exceptions and rendered judgment against Moore for the amount of the award. Moore appealed to the district court, which court, at the September term, 1882, dismissed the appeal for want of jurisdiction, and now he moves this court for leave to file a petition in error to reverse the order dismissing the appeal.

      T. J. Taylor and E. E. Evans, for the motion.

      W. M. Townsend, contra.
   By the Court.

Arbitration is a special proceeding ” under Rev. Stats, vol. 2, pp. 1179, 1181; but that is not decisive of the question whether a judgment upon an award is ap-pealable. Where the award is filed in the court of common pleas, exceptions thereto are overruled, and judgment is rendered in pursuance of Rev. Stats. §§ 5608-5612, the case is not appealable under Rev. Stats. § 5226, that section only authorizing an appeal in a “ civil action.” Whether an appeal would lie where the award is set aside under Rev. Stats. §5611, and an issue is made by the pleadings which the parties are not entitled to have tried by a jury, and judgment is rendered by the court on such issue — queere.

The judgment for costs on dismissing the appeal was erroneous. While a court reversing a judgment for the reason that the court below had no jurisdiction, must render judgment for costs on error (Burke v. Jackson, 22 Ohio St. 268), a court dismissing a cause for want of jurisdiction has no power to render such judgment for costs. Norton v. McLeary, 8 Ohio St. 205.

Leave granted to file petition in error, judgment reversed , as to costs in the district court and affirmed in all other respects.


author: Follett, J.

text:
    Stayner v. Bower.
    1. Where D., the husband of S., receives from W., the father of S., money and property as advancements for S. upon her share of the estate of W., D. holds the same for S. ; and, upon the death of W., when the amount of her distributive share is ascertained and ready for payment S. has a right to compel D. to account for and pay to her such money and property, or she may demand and collect her share in full of the administrator.
    2. In such case, when S. elects to sue the administrator, and compels him to pay her the distributive share in full, including the amount of such advancements, the administrator, by operation of law, is subrogated to the rights and remedies of S. against D. as to such advancement.
    Error to the District Court of Wyandot county.

      O. H. Mott, for plaintiff in error.

      John D. Sears, for defendant in error.
   Follett, J.

In January 1867, William Stayner died intestate leaving his widow, Lucia M. Stayner, and three children, Thomas Stayner, Mariali Ream wife of Jacob Ream, and Susannah Bower wife of David Bower. January 25, 1867, Thomas Stayner became administrator of William Stay-ner’s estate. April 25, 1867, there was filed an inventory and appraisement of the estate, containing a due bill and note of David Bower to the decedent; the due bill for $685 dated September 9, 1863, was appraised at $825.50, and the note for $94.15 payable nine months after date, and dated October 26, 1864-, was appraised at $107.31. Other similar notes had been given by the other children, and all were in the inventory. It was noted on the inventory that these notes were claimed to be advancements made to the heirs. In order to test the validity of these notes as assets of the estate, on April 26, 1867, Thomas Stayner, as administrator, commenced suit against David Bower on his notes, and claimed judgment. In that case David Bower answered saying, that, at the times of the execution of his notes, "William Stayner advanced to Susannah Bower,wife of David Bower and daughter of William Stayner, the amounts for which the notes were given, as advancements upon her share of the estate of William Stayner; and that they were executed and delivered upon the express agreement and understanding that he was never to be required to pay the same, but that they were to be held by William Stayner simply as memoranda of the amounts so advanced.

Upon trial the court found that the notes were .given as such memoranda, and gave judgment for David Bower. After this judgment the administrator did not deem the notes as assets of the estate, but as he was charged with them in the inventory, he claimed credit for the amount of them in his account filed August 27, 1868. To this credit the widow excepted, the probate court overruled her exceptions, the case went to the court of common pleas where the exception was sustained, and the administrator was charged with the amounts without allowing the credit as an offset. Other settlements were filed, and exceptions were taken, and the matter came to this court, and Thomas Stayner, as administrator, remained charged as in his inventory without this credit to offset the charge. Stayner's case, 33 Ohio St. 481.

The widow was paid her proper part of the whole amount, regarding these advancements as part of the estate.

