author: Minshall, J.

text:
    Robinson v. Boyd.

      Surety — Contribution between cosureties — Presumption of consideration for pledge— Vohmtary tender of security — For principal by stranger to principal's bond — Volunteer may exact contribution from principal's sureties.

    1. Where property has been, pledged as security for the debt of another, the presumption is that it was made for a sufficient consideration; and, in a suit to enforce the pledge, no consideration is required to be stated; nor proved, unless the want of consideration is made by answer.
    2. Detriment or loss to a promisee, being a sufficient consideration to support a promise, therefore, where property is pledged by one for the debt of another, the fact that the creditor by reason of the pledge may have been induced to forego efforts to obtain other security from his debtor, is a sufficient consideration to support the pledge.
    3. To give rise to the application of the doctrine of contribution between sureties, it is not necessary that there should be privity of contract between the parties, nor that the liability of each should have been incurred at the same time; all that is required is, that the debt or burthen should be common to the parties, and primarily that of the same person.
    4. R. and F. were sureties on the bond of B. for the faithful performance of his duties as trustee of E. a non-resident minor; on final settlement in the probate court there was found due from him $2,304, which he was ordered to pay over according to law; shortly after the minor became of age, and at her re- ■ quest and that of B., the wife of the latter pledged to E. a policy of insurance she held on the life of her husband, as collateral security for the amount due from B. to E. B. died, and the amount due was afterwards paid in part by the proceeds of a mortgage of indemnity held from B. by one of the sureties on the bond; and the balance, $1,311, was satisfied by the application of the money derived by E. from the policy of insurance she held in pledge. Neither of the sureties on the bond paid anything.

      Held: That the wife, owner of the insurance so pledged, is entitled to contribution from the sureties on the bond.
    (Decided March 14, 1899.)
    Error to the Circuit Court of Seneca county.

      Mg Gauley ds Weller, for plaintiff in error.
    We claim on behalf of Robinson that he was not a co-surety with Virginia E. Boyd or rather that she was not a co-surety with him. She was not a surety at all. She had nothing whatever to do with 'the bond on which Robinson was liable. When she pledged her policy for her husband’s debt, she did not in any way become liable for it or any part of it. She assumed no liability whatever of any kind. As a consequence of this, if the policy had been insufficient by $500, or any sum to pay what remained of the debt, Robinson could not have compelled contribution from her after he had paid it. . She had not agreed or bound herself to do anything. She came into the business long after all the liability by Boyd and by Robinson as his surety had been incurred. No credit was given or trust' reposed on the faith of any agreement or undertaking by her. She was under no obligation to put up this policy. She was a volunteer and nothing more. The circuit court went to the trouble to report this case. 13 C. C., 211; 7 Circ. Dec., 83.
    The general and unvarying rule among persons liable to contribution is that they must be cb-sureties for the same debt, or otherwise jointly or severally liable for the same obligation. This rule
      oí course is susceptible of various applications. The parties so liable need not be bound by the same instrument, nor for equal amounts, nor by obligations assumed at the same time, but it is always necessary that their obligation should be for the same principal and have reference to the same transaction. Brandt on Suretyship, section 255; Bishop on Contracts, section 216; Parsons’ Contracts, 31; B. & O. R. R. Co. v. Walker, 45 Ohio St., 577; Hartwell v. Smith, 15 Ohio St., 200; Bispham’s Equity, section 330; Oldham v. Broom, 28 Ohio St., 41; Longley v. Griggs, 10 Pick., 121.
    Contribution can be enforced only between co-sureties, or co-obligors, and Robinson was not a co-surety or co-obligor with Mrs. Boyd and therefore contribution cannot be enforced against him.

      Lutes & Lutes, for defendants in error.
    The doctrine of contribution rests upon the broad principle of justice which dictates that common burdens shall be equally borne; hence, whenever two or more are under obligation to perform the same duty involving the expenditure of money and one of them performs the whole duty and discharges the common obligation, he is entitled to have contribution from the others equally bound with him, whether the obligation arises from contract or by operation of law. Upon this equitable principle is founded the well established right to contribution as between co-sureties. The right depends upon this equitable principle'rather than upon contract, but from the equitable obligation the law implies a contract to equalize the common burden, and the contribution will be so enforced as that all shall bear the common burden equally. B. & O.

      R. R. Co. v. Walker, 45 Ohio St., 577; Camp, et al. v. Bostwick, 20 Ohio St., 337; Oldham v. Broom, 28 Ohio St., 41.
    And upon this same equitable principle rests the rule in equity that where one of several sureties is insolvent, his share will be apportioned among the solvent ones. 2 Waite’s Actions and Defenses, page 297; Smith v. Mason, 63 N. W. Rep., 41.
    It makes no difference what the form of obligation, only so it is binding for the payment of the same debt and for the same principal; or whether the several sureties are jointly or severally bound; or whether they are bound by the same or differ-' ent instruments; or at the same or different times, or for the same or different amounts, or whether either has any knowledge of the obligation of the other or not. There need be no privity of contract between the sureties themselves, for the right of contribution is not founded upon contract. 3 Pom. Eq. Jurisprudence, section 1418; Brant on Suretyship, sections 221 and 223,1st edition, (section 255, 2d edition ; 4 Am. and Eng. Enc., pages 4 and 5, and notes; 2 Waite’s Actions and Defenses, 297.
    The relation of principal and surety ' is not controlled by the form of the obligation by which it is established, but is fixed by the equities and relations- of the parties with regard to the debt for which the obligation is entered into. Smith v. Shelden, 35 Mich., 42; Wise v. Miller, 45 Ohio St., 399.
    And it was perfectly competent for Mrs. Boyd to assume the relation of surety by that form of contract. Insurance Company v. McDonnell, 41 Ohio St. 650; Eisenberg v. Albert, 40 Ohio St., 631;
      Sterling v. Forrester, 3 Bligh, 59; Dering v. Lord Winchelsea, 1 Cox, 318.
   Minshall, J.

The action below was a suit for contribution by one, who, as surety, claimed to have paid the debt of the principal, against two others claimed to have been co-sureties. The case was submitted in the common pleas on the pleadings. The court rendered judgment in favor of the defendants, which, on error was reversed by the circuit court, and judgment rendered in favor of the plaintiff against one of the defendants, plaintiff in error, the other being found insolvent; and this proceeding is prosecuted to reverse the judgment of the circuit court.-

• The questions arise upon the averments of the petition, which are not controverted by the answer of either defendant, except as will be presently noted.

It appears from the petition that Estella Everett was in April, 1879, a non-resident minor possessed of property in this state; that James T. Boyd was then appointed her trustee of the property by the probate court of Seneca county, and that he with J. T. Robinson and W„ H. Free, sureties, gave bond according to law for the faithful performance of his duties; that he entered upon the performance of his trust, and there came into his hands a large amount of property; and having filed his final account, the same was settled in the probate court June 5, 1888, by which there was found in his hands the sum of $2,304 — which he was ordered to pay over according to law. That after the account had been filed, Boyd in August, 1887, made and delivered to Robinson, one of the sureties, a mortgage of indemnity on certain real estate; and that after-wards, on December 29,1888, the plaintiff, Virginia E. Boyd, to further secure the payment of the amount found due Estella Everett, who was then of age, and at the request of Boyd, who was her husband and of Estella Everett and Robinson, assigned and delivered a policy of life insurance she then owned upon the life of her husband, to be held as collateral security for the sum due on the bond. That she received no consideration for the assignment, and that the policy was simply pledged as surety of her husband. That in June, 1889, the mortgage given Robinson was foreclosed, and the sum realized, $1,236.95, was applied in part payment of the indebtedness, leaving a balance of some $1,278, still due. Boyd died insolvent in September, 1889. Afterwards Miss Everett collected the full amount of the insurance, amounting to $1,559, and applied the sum of $1,311 to the payment of the balance due her including interest. The plaintiff then avers the insolvency of Free; a demand on Robinsion made August 5, 1895, for contribution, and his refusal to contribute.

Robinson, by answer, denied that the policy of insurance was assigned at his request or with his knowledge. Free made a like answer; neither, however, denying any other averment of the petition. Two questions arise upon the case made by the pleadings: 1. Whether there was any consideration for the pledge by the plaintiff of her policy of insurance as security for the debt of her husband, principal on the bond. 2. If so, whether she is entitled to contribution from the sureties on the bond.

1. There is no question but that if the plaintiff was not bound in an obligation to the creditor on the bond — if she was not obliged by the pledge of her policy to permit it to be applied in payment of the debt of her husband on the bond, she cannot compel either of the sureties to contribute to her simply from the fact that it was so applied. As will be hereafter seen, the right to contribution arises from the discharge by one of a burthen common to himself and others. If one who discharges a debt was not bound to the creditor to do so, he has no claim against others who were bound to do so. As to such he is a mere volunteer. It is also true that there must have been some consideration for the pledge other than the execution of the bond. At the time the pledge was made the bond had been executed and the rights and liabilities of all the parties to it had been fixed. It was no accommodation to the husband to promise to pay the debt •on the bond, or to pledge her property to secure it, for he had already obtained and enjoyed the trust by the acceptance of his bond with the sureties on it. As to her, the execution of the bond was a past transaction, and constituted what in law is termed an executed consideration. The law applicable to this view of the case is clearly stated by a very learned author, “Where a promise is made^to pay the already existing debt of another, there must be some new consideration, or the promise will be void. The original consideration, which supports the principals contract, cannot be made to operate on the new promise. Such promise is nudum pactumMetcalf on Contracts, 172. But the consideration for a promise, though generally, is not always confined to a benefit to the promisor; any forbearance, detriment, loss or damage given or suffered by the promisee is a sufficient consideration to support a promise to him. Nor is it necessary that the consideration for an agreement should be adequate in value. As said by the author just referred to, “however slight the benefit to the promisor, if of any legal value and however slight the damage, loss, or inconvenience to the promisee, if of any legal estimation, is sufficient to support a contract.” . Metcalf on Cont., 165; Clark v. Sigourney, 17 Conn., 511, 517.

. The question then arises, whether by reason of loss or detriment to Miss Everett, the plaintiff was bound by the act of pledging her property as security for the amount due upon the bond as ascertained by the accounting and judgment of the court. There is no such averment in the petition, nor was she required to make such an averment; a consideration will be presumed from the act of making the pledge. This might, however, be controverted; but would be a matter of defense; and no such defense is made by the pleading. A pledgee has the advantage always awarded one in possession; the possession is deemed rightful until' the contrary is made to appear. So that, if, on any reasonable presumption, a consideration may have existed, such presumption will support the promise; for had the defense been made, she might have been able to show the fact. It appears that at the time the pledge was made, Miss Everett had arrived at age, and was entitled to her money; that Boyd was embarrassed, and had given to one of the sureties a mortgage of indemnity. The fair inference then is that Miss Everett was then seeking either payment or security for her claim; and that the policy was assigned in pledge to satisfy her. It is averred that it was made at'her request. Now had it not been given, there is nothing to show that she might not either have obtained payment in money or property, or have obtained adequate security by a mortgage on the property of the debtor. The fact then that she may have pretermitted her efforts to obtain immediate payment, or security by mortgage on the property of her debtor, induced by the pledge made by the plaintiff, would have been such a pretermission of efforts on her part to better her condition at a time when she might have done so by obtaining further security, as would constitute a consideration for the pledge then made by the plaintiff, or would estop her from saying there was none. Therefore the plaintiff could not, after pledging her policy under these circumstances, have recovered it, without satisfying the amount due on the bond; and she was therefore bound to the extent of the value of her policy for the payment of the amount due on the bond. After making the pledge she was as much bound in an obligation for the payment of the debt arising on the bond, to the extent of her policy of insurance, as if she had signed the bond, limiting her obligation to a definite sum.

2. As to the second question, the claim of the defendant below is, that the plaintiff is not entitled to contribution, because there is no privity of contract between them, and that the pledge was made without his procurement or assent, and after the bond had been executed and accepted. We do not find the doctrine of contribution so limited, nor is it required by the principle on which it rests. It is not founded on contract, but arises from the equitable consideration that persons subject to a common duty or debt, should contribute equally to the discharge of the duty or debt; and so where one performs the whole duty or pays the debt, or more than his aliquot part, each of the others should .contribute to him, so as to equalize the discharge of what was a common burthen. Lord Redesdale in Stirling v. Forrester, 3 Bligh, 575, 596, comprises the whole reason and extent of the doctrine in the following language. ‘ £At the bar it was contended, that the rights and obligations of co-sureties are founded on a supposed contract between them; and that in this transaction they entered into the obligation without communication with each other. The question depends upon equity, not upon contract; and in this case a contract is to be implied-. The decision in Dering v. Winchelsea, 1 Cox., 318, proceed upon a principle of law which must prevail in all countries, that where several persons are debtors, all shall be equal. The doctrine is illustrated in that case by the practice in questions of average, etc., where there is no express contract, but equity distributes the loss equally. On the prisage of wines, it is immaterial whose wines are taken; all must contribute equally. So it is where goods are thrown overboard for the safety of the ship; the owners of the goods saved by that act must contribute proportionally to the loss. The duty of contribution extends to all persons who are within the scope of the equitable obligation.” In the application of this do«trine it is said, (2 Waite’s Actions and Defenses, 297) “If several persons, or several sets of persons, become sureties for the same duty or debt, of, to and for the same persons, though by different instruments, at different times,-and without a knowledge of the obligations of each other, they will be bound to mutual contribution. ” And see also, the cases there cited. The doctrine as here stated is well settled by the authorities. 3 Pom. Eq. Jurisp., section 1418; Brandt, Suretyship, section 225; Russell v. Failor, 1 Ohio St., 328; Oldham v. Broom, 28 Ohio St., 41. In the leading case of Dering v. Winchelsea, 1 Cox., 318, 321, where the doctrine was very fully considered it is said, “If we take a view of the cases both in law and equity, we shall find that contribution is bottomed and fixed upon principles of general justice, °and does not spring from «ontraet; though contract may qualify it;” and it was there held, on the ground of equality of burthen and benefit, that where three sureties are bound by different instruments, but for the same principal and for the same engagement, they shall contribute. In Chaffee v. Jones, 19 Pick., 260, it appeared that the plaintiff became a party to a note as surety, after it had been signed by another as surety for the principal, but without the knowledge or consent of the former surety. And it was held, that having paid the note he was entitled to contribution from the other. Shaw, C. J., observed, that the equitable obligation to contribute, “constitutes an implied privity in law, On which assumpsit will lie.” See also, Young v. Shunk, 30 Minn., 503.

So that, where two or more persons are bound as sureties for the discharge of the same debt, though by different modes, its discharge by one, conferring a benefit on the others, raises a right in his favor for contribution.

It is also suggested that there was no mutuality —that if Robinson had paid, he could not have compelled contribution on the part of the plaintiff. This we think is a misapprehension; if it were so, it would be an anomaly in the doctrine. His right to contribution against her, had he paid the debt, would have rested upon precisely the same principle of equity as does her right against him —his payment would have relieved her property from the pledge, or, what is the same thing, would have relieved her of a burthen, that was common to both of them. The right does not depend upon the order in which each party became liable, the common liability is the crucial test. The case of Monson v. Drakeley, 40 Conn., 552, seems directly in point. There A, as principal and B and C as sureties signed a note, but the fact of suretyship did not appear therefrom. The holder afterwards became dissatisfied with the solvency of the signers of the note, and the debtor, A, procured D, a third person, to sign the note under the names of the other signers, upon a consideration moving from A to D. Afterwards A became insolvent, and C was obliged to pay the note. Held, he was entitled, to contribution from D. The court said, that “the right to contribution exists only among those sureties, who are liable for the same thing. But equity looks at substance more than form, and if several persons enter in to contracts of suretyship, which are the same in their legal character and operation, though by. different instruments, at different times, and without the knowledge of each other, they will be bound to mutual contribution. ” See also Whitehouse v. Hanson, 42 N. H., 9.

Hence it cannot be said that there was a want of mutuality between the plaintiff and Robinson — the right of either against the other, on paying the debt, was the same.

It is also claimed that the plaintiff by simply pledging her property made no promise of payment, and cannot for this reason claim contribution. This we think is also, a misapprehension-It seems to assume that there is no promise connected with a pledge; but in every pledge there is an implied promise that the property pledged may be sold and the proceeds applied in payment of the debt; and this, in substance and effect, is as much a promise of payment as that made by a surety in signing a bond, payment in any event can only be made by the payor applying his money or property to the debt.

Judgment affirmed.

Spear, J., dissents.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    McAllister v. Hartzell.

      Statute of limitations — Action of ejectment — Original seizure a disseisin — Running of limitation statute not arrested, when — General judgment -where two issues pleaded — Judgment not reversed as to one issue exclusively, when — Pleadings.
    1. Where the statute of limitations is interposed in an action of ejectment, and it is shown that the original seizure was a disseisin, any subsequent act or declaration of the claimant, or his predecessor in title, which does not estop the claimant to plead the statute, nor suspend the right of the holder of the title to prosecute an action to recover possession, will not be sufficient to arrest the running of the statute. Neither a mere offer to' buy within the twenty-one years, nor an acknowledgment by the claimant within that time that the title is in another, or that the claimant does not own the land, will have that effect.
    2. Where two issues are presented in the pleadings for the determination of the jury, and there is a verdict finding the issues for the defendant, and such finding on either issue entities'him to a general judgment in his favor, and a judgment is rendered on the verdict, such judgment will not be reversed for error in the instructions of the court to the jury relating exclusively to one of the issues. Sites v. Haverstick, 23 Ohio St., 626, approved and followed.
    (Decided March 28, 1899.)

      Error to the Circuit Court of Trumbull county. ■
    The action below was by Edward A. Hartzell v. Margaret McAllister, in ejectment, the land in controversy being described as situate in the village of Niles, and being a strip eight and one-half feet in width by sixty feet in length, and extending along the north side of lot 15, and across the north end of lot 16, of Baldwin’s Addition to Niles, and extending from Furnace street to Mosquito creek on the east. The petition contained the usual averment of title in fee in the plaintiff, and that defendant unlawfully keeps plaintiff out of possession. The action was commenced October 19, 1895. i The answer denied the title of plaintiff and set up the statute of limitations of twenty-one years.
    The reply denied the new matter of the answer and averred that defendant is now estopped to deny plaintiff’s title by reason of certain alleged representations of defendant made at the time of plaintiff’s purchase.
    The trial resulted in a verdict finding the issues for the defendant, and judgment for defendant followed. On error to the circuit court the judgment was reversed for error in the refusal by the trial court to give certain specified propositions to the jury requested by the plaintiff, and in the charge given in lieu thereof, and in an answer given by the court to a question presented by the jury after their retirement. That court found no other error in the record. The plaintiff in error, defendant below, asks here a reversal of the judgment of the circuit court and an affirmance of that of the common pleas.

      George M. Tuttle, for plaintiff in error.
    The Statute, section 5781, Code of Civil Procedure, section 558, points out the elements necessary since July 1, 1853, to constitute a cause of action in a suit to recover real property. They are three only: That the plaintiff has a legal estate in the real property, that he is entitled to the possession thereof, describing the property with such certainty as will enable an officer holding an execution to identify it, and that the defendant unlawfully keeps the plaintiff out of possession.
    The limitation by lapse of time of the cause of action in a suit to recover possession of lands is fixed by statute in most unequivocal terms. The limitation is in section 9 of The Code of Civil Procedure, S. & C., 944, and it is that the action can only be brought within twenty-one years after the cause of action accrues. When the elements have continuously existed twenty-one years the action for that cause can no longer be brought or the statute is a nullity. He by whose dictum the action has been sustained after that period has elapsed has done his best to repeal the statute.
    It is pertinent here and for additional reason will be further on, to remark, the relation of an acknowledgment to the statutory limitation when the statute is silent upon that subject. Such was the English Statute of James I, and such were many earlier American statutes. The acknowledgment has no effect upon the limitation except in the single instance of actions on contracts not under seal. . It did not affect an action for tort, in covenant or upon a specialty. It had no effect except as showing a new promise and a new cause of action of the same kind. Whatever may early have been held, this law is most successfully evinced by judicious writers upon a thorough examination of the cases.
    Angelí, Limitations, Chap. 20 ¡Wood,'Limitations, 136, section 66; Buswell, Limitations, section 37'; 13 Am. and Eng. Law, 748-9, cl. 8.
    The reason of this restriction is evident. In cases upon simple contracts after cause of action arisen, an unqualified acknowledgment is considered to be evidence of a new promise upon the consideration already existing’, and to create a new liability of the same kind as the old. But no such principle applies in case of tort. Outhout v. Thompson, 20 J. R., 277-9.
    Doubtless a possession of real property which has begun in wrong, or beginning in right has become wrongful, may afterwards become rightful for a temporary period of time by the subsequent acts of the parties or by their consent; and this temporary substitution of rightful for a wrongful possession may by its own limitation be reduced or degraded to a renewed condition of wrong and the possession again become an unlawful detention. In that case this later unlawful detention constitutes a new cause of action which dates from the later period; the statutory bar will then again begin to run; and its completion will require twenty-one years from the intervention of the later events.
    Wrong does not become right by admitting it to be wrong. By admission detention does not become restoration, and unlawful detention is not made lawful.
    How this affects tne general subject of acknowledgments by the defendant in an action to recover lands will be apparent. The acknowledgment can be no more than evidence of such facts as may be proved by that class of evidence. Adduced to defeat the application of the statute of limitations it can have no effect except as it may go to rebut the independent existence of some fact which contributes to the complete bar of the statute.
    An examination of reported cases as well as of the common digests, (and very many of our pretentious treatises on this as on other subjects are little more), will show how liable those supposed evidences of the law on this subject are to be mistaken. Paine's Lessor v. Skinner, 8 Ohio, 159.
    The importance of keeping always in mind the particular provisions of our own statute, as well also of recurring to those of the foreign statutes in applying the respective decisions, is referred to in some detail in Courson v. Courson, 19 Ohio St., 454.
    If, since the first day of July, 1853, the Supreme Court of Ohio has held that in some class of cases the three elements of legal estate, present right of possession and unlawful keeping out did not constitute a cause of action to recover the possession, or disabilities laid out of view, that twenty-one years continuance of that cause of action do not bar it, it is a holding to be overruled, or it makes an exception of that class of eases not to be extended to another class. We nevertheless know of no such holding in Ohio, either since that date or before it.
    The case of Hunt's Lessor v. Guilford, 4 Ohio, 310, is not such a holding.

      Lane v. Kennedy, 13 Ohio St., 42, arose under the statute of 1831, and it was not such a holding.

      Dietrich v. Noel, 42 Ohio St., 18, is of a different and somewhat unusual character.
    Tf twenty-one years had elapsed when the original action was begun in Yetzer v. Thomas, 17 Ohio St., 130, the cause of action must have accrued more than eleven years before the Code took effect. In Humphries v. Huffman, 33 Ohio St., 395, the cause of action arose still many years earlier.
    The holdings which obtained under the statute of James in regard to limitations of the action of ejectment were the joint resultants of that statute and of the feudal principles of the common law. The statute did not mention the action of ejectment; it limited the right of entry (which was in general necessary to the action) to twenty years. All the difficulties belonging to the law of disseizin and of adverse possession as it stood when the statute was enacted, attended its construction; 2 Preston, Abstracts, 280-284; 2 Lead. Cas., 529 marg. paging, 597, top, 6th Am. ed.
    More than one hundred years after the statute of James was enacted Lord Mansfield gave to the consideration of the subject his great talents in a judgment, which was affirmed in the House of Lords, Taylor v. Horde, 1 Burrows Reports, 60, id, 126. And the case has been extensively regarded as a leading case. On the contrary, Preston on Abstracts, vol. 2, p. 280.
    It will be conceded that there is a radical difference between an action to recover damages for a trespass on lands and to recover possession of the lands themselves; and there is a like radical difference between the acts which confer the respective rights to bring these different actions. So will it be conceded that the right to sue for a mere trespass is not enough to set that statutory bar running which, when the period is complete, will defeat a recovery of the lands. This is because mere trespass upon land does not constitute wrongful detention of its possession.

      It must be conceded that the keeping out of possession by the defendant which constitutes the third element of a sufficient cause of action described in section 558 includes a possession by the defendant, and is a keeping out by defendant keeping possession. It is to be an action to recover the land, and a sufficient justification for bringing such an action, must imply the defendant’s possession; and the test of a sufficient description of • the land is sufficient terms to enable the officer with an execution under the judgment to deliver the property to the plaintiff.
    Now it may at times be difficult to distinguish between acts and intentions which constitute only trespasses upon land, and acts and intentions which constitute possession of the land. No such difficulty can arise here. Whatever nice discrimination may, upon particular modifications of fact in a particular case be made, it cannot be doubled that there was evidence to show that more than twenty-one years before the suit was commenced, parties from whom the defendant derived title had possession of the premises, constituting a right of action in favor of the owner, unless the title was in them. Nor was there any want of evidence that the possession continued in the defendants and her grantors without interruption until the suit was brought. And there is no error in this part of the case unless an offer such as mentioned in the plaintiffs second request, or an acknowledgment such as mentioned in the fifth request would be sufficient to interrupt a possession otherwise complete in all its elements, or to convert it from an unlawful into a lawful possession.
    Looking at the nature of the action itself, it is evident that such detention of the lands by the defendant as unlawfully keeps the plaintiff out of possession, must be all the possession needed to constitute a cause of action under section 558 and within section 9 of the Code to recover the land. It must be utterly immaterial to the cause of action that the defendant admits himself in the wrong, so long as he persists in it. That he admits the want of title may make the wrong more poignant; it certainly puts nothing to right. So long as he continues the detention of the land and designs to continue it, so long the defendant enforces upon the plaintiff the necessity of an action to recover the land; a necessity in no degree whatever modified by the defendant’s admission of the wrong in which he persists, and so long the very constitution declares the plaintiff shall have remedy in court.

      F. Hunter and E. L. Boynton, for defendant in error.
    For the purpose of showing a common source of title in bothplaintiff and defendant, the deeds from George S. Baldwin to Henry Burnett and to the grantees successively to Margaret McAllister were given in evidence. It will be observed from the above evidence that the strip of land in controversy was owned by George S. Baldwin. It will also be observed that the land owned by Margaret McAllister, as well as the land owned by Edward A. Hartzell, came to each of them from the common source, to-wit: George S. Baldwin.
    If we understand the argument of counsel for plaintiff in error, it is, that in Ohio, we must show our title from the government. That the rule of law of real property so long established and so long followed by the common law courts and in all of the states where the question has been passed upon, and by all elementary works, viz.: “a common source of title, ” does not prevail in Ohio. "We know of no decision of the court of last resort in Ohio where this question has been determined, but the circuit court of the state in 7 C. C., 393, (4 Circ. Dec., 650), tacitly, at least, recognizes this rule to be the law in Ohio.
    If such is the law the plaintiff, in the trial court, fully met that requirement, and it is perfectly evident that the jury was satisfied with the proof on this issue, as shown by their request to the court for further instructions upon a specific principle of law. It will be further observed that counsel for plaintiff in error nowhere claim that the evidence does not show a complete common source of title. The whole contention is, that we have not made out our title until we go back to the government. The defendant in error’s claim is that we have shown a clear chain of title through the deeds to a common source of title, and that George S. Baldwin was in possession at the time of the execution of the deeds to the city of Niles, and Henry Burnett, in Margaret McAllister’s chain of title.
    In regard, to the proposition that the plaintiff in the trial court showed no title from any one in possession, nor from a common source of title. We say that the defendant’s claim is so immediately connected with lot Í7 of which, substantially, the adverse claim is this 8 feet. To constitute a part, this would make Mr. Baldwin a common source of title of these parties, within the meaning of this rule. Thence, the predecessors in title, the defendant and the plaintiff’s predecessors, claim title from a common owner, Mr. Baldwin, and it is by virtue of that right vested in the owner of lot No. 17 from Mr. Baldwin, that the claim of adverse possession of the 8 feet which the McAllister building covers. Upon that lot was made and caused by error to extend over on lots 15 and 16. It is only in connection with that possession, right and title, by virtue of the deed from Baldwin to Burnett that there can be any claim in this case of adverse possession. There is not an act, not an expression of any character from anybody in the source of title down to the defendant, herself, which shows that she ever claimed to own that 8 feet which was covered by her building. Nor an act of any character, excepting the putting of the building there and occupying it, and not an expression of any kind indicating that they ever claimed to own the 8 feet, so it was by virtue of putting the building upon lot 17 and. extending it over on to the 8 feet of lot 15 and 16, and that act only, that adverse possession can be raised. Therefore, it may well be said that within the rule, here is a common source of title in these parties, branching to each from George S. Baldwin. But aside from that, by reference to the plat, it would seem from the evidence that George S. Baldwin was exercising control over the property, over the land which he subsequently subdivided and platted. He was exercising the right of ownership1 over it, was selling off lots sold to Margaret McAllister’s predecessor, Henry Burnett, as well as the predecessors of Edward A. Hartzell. Baldwin was exercising these acts of ownership over the land that established possession in George 8. Baldwin, and our claim is that they were sufficient to show that he was in possession. It is not necessary that Baldwin should stand up and utter the statement that he was in possession. It is sufficient to show his acts, such acts, which prima faeie in law, establishes possession.
    But this is not all; the lots of plaintiff was sold by Mr. Baldwin to one Lenney, long before, as he says, this livery stable was put up on lot 17. He, Lenney, had purchased it by contract from George S. Baldwin, and he sold it to the city of Niles, and Lenney got the pay.
    In addition to that when one holds titles, the presumption of law is that the grantee entered, unless it is shown that there was some adverse possession adverse to his grantor. Lessee of Holt's heirs v. Hemphill's heirs, 3 Ohio, 238. We have here, first, a complete paper title to George S. Baldwin, and no one shown to have been in adverse possession to his grantee at the time, the presumption of law is that he had entered.
    So we confidently claim that this objection upon the part of plaintiff in error is not well taken. “That there was possession shown in defendant in error and his predecessors.”
    The jury after being out some time made their written applications to the court. They were questions for further information.
    The second one was: “Would an application by occupant of property to purchase the same be a bar to the continuance of the statue of limitations.”
    What the court gave in answer to these requests, was simply that the jury might take that into consideration, not telling them what effect it should have, or ought to have, and that a party, notwithstanding, claiming to be owner by adverse possession, might make application to the true owner to purchase — yet, notwithstanding that, they might still hold the property by right of adverse possession under the statute of limitations, giving the jury to understand that such was the case here, giving them the right to so understand that this was the ease before them.
    The charge of the court should be confined to the evidence, and an absolute assertion, such as the court was requested to give the jury, may be proper in one case and not in another, depending upon the evidence. They were proper in this case by reason of the evidence. There was nothing to qualify the question whatever in the evidence. There is no evidence expressly or otherwise that the adverse claimant to that 8 feet ever sought to buy it for the purpose of buying her peace. The parties were on the stand, they made no such claim. They simply denied that they had ever sought to buy the land under this building.
    We might consider here, when did adverse possession commence under the statute of limitations? When did the twenty-one years commence to run?
    It can’t accrue as long as they are admitting title in Mr. Baldwin, or anybody else; it can’t accrue because twenty-five feet was leased to somebody, and the lessee goes and takes thirty feet, five feet of another’s land, it can’t accrue then. It can’t accrue until you do some overt act showing your intention to appropriate what your assignee has appropriated. Mr. Baldwin could have no claim against Burnett, because Struble, as lessee took thirty feet when he should have taken only twenty-five feet. Burnett was not claiming the five feet. Adverse possession commence to run when you undertake.to exercise ownership. The evidence shows that nothing of the kind was ever done, by any one in the ease until it came into the hands of McAllister, at least, unless it was the contract introduced into the case by the defendant below, which recited the lease to Struble.
   Spear, J.

Evidence was given at the trial by the plaintiff below tending to maintain his title to the land in dispute, and by the defendant below tending to rebut that proof. Also evidence by defendant to establish her defense of the statute of limitations. Plaintiff in rebuttal, gave evidence tending to show that the predecessor in title of defendant had, within twenty-one years before the bringingof the action, and while in possession, admitted that the title was in another, and had offered to purchase the land of that other. Also evidence tending to show that defendant herself, or her husband in her hearing, and in the presence of plaintiff, at the time of a sale at which plaintiff bought lots called 15 and 16, made declarations admitting that the true line between her land and said lots was five feet north of the south line of her building. And, in surrebuttal, defendant gave evidence in contradiction thereof. It appeared in evidence, apparently without question, that in the year 1869 or 1870, a tenant of the then owner of adjoining lands now owned by defendant, constructed a substantial building thereon which extended over and upon the strip in dispute, covering the same, and that as early as May, 1872, defendant’s predecessor in title purchased the land adjoining the strip on the •north, including the building, and then entered upon the whole so covered by the building, and took exclusive occupancy of it, and that that possession has been ever since maintained uninterruptedly by successive purchasers, including defendant.

Upon this state of the proof the plaintiff requested the court to charge the jury that ‘ ‘ An offer to purchase by the adverse claimant during and within the period of twenty-one years before this suit was brought, the land claimed adversely in the' suit, would rebut the presumption of title gained by twenty-one years’ adverse possession.” Also “Any acknowledgment by the claimant, made within the period of twenty-one years, that the title was in another, or .that the claimant did not own the land, the statute of limitations would not run. ’ ’

But the court refused to give either proposition, and, in lieu thereof, charged as follows : “An offer to purchase by the adverse claimant during and within the period of twenty-one years before this suit was brought, the land claimed adversely in the suit, would be evidence bearing upon the question whether or not she held the property adversely, and should be considered by you in the easeor; if there is any other evidence as to what the defendant said or did in regard to where the south line of the McAllister property was, this should be considered as bearing upon her claim of adverse possession and ownership of the property in question. Or, if she made any acknowledgment in regard to how she was in possession of the property, it should be taken by you.” The refusal to give the requests, and the giving of the instruction above quoted, the circuit court held to be error.

Recurring to tne statute, we find, as to the limit this: “An action for the recovery of the title or possession of real property, can only be brought within twenty-one years after the cause of such action accrues, ’ ’ and, as to the requisites of • a cause of action, these elements: that plaintiff has a legal estate, and is entitled to possession, and that the defendant unlawfully keeps him out. The question, therefore, is: Was the action begun in time? In other words, did the statute begin to run twenty-one years before the action was commenced, and if it did, were the acts and declarations charged sufficient to arrest its course? Did either of the essentials cease to exist? ' That the statute began to run more than twenty-one years before suit is not open to dispute. There is no question as to the original seizure. It was a disseisin, judged by all the definitions in the books. Nor is there question that the occupancy has been actual, open, exclusive, and continuous from that-day to this. Was it, during all that time, adverse? The claim is that it ceased to be adverse. This is based upon the proposition that the acts and declarations above recited destroyed the adversary character of the possession, and therefore tolled the statute.

The possession which may in time prove a full defense against the holder of the record title must be actual, open, exclusive, continuous, and adverse. The first four of these conditions, even if involved here, which they are not, have become so generally understood as not to require comment; the last'has been a source of extended and almost illimitable controversy. It is observed by the author of Smith’s Leading Cases in his notes to Taylor v. Horde, (1 Burr., 60), to be found at page 660 of Part II of that work, that: “The doctrine of adverse '•possession, until very lately constituted and perhaps still constitutes one of the least set-tied, although most important heads of the English law,” and he quotes Lord Mansfield as saying in the principal case, referring to the general subject, that “thé more we read, unless we are very careful to distinguish, the more we shall be confounded.” It is understood that subsequent legislation, which will be referred to later on, has largely if not wholly relieved the confusion in England, but similar uncertainty seems to have prevailed in many of the states of this union, and the law in America on the subject has appeared to be as uncertain as it once was in the mother country. Our interest in the inquiry has led us to examine not only the authorities cited by counsel, but great numbers in addition; but it is not proposed here to try to harmonize the differing opinions and decisions, for it is not within the compass of the common mind to reconcile the irreconcilable.

The view taken by the circuit court in its holding, and here made in argument by the learned counsel for the defendant in error, is thought by them to be consonant with, and supported by the declarations of a number of text writers and decisions of not a few of our state courts. Support is found in the text of Tyler on Ejectment and Adverse Enjoyment. On page 921 it is observed: “ An offer to purchase land by a party of another is such a recognition of the title of the latter as will bar the defense of adverse possession. ’ ’ The citation, is to Jackson v. Britton, 4 Wend., 507, where the head note is that: ‘ ‘ An offer to purchase land by a party having the title, does not impair or affect his right. Such offer, however, by a party bars the defense of adverse possession.” The facts of the case, however, show that the negotiations were much broader than the statement of the . head-note, and the case itself hardly supports the text.

Expressions in other text books, here and there, seem to give color to the proposition that the claimant’s mere declarations disclaiming title may arrest the statute. For instance, in 2 Wood on Limitations, p. 690, is found this language: “Second, the continuity of possession may also be broken by an acknowledgment by the occupant of the owner’s title before the statute runs in his favor. * * * The ground upon which these cases proceed is, that such an admission rebuts the allegation of adverse possession.” But the author observes later on that “a parol acknowledgment of title made while the statute is running must be such as to show that the occupant no longer intends to hold adversely, and must refer to the title set up by the occupant.” And cases in Pennsylvania, cited in support of the text, hold that declarations, after the statute begins to run, must show an intent to attorn to another in order to toll the statute. As in Bank v. Wilson, 10 Watts., 261: “An acknowledgment, such as will avoid the operation of the statute limiting the time within which an action may be brought for the recovery of land, must be made to the owner, or his agent known as such; must admit that the title of the claimant is good and must be accompanied by a strict agreement to leave the land or to continue as a tenant.” And the author adds, at p. 621,that “it is the fact of exclusive occupancy, using and enjoying the land as his own, in hostility to the true owner, for the full statutory period, which enables the occupant to question an absolute right to the land under these statutes. The motive of the occupant is not material, provided his occupancy is actual and exclusive, and after the manner of the owner of the fee.”

Mr. Buswell, in his work on Limitations and Adverse Possession, at p. 337, says: “Declarations of the party in possession that he holds in subordination to the legal title are always admissible as being admissions against the interest of the party.” And at p. 311: “So long as the possessor declares that he holds in subordination to the better title, his possession will be regarded as being by consent; nor will a continued possession after such declaration avail to mature the title under the statute of limitations until the party has changed the character of his possession, either by express declarations or by the exercise of acts of ownership inconsistent with a less claim.” But at page 315, the author remarks that: “It is believed that whenever - a private person knows that another claims, and is in the actual enjoyment, of land which belongs to him and neglects to prosecute his right at law during the period of limitation, there being nothing to prevent his so doing, he will at the expiration of such period be barred of his remedy by the statute of limitations.” Citing Drayton v. Marshall, 1 Rice Eq., 373, where it is held: “It is believed that no case can be put, in which a man knows that another claims and is in enjoyment of what belongs to him, and neglects to prosecute his claim at law, where there is nothing to prevent his doing so, that he will not be barred by the statute. ’ ’

In Angelí on Limitations, page 389, it is observed: “So long, for instance, as the possessor declares that he holds in subordination to the better title, the possession will be regarded as held by consent; nor will a continued possession, after such declarations, avail to mature a title under the statute of limitations, until the party has changed the character of his possession, either by express declarations, or by the exercise of acts of ownership inconsistent with a subordinate character,” citing a number of authorities. But at page 385, the author gives the precise rule which is quoted above as held in Drayton v. Marshall, and cites that case in its support. Taking the text and authorities cited together, it seems fair to assume that this author understands that in order to stamp a holding which appears on its face to be adversary, as otherwise, the declaration must go so far as to show that the holding is in subordination to a better title, and as a holding by consent of the owner of that title.

Innumerable instances might be given of like diversity of view, but we forbear. Enough has, we think, been shown to disclose the uncertain condition of legal thought on the subject. It remains to ascertain, if we may, what should be declared as the law of Ohio on the points involved. It must be kept in mind as a prominent, controlling idea, that the statute of limitations is now a statute of repose. Its purpose is the peace of society. Any construction, therefore, which contradicts the letter of the statute, should be carefully scrutinized, and, even though supported by some of the older decisions, those rendered at a time when the statute was regarded as one of presumptions, should be rejected if it tends to destroy or unduly qualify this admitted purpose. We look in vain' in the statute for support to the claim that its apparent import may be defeated by acts and declarations such as the requests to charge suppose. In addition to the section quoted, the statute limits the time for the commencement of actions upon specialties, and upon contracts in •writing; actions upon contracts not in writing; actions where the right is created by statute; actions for trespass and for recovery of personal property; actions for torts; actions on official and other bonds, and other actions not definitely provided for. In respect to each one of these actions no saving is made, except as to persons under certain defined disabilities, affecting condition or knowledge, and no reservation interfering with the running of the statute is made save that in case of demands founded on contract an action may be brought within the time limited where there is an acknowledgment or promise to pay, but that must be in writing signed by the party to be charged, and does not revive the old action, but the old promise is treated as a consideration for the new, and it is upon the new promise that the action must be brought. No other provision concerning the effect of acknowledgment is made. This omission is justly regarded as indicating a purpose to exclude exceptions to the statute not embraced in its terms. It must be borne in mind, too, that the statute is part of the code, that it is to be liberally construed in order to promote its object, and that the rule of the common law that statutes in derogation thereof must be strictly construed, has no application to it. Section 4948, Revised Statutes.

The tendency of courts at the present day is to enforce the statute as they find it. One expression of this tendency is the rule, now well settled, that at law, where the statute has once begun to run, its course will not be impeded, nor its operation suspended by any subsequent disability. As held in Thorpe v. Corwin, 20 N. J. L., 311: “The statute of limitations makes the lapse of time, a positive and legal bar, in all cases within its provisions.” And in Chevallier v. Durst, 6 Tex., 239: “The protections and disabilities contained in the statute of limitations do not apply to cases arising after the statute has begun to run, except in cases expressly provided for by the statute.” And, generally, it may be stated as the accepted doctrine that courts are without power to interpose barriers to the running of the statute save in exceptional instances where well established rules of equity require such interposition.

We come now to a more careful consideration of the terms of the requests. The first is that an offer to purchase of the adverse claimant tolls the statute. It is conceded by the authorities that one in possession under a claim of title may offer to purchase without prejudice to that title. In this state color of title is not necessary to adverse possession. It is said that the offer to buy is an acknowledgment that the other has the legal title, and that such acknowledgment is fatal to the claim of adverse possession. But is it? Can a man not desire to buy his peace as reasonably if he knows he has no title as if he has title, or believes he has? Since it is not necessary that the holding be under claim of title how- can it be of consequence that there is no denial, but in fact is an admission, of the opposing title? Nor is it necessary that a party should proclaim his purpose in making an offer to buy. He is not required to say he proposes to-buy his peace in order to give such effect to his act.

But, even though an offer to buy is an acknowledgment (for the second request embraces that), how does that destroy the adverse character of the possession ? Whatever he acknowledges, whatever he says by way of acknowledgment, he still holds on to the possession, and it is the possession which, if unlawful, wrongs the other, and not the motive nor the belief of the possessor. It cannot help the case any that the- intruder admits the illegal character of his intrusion. By such a simple acknowledgment he neither says nor intimates that he will give up possession, nor that he will hold subject to the other, nor in recognition of his title. The opposite view results in magnifyingthestate of mind of the party, and dwarfing his acts. Its adoption would, as we think, work an unwarranted interference with the beneficent operation of a statute intended to secure repose to titles and peace to neighborhoods. In the language of Hosmer, C. J., in French v. Pearce, 8 Conn., 439: “The possession alone, and the qualities immediately attached to it, are regarded. No intimation is there as to the motive of the possessor. If he intends a wrongful disseisin, his actual possession for fifteen years, gives him a title; or if he occupies what he believes to be his own, a similar possession gives him a title. Into the recesses of his mind, his motives or purposes, his guilt or innocence, no inquiry is made. It is for this obvious reason; that it is the visible and adverse possession, with an intention to possess, that constitutes its adverse character, and not the remote views or belief of the possessor.” To which may be added this comment of Ingersoll, J., in Bryan v. Atwater, 5 Day., 181: “If I take a deed of my neighbor’s land from one who has no title and whom I know not to have a title, and in virtue of such deed go into possession, and take the rents and profits, do I not, by this act, disseize my neighbor ? Will it avail me to say I have no title and I also know that my neighbor has a title? Does this acknowledgment and recognition of my neighbor’s title soften this illegal act of mine? Does it make the entry as it were lawful when otherwise it would have been tortious ? The answer to these questions is plain and obvious. The very act of the entry and possession makes me a disseizor; and if I so remain on the property for the space of fifteen years, I shall, thereby] gain a title to it.”

A case which we think in point is that of Yetzer v. Thoman, 17 Ohio St., 130. The holding is that “where one of two proprietors, respectively, of adjoining lands holds actual, continuous, notorious and exclusive pos session up to a certain'line, though not originally the true one, for the full period of twenty-one years, the statute of limitations applies in his favor and against the adjoining proprietor, although such possession may have grown out of mutual mistake of the parties respectively, in respect to the locality of what was originally the true line between them.” The trial judge had charged that “An entry of one man on the land of another is an ouster of the legal possession, or not, according to the intention with which it is done. By the law, the intention guides the entry and fixes its character; so that if the land' in dispute in this case was taken by the plaintiff and held by him for twenty-one years, under the belief that the line up to which he claimed was the true line, and the owner of the Thoman tract, in ignorance of the true line, but believing it to be the same which plaintiff occupied, allowed the plaintiff to take possession of the land in dispute and hold it, such occupancy by the mutual mistake of the parties cannot operate as a disseizin of the defendant, nor confer upon the plaintiff a title by adverse possession while such mutual mistake exists. ” The court, Brinkerhoff, J., commenting on this charge, remarks: “We are of opinion that this charge is erroneous. We think that under our statutes of limitation, if a party establish in himself, or in connection with those under whom he claims, an actual, notorious, continuous and exclusive possession of land for a period of twenty-one years, he thereby, except as to persons under disability, acquires a title to the land; and this, irrespective of any question of motive or mistake. The charge of the court below would seem to imply that the statute for the limitation of actions for the recovery of real estate was intended only for the protection of parties who appropriate to themselves the lands of others, knowing them to be the lands of others ; and to exclude from its benefits a party who has honestly entered and held possession of land in the full belief that it was his own, At least the charge will bear that construction, and was calculated to mislead the jury. Such a construction of our statute finds no countenance in any reported case in this state, and if accepted would, we think, be mischievous in its operation.” The learned judge also quotes with approval the paragraph hereinbefore given from the opinion in 8 Conn., at page 443. The holding is consistent with the rule given in Bobo v. Richmond, 25 Ohio St., 115, and is not inconsistent with any reported case in

Moreover, the claim in support of the requests, loses sight of the ability of the holder of the title to protect his interests and of .his duty to use diligence in that respect. It ignores the peremptory inhibition of the statute: “Civil actions can only be commenced within the periods provided in this chapter, after the cause of action accrues,” and: “An action for the recovery of the title or possession of real property, can only be brought within twenty-one years after the cause of such action accrues.” It subordinates the plain letter of positive law to a fanciful effect of motive, or belief, on the part of the adverse claimant. It unreasonably exempts the party from the immediate consequence of his own negligence; it relieves him from a dilemma, the result of sleeping on his rights, in the face of that rule of universal application, whereby the law intends to reward the diligent, not the slothful.

We are of opinion that the principle announced in Dayton v. Marshall, supra, is a just one, that it is applicable to the facts of this ease, and that the rule should be that where it is shown that the original seizure was a disseisin, no subsequent act or declaration of the claimant should be held to toll the statute which does not deprive the holder of the title of his right to prosecute his action to recover possession, or suspend the same. This is a simple, easily understood test, and we believe is not only within the letter, but clearly within the spirit, of the statute. Applying this rule to the case at bar it is clear that neither the mere offer to buy, nor the acknowledgment of the claimant that the title was in another, or that he did not own the land, is sufficient to suspend the running of the statute. Such acts and declarations raise no conclusive implication that the claimant intends to attorn to the holder of the title, or yield the possession.

A clear distinction is manifest between the case at bar and Lane v. Kennedy, 13 Ohio St., 42, where the original seizure (a partial encroachment on the highway), was held not to be adverse to the public nor inconsistent with its easement.

It is not intended to hold that a party may not,' by his conduct, estop himself from setting up the statute. Such a case is Treasurer v. Martin, 50 Ohio St., 197, where it is held that where one had procured the issue and continuance of an injunction wrongfully .until his adversary’s claim had been barred, he could not be permitted to plead the statute. But there the unfounded.injunction had suspended the right of action; here neither of the acts charged, nor all together, could affect the right of the true owner to commence his action. Another case, illustrative of the proposition, is Dietrick v. Noel, 42 Ohio St., 18.

This conclusion is in consonance with the present law of England, on the subject. It' is remarked by Mr. Browne in his Actions at Law, page 31, that: “ The object of the late statute 3 and 4 Will, 4 e. 27, appears to have been to alter this state of things, and to render any possession adverse (where the party claiming has a present right of possession and is not under disability), unless, first, there be a payment of rent, or second, an acknowledgment in writing; and this object has been fully carried out as that statute has been held to have entirely gotten rid of the doctrine of non-adverse possession. He cites Doe v. Branson, 4 N. & M., 664; Doe v. Gregory, 2 Ad. & Ell., 14; Doe v. Bramstan, 3 Ad. & Ell., 63; Nepean v. Knight, 2 M. & W., 894; and Doe v. Long, 9 C. & P., 773.

The circuit court found error in a negative answer given by the trial judge to a question put by the jury after retirement, with respect to whether reference to a lease contained in a deed made to one of defendant’s predecessors in title, was evidence that a lease was in force at the time the deed was made. A diligent search of the record does not disclose that the lease referred to was at all material to the title, or claim, of either party, in which situation the answer would be, as we think it was, immaterial.

The' answer of the court to the jury.’s second question is objected to. The inquiry raised the same point involved in the first of the two requests to charge already considered, and the reply given the jury embraced the identical principle covered by the charge given which is heretofore fully considered.

Objections to the exclusion of evidence at the trial and other exceptions to the ruling of the common pleas, taken during the trial, are argued. We have given attention to all of them but do not find any well taken.

Another principle of law which seems to have been overlooked by the circuit court, as well as by the counsel, is determinative of the case. It is settled in this state that in a case where the issues are such that a finding of either in favor of the successful party entitles him to the judgment rendered, the judgment should not be reversed for error in the instructions to the jury relating exclusively to the other issue. Butler v. Kneeland, 23 Ohio St., 196; Sites v. Haverstick, same vol., 626. In the case at bar the pleadings presented two issues: One as to the title of the plaintiff, and the other as the statute of limitations. Either one properly found against the plaintiff was fatal to a recovery. The verdict is a finding of the issues in favor of the defendant. This means all the issues. The error in the record found by the circuit court, as we understand the record, related wholly to the defense of. the statute of limitations. As the other issue was found for the defendant the proper judgment, even conceding that the common pleas did err in the particulars named, would have been one of affirmance.

The conclusions reached require a judgment of reversal of the circuit court and of affirmance of the common pleas, and it will be so ordered.

Reversed,


author: Williams, J. Spear, J.,

text:
    The Central Ohio Natural Gas and Fuel Co. v. The Capital City Dairy Co.

      Implied powers of a corporation — To carry out those granted by charter — Nature of ultra vires acts — Claim for damages regarded as saleable assets — Purchasing corporation may maintain action thereon.

    1. The implied powers which a corporation has in order to carry into effect those expressly granted and accomplish the purposes of its creation, are not limited to such as are indispensable for these purposes, but comprise all that are necessary. in the sense of appropriate, convenient and suitable, including the right of reasonable choice of means to be employed.
    2. Acts of a corporation which, if standing alone, or engaged in as a business, would be beyond its implied powers, are not necessarily ultra vires when they are incidental to, or form part of, an entire transaction that in its general scope is within the corporate purpose. The validity of such a transaction is to be determined from its general character considered as a whole, rather than by segregation into individual parts and each regarded as distinct from the others.
    3. Where a corporation formed for the purpose of manufacturing and dealing in a particular line of goods, instead of incurring the delay and expense incident to the construction' of a new manufacturing plant and building up of an independent business, in good faith, with a view of promoting the interests of the corporation, chooses to purchase of an existing partnership engaged in a like business its established plant and assets, including its outstanding claims among which is one for damages to the property caused by another’s negligence, the corporation acquires a valid title to the claim for damages, as against the party liable, and may maintain an action thereon.
    (Decided March 28, 1899.)
    Error to the Circuit Court of Franklin county.
    Action by a manufacturing corporation on a claim for unliquidated damages, purchased in connection with its manufacturing plant, from a co-partnership. Judgment for plaintiff affirmed.
    The case is stated in the opinion.

      Outhioaite <& Linn and A. L. Thurman, for plaintiff in error.
    On behalf of the plaintiff in error we contend—
    1. That at the time of the purchase of the property of The Capital City Dairy Company, a partnership, by The Capital City Dairy Company, a corporation, the right of action against this plaintiff in error was not taken into account as one of the assets of the said partnership, and was not purchased 'from it by the said, The Capital City Dairy Company, a corporation.
    2. That if the said right of action against this plaintiff in error was, at the time of the said sale and purchase, considered and taken into account as one of the assets of the said partnership, and purchased as such by the said corporation; that the latter, by such purchase, thereby exceeded the powers granted it by its'eharter, and that such sale was null and void, and that the corporation so purchasing it cannot maintain a right of action thereon against this plaintiff in error. 4 Thompson Comment. on Law of Corporations, section 5638; section 3239, Revised Statutes; Straus & Bro. v. The Eagle Ins. Co., 5 Ohio St., 59; Dartmouth College v. Woodward, 4 Wheaton, 518; Gallia County v. Holcomb, 7 Ohio, 232, part one; Bank of Chillicothe v. Town of Chillicothe, 7 Ohio, 31, part two; Bank of Chillicothe v. Swayne, 8 Ohio, 257; Bartholomew v. Bently, 1 Ohio St., 41; White's Bank of Buffalo v. The Toledo Fire & Marine Ins. Company, 12 Ohio St., 601; Bank v. Flour Company, 41 Ohio St., 552; Shewacla Lime Works v. Dismukes, 5 L. R. A., 100; Janes Bridge Co. v. Stoughton et al., 1 Wisconsin, 667; Beers v. Dalles City, 16 Oregon, 334; Mobile & Ohio R. R. Co. v. Franks, 41 Miss., 494; Commonwealth R. R. v. Erie & Northeastern R. R. Co., 27 Pa. St., 339; Eclesiastical Commissioners, etc., v. Northeastern R. R. Co., L. R., 4 Chancery Division, 845; Westinghouse Machine Co. v. Wilkinson, 79 Ala., 312; Somner v. Marcy, 3 Woodb. M. U. S., 105; Bowman Dairy Co. v. Mooney, 41 Mo. Ap., 665; Perrin v. Cheasapeake Canal Co., 9 How. U. S., 172; Beaty v. Knowler, 4 Peters, 152; Attorney Genera v. Oakland Co. Bank, Walker’s Chancery, Md., 9; Russel v. Topping, 5 McLean, U. S., 194; New Orleans Steamship Co. v. Ocean Dry Dock Co., 28 La. Ann., 173; Head v. Providence Insurance Co., 2 Cranch U. S., 127; Smith v. Eureka Flour Mills, 6 Cal., 1; Jacksonville v. McConnell, 12 Ill., 138; Mechanics' Saving Bank v. Meridian Agency Co., 24 Ct., 159; Central R. and Banking Co. v. Smith, 76 Ala., 572; Huntington v. Savings Bank, 96 U. S., 388; Davis v. The Colonial R. R. Co. and Davis v.
      The Smith American Organ Co., 131 Mass., 259; The Niagara County Bank v. Wm. Baker et al., 15 Ohio St., 68; Simmons v. Troy Iron Works, 92 Ala., 427; Greety v. Barnes Milling Co., 40 Kan., 281.

      Thomas E. Steele, for defendant in error.
    Reduced to their last analysis, the only questions in this case are these:
    1. Can a partnership transform itself into a manufacturing corporation and convey all its assets to such corporation, and can such corporation then enforce a chose in action so assigned?
    2. Conceding that the acquisition of this chose in action was not warranted by the charter, can the plea of ultra vires be relied upon by a third person, not a party to the contract, against whom it is sought to enforce the right in action and who is not injuriously affected in any way by the transfer of title?
    It would seem that the second question which virtually disposes of this case, however the first may be answered, has been adjudicated in Ohio. Ehrman v. Insurance Company, 35 Ohio St., 324.
    The surviving partner is in law the owner of the chattel property as well as the choses in action. Bates on Partnership, section 18.
    After the death of an ostensible partner a surviving dormant partner may sue alone on a partnership contract. Beach v. Hayward, 10 Ohio, 455.
    A few general principles supported by eminent authority will we submit, resolve the question in our favor without causing any serious conflict with the wilderness of cases cited by the learned counsel for the plaintiff in error.
    1. “A corporation being a mere creature of law possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence.”
    2. Every corporation has by necessary implication the power to do whatever is necessary to carry into effect the purpose of its creation, unless the doing of the particular thing is prohibited by law or by its charter. Thomp. Corp., section 5641-5644; id., section 5840; Toledo, etc., v. Rodrigues, 47 Ill., 188; Lambrecht v. Kehrwicher et al., 40 Ohio St., 646; Ellerman v. Chicago Div. Ry., etc., et al. (N. J.) 23 Atl. Rep., 287.
    3. The authorities distinguish between the validity of a corporation acquiring as an employment or business certain personal property which it is not permitted by its charter to deal in, and a contract or transaction founded upon an isolated purchase of similar property.
    Though it might be highly improper or unlawful for the defendant in error to make a business of buying up' unliquidated damages, sounding in tort, it by no means follows that it could not acquire this particular chose in action, intertwined and intermixed as it was with, the other assets of the partnership and with the single transaction by which said partnership was transformed into the plaintiff in error. Thomp. Corp., section 5828. Graham et al. v. Hendricks, Sr., 22 La. An., 423; Lyndeborough Glass Co. v. Massachusetts Glass Co., Ill Mass., 315; State v. Woram, 6 Hill (N. Y.), 33.
    4. The law recognizing our modern tendency to transform partnerships into corporations has encouraged such transformations and the conveyances incidental thereto, by sanctioning transactions by the new corporation apparently beyond the usual limits of corporate power. Thomp. Corp., 5725; Waterman’s Appeal, 26 Conn., 96-108; Francklin v. Sprague, 121 U. S., 215.
    The new corporation, therefore, The Capital City Dairy Company, had a right, for example, to expressly assume the debts of Kelly and Sehilder as surviving partners. Waterman’s Appeal, 26 Conn., 96. It had the right to issue shares and thereby acquire the services of a valuable man as superintendent; it might have received notes-held by some one against the former partnership or its surviving partners and enforced their collection. Stoddard v. Shetucket, 34 Conn., 542.
    5. The defense of ultra vires can not be put forward to excuse a corporation from its liability for negligence. Thomp. Corp., 6353.
    6. Whether or not a certain corporate act is or is not ultra vires can only be inquired into by a direct proceeding on behalf of the state. National Bank v. Matthews, 98 U. S., 621.
    This doctrine has been upheld by the same court in a number of well considered cases: Smith v. Shelley, 12 Wall, 358; Swope v. Leffingwell, 105 U. S., 3; Fortier v. The Bank, 112 U. S., 439; Reynolds v. The Bank, 112 U. S., 405; Fritz v. Palmer, 132 U. S., 282; Cowell v. Springs Company, 100 U. S., 55.
    Certainly the decision in Ehrman v. Ins. Co., 35 Ohio St., 324, ought to govern the decision in this case. The Ehrman case so far from being criticised or disapproved, has been followed by this court in Bank v. McIntyre, 40 Ohio St., 528, and by the Supreme Court of the United States in Armstrong Amr. Ex. Bank, 133 U. S., 433.
    This ease qualifies the radical doctrine laid down in Strauss v. Eagle Ins. Co., 5 Ohio St., 60, and finds affinity with the basic principle which underlies the recent decision of this court in the case of Vought et al. v. Railway, 58 Ohio St., 123.
    It would certainly seem as though this court had disposed of the question for all time to come of the assignability of a chose in action. Reece v. Kyle, 49 Ohio St., 475.
   Williams, J.

In May, 1893, a co-partnership owning a plant, in the city of Columbus, equipped for the manufacture and sale of oleomargarine, was engaged in carrying hat business under the firm name of The Capital City Dairy Company, and then had an established trade. At that time, The Central Ohio Natural Gas and Fuel Company, a corporation organized under the laws of this state for’ the purpose of furnishing and selling natural gas to the inhabitants of the city, was prosecuting its business of supplying gas through pipes, some of which were laid in close proximity to the manufactory of the co-partnership. That property and its contents were damaged by an explosion of the gas, occasioned by the negligence of the corporation, for which it was liable to the co-partnership. Shortly afterward, in July,- 1893, the property and business of the co-partnership, with its accounts and bills receivable, including its demand for the damages resulting’ from the explosion, were sold and transferred to a corporation organized in this state by the members of the co-partnership and some other persons. This corporation was formed for the purpose of continuing the business of the co-partnership, adopted its name, and thereafter carried on the business at the same place; and, in September, 1893, it commenced the action below against the plaintiff in error to recover the damages resulting from the gas explosion, the demand for which, it was alleged had been sold and assigned to the plaintiff as already stated. Issue was joined by denial of the alleged transfer of the demand, as well as of the allegations of the defendant’s negligence; and the cause was submitted to the court upon the evidence and the .following-agreement of the parties: “It is stipulated and agreed by and between the parties hereto that the amount of damages caused by the explosion set out in plaintiff’s second amended petition herein was, as of the date of that explosion, the sum of $800.00; and that said damages were caused by the explosion of natural gas in the pipes of, and belonging to defendant, and was caused solely by defendant’s negligence. It is further stipulated and agreed by and between the parties that, as to all other questions in issue between the plaintiff and defendant, a jury may be, and it is hereby waived, and said issues may be tried by the Court. ’ ’

This agreement left no issue of fact for trial except that relating to the alleged transfer of the cause of action to the plaintiff, which the court found in favor of the plaintiff, and rendered judgment accordingly. The judgment was affirmed by the circuit court. The legal question to which our attention is directed concerns the corporate capacity of the plaintiff to acquire the demand sued on, and enforce it by action against the defendant. The plaintiff corporation was formed, as.declared in its articles of incorporation, “for the purpose of manufacturing, selling and dealing in oleomargarine and the materials and utensils employed in the manufacture, storage and transportation thereof, and all things incident thereto.” And the contention is, that the purchase of a chose in action, especially one founded on negligence or other tort, is so foreign to the objects of the incorporation of the plaintiff that it could acquire no title thereto, and, consequently, was without authority to prosecute the action below.

It is a general rule, as sound as it is well settled, that corporations, in addition to the powers expressly granted, have by necessary implication, the power to do whatever is needed to carry into effect those granted, and accomplish the purposes of its. creation, unless the particular act is forbidden by the law or charter. This is, in substance, the statutory rule of Ohio corporations. Revised Statutes, section 3239. And, it should be reasonably applied, with a view of promoting the legitimate objects of the corporation, rather than with a strictness that would so hedge it about as to obstruct the practical attainment of the corporate purposes, or embarrass the corporate business. These implied powers which a corporation has in order to carry into effect its legitimate purposes are not limited to suchas are indispensable to their accomplishment, but comprise all those powers that are necessary in the sense of appropriate, convenient and suitable, including a right of reasonable choice of means to be employed; and whether an act comes within those powers, must be determined in each case from all its facts and circumstances. Acts which, if standing alone, or when engaged in as a business, would be beyond the powers of the corporation, are not necessarily ultra vires, when they are merely incidental to, or form part of an entire transaction that, in its general scope, is within the corporate purpose. For instance, a railroad corporation has power to acquire and hold real property for its right of way, and other uses necessary in the operation of its road, but is without corporate power to purchase or hold such property for sale or rent; and yet, if, in locating its roadway, it should be deemed expedient to run it across an improved lot, the damages to which would be enhanced on account of buildings and other improvements upon it, and to avoid the expense and uncertainty of an assessment of damages by a jury the company should purchase the entire property, parts of which, including the buildings, would not be needed for any railroad purpose, it could hardly be claimed the corporation so exceeded its powers that it acquired no title to, or might not thereafter sell or lease that part of the premises not actually needed for corporate purposes. So, if a corporation formed for the purpose of manufacturing and dealing in a particular line of goods, in order to obtain from an existing partnership engaged in a similar business, an established and going concern with its good will, should in good faith buy out its whole plant, including some articles not pertaining to the objects of the corporation, instead of incurring the delay of constructing a new plant and the expenses that usually attend the building up of an independent trade, there would seem to be no good reason for declaring the purchase void, so as to deprive the corporation of the title to the property, even of those articles nob strictly necessary in its business. The corporate objects might be materially promoted by such transaction as an entirety, and the power to make a reasonable choice of means to accomplish that end, properly belongs to the corporate body. The transformation of partnerships into corporations by this method is not uncommon. In Thompson on Corporations, section 1645, that author says: ‘ The ordinary way of reorganizing a partnership in the form of a corporation is to organize the corporation in form, whereupon the partners make a formal deed of the partnership property to the corporation, in exchange for its shares, which are distributed among them according to their respective holdings in the partnership. That assets of the partnership of all kinds may be thus turned in to the corporation in payment of its shares, where the corporation is capable of engaging in the business of the partnership, and is not disabled from holding the property which the partners may own, is a proposition which has the sanction of everyday experience,to say the least.” And see Francklyn v. Sprague, 121 U. S., 215.

The validity of transactions like these is to be determined from their general character considered as a whole, rather than by seggregation into individual parts and each regarded as distinct from the others; though, undoubtedly, a corporation would not be sustained in uniting a legitimate corporate act with one forbidden or unauthorized, for the purpose merely of enabling it to accomplish the latter.

The proper application of the doctrine of ultra vires depends largely on the relation of the parties to the litigation. When the action of a corporation is challenged by the sovereignty which gave it existence, or by whose favor it is permitted to pursue its business, it may be required to show a clear warrant for the acts so called in question; while in suits between individuals and corporations, or between corporate bodies, where private rights only are involved, the rule is not inflexible, and yields to considerations of right and justice. In suits of that kind, it is maintained by the highest authority, that the title of a corporation to real or personal property cannot be assailed, nor its enjoyment defeated, on the ground that its acquisition was in excess of the corporate power, or in a mode not conformable thereto. This is held in Bank v. Matthews, 98 U. S., 621-628, where it is said by Mr. Justice Swayne that: “"Where a corporation is incompetent to take title to real estate, a conveyance to it is not void, but only voidable, and the sovereign alone can object. It is valid until assailed in a direct proceeding instituted for that purpose.” This principle is approved and applied in a number of cases subsequently decided by the same court, among them Cowell v. Springs Co., 100 U. S., 55; Reynolds v. Bank, 112 U. S., 405; Fortier v. Bank, ib., 439; Fritts v. Palmer, 132 U. S., 282. And the same principle was Recognized and enforced in Ehrman v. Ins. Co., 35 Ohio St., 324, as far as was necessary in the decision of that case. It was there held that the title of a corporation to a chose in action which it had purchased from another corporation could not be controverted by the debtor on the ground that the purchase was made in a mode or for a purpose not authorized; and a judgment in favor of the purchasing corporation against the debtor was sustained. The debtor, it was said, was a stranger to the transaction by which the chose in action was purchased, was not injured by the transfer, and had no right to question its validity.

In this case, the plaintiff virtually became the successor of the partnership by the purchase of all its assets and continuing the same business at the same place and in the same name. The primary object of the purchase was to obtain an equipped and going manufacturing establishment, and the transfer was completed under one entire contract in which was included the claim in suit for damages which the property had recently sustained. No party to that agreement questions the plaintiff’s title, and the defendant was neither injured by, nor interested in the transaction. On the trial the liability of the defendant was admitted, and the parties agreed on the amount of the damages. Either the plaintiff or the co-partnership is entitled to the money, and as the latter in no way disputes the right of the plaintiff to it, we see no good reason for disturbing the judgments which the courts below have rendered.

■Judgment affirmed.

Spear, J.,

dissents from the second and third paragraphs of the syllabus.


text:
    Dalrymple, Admr., v. Wyker, Admr.

      Promissory note — Question of consideration — Legal presumption— Burden of proof.

    1. An answer to a suit on a promissory note, averring that there was no consideration for it, moving to the promisor, is not sufficient as a defense, as it does not preclude the possible fact that there was detriment or loss to the promisee, which constitutes a consideration for a promise as well as a benefit to the promisor.
    2. 'Where the issue is as to whether there was a consideration for a promissory note, and the evidence offered simply shows that there was no benefit to the promisor, and does not exclude the possibility that there was detriment or loss to the promisee, it is insufficient to support the issue.
    3. The law presumes the existence of a consideration for a promissory note; and this presumption continues until it is shown that there was none; and the burden of showing this is on the party attacking the note for want of consideration.
    (Decided March 28, 1899.)

      Error to the Circuit Court of Morrow county.

      Fluckey c& Ga/rver, for plaintiff in error.

      Harlan & Wood, for defendant in error.
   Minshall, J.

The question in this case concerns the pleading and proof, of a want of consideration for a note.

The case arose in this way: William Wyker, administrator of Margaret Modie, deceased, commenced a proceeding in the prohate court of the county to sell lands to pay debts, to which C. L. Dalrymple, administrator of Jacob Dalrymple, deceased, was made a party, and required to answer. He filed a cross-petition to the effect that on September 9,1889, Margaret Modie, then in life, made and delivered to him as administrator, her note, due in one year, for $175.00 and secured the same by a mortgage on the land described in the petition; that the note was due and unpaid, and added the usual prayer. The administrator of Mrs; Modie answered, admitting the execution of the note and mortgage, but averred “that the note was given for the debt of William Modie, deceased, without consideration moving to said Margaret Modie;’’-and “that said mortgage was given to secure a pre-existing debt without consideration.” To this the administrator of Dalrymple demurred; the demurrer was overruled and he excepted. The cross-petition was dismissed, and the defendant appealed to the court of common pleas. The demurrer to the answer was there renewed and overruled, and exception taken. The case was then tried on the pleadings and the evidence; a reply having evidently been filed to the answer (though this does not appear from the record), as there would have been nothing to try on the evidence without a reply to the answer. The court found for the administrator of Mrs. Modie, deceased, and dimissed the cross-petition. A bill of exceptions was taken and made a part of the record, setting forth all the evidence; which is very brief, consisting only of the deposition of M. G. Modie, a son of the deceased; and the exhibit of a note for $98.31, made May 27, 1877, to Jacob Dalrymple, for value received; with an endorsement on it, that it had been paid by a note given September 7, 1889, secured by mortgage, and due in one year.

We will first consider the question raised by the demurrer. Did the answer show a want of consideration? We think not. It will be observed that it admits the execution of the note and mortgage, but avers that the note was given by Mrs. Modie for the debt of William Modie, deceased, without consideration moving to her; and that the mortgage was without consideration; but if there was a consideration for the note, there was one for the mortgage, as it was given to secure the note; so that the question is, whether the averment is. sufficient to show a want of consideration for the execution of the note. We think it is well settled on principle and authority, that in pleading a want of consideration as a defense to a note, it is necessary to aver that there was no consideration for the note; a mere averment that there was none moving to the maker, is not sufficient. For, non constat, but that there may have been a consideration in loss or detriment to the promisee; and, if so, such loss or detriment is sufficient to support a promise based upon it. 4 Ency. Plead, and Prac., 948; Anderson v. Meeker, 31 Ind., 245; Bingham v. Kimball, 33 Ind., 184; Metcalf on Cont., 164.

The importance of the rule becomes apparent, in this case, on looking into the evidence that was offered on the trial. The only evidence offered was the deposition of a son of the decedent, Mrs. Modie. From his testimony it appears that the note secured by mortgage, was given in renewal of a note that had been given by his mother with himself and his brother as sureties; and that this note had been given to take up a note held by Jacob Dalrymple against his father; and that there was no other consideration for the note in suit; and that his father died leaving no assets. But, on cross examination, when asked, for what • the note to Jacob Dalyrmple had been given, he answered, for borrowed money; and when asked, what was done with the money, he said, he could not state positively, but it was always his impression that it was borrowed to pay on this land on which the mortgage.was given, as it was borrowed about the time the land was purchased. He also said that each note was due at the time of its renewal; and that each renewal was given for an extension of time. The note secured by mortgage, as well as the previous notes, express that each was given “for value received.” The burden then was on the administrator of Mrs. Modie, to show a want of consideration. As against the note in suit, did the testimony of the son, admitting all that it tends to prove, show a want of consideration for its execution? Giving it its full effect, and it simply shows that the note in suit had its origin in a note that had been given by his father for borrowed money, that, as he understood, had been used in making a payment on the land, mortgaged by his mother; and that his father died, leaving, so far as he knew, no assets. Now, since all the parties that knew anything about the purchase of the land and the borrowing of the money are dead, this is certainly not sufficient to overcome the presumption of a consideration, afforded by the note itself. It does not show that there was no consideration, arising’ from any detriment or loss, that Jacob Dalrymple may have sustained in accepting the note of Mrs Modie for that of her husband. It may have been, and is not at all improbable, that this land was purchased and paid for by the husband and the title taken in the name of his wife. Such transactions are known to frequently occur. The statement of the son, that he always understood, that the money, borrowed of Dalrymple, was borrowed to pay on the land, accentuates this supposition, and makes it quite probable that such was the case. If so, it is reasonable to suppose that Dalrymple knew it; and knew that he could subject the land in the name of the wife to the payment of his claim against the deceased husband. But, by accepting the note of the wife and her children, he waived this right, which was a sufficient consideration to support the promise to pay the note. So long as such a state of case is reasonably consistent with the evidence offered on an issue of no consideration for a note, it cannot be said to have been established by a preponderance of the evidence that there was none; and the party making the issue must fail. The evidence must show not only that there was no benefit of any legal value moving to the promisor, but that there was no loss or detriment of any legal estimation, suffered by the promisee. Robinson v. Boyd, ante 57; Mathews, Admr., v. Meek, 23 Ohio St., 272; Judy v. Louderman, 48 Ohio St., 562; Mascolo v. Montesanto, 61 Conn., 50; Metcalf, Cont., 165. If evidence had been offered that William Modie had died insolvent, leaving no assets of any kind, and that the land in the name of his wife had been purchased and paid for by her, we are not prepared to say that the note and mortgage could be enforced against her estate-. But so far as appears, administration was not taken out on the estate of William Modie, deceased, and no evidence was offered as to who purchased the land in her name. And it is only fair bo presume that the wife did not care to take out administration, or to have an inquiry as to the ownership of the land in her name.. By giving the note this was avoided; and this fact would constitute a sufficient consideration for the note she gave Dalrymple in taking up the note of her husband. The evidence then does not overcome the presumption of a consideration arising from the giving of the note. In other words, to say the least, the evidence leaves the case in as much uncertainty as to whether there was, as to whether there was not, a consideration sufficient in law to support the note, and, consequently, the note with the presumption in its favor, must prevail.

Judgment reversed and cause remanded to court of common pleas for further proceedings.