author: Williams, J.

text:
    Grand Rapids Fire Insurance Co. v. Finn.

      Fire insurance policy — Provisions in event of disagreement as to amount of loss — Requirements governing demand for appraisal by insurer — Construction of written demand when ambiguous— Notice to insured as to protection of property — Law of contract.

    1. The pro visions of a policy of fire insurance, that in the event of disagreement as to the amount of the loss it shall be ascertained by appraisers, that the loss shall not become payable until sixty days after notice and satisfactory proof of the loss have been given, ‘ ‘ including an award by appraisers) when an appraisal has been required,” and, that no action on the policy shall be sustainable “ until a full compliance by the insured with all the foregoing requirements, ” do not make either an ascertainment of the loss by appraisers, or a demand by the insured therefor, a condition precedent to a right of action on the policy to recover the loss. Such provisions impose no obligation -on the insured to furnish an award of appraisers, except when an appraisal has been demanded by the insurer.
    2. The demand for the appraisal must be made in good faith, within a reasonable time after proof of loss has been furnished, and in such direct and explicit terms that a person of ordinary intelligence may fairly understand that a submission to appraisers for an ascertainment of the loss is requested ; and when it is claimed the demand was made in writing, the instrument, if ambiguous, will be construed most strongly against the insurer.
    3. Notice to the insured to protect the property from further damage and preserve all that remains of the property “until the loss thereon has been determined in the manner stipulated for in the policy,” and, that the insurer would not pay any amount claimed “ before sixty days after the amount of loss or damage has been determined in the manner stipulated in said policy,” does not constitute a demand for a submission to appraisers for an ascertainment of the amount of the loss..
    (Decided June 20, 1899.)
    Error to the Circuit Court of Mahoning county.
    The action below was brought by Mary Finn against the Grand Rapids Fire Insurance Company, on a policy of insurance issued by the defendant by which the plaintiff was insured in the sum of six hundred dollars against loss or damage by fire on her household furniture, etc., for three years from the fifth day of December, 1895. The petition alleges a total loss of the property by fire while the policy was in force, due proof of the loss as required by the policy, and refusal of the defendant to pay. The answer sets up several defenses, only one of which is important as the case is here presented. That defense, in substance is, that the parties had not agreed on the amount of the loss, nor had it been ascertained .or determined by appraisers; and, that the plaintiff had not demanded an appraisement, but had refused a demand therefor by the defendant. The provisions of the policy on which that defense is based are, that if the parties differ as to the amount of the loss, it is to be determined by appraisers, each party to select one appraiser, “and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit the differences to the umpire; and the award in writing of any two shall determine the amount.of such loss. The loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers, when appraisal has been required. No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity, until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire.”
    The reply to this defense admits that there was no agreement as to the amount of the loss, nor an appraisal thereof, and avers that “the reason therefor was and is, that the defendant, through its duly authorized agents, F. L. Parsons and May-berry & McCrackin, informed the plaintiff that the defendant would pay no part of said loss for the reason that plaintiff had burned her own property; that said defendant never in any manner proposed that an appraisal be had, or in any manner required an appraisal, and at all times refused to pay said loss, specifying as the only reason for such refusal that she had set fire to said property.” The reply further avers “that said defendant company never in any manner selected an appraiser, or informed plaintiff that it desired an appraisal; and waived all proofs of loss, conditions precedent and subsequent to be performed by plaintiff under said policy. And further replying the plaintiff denies each and every other allegation set forth in-said defense.”
    The only evidence offered on the trial, which it. is claimed tended to prove a demand by the defendant for an appraisement of the loss, is contained in the two following written ‘communications. The first one was served on the plaintiff on the day of its date, and the other mailed to her on the day it bears date.
    “Youngstown, O., Jan. 3, 1896.
    To Mrs. Mary Finn:
    The insured named in policy No. 60026, issued to you by The Grand Rapids Fire Insurance Co., of Grand Rapids, Michigan.
    Youngstown, Ohio.
    Madam:
    You are hereby required to protect the property described in said policy from further damage; and. to preserve and keep for exhibition to any person designated by said company all that Remains of any property described in said policy, until the loss thereon has been determined in the manner stipulated for in said policy; and to make a complete inventory of all property on which loss will be claimed, stating the quantity and cost of each article, and deliver immediately said inventory at the office of Mayberry & McCracken, Youngstown, Ohio, for the use of said company; all of which requirements constitute a part of the stipulations of said policy.
    Respectfully Yours,
    Grand Rapids Fire Insurance Co.,
    By F. L. Parsons, Adjuster.”
    “Cleveland, O., February 21, 1896.
    Mrs. Mary Finn:'
    The insured named in policy No. 60026 issued by the Grand Rapids Fire Insurance Company.
    Youngstown, Ohio.
    Madam:
    Papers purporting to be “proof of loss” alleged to have been sustained by you on property described in said policy, have been received; and without admitting nor denying liability, and without waiving or abating any of the stipulations, provisions, conditions or requirements of said policy, we hereby take exceptions to your statements made in said papers:

      First — We deny that “the property described in said policy belonged at the time of the fire” to you; and we deny that “no other person or persons have any interest therein;” and we deny that your interest in said property is that of unconditional and sole ownership; and we demand and require you to state your interest and that of all others in the property, and all encumbrances thereof; and any changes in the title, use, occupation, location, possession, or exposures of said property since the issuing- of said policy.

      Second — We deny that “the cause of said fire is unknown” .to you, and we require you to state your knowledge and belief as to the time and origin of the fire.

      Third — -We most emphatically and unconditionally differ and disag-ree with your statement as to “the actual cash value of each specific subject” set forth in the “schedule” of said papers; and your statements of “the actual loss and damage by said fire to the same as shown by” said “schedule;”'' and we state that we will not pay any “amount-claimed” thereon before 60 days after the amount of loss or damage has been determined in the-manner stipulated in said policy.

      Fourth — We deny each and every one of your following statements, viz : That “the said fire did not originate by any act, design or procurement on the part of assured, or this affiant, or in consequence of any fraud or evil practice done or suffered by said assured, or this affiant; nothing has been done by or with the privity or consent of the assured or this affiant to violate the conditions of the policy, or render it void; no articles are meo tioned herein, but such as were in the building damaged or destroyed, and belonging to, and in possession of the said assured at the time of said fire. No property has been in any manner concealed, and no attempt to deceive the said company, as to the extent of said loss has in any manner been made.”

      Fifth--We are credibly informed that the certificate attached to said papers is not signed by the magistrate or notary public living nearest the place of fire, and that said certificate is signed by one interested as a creditor; and we deny the statement made in said certificate-; therefore we demand and require a strict compliance with the stipulations set forth in lines “seventy-seven” to ■“eighty,” inclusive, of said policy.
    We reserve the right to take such further exceptions to said papers and the statements therein made, as we may deem necessary to the protection -of our rights under said policy; and you are .hereby notified that said papers are not a compli-■ance by you with the stipulations, provisions, conditions and requirements of said policy, and that -said alleged proof of loss is not satisfactory to us, .and that said papers are held only as subject to your order for disposition.
    Respectfully yours,
    Grand Rapids Fire Insurance Co.,
    By F. L. Parsons, Adjuster.”
    The record shows that neither party selected an ■appraiser, nor took any other step in regard to an .appraisal. The court charged the jury as follows:
    “The policy further provides'that the ascertainment and estimate of the loss shall be made by the insured and this company, or, if they differ, then by appraisers as therein provided. The court says -to you as a matter of law that these provisions are •conditions precedent, and that before the plaintiff •would be entitled to recover in this case, she must produce a preponderance of the evidence that she ■has complied with these provisions, or that the .same have been waived; and I therefore say to you as a matter of law that if you find that the insured and this company differed or disagreed as to the amount of loss, then it became the duty of the plaintiff to demand an appraisal in the manner specified in the contract, to determine the amount of the loss, and to select a competent and disinterested appraiser, and her failure to make such demand would defeat a recovery in this action, unless, as I have said, you find that such provision of the policy was waived by the defendant.”
    A verdict was returned for the defendant, on which judgment was rendered. That judgment was reversed by the circuit court for error in the foregoing charge; and to the judgment of reversal error is prosecuted here.