Then Susannah Bower also claimed and ' demanded of Thomas Stayner, the administrator, the full amount of- her share including all the advancements, without giving credit for any part advanced for her and in her husband’s control. This, she had a legal right to do, without allowing as offset the advancement of her father for which David Bower gave the memoranda. She sued the administrator, her brother, and his bondsmen, one of whom was her husband, and compelled the administrator, Thomas Stayner, to pay her full share ; which, November 8, 1880, was $1,596.55, besides what he had paid her. A few days after, on November 16, 1880, Thomas Stay-ner commenced this suit against David Bower, and made Susannah Bower a party, to recover of David Bower the amount of the advancements so received by David of William Stayner for Susannah, less the amount if any, David had paid therefrom to Susannah. In his petition Thomas Stayner set up the facts of his administration of the estate that relate to this matter; the pleadings, findings and doings of the courts in the several suits and proceedings ; and asked that David Bower and Susannah should show what amount, if anything, of the advancements received by David for Susannah, had been paid to her, and that he, Thomas Stayner, be subrogated to all the legal and equitable rights and remedies of Susannah Bower as against David Bower on account of moneys or property received by him from her father as advancements on her share of the estate ; and for judgment against David Bower for $1,596.55, with interest from November 8, 1880 ; and for other proper relief. A general demurrer to the petition was overruled, and to this long petition there is a lengthy answer, denying that Thomas Stayner paid Susannah out of his own funds, denying that David ever received from William Stayner any money in trust for the use of Susannah, or coupled with any obligation to account to Susannah ; and denying indebtedness to Thomas Stayner, pleading the limitation of fifteen years, and setting up Susannah Bower’s action for her distributive share, which resulted in her getting the $1,596.55.

To this there was a reply denying various statements immaterial here. . .

On the trial plaintiff’s evidence showed, that the two papers, called notes, were in the possession of William Stayner at the time of his death, and came to the administrator’s possession as papers belonging to the estate ; that David Bower got of William Stayner the amount, for which the papers were given, for the use of Susannah Bower; and that no part of the same had been paid to Thomas Stayner, as administrator or otherwise. The substantial facts are undisputed, but the parties differ as to the law. The court found the equity of the case with the defendants, and dismissed the petition.

The case is here on plaintiff’s bill of exceptions ; and the plaintiff is asking the reversal of the judgment below, and for judgment in liis favor. From what is shown, should this be granted ?

Plaintiff’s action is not on the papers called notes, or mem-oranda ; but is in equity, and as if brought by Susannah Bower, for the amount of the money and property for which the -papers were given, and which money and property were received by David Bower, not as presents for himself, but as advancements for Susannah, his wife ; and were to be applied-on her distributive share of William Stayner’s estate.

On the final settlement of Thomas Stayner, as administrator of that estate, there was due her $1,596.55, which was then in the hands of David Bower, whom she could force to pay it; or she could look only to the administrator, if she should so elect.

The administrator was charged with the amount of the money and property then in David Bower’s hands, as part of the estate of William Stayner, for Susannah. She could sue David and force him to pay, or hand over to her what he held for her ; or she could look only to the estate as in the hands of the administrator, and force him to pay her the full share. .She chose to sue the administrator, and he wasiforced to pay her in full. He did not voluntarily cancel David’s obligation. When Thomas Stayner so paid Susannah, her rights and remedies against David as to this advancement, passed to Thomas; and, by operation of law, Thomas became subrogated to those rights and remedies. It is not denied that up to the time that Thomas paid Susannah, she could have forced David to pay her this amount; but then, when Thomas paid her, she lost this right, and it passed from her to Thomas.

This suit is to enforce the rights and remedies of Susannah as to this advancement, now belonging to Thomas. As to plaintiff’s rights by subrogation, see Sheldon on' Subrogation, § 1 and § 202, and citations. Smith v. Alexander, 4 Sneed, 482; Westerman v. Westerman, 25 Ohio St. 500; Dumpsey v. Bush, 18 Ohio St. 376; Sidener v. Hawes, 37 Ohio St. 532.

Thomas ‘Stayner evoked his rights and remedies against David Bower only a few days after he acquired them, and they have not been lost by any limitation since.

The suits with the administrator did not affect Susannah’s rights or remedies against David Bower, nor did they preclude Thomas Stayner from being subrogated to the same. This is a suit in equity for equitable relief. Thomas Stayner has been compelled to pay a sum equal to the amount of this money and property in David Bower’s hands, and to pay it to the one for whom David Bower held it. David Bower admits that he received the money and property, and that lie has not paid any part of it to Susannah Bower, for whom he held it, nor to Thomas Stayner who paid her the equivalent of it when he paid her the remainder of her full distributive share. There is not shown in this case any reason, legal or equitable, that should prevent the relief prayed for by plaintiff.

The equity of the case is with the plaintiff, and there is error in the judgment below.

The plaintiff is entitled to be subrogated to Susannah’s rights and remedies against David Bower, as to this property ; and plaintiff is entitled to a judgment against David Bower for the sum of $1,596.55 with interest thereon from November 8th 1880, and for his costs in the case.

Judgment reversed and judgment against David Bower.