author: Crew, J.

text:
    Ball and the American Exchange Bank et al. v. The Towle Manufacturing Co.

      Judgment creditor may reach, debtor’s share of stock, when— Question of possession of corporation stock — Notice to corporation — Section 5Jp5, Rev. Stat. — Judgment lien — Corporation • law.

    1. A corporation creditor may, by a proceeding in aid of execution, reach and subject to the satisfaction of his judgment, shares of stock in a corporation which belong to his judgment debtor; and such shares of stock, for the purpose of such proceeding, are to be regarded as in the possession of the corporation in which such shares are held.
    2. When such proceeding is instituted by a judgment creditor and the notice authorized and provided for by Section 5475, Revised Statutes, is duly served upon the corporation in which the judgment debtor owns shares of stock, such stock is bound and the judgment creditor acquires a lien thereon from the time of the service of such notice.
    (Decided December 16, 1902.)
    Error to the Circuit Court of Cuyahoga county.
    The facts of this case, so far as the same are necessary to a proper understanding of the questions here involved, are as follows: On April 18, 1898, the defendant in error, The Towle Manufacturing Co., began a proceeding in aid of execution against the plaintiff in error, Webb C. Ball, and in that proceeding made The American Exchange National Bank a party defendant, alleging that said Webb C. Ball, was the owner of ten shares, of the par value of $1,000.00, of the capital stock of said bank. Subsequent to the service of process on said bank in said proceeding in aid of execution, to-wit: On April 21, 1898, said Webb C. Ball transferred and delivered to one W. J. Crowell, by way of pledge, the certificate for said ten shares of stock, to secure an indebtedness of two hundred dollars owing from said Ball to Crowell, and one thousand dollars in money then advanced by said Crowell to him. Said W. J. Crowell received said certificate in good faith and without any actual knowledge on his part of the claim or equities of The Towle Manufacturing Co. in or to said ten shares of stock.
    The Towle Manufacturing Co. in the present action seek to enforce and foreclose the lien which it claims to have acquired upon said ten shares of stock by reason of its proceeding in aid of execution, and asks that said stock may be ordered sold and the proceeds of sale applied to the payment of its judgment claim against said Webb C. Ball.

      Mr. J. P. Dawley, for plaintiff in error.

      Mr. A. A. Stearns, for defendantlin error.
   Crew, J.

Chapter 2, title 1, division 5 of the Revised Statutes of Ohio, provides when and how proceedings in aid of execution may be instituted, and points out the method of procedure. By section 5464 of said chapter it is provided, that any money, goods or effects of a judgment debtor in the possession of a corporation, or any interest which he may have in any chose in action, may be reached and subjected to the payment of the judgment against him by action, which action is known and designated as a proceeding in aid of execution. .Section 5475 of the same chapter provides, that in such proceeding a corporation having property of the judgment debtor in its possession may be ordered to appear and answer concerning said property, and that the service of said order upon the Corporation, to appear and answer, shall hind the property of such judgment debtor in the possession or under the control of such corporation from the time of the service of such order. It appears in this case that on April 18, 1898, the defendant in error, The Towle Manufacturing Co., under favor of the provisions of this chapter, duly instituted proceedings in aid of execution against the plaintiff in error, Webb C. Rail and The American National Bank, and in such proceeding on April 18th, an order was duly made, issued and served upon said Webb C. Ball and The American Exchange National Bank, and said American Exchange National Bank was, by said, order, directed and required to appear before a referee duly appointed by the court, and answer concerning all property in its possession or under its control belonging to said defendant, Webb C. Ball. Subsequently, and in obedience to said order, said bank, by its proper officer, appeared before said referee in said proceeding and made its answer, and on April 27, 1898, said referee filed his report with the court, finding that said Webb C. Ball was the owner of ten shares of the capital stock of-The American Exchange Bank and that said stock was of the value of f1,200.00. On June 27, 1898, the defendant in error, The Towle Manufacturing Co., commenced an action in the court of common pleas of Cuyahoga county, and in its petition alleged and claimed that by reason of said proceedings in aid of execution it had acquired a first and prior lien upon said ten shares of the capital stock of The American Exchange National Bank, and asking that said ten shares of stock be ordered sold and the proceeds applied to the payment of its judgment claim against said Webb C. Ball. To this action The American Exchange National Bank, Webb C. Ball and W. J. Crowell were made parties defendant. Said Webb O. Ball and W. J. Crowell answered severally, but the bank filed no answer. On the trial of the cause in the court of common pleas that court found the issues in favor of the plaintiff, The Towle Manufacturing Co., that it had a valid, first lien upon said ten shares of stock and adjudged and decreed that unless the amount found due plaintiff should be paid within five days from the date of said decree, that said ten shares of stock should be sold and the proceeds applied: First, to the payment of the costs of said action and the costs of said proceeding in aid of execution;: second, to the liquidation of plaintiff’s said claim and that the balance, if any, should be brought into court to abide the further order of the court. From this: finding and decree of the court of common pleas, the defendant, Webb C. Ball, appealed to the circuit court. On the hearing of the cause in the circuit, court, that court found and decreed as follows:

“On December 3, 1900, this cause came on to be heard upon the petition of plaintiffs, the answer of the defendants, Webb C. Ball and W. J. Crowell, the defendant, The American Exchange National Bank, being in default of answer or demurrer, although duly served witli process, the court hearing the evidence and the argument of counsel and on consideration thereof finds that the allegations of the petition are true; that there is due to the plaintiff from defendant, Webb C. Ball, the sum of $864.86, with interest from October 22, 1900, the first day of this term of court upon the said judgment of the plaintiff .as described in the petition and the sum of $16.29 for costs incurred in the proceedings in aid of execution set out in said petition, and the costs of this action which are taxed at $--. That the said Webb C. Ball, on April 18,1898, was and still is the owner of ten shares of the capital stock of the said American Exchange National Bank; that the said ten shares of stock were issued to Webb C. Ball by certificate No. 15; that the par value of said stock is $100.00 per share and that on April 18, 1898, and on date of the commencement of this action, the value of the said ten shares of stock was not less than $1,200.00; and that The American Exchange National Bank was duly served with notice of the plaintiff’s proceeding in aid of execution as alleged in the petition, and that by virtue of the said proceedings in aid of .execution set out and described in the petition, the plaintiff on April 18, 1898, obtained a valid lien upon the said ten shares of capital stock of The American Exchange National Bank. The court further finds that on April 21, 1898, said •stock was pledged to the defendant, William J. Crowell, to secure an indebtedness of $200.00 due and payable from said Ball to said Crowell, and $1,000.00 additional money then loaned by said defendant to said Webb C. Ball. That the said pledge was made and duly delivered to the said W. J. Crowell by the said Webb C. Ball, who was in possession of the same at the time of the beginning of said proceeding in aid of execution, without any knowledge on his, said Crowell’s part, that anv proceedings were then or had been pending against said Ball, to subject said stock, and without any knowledge that said Ball was indebted to said plaintiff; that the said W. J. Crowell is a bona fide pledgee of said stock in the amount above stated, without notice of any of said plaintiff’s claims or equities, and that said indebtedness is still due to said defendant, W. J. Crowell.
“It is therefore ordered, adjudged and decreed, that unless the costs of this action, the costs of the proceedings in aid of execution and the amount found due the plaintiff, with interest shall be paid within twenty days from the date of this decree, the sheriff of Cuyahoga county, Ohio, is directed to appraise, advertise and sell at public sale, according to law; for not less than two-thirds of the appraisement, the said ten shares of the capital stock of The American Exchange National Bank so owned by said defendant, Webb C. Ball, as herein found. And the said defendant The American Exchange National Bank is ordered to deliver to the purchaser of said stock at such sale, upon demand or order from such purchaser, ten shares of its capital stock free and clear of all incumbrances as a substitute for the said certificate No. 15, so issued to, and upon April 18,1898, standing in the name of the defendant, Webb C. Ball, as herein found, and upon the demand of said purchaser to transfer to such purchaser on the books of said defendant bank the said ten shares of stock. It is further ordered that from the proceeds of such sale the sheriff shall pay: First, the costs of this action, and of the said proceedings in aid of execution; second, to the plaintiff the said sum of $864.86 with interest as aforesaid, and bring the balance into court for further order.”

■ To reverse this judgment and decree of the circuit court this proceeding in error is prosecuted. The-facts of this case are undisputed, and the sole question here for determination is: Whether a judgment

creditor in a proceeding in aid of execution under the-Ohio statutes, by service of process upon a corporation thereby secures a lien upon stock in the corporation owned by the judgment debtor at the time of the-service of such process.

If (he action of the plaintiff below had been by attachment, and notice of garnishment had been duly served on the bank, Crowell as a subsequent pledgee of said stock would take it subject to the lien of such attachment. Such is the doctrine of National Bank v. Railway Co., 21 Ohio St., 221, and Norton v. Norton, 43 Ohio St., 509. The procuring of a lien by attachment and garnishee process, before judgment, upon the corporate stock of a stockholder, and the securing of a lien upon such stock after judgment by a proceeding in aid of execution, differ in no essential principle or particular except in the method of procedure. The right to subject such property alike exists in either case. If attachment proceedings be -instituted the statute provides, section 5538,. that the order of attachment shall bind the property attached from the time of its service. If proceedings-in aid of execution be the remedy invoked the statute-provides, section 5475, the order, in said section mentioned, shall bind the property in the possession or under the control of such person or corporation from the time of service. By force of the positive provisions of this latter section, in a proceeding in aid of execution, the property of the judgment debtor in the-possession or under the control of the corporation served with notice as in said section provided, is held and bound from tlie time of the service of such notice. It is not disputed in this case but that a proceedin'' in aid of execution was duly and regularly commenced by The Towle Manufacturing Co. against Webb C. Ball and The American Exchange National Bank, and that said bank was on April 18,1898, duly served with notice as provided in section 5475. But it is claimed by counsel for plaintiff in error that at the time notice' was served upon said bank in the proceeding in aid of execution, that the property sought to be reached was not then in the possession or under the control of said bank, but that the same was then in the possession of said Webb C. Ball, he then holding and having in his possession the certificate for said ten shares, of stock, and that therefore said Towle Manufacturing Co. could not, and did not, acquire any lien upon said stock by service of process and notice upon the bank. This claim of plaintiff in error suggests and •presents the one proposition in this case that must govern and control the rights of the parties hereto, and the determination of which is decisive of this case, and that is: In whose possession was the stock in controversy at the time the bank was served with notice in the proceeding in aid of execution? Was it. then in possession of the plaintiff in error, Webb C. Ball, or was it in the possession of the bank? If at the time of the service of notice on the bank the ten .shares of stock owned by plaintiff in error and for-which he held thé certificate, were not then in contemplation of law in possession of said bank, but were-in legal contemplation then in possession of said plaintiff in error, then it is clear that the service of' notice on said bank could not operate to bind said stock, and no lien could attach to said stock in favor of the defendant in error by reason of the service of such notice, for by the provisions of section 5475 said notice binds such property only as is at the time of its service “in the possession or under the control” of the corporation upon which such service is made. The conclusion of counsel for plaintiff in error, that at the time of the service of notice on the bank the stock in controversy was then in possession of Webb C. Ball results from the erroneous assumption and mistaken notion that the stock itself follows the certificate, and that possession of the certificate is possession of the stock. There is a marked and obvious distinction between the stock of a corporation and the certificate representing such stock. The certificate of shares of stock in a corporation is not the stock itself, but is a mere evidence of the stockholder’s interest in the corporate property of the corporation which issues said certificate. Cook on Stocks and Stockholders, section 485. In the absence of statutory or