      King, Mg Vey db Robinson, for plaintiff in error.
    The claim of the plaintiff in error is: That in the event of disagreement between the insurer and the insured as to the amount of loss, the policy imperatively requires that the amount of loss be fixed by “two competent and disinterested appraisers” and a “disinterested umpire” chosen by them. We submit that no suit or action can be maintained thereon until after the amount of loss has been ascertained, either by agreement or by appraisal.
    Upon the question as to whether or not such conditions in a policy of insurance, constitute a condition precedent to the right of the insured to institute and maintain an action in case of loss, we cite the court to the following authorities: Kane v. Stone Co., 39 Ohio St., 1; Hamilton's Ex'rs v. Fireman's Ins. Co. of Dayton, 29 W. L. B., 209; 11 Dec. Re., 761; Gasser v. Sun Fire Office, (Minn.), vol. 19, Ins. Law Jour., 243; Pioneer Mfg. Co. v. Phoenix Ins. Co., (N. C.), vol. 19, Ins. Law Jour., 408; Chippewa Lumber Co. v. Phoenix Ins. Co., vol. 19, (Mich.), Ins. Law Jour., 535; Hamilton v. Liverpool & London Globe Ins. Co., vol. 19, Ins. Law Jour., 865; Taylor et al. v. L. & L. Ins. Co., vol. 11, Ins. Law Jour., 361; Niagara Fire Ins. Co. v. Bishop, North Eastern Reporter, vol. 39, No. 14, page 1102; vol. 45, No. 1, page 57, N. W. Rep.; vol. 21, Ins. Law Jour., 515; 11 Federal Reporter, 63; 57 Federal Reporter, 562; 5 Pacific Reporter, 332; 11 Pacific Reporter, 271; 13 Pacific Reporter, 363.

      R. B. Hurray and Charles Koonce, Jr., for defendant in error.
    Do the provisions of the policy of insurance in the case at bar make an award an absolute condition precedent, or one conditioned upon a demand for it?
    It is the claim of the defendant in error that the conditions or stipulations of the policy providing for a submission to arbitration under certain contingencies, is a condition precedent only after “the appraisal has been required,” by a request therefor by either or both parties.
    Must be clearly made condition precedent. Burmingham Fire Ins. Co. v. Pulver, 126 Ill., 331; Sergent v. Ins. Co., 155 N. Y., 349; McNally v. Ins. Co., 137 N. Y., 389.
    Ambiguous provisions in policy must receive interpretation most favorable to insured. National Bank v. Ins. Co., 95 U. S., 673; Thompson v. Ins. Co., 136 U. S., 287; Wharton on Contracts, vol. 2, 670; Bishop on Contracts, section 400; Kahnweiler v. Ins. Co., 14 U. S. C. C. A., 489.
    To give the construction contended for by the plaintiff in error, it would be necessary to import provisionsJ into a the policy which® the policy does not contain.

      Construction contended for by defendant in error in harmony with the construction given by the courts to policies containing the same or similar phraseology.
    The construction contended for herein is in harmony with all the adjudged cases, the stipulations with reference to arbitration whereof, have the same or similar phraseology as that of the policy under consideration. Nurney v. Ins. Co., 63 Mich., 633; Ins. Co. v. Badger, 53 Wis., 283; Wright v. Ins. Co., Penn., (20 Atlantic, 716); Wynkoop v. Niagara Fire Ins. Co., 91 N. Y., 478; Hamilton v. Ins. Co., 137 U. S., 370; Wood on Fire Insurance, vol. 2, section 457; Mentz v. Armenia Fire Ins. Co., 79 Pa. St., 478 (21 Am. Reports, 80); Moyer v. Sun Ins. Co., 176 Pa. St., 579; Boyle v. Ins. Co., 169 Pa. St., 349; Urig v. Ins. Co., 101 N. Y., 362; Bishop v. Ins. Co., 130 N. Y., 488; Gere v. Ins. Co., 67 Iowa, 273; Davis v. Ins. Co., (Iowa), 64 N. Western, 687; Sun Ins. Co. v. Crist (Ky.), 39 S. W., 837; Snodgrass v. Gavit, 28 Pa. St., 221.
    The following are eases in which the conditions of the policy are verbatim et literatim, the same as the policy in the case under consideration: Milwaukee Mechanics' Ins. Co. v. Stewart (Indiana), vol. 42, N. E. Reporter, 290; Davis v. Atlas Ins. Co., 47 Pacific Reporter, 436; Lesure Lumber Company v. Mutual Fire Ins. Co. of New York, 101 Iowa, 514; s. c. 70 N. W. Rep., 761; Home Building and Loan Association v. Dwelling House Ins. Co., 106 Mich., 236, is the latest utterance of a Supreme Court, on this proposition. Moody v. Ins. Co., 52 Ohio St., 12; Mosness v. Ins. Co., 50 Minn., 341.
    An examination of the two papers addressed by the company’s adjuster, to the insured, reveals the fact that they are written in an ambiguous manner, with an evident intent on the part of the writer to as carefully conceal bhe alleged demand as possible. In fact, no one except the author thereof, and those previously informed of the buried meaning, would ever think of giving that portion of the communications the interpretation contended for by plaintiff m error.
    But when it makes the alleged demand for an appraisal- — that portion of the communication on which it intended to rest its defense — it surrounds that demand on all sides with denials of the representations made by insured in her proof of loss, with an expertness and a degree of care that is worthy of a better cause; and is absolutely silent as to a reference of any provision of the policy which might give the unsuspecting reader a clew to the translation. If they were really intended to contain a demand for an appraisal, it would have been just as easy —and very much fairer — to ask for it in so many words, instead of enshrouding it in mystery. Gould v. Ins. Co., 134 Pa. St., 588; Aetna Fire Ins. Co. v. Tyler, 16 Wend., 385; Ins. Co. v. Ins. Co., 97 Pa. St., 24; Sergent v. Ins. Co., 155 N. Y., 349; McNally v. Ins. Co., 137 N. Y., 389; Boyle v. Ins. Co., 169 Pa. St., 346; Moyer v. Sun Ins. Co., 176 Pa. St., 579.
   Williams, J.

The effect of the charge for which the .judgment of the trial court was reversed, obviously was to preclude a recovery by the plaintiff, if the jury should find that she had failed to make demand for an ascertainment of the loss by an award of appraisers, and select a competent person to act as an appraiser, unless the defendant waived that mode of ascertainment, in some other way than by its failure to request an appraisement. And that purport of the charge is defended by counsel for the plaintiff in error, on the ground that the policy sued on makes such demand by the plaintiff a condition precedent to the right to bring and maintain the suit.' The stipulations of the .policy to which that operation is ascribed, are those contained in the statement of the case, and especially those which provide that “the loss shall not become payable until sixty days after notice, .ascertainment, estimate and satisfactory proof of loss herein required have been received by this company, including an award by appraisers when appraisal has been required;” and that no suit on the policy for any claim shall be sustainable “until after full compliance by the insured with all of the foregoing requirements.” While the policy undoubtedly confers on either party the right to call for an ascertainment of the loss by appraisers, when the parties are unable to agree upon the amount, it does not itself constitute an arbitration bond, binding them unconditionally to a submission of the loss to the judgment of. appraisers. Whether that method of determining the loss shall be resorted to, is optional with the parties, either of whom may, by demand on the other, require that it be pursued; ancl when so required, no suit can be maintained until the award of the appraisers has been furnished. But the provisions of the policy in this respect do not execute themselves. The party who elects to invoke that mode of proceeding must notify the other, and request the selection of appraisers. Then, the agreement of submission follows. If neither party chooses to request the appraisement, the right of the other to pursue the ordinary legal remedies is unaffected. “A eondition in a policy of insurance providing for an arbitration in case the parties cannot agree as to the amount of loss, cannot operate to deprive the assured of his right of action, unless clearly made a condition precedent to the existence of such right. ” Insurance Co. v. Pulver, 126 Ill., 331; Sergent v. Insurance Co., 155 N. Y., 349-355; McNally v. Insurance Co., 137 N. Y., 389.

It will be observed that this policy imposes no obligation on the assured to furnish an award of appraisers, except “when appraisal has been required.” That requirement certainly should be made within a reasonable time'after proof of loss; and if not so made before suit, is no obstacle to the maintenance of the action. In other words, a demand by the insurer for an appraisal within a reasonable time after proof of the loss has been furnished, is, under such a policy, a condition precedent to the right to require the insured to furnish an award of appraisers. This appears to be the construction placed upon such policies in numerous cases, and sustained by the great weight of authority. In Lesure Lumber Co. v. Insurance Co., 101 Iowa, 514, it was held that “provisions in a policy that an appraisal by arbitrators shall be made, if tliere is a disagreement as to the loss; that the loss shall not be payable until sixty days after notice and satisfactory proofs of loss have been given, including’ an award by appraisers when the appraisal shall be required; and that no action on the policy can be maintained without ‘a full compliance by the insured with all the foregoing requirements’ — do not make an appraisal a condition precedent to the right to sue, where the company makes no demand therefor.” The same construction was placed upon like polieies in the following, and other cases: Insurance Co. v. Stewart, (Indiana), 42 N. E. Rep., 286); Home etc. v. Insurance Co., 106 Mich., 236; Davis v. Assurance Co., 47 Pac. R., 436. In Sun Insurance Co. v. Crist, (Ky.), 39 S. W. Rep., 837, the court held that: “The insured need not plead or prove performance of the provision for arbitration in a fire policy, it being the duty of the company to propose arbitration in case of disagreement.”

The charge of the trial court was in conflict with the established construction of policies like that involved in this case, and was, we think, erroneous.

It is contended, however, that the error in the charge was not prejudicial to the plaintiff, because the notice of January 3, 1896," and letter of February 21,1896, set out in the statement of the ease, contain a demand by the defendant for an appraisal of the plaintiff’s loss, substantially in accordance with the policy. It is not claimed that either of those documents contains such a demand in terms, but only that one may be inferred therefrom. To be of any avail the demand must be made in good faith, within a reasonable time after proof of the loss has been furnished, and in such direct and explicit terms that a person of ordinary intelligence would fairly understand and be informed that the insurer requests a submission to appraisers for the ascertainment of the loss; and, when it is claimed the demand was made in writing, the instrument, if ambiguous, will be construed most strongly against the insurer, for the reason that the companjT- has the opportunity of making its meaning clear and unequivocal. The onty language in either of the documents referred to which counsel claim to be equivalent to a demand for an appraisal, is that contained in the first one, by which the insured is directed to. protect the property from further damage, and preserve all that remains, “until the loss thereon has been determined in the manner stipulated for in said policy;” and that of the other, in which she was informed that the company would not pay any amount claimed until “sixty days after the amount of the loss or damage has been determined in the manner stipulated in said policy, ” It seems evident that neither of these statéments amounts, by any proper construction, to a present demand for an appraisal of the plaintiff’s loss; nor can such demand be fairly extracted from either or both .of the instruments as a whole. By the first one the adjuster simply gave directions to the insured for the care of the property, and for an inventory required preliminary to an adjustment; and the other is wholly made up of objections to the proof of loss furnished, coupled with the information that the loss would not be paid “before the expiration of sixty days after it should be determined;” but there is no request to have the loss determined by appraisers. We therefore concur in the holding of the circuit court that neither of the documents mentioned constituted a demand for an appraisal, and the error in the charge was prejudicial.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The Board of Commissioners of Hardin County v. Coffman, Admx., etc.

      County commissioners — Powers and duties — Liability for damages —Section 845 Revised Statutes — Requirement to keep bridges in repair — Result of unusual use of bridge — Question for jury— Law of negligence.

    An action under section 845, of the Revised Statutes, as amended April 13, 1894 (91 O. L., 142), to recover damages caused by the negligence of the county commissioners in failing to keep a bridge under their control in repair, is properly brought against the board in its official capacity ; and the county is bound for the payment pf the judgment recovered. Whether the county may have recourse to the official bonds of the commissioners for reimbursement: Quere?

    2. The commissioners are bound to the exercise of ordinary care to, keep the bridges under their control in a safe condition for all usual and ordinary modes of travel and transportation of property over them ; but ordinary care does not require them to anticipate that a bridge will be used in an unusual and extraordinary manner, or subjected to an unusual and extraordinary burden involving peculiar danger, nor are they liable for an injury resulting from such use.
    3. In an action against a board of county commissioners to recover damages for the death of a person caused by the breaking down of a bridge by a traction engine which was being propelled over it by steam and drawing a water tank on which the deceased was riding, it is a question for the jury, whether that method of using the bridge was, at the time of the accident, a usual and ordinary mode of travel and transportation of property • over bridges in that locality, — such as the commissioners should, in the exercise of ordinary care, have anticipated, and provided for by putting the bridge in proper condition for such use; and the question should be determined from a consideration of all the evidence.
    4. A person about to cross a bridge in any of the usual and ordinary modes of travel, or transport property over it in any usual and ordinary way, has the right to assume that the public authorities have performed their duty, and therefore, that the bridge is in a safe condition for such use ; and he is not chargeable with contributory negligence in acting upon that assumption, unless the appearance of the bridge, its situation or structure, or other circumstance would suggest to a person of ordinary prudence that it is defective and dangerous, so that ordinary care would require, either that he should forego the contemplated use, or make sufficient examination, to reasonably assure him of its safety. But a person who chooses to subject a bridge to some extraordinary burden, by placing upon it some unusual weight and causing it to be moved in an unusual manner, takes upon himself the risk of any injury thereby sustained, although the bridge was defective and out of repair.
    (Decided June 20, 1899.)
    Error to the Circuit Court of Hardin county.
    The original action was brought against the Board of Commissioners of Hardin county by Josephine M. Coffman as executrix of her deceased husband, Freeman J. Coffman, to recover damages for his death, wrongfully caused, it is alleged, by the neglect of the commissioners to-keep in repair a bridge under their control, over a stream known as Blanchard river, and forming part of a public road in that county. The death resulted from the bridge giving way, on the fifth day of July, 1895, while the deceased was riding over it on a water tank drawn by a traction engine that was being propelled by steam. The petition charges that the bridg-e was of defective construction and out of repair, in that, the timbers which supported the floor were insufficient and unsound, the rods by which they were suspended from the truss were held only by nuts that were too small and without washers, and the wood into which the rods were fitted was decayed; and these defects, it is averred, had increased from long exposure, rendering the bridge unsafe for travel upon it, of which the commissioners had notice, but nevertheless neglected to repair it. Issue was taken by the defendant on the charge of negligence, and a counter-charge made of contributory negligence on the part of the deceased. The plaintiff recovered a verdict on which judgment was rendered; and that judgment having been affirmed by the circuit court, the commissioners brought error to this court. The opinion will contain such further statement of the ease 'as may be considered necessary to an understanding of the questions upon which it is reported.

      Thomas C. Mahon, Prosecuting Attorney, and Charles C. Lemert, for plaintiff in error.

      Crow (& Durbin and George E. Crane, for defendant in error.
   Williams, J.

The action below was brought under favor of the provision added to section 845, of the Revised Statutes, by the amendment of April 13, 1894, 91 O. L., 142. The material part of the section as thus amended, reads as follows: “The Board of Commissioners shall be capable of suing and being sued, pleading and being; impleaded in any court of judicature, and of bringing, maintaining and defending all suits, either in law or in equity, involving an injury to any public state or county road, bridge or ditch, drain or water course established by such board in their county, and for the prevention of injury to the same; and any such board of county commissioners shall be liable in their official capacity for any damages received by reason of the negligence or carelessness of said commissioners in keeping any such road or bridge in proper repair.” Though prior to that amendment, the public roads and bridges of the several counties were placed under the control of their respective boards of commissioners who were clothed with the necessary authority to keep them in repair, until its adoption there was no right of action against a county or its commissioners for damages sustained by the failure to keep a road or bridge in repair. So that, the nature and grounds of the defendants’ liability must be gathered from this amended statute; and its construction in these respects is, in several particulars, involved in the questions presented in the case.

It is one of the claims of the plaintiff in error, that the action will not lie because no provision is made for raising’ the necessary fund with which to pay any damages that may be recovered. But, it does not necessarily follow from the absence of such provision that the action must fail. Satisfaction comes after judgment; and, that no present means exist of enforcing payment of a judgment, is not a valid objection to its recovery. Means may be afterwards provided. There appears to be general authority vested in the commissioners to raise funds by taxation for all county purposes; and that would seem to include the power to levy taxes for the satisfaction of judgments against the county for whose payment no other or special provision is made.

Another claim of the plaintiff in error, — one made on demurrer to the petition, is that, because the liability created by the statute is that of the commissioners in their official capacity, for their official neglect, redress must be sought by action on their official bonds, which are required in order to secure a faithful and diligent performance of their official duti.es; and furthermore, that as the negligence charged includes the defective construction of the bridge, which was built before the act was passed, the action is not maintainable against the Board of Commissioners as constituted when the injury complained of was sustained. The material fact, however, from which the liability for a defective bridge arises, is the negligence of the commissioners in not keeping it in repair when the injury occurs; and the length of time the defect had continued before, or how it originated, are unimpor- ' tant except as tending to show knowledge of its existence. The negligent omission to make needed repairs on a bridge known to be out of repair, is, within the purview of the statute, a negligent failure to keep it in repair. And, the liability of the commissioners in their official capacity, is the liability of the county they represent, to the person injured by their culpable neglect. Whether, in the first instance, recovery might be had on their bonds, or, whether the county may have recourse to them for reimbursement of the damages paid by it, are questions not now before us, and upon which we express no opinion. We are satisfied that, in a proper case, the action may be maintained as this one was brought, directly against the Board of Commissioners in their official capacity.

Questions deemed of more practical importance in the report of the case arise upon the charge of the court and its refusal to charge as requested by the defendant. The jury were instructed, in substance, that the plaintiff was entitled to recover, in the absence of contributory negligence on the part of the deceased, if the defendant failed to have the bridge examined within a reasonable time after April 13, 1894 (when the amendment of the statute took effect), and, from defects in its construction, or want of repair, as alleged in the petition, it was, at the time of the accident that resulted in the decedent’s death, in an unsafe condition for the public use “in the way it was then being used.” And furthermore, it was a question for the- jury, “whether the bridge at the time of the accident was in a reasonably safe condition for the use of the public in passing over it, in the way it was then being used.”

The effect of the charge was to hold the commissioners responsible if they failed to examine the bridge and put it in a condition of safety for the. use that was being made of it when it gave way, that is, for the safe passage over it of the traction engine and water tank on which the deceased was riding, although that may have been an unusual and unexpected use of the bridge, creating a burden of extraordinary weight. This is a different measure of responsibilitj- from that imposed by the statute. It enjoins on the commissioners no absolute duty to make examination of the bridges under their control, and to put them in a condition of safety for all possible emergencies. Their only liability is for such damages as result from their negligence with respect to keeping a bridge in repair. And, as no special standard of care is prescribed by Ihe statute, the degree required does not extend beyond that which reasonably prudent persons would ordinarily exercise in a like situation, in view of the purposes of the bridge, and the general uses which it should reasonably be expected would be made of it. The object of the law in requiring the maintenance of highway bridges undoubtedly was to make provision, in a reasonable way, for the safety, convenience, and accommodation of public travel in 'all usual and ordinary ways to which they are adapted. Such probable use of them the commissioners are bound to anticipate. And proper care on their part would require them to keep such bridges in suitable repair for those purposes. That is no more than is demanded in the exercise of ordinary care. But it would seem unreasonable to require of the commissioners that they should anticipate and provide for some extraordinary use of a bridge that' would subject it to an unusual burden, — one not likely to be placed upon it in its common and general use. That would impose upon them the duty of extraordinary care, which the statute does- not exact. Accordingly, we find that when the question has been made in those states where local authorities are charged with the duty of maintaining ways and bridges, and made answerable in damages for their neglect to do so, it is held that a liability does not arise from neglect to keep a bridge in a safe condition for any unusual or extraordinary use, but only when there is a failure to keep it in repair for such use as is usual, ordinary and probable. In Gregory v. Adams, 14 Gray, 242, 248, which was an action against a town for damages for the loss of an elephant killed by the falling of a bridge that was out of repair while the elephant was being taken over it, Merrick, J. states the rule to be, that the public authorities in charge of bridges “are not required to make preparations for the safety or convenience of those who undertake to use those ways in an unusual or extraordinary manner, involving peculiar or special peril and danger, whether it be in respect to the kind or character of animals led or driven, or the magnitude or construction of carriages used, or the bulk or weight of property transported.” In Pennsylvania, where townships are liable in damages for failure to keep their bridges over streams in repair, in an action brought against a township by the owner of a threshing machine for damages done to it by the breaking down of a bridge over which it was being moved by a traction engine, it was held that: , ‘A township is not required to assume that its bridges will be used in an unusual and extraordinary manner, either by crossing at great speed, or by the passing of a very large and unusual weight. As it does not anticipate any such use, it is not required to so build as to protect against injury resulting from such reckless conduct. Its liability stops with constructing and maintaining its bridges so as to protect against injury by a reasonable, proper, and probable use thereof, in view of the surrounding circumstances, such as the extent, kind, and nature of the travel and business on the road of which it forms a part.” McCormick v. Township of Washington, 112 Pa. St., 185. In that case instructions were affirmed, by which the jury were informed that the duty of the supervisors of the townships was “well performed if the bridge complained of was in a reasonably safe condition for travel in the ordinary modes in the neighborhood, and by the people who commonly used the bridge;” and, that they were not required “to make preparation for the safety or convenience of those who undertake to use the highway in an unusual and extraordinary manner, involving peculiar peril and danger by reason of the magnitude or construction of the carriages used, or the volume or weight of the property transported.” That case was followed in Commonwealth v. Allen, 148 Pa. St., 358, and Clulow v. McClelland, 151 Pa. St., 583. In Clapp v. Ellington, 58 N. Y. S. C. (51 Hun.) 58, where the facts were not substantially different from those in this case, it was held that: “While the commissioner of highways is required to construct and maintain bridges of sufficient strength and material to insure the safety óf persons passing over them with such vehicles as are commonly and ordinarily used in that county, he cannot be required or expected to construct or maintain bridges which will insure the safety of persons passing over them in a manner involving peculiar and special danger arising from any unusual weight.” The doctrine of these cases has been maintained in Yordy v. Marshall County, 86 Iowa, 340, and other Iowa cases, and also in Commissioners v. Chipps, 131 Ind., 56, and other cases in that state.

From these authorities, as well as upon principle, it seems clear that in determining the liability of the defendant in this case, the controlling question is, whether the use that was being made of the bridge when Coffman received the injury which caused his death, was such usual and ordinary use of it as reasonably prudent persons in the situation of the commissioners and charged with their duties, would, in the exercise of ordinary care, in view of all the facts, have anticipated would be made of the bridge and would be attended with danger of injury resulting to persons, or property. If so, and the injury resulted from the failure of the commissioners to keep the bridge in repair, there was actionable negligence on their part. But not, if the use was of that unusual or extraordinary character involving peculiar danger which ordinary care did not require the defendant to anticipate and provide against. And that question, it is manifest, is one for the jury to determine from all the facts and circumstances of the ease. Not alone from the fact that the vehicle which was being moved over the bridge at the time was an engine and attachments weighing nearly five tons, to which the deceased added his own weight by riding upon it, and that it was propelled by steam power; though this could not be otherwise than important for the consideration of the jury. Such machinery and implements ha,ve come into use to some extent in some localities in threshing grain and other agricultural purposes, and are propelled by steam from place to place over the public highways, in the course of the business in which they are employed; and the extent to which that use of such machinery and that method of travel on the public roads and bridges had prevailed in that locality, if at all, before the occurrence, tog-ether with all the other pertinent facts shown by the evidence on the question, should be taken into consideration by the jury in determining whether that, at the time, had become a usual or ordinary method of travel and transportation in that locality, — -such as, at that time, ordinary care on the part of the commissioners should have anticipated and provided for, within the rule already stated. In Coulter v. Pine Township, 164 Pa. St., 543, it was held that: “In an action against a township to recover damages for death caused by a traction engine breaking- through a township bridge, it is proper to leave to the jury the question whether or not traction engines had become a usual and ordinary mode of travel when the supervisors reconstructed the bridge about five years before the accident. ” The instruction given in that case, which was approved, was that the case turned upon the question whether or not traction engines had become a usual and ordinary mode of travel when the supervisors of the township reconstructed the bridge; and that if they had, .then it was the duty of the supervisors to so construct, and thereafter maintain the bridge as to make it reasonably safe for such modes of travel. A similar instruction was sustained in Clulow v. McClelland, supra, and Clapp v. Ellington, supra. The charge of the court in the ease before us failed to submit this material question to the jury, and practically excluded its consideration.

Similar considerations enter into the question of the contributory negligence of the person injured, in such a case. In Gregory v. Adams, supra, the Supreme Court of Massachusetts held it to be the proper rule, that “if any person undertakes to use or travel upon a public highway in an unusual or extraordinary manner, or with animals, vehicles, or freight not suitable or adapted to a way opened and prepared for the public use in, the common intercourse of society and in the transaction of usual and ordinary business, he then takes every possible risk of loss and damage upon himself; and he can have no remedy against the town to recover recompense for injuries sustained, although they be the direct result of defects and imperfections in a way for which it would be responsible in case of injury to individuals in the lawful and proper use of it.” In Clapp v. Ellington, supra, a charge was sustained, which instructed the jury that, if “the vehicle upon which the plaintiff was riding, and with which he was connected in passing over the bridge at the time of the accident in question, was unusual and extraordinary in weight, in method of construction, or manner of propelling the same along the highway, and such unusual weight, method of construction, or locomotion was such as to cause unusual and extraordinary strain upon the bridge in passing over it, then the plaintiff took every possible risk of injury upon himself in trying to pass over the bridge, and the plaintiff cannot recover for the injuries sustained by the breaking down of the bridge, under such circumstances, although the injuries were the direct re-suit of such imperfections and defects in the bridge.”

The rule declared in these cases was followed, substantially, in each of the other cases already cited, and appears to be a reasonable one. A person about to cross a bridge in any of the usual and ordinary modes of travel, or transport property over it in any usual and ordinary way, has the right to assume that the public authorities have performed their duty, and therefore, that the bridge is in a safe condition for such use; and he is not chargeable with contributory negligence in acting on that assumption, unless the appearance of the bridge, its situation or structure, or other circumstance would suggest to a person of ordinary prudence that it was defective and dangerous, so that ordinary care would require, either that he should forego the contemplated use, or make sufficient examination to reasonably assure him of its safety. But a person who chooses to subject a bridge to some extraordinary burden, by placing upon it some unusual weight and causing it to be moved in an unusual manner, takes upon himself the risk of any injury thereby sustained, although the bridge was defective and out of repair. The proper test is not, as stated in an instruction requested by the defendant, whether the engine and tank on which the deceased was riding were of greater weight and more dangerous than ordinary wagons and teams, but were they, with the deceased upon them, and the use to which the bridge was then being put, an unusual method of travel and transportation, involving extraordinary peril, at that time and place; or, were the circumstances such that a person of ordinary prudence, in the exercise of ordinary care in the situation of the deceased, would reasonably apprehend and anticipate that it would be dangerous to go upon the bridge in that way? If so, he was guilty of negligence proximately contributing to his death; otherwise, not.

The instructions given on the subject were such that, in order to charge the deceased with contributory negligence it was necessary for the jury to find that he was actually ‘ ‘aware of the condition of the bridge, and had good reason to believe it was not sufficient to sustain the load that was about to pass over it.” Actual knowledge, and good reason to believe, is more than the rule, as we have stated it, requires. The instructions requested were inaccurately expressed, and their refusal was not error. But the case was erroneously given to the jury as we have indicated.

Judgment of the circuit court, and of the court of common pleas, 1'eversed, and cause remanded for a new trial.


author: Minshall, J.

text:
    Stevens v. McCoy, Assignee, et al.

      Rescission of exchange of land — Decreed by court of equitable jurisdiction — Decree of court transferring mortgage from land returned to land received by plaintiff — Rights of judgment creditor of mortgagor.

    1. It is competent to a court of equitable jurisdiction, in decreeing a rescission of an exchange of land, to transfer a mortgage, with the consent of the mortgagee, that had been placed on the land received by the plaintiff in exchange, to the land restored to him, where the rescission could not otherwise be had.
    2. In such a case the decree proprio vigore makes the mortgage a lien on the land from its date.
    3. Also, in such case, the interest of theparty in the lands restored is simply an equity of redemption ; and an execution on a judgment, levied on the land's restored, immediately after the decree of rescission, is inferior in lien to that of the mortgage so transferred.
    (Decided June 20, 1899.)
    Error to the Circuit Court of Perry'County.

      J. T. Grew, for plaintiff in error.
    The lien of judgments in Ohio is purely statutory, and can only be a lien on the lands of the judgment debtor within the county of which the defendant is legally seized at the time the judgment is rendered, or, as in this case, the transcript is filed. Baird v. Kirtland et al., 8 Ohio, 21; Haynes v. Baker, 5 Ohio St., 253; Harrington v. Sharp, 48 D., 365; Walton v. Hargrave, 97 D., 429.
    We submit that Price did not hold either the legal or equitable title to the McLuney real estate at that time, but on the contrary Beck was the owner of .both as well as in possession; Price was then the legal and equitable owner and in possession of the Ashtabula farm, and the circuit court in the case of Price v. Beck must haye so held in order to recognize the mortgage lien of Stevens on said farm, which Price gave him in October, 1890; and it was by reason of the written consent of said Stevens which Price attached to, and made a part of, his amended petition, that it became possible for said court to entertain said action and make the decree it did in said case, and thereby re-invest said Price with said title subject to the burthens therein imposed, which burthens said court had, and did by said decree, take off the Ashtabiila farm by consent of said Stevens, which consent was given on condition said burthens should by said decree be imposed upon said MeLuney real estate, etc., and a burthen thereon good as against said Price is good as against said Kent.
    The court will observe that the petition of Price against Beck charged fraud on the part of Beck in the transfer, there was no fraud claimed or charged by any one against Price; had Price never brought suit against Beck where would the legal title now be (as between them and any claiming under them) to the real estate in question? There is only one answer we take it, to wit; in Beck, his heirs or assigns; if that be so, it follows that the title could only have been re-vested in Price by force of the decree in the circuit court, or by deed executed in conformity therewith by Beck to Price.
    But, for argument sake, suppose we admit that the suit had been brought by Beck against Price for rescission on the charge of fraud on the part of Price in procuring said exchange, and the question should thereafter be presented to a court involving the right of Stevens as an innocent mortgage lien holder for value under Price. We ask upon what principle could the lien of Stevens be prejudiced? It is well settled in this state by many adjudicated cases that such innocent purchaser or mortgage for value cannot be prejudiced by a court subsequently setting aside the deed of the purchasers for fraud; and the courts of this state uniformly so hold notwithstanding our statute declares all conveyances made by a debtor for the purpose of hindering, delaying or defrauding creditors, shall be void; that principle is so well established we do not care to cite any authorities in support of it.

      L. A. Tussmg, for defendant in error.
    Under a deed of general assignment for the benefit of creditors, the assignee takes the real estate subject to all valid liens existing thereon against the assignor at the time of the assignment, 38 Ohio St., 610; 33 Ohio St., 63; 26 Ohio St., 63; 40 Ohio St., 109.
    Under the decree of the circuit court, (to which this court must give full effect) the title to the property described in the petition was in Price all the time; and therefore he had the legal title when the transcript of Kent’s judgment was filed in the Clerk’s office. The judgment then became a lien; and the Price-Beck case having ended as it did, it follows that this judgment has all the time been a lien on the Perry county property, and Kent never having been a party to the Price-Beck ease, and the judgment never having become dormant, it remains a prior lien to Stevens.
    The court’s transfer of it can not affect Kent’s priority, as he was not a party to the suit (see authorities hereinafter cited); so we see no escape from the conclusion that Kent’s lien is ahead, in any view of the case. Revised statutes, sections 5374, 5375, 5377, 5378 and 5415; McComb v. Thompson, 42 Ohio St., 139.
    One not a party to a suit is not in any way affected by anything done in the case; and therefore Kent’s rights as against the Perry county property are the same as if the circuit court had not attempted to transfer the mortgage from the Ashtabula to the Perry county property. 14 Ohio, 323; 17 Ohio, 239; 19 Ohio St., 472; 30 Ohio St., 24; Holliger v. Bates, 43 Ohio St., 437; Arnold v. Donaldson, 46 Ohio St., 73.
    Kent never in any way recognized the contract between Price and Beck, and never acted upon it, nor sought any relief on account of it. He was not a party to the suit, and the decree was. to correct only what these other parties had wrongfully done under the fraudulent contract.
    The court will bear in mind that Mr. Stevens the innocent (?) mortgagee, had a mortgage, not on the land in question, but on the Ashtabula land. What a judgment debtor may do, especially after date of levy, as in case at bar, after Kent’s transcript was filed, cannot prejudice the rights of the levying- judgment creditor. Therefore, in view of the facts that Kent was not a party to the decree, nor to the Price-Stevens agreement about the transfer of mortgage, and in view of the court’s finding- about the title as above, how can it be otherwise than that the circuit court was bound to make the parties to the suit whole out of the judgment against Beck?
    It is not true that the decree as to the title could have been entered only by consent of Stevens. How could Stevens have upheld' — -kept vitality in — the Price-Beck contract? But having released his mortgage and taken Price’s word for his money, how can he be protected to the prejudice of prior liens attaching before he released his mortgage?
    The Price-Beck contract was declared void, not merely as against creditors of Price, but in fact as being vitiated by actual fraud, leaving Price and his creditors each in the same position, as to their legal rights and as to the effect of the legal process employed by them, as if the Price-Beck contract had never been made. Price had no interest in the Ashtabula land and Beck none in the Perry county land. Price then could give no valid mortgage on the Ashtabula land. 2 Parsons on Con. (7 ed.) page 927 bottom; Frost v. Lowry, 15 Ohio, 215; 2 Pomeroy’s Eq., sec. 899, page 1267.
    Stevens, perhaps, has an equitable lien on the Perry county land as against Price; but he has no prior equitable lien thereon as against Kent, whose transcript was filed (Revised Statutes, section 5377, 5378) long before the agreement between Stevens and Price to impose the mortgage on the Perry county land.
    We contend that Stevens’ alleged lien on the Perry county land gets its vitality only from said last mentioned agreement, which does not bind Kent. 1 Jones on Liens (2d ed.), sections 77, 96, page 67; 2 Pomeroy’s Eq. (2d ed.), sections 721,722 and cases cited and notes on page 1009. White v. Denman et al., 1 Ohio St., 112; 26 Ohio St., 471; 30 Ohio St., 347; 40 Ohio St., 445; 1 Jones on Mortgages, 162; 47 Ohio St., 306; 11 Ohio St., 283; id. 232.
    Stevens must submit to the findings of the court, that the title to the Perry county land “did not pass from Charles W. Price,” * * * and is “in said Charles W. Price as though no conveyanee had been made to Beck;” by reason of which Kent’s lien attached at the time his transcript was filed. Those finding’s can not be attacked collaterally. This is not even an error proceeding- to reverse the original decree. Ohio Revised Statutes, sections 5377 and 5378; Carpenter v. Warner, 38 Ohio St., 416; Buffalo v. Farthing, 101 N. Y., 344; 1 Ohio St., 111; Davis v. Lennen, 24 N. E. R., 8851; 125 Ind., 185.
    There is no doctrine of lis pendens applicable to this case. Neither Price nor Stevens claim under Beck. Revised Statutes, section- 5055, 4987.— Lessee v. Boothby, 14 Ohio, 116; 2 Pomeroy’s Eq., section 633, for definition of lis pendens. Beck is not complaining here. Neither is Price, the plaintiff. Kent’s lien attaches by operation of law— not by g-rant of a party to the suit.
   Minshall, J.

The litigation below arose in a proceeding in the probate court commenced by McCoy, assignee of C. W. Price, to sell lands. Stevens and Russell Kent were made parties. Each claimed a lien on the land prior to the-other; Kent under an execution on a judgment and Stevens under a mortgage that had been transferred to the land by a decree of rescission in a suit between Price and one Beck and others. The matter in dispute between these parties was appealed to the common pleas. That court on the hearing made a finding stating its conclusions of law and fact separately, and rendered a judgment in favor of Kent, giving him priority over Stevens. The latter prosecuted error to the circuit court where the judgment was affirmed, and error is prosecuted by him in this court, to reverse both the lower courts on the finding made in the common pleas.

From the finding it appears that in January, 1890, Price and Beck exchanged lands by the execution of reciprocal deeds, the lands of the former deeded in exchange being situated in Perry county, and those of the latter in Ashtabula county; each at once taking possession of the lands received in exchange. In the month of October, 1890, Price made and delivered to Stevens on the lands in Ashtabula county a mortgage to secure $3,800, which was duly recorded. On November 1, 1890, Kent obtained a judgment before a justice of the peace in Perry county against Price for $287.20, and filed a transcript thereof in the clerk’s office of the county and caused an execution to be issued and levied on certain other lands of Price, that had not been conveyed to Beck.

On January 30, 1891, Price commenced a suit in Perry county common pleas to obtain a rescission of the exchange that had been made between him and Beck, on the ground of fraud, claimed to have been practiced by Beck and his associates. But as the mortgage he had executed precluded a rescission, unless it could in some way be removed, he entered into an agreement with Stevens whereby the latter stipulated, that if a rescission could be had by the removal of his mortgage, he agreed that it might be cancelled on the Ashtabula lands, on condition, however, that it should, by the decree of the court, be removed to and made a lien upon the Perry county lands, that should thus be restored to Price. By amendment this agreement was introduced and made a part of his petition by Price. On the hearing of the case, fraud was found and a decree of rescission made; and, in accordance with the agreement between Price and Stevens, and as a part of the decree, the mortgage on the Ashtabula lands was ordered cancelled, and transferred to the Perry county lands. The case was appealed to the circuit court where on September 22, 1894, that court made a similar decree. As soon as the judgment of rescission was made in the common pleas, Kent caused an execution to be issued and levied on the lands under his judgment. And likewise, as soon as the rescission was ordered in the circuit court, made another levy on the same lands. And hence the question arises, which of these two parties has the prior lien on the lands; whether it be Stevens by virtue of the provisions of the decree of rescission, or whether it be Kent by virtue of the levies made under the executions issued upon his judgment. To prevent misapprehension, it should be stated that Kent was no party to the suit for rescission, nor to the agreement in regard to the transfer of the Stevens mortgage. The mortgage was not recorded in Perry county; and whatever validity it has as a lien on the lands in that county depends upon the effect of the decree of rescission.

It is claimed for Kent, that Price by reason of the fraud practised on him, remained the owner of the land; and that, as a consequence, his judgment became a lien on the land at the time his transcript was filed in the clerk’s office, or else at the date of the first levy, and if not then, at the date of the second, levy after the judgment had been rendered in the circuit court decreeing a rescission; and that the lien of Stevens is at most an equitable one. And particular importance is attached to the fact, that the circuit court, in the suit for rescission, found that, by reason of the fraud practiced, there was no consideration for the conveyance from Price to Beck, and that the title did not pass from Price to Beck, .and was adjudged to be in Price as if no conveyance had been made.

It must, however, readily occur to one familiar with legal distinctions, that the finding of the court, that the title did not pass, but remained in Price as if no conveyance had been made, is not' a finding of fact, but a legal conclusion from facts about which there is no dispute, and, as we think, an erroneous conclusion. It is not disputed that Price in making the exchange, executed and delivered a deed to Beck for his lands in Perry county, given in exchange; and that it was in consideration of a deed made and delivered to him at the same time by Beck for his lands in Ashtabula. It needs no citation of authorities to show that the deed executed by Price passed the title to the lands so conveyed, and that the lands received by him in exchange constituted a consideration, and that nothing but the decree of a court could divest that title. They were subject to the equitable right of Price for a rescission; but they were no longer his lands in the sense that they could be levied on by any of his creditors, nor in the sense that a judgment rendered against him would become a lien thereon. Haynes v. Baker, 5 Ohio St., 253. We may go further and say, that the right that was in Price for a rescission was a right personal to himself, and could not be availed of by creditors, for’ it is not an equity in the land, but a mere right of action personal to the grantor, over which no one else has control. He alone can maintain it, for he alone can comply with the requirement of placing the opposite party in his former position, by executing a reconveyance of the lands obtained by him, and returning whatever else he may have received in exchange. And to still further show the unsound ness of the claim made for Kent, and its want of any principle of equitjq it must be observed, that, in this case, the grantor was in no position, at the commencement of his suit, to have a rescission of the exchange, and could not have obtained such relief, but for the assistance afforded him by Stevens, in his agreement, that if, upon the facts, he was entitled to a decree, he would consent that his mortgage might be cancelled by the decree of the court, and transferred to the Perry county lands. Now, a creditor, should he have endeavored to subject the lands to the payment of his claim, could have done no more than stand in the shoes of the debtor. He would have been required to place the opposite party in statu quo; in other words Kent would have been compelled to make the same agreement with Stevens, that Price did, so that if the rescission had been made at his suit, it would have been subject to the mortgage of Stevens.

The case may be presented in another view. All that was restored to Price by the decree was the land he had exchanged subject to the mortgage. This was all that in equity he had a right to; for by executing the mortgage on the Ashtabula lands he had affected the value of his ownership therein to that extent. Hence the thing restored to him was simply an equity of redemption in the lands, and this was all that the levy of Kent’s execution could attach to. True, Price had the legal title when the levy was made, but it was subject to the lien imposed on the land by the very decree by which the land was restored. There can be no doubt of the power of a court, in the exercise of its equity jurisdiction, to make such a decree, when so clearly required by the interests of justice; and no third person is affected in any of his vested rights. When Kent recovered his judgment, Beck owned the lands, and they would have remained in the ownership of Beck, but for the decree; and and this decree could not have been obtained on any other condition than it was obtained. Hence if Kent could avail himself of this decree, he must do so subject to its provisions. The decree is an entirety; and he cannot therefore avail himself of part of it and reject the other part. The provision as to the mortgage is a material part of the decree; and without that provision no rescission could or would have been made, and he would have had no claim of any valid character whatever against the land. It signifies nothing that Kent was not a party to it. He loses nothing by it to which he had any right. He merely seeks to gain by the loss of another, on the asumption that the rigidity of the law is such that the injustice cannot be avoided. But the law of remedial justice is not so infirm. Looked at from any standpoint of right and justice, the lien of Stevens on the land should be preferred to that of Kent.

In considering the case, it must be constantly kept in mind that Kent, prior to the rescission, had no right, legal or equitable, against the land; and hence the advantage he claims, if it were allowed him, would be in the nature of a wind-fall. He desires to reap where others have sown, without a particle of merit in his favor. He cannot then question the power of the court in administering equity, to make the decree it did; and by which Steven’s mortgage was cancelled on the Ashtabula land and transferred to the land restored to Price; the rescission, the cancellation and the transfer, was in law one act, and must take effect as such.

Judgment reversed and judgment for the plainpiff 4n error.


author: Shauck, J.

text:
    Black et al., Trustees, etc., v. Hagerty, Auditor, and Schott, Treasurer.

      Power of auditor of state to remit taxes — Cannot reduce valuation by local board of equalization, when — Laws of Taxation.

    The power conferred upon the auditor of state to remit taxes does not authorize him to reduce a valuation of real estate made in pursuance of law by a local board of equalization, merely because he believes the valuation to be excessive.
    (Decided June 20, 1899.)
    Error to the Circuit Court of Hamilton county.
    The cause was tried on appeal in the circuit •court, and the questions presented arise upon the record there made. In their petition the plaintiffs .allege that they are the qualified and acting trustees under the will of A. W. Frank, deceased, and that in that capacity they are charge! with the management and full control of all the property of his estate including certain described tracts of real estate in the city of Cincinnati. They allege that in the year 1890 said property was grossly ■overvalued for taxation by the decennial appraisers •of that year; that in 1892 they made applicatioh to the Board of Review then sitting as the city annual board of equalization for a reduction of said valuation, and that on the twelfth of September of that year said board did make a small reduction in said valuation, but left the valuation excessive and much higher than that of other like property in the same locality. Thereupon in December, 1892, said trustees made an application to said city annual board of equalization for a further reduction in said valuation, but their application was denied. Thereupon the trustees appealed the matter of said valuation and their application for the correction thereof to the auditor of state. On the twenty-fifth of January, 1893, the auditor of state, acting in conjunction with the attorney general and governor, as a state board of remission, granted the application of the trustees and made a further reduction in said valuation which reduction the auditor of Hamilton county was ordered to enter. Upon the receipt of said mandate the auditor of Hamilton county changed the duplicates accordingly, whereupon the city annual board of equalization notified plaintiffs that it would consider and act upon a motion to restore the valuation of September 12, 1892, and in August, 1895, said board of equalization did make such addition as restored the said valuation of September 12, 1892, which the county auditor has placed upon the duplicate and delivered the same for collection. The plaintiffs allege that there has been no change in the value of this property or other property in the vicinity since the reduction made by the state board. They further allege a tender of the taxes due upon said property upon the valuation fixed by the state board of remission, and pray for an injunction as to all taxes above that sum. The defendants answering allege that the plaintiffs appeared before the city annual board of equalization pursuant to the notice of August, 1895, and were heard upon the resolution then pending, and that after such hearing, on the seventeenth of August, 1895, said board passed said resolution to make additions to said valuation, not for the purpose of restoring the reduction made by order of the state board, but because of inequality which the board found to exist. A finding of facts was made by the circuit court, but in our view the case may be determined on the pleadings.

      G. 0. Archer; L. G. Black and Sidney G. Strieker, for plaintiffs in error.
    The Auditor of State, acting through the State Board of Tax Remission, had power to reduce the tax valuation on each of the pieces of property in question.
    For the purpose of argument, we propose to admit that the failure of the Board of Revision to sit, as such, during the year of 1892 rendered it impossible to perfect an appeal from the decision of the Board of Review under section 2805a, Revised Statutes.
    We claim that under section 167 and section 2800, Rev. Stat., the Auditor of State, acting through the State Board of Tax Remission, had original power to correct the return of the County Auditor and reduce the tax valuation $5,000 on each of the pieces of property in question, finding, as they did, that the property was taxed too high, and that, therefore, it was not necessary to perfect an appeal under section 2805a.
    Sections 167 and 2800, are clearly in pari materia.

    The word “any ” is a word of general signification, and is synonymous to “ all,” and the word “all” is synonymous to the word “every.” Stone v. Elliott, 11 Ohio St., 258; Smith Bridge Co. v. Bowman, 41 Ohio St., 37; Collector v. Hubbard, 12 Wall., 1; Murray v. Brown, 91 U. S., 254.
    Having regard, therefore, for the intention of the Legislature, and construing the words according to their plain, natural and ordinary signification, there can be no doubt, we submit, that under sections 167 and 2800 Rev. Stat.. the Auditor of State had full and express power to order the county auditor to reduce the tax valuation $5,000 upon each of the pieces of property in question. State ex rel. v. Leffler, 40 W. L. Bull., 174.
    If the question were an open one, which we submit we have clearly shown it is not, the reasoning’ of the circuit "court would but confirm the correctness of the rule laid down by this court — -if any confirmation were needed — since the reasons upon which the circuit court proceeded are so manifestly erroneous as to confirm the necessity of the opposite conclusion reached by this Court. 16 O. C. C., 255; 9 Circ. Dec., 93.
    This might, indeed, have been one of the reasons that prompted the circuit court to throw out the suggestion “if that law be constitutional.” The constitutionality, however, of that law is not involved in this case, and therefore cannot be collaterally impeached or attacked. The law must be presumed to be constitutional. State ex rel. v. Cincinnati, 20 Ohio St., 18; Walker v. Cincinnati, 21 Ohio St., 14; Kendall v. State, 52 Ohio St., 346.
    It is a settled axiom in the construction of statutes, that courts will always adopt that view which will avoid absurd consequences, injustice, or great inconvenience, as none of these can be presumed to have been within the legislative intent. Moore v. Given, 39 Ohio St., 661; Railway Co. v. Jump, 50 Ohio St., 651.
    It is thus clear that the power of the auditor of state to correct a fundamental error under section 167 was in no wise involved. The court simply held that the error sought to be corrected was clerical and not fundamental, and that under section 166 the auditor of state had power to direct the county auditor to correct a clerical error. It decided nothing more. It did not decide that if application had been made by the taxpayer to the auditor of state under section 167 to correct a fundamental error, that the auditor of state would not have bad power to correct it. State ex rel. v. Jones, 51 Ohio St., 492.
    We freely admit the general proposition, that when the board of equalization once lawfully acquires jurisdiction, that courts will not collaterally inquire into, or impeach the propriety of their action. Fratz v. Mueller, 35; Ohio St., 395. Hirschman v. Fratz, 7 W. L. Bul., 35.
    While courts will not collaterally impeach their judgments when jurisdiction is once acquired, a court of equity will inquire into their jurisdiction, and for that purpose may go behind their record and look into their proceedings. Lessee of Adams v. Jeffries, 12 Ohio, 254; Sheldon v. Newton, 3 Ohio St., 494.

      Rendigs, Foraher dk Dinsmore, for defendants in error.
    The question, is, whether section 167 authorizes the state auditor and the state board of tax remission to review the acts of a board of equalization, and substitute the judgment of the state officials for the judgment of the local board.
    Boards of equalization are independent tribunals created by the legislature for the purpose of assisting in carrying on an important branch of the government relating to the appraisement of property for taxation. Their authority is prescribed by the statute, and while acting within the scope thereof their conclusions are final, unless an appeal is provided by law. Their acts are judgments, which can not be reviewed bv the courts, nor impeached for any reason, except fraud or want of jurisdiction. Wagoner v. Loomis, 37 Ohio St., 571; Stanley v. Supervisors of Albany, 121 U. S., 535; Railway Co. v. People, 119 Ill., 182; Olympia Waterworks v. Thurston Co., 14 Wash., 268; Maish v. Arizona, 164 U. S., 599; McDonald v. Escanaba, 62 Mich., 555; Ex rel, Attorney General v. Supervisors etc., 42 Mich., 72; Mayor, etc., of New York, v. Davenport, 92 N. Y., 604; Bellinger v. Gray, 51 N. Y., 610; Moore v. Taylor, 147 Pa. St., 481; Ry. Co. v. Backus, Treasurer, 133 Ind., 625; The People ex rel. v. Lots in Ashbey, 122 Ill., 297; Macklot v. City of Davenport, 17 Iowa, 379; Stewart v. Maple, 70 Pa. St., 221; Hughes v. Kline, 30 Pa. St., 227 ; R. R. Co. v. Smith county, 54 Texas, 1; Rhoads v. Cushman, 45 Ind., 85; The Republic Life Ins., Co. v. Pollak, 75 Ill., 292 ; Porter v. R. R. Co., 76 Ill., 561; Ry. Co, v. Backus, 154 U. S., 421; San Jose Gas Co. v. January, 57 Cal., 614; Brooks v. Shelton, 47 Miss., 243; The People v. Goldtree, 44 Cal., 323; Cooley on Taxation, pp., 422, 748; 1 Desty on Taxation, 498; High on Injunctions, section 493; 25 Am. & Eng. Enc. Law, 261, and cases cited thereunder.
    Boards of Equalization in considering values for taxation act judicially. Cooley on Taxation (2d ed.), p. 422; State v. Hawkins, 44 Ohio St., 109; Black v. Gonigle, 103 Mo., 192; Griswald v. Bay City, 24 Mich., 262.
    We do not claim that it is not within the power of the legislature to provide for the review of acts of local boards of equalization, and for setting aside the valuations as determined by them upon a further investigation by the reviewing authority. In the absence, however, of a statute, plainly-providing for such review, the judgment of the local boards must stand, and it is our claim that it was not the intention of the legislature to provide such an authority in the enactment of section 167, Revised Statutes.
   Shauck, J.

In any view that may be taken of the case the plaintiffs are not entitled to the injunction prayed for if the board composed of the auditor of state, governor and attorney general was. without authority to reduce the valuation of the lots under the circumstances and for the.reasons alleged in the petition. By taking to his assistance the governor and the attorney general the auditor of state complied with the requirement of section 167 of the Revised Statutes with respect to cases in which the amount to be remitted exceeds $100, but, excepting the provision as to the amount to be remitted, the powers of the three officers are those only which the statute confers upon the auditor of state. They had no more authority than he to make a reduction in the valuation of the land because.of a supposed error of judgment in that regard by the local board. It is contended that the authority assumed in this case is conferred upon the auditor of state by section 167 of the Revised Statutes, which, defining the duties of the auditor of state, provides: “He may remit such taxes and penalties thereon as he ascertains to have been illegally assessed and such penalties as have accrued or may accrue in consequence of the negligence or error of any officer required to do any duty relating to the assessment of prop-' erty for taxation, or the levy or collection of taxes, and he may from time to time correct any error in any assessment of property for taxation or in the duplicate of taxes in any county; provided that when the amount to be remitted in any one case shall exceed one hundred dollars, he shall proceed to the office of the governor and attorney general and take to his assistance the governor and attorney general, and in such cases may remit no more than shall be agreed upon by a majority of the officers named.”

It is further contended that in the unreported case of the State ex rel. The Commissioners of Marion county v. Loeffler, 4 L. B., 174, we construed this section in accordance with the views of counsel for the plaintiffs. But the record in that case did not show that the state auditor had attempted to exercise his judgment as to the value of the personal property of the Marion Steam Shovel Co., a corporation, upon whose application the remission was made. It did show that upon the consideration of said application the board found “that said auditor of Marion county erred in adding to and placing upon the Marion county tax duplicate the additional sum of $26,099 in taxes and penalties charged against the Marion Steam Shovel Co., and that said additional sum has been illegally assessed and said penalties thereon erroneously added by said auditor of Marion county.” The case is authority for the proposition that the auditor of state may remit additions and penalties charged by the county auditor against a corporation without authority of law. Nothing’ further was presented or decided. And this we think suggests the limits within which the state auditor may act in making’ such remissions. There is no provision of law to enable him to acquire information concerning the values of real estate in the different counties, if it were practicable for him to acquire such information by the most efficient provisions that could be devised. The terms of the statute conferring power upon local boards of equalization show it to be the policy of the legislature to require the valuation to be determined by officers having some knowledge upon the subject and facilities for acquiring full knowledge concerning the same. Moreover such boards are confined to the duties of equalizing values, and subject to express restrictions that they shall not reduce the value of the real property of the state below the aggregate value thereof as fixed by the state board of equalization. If we aeeept the views of counsel for plaintiff we must concede that. the legislature provided for the annulment of this requirement by vesting revisory power in an officer upon whose action there is no such restriction. While the auditor of state is vested with authority under section 167 to remit taxes and penalties illegally assessed, he is without authority to overrule the judgment of the local board in a case in which it might legally act. This conclusion is consistent with the view of the general subject taken in State ex rel. Poe v. Raine, 47 Ohio St., 447, and Hagerty et al. v. Huddleson et al. ante. p. 149.

Judgment affirmed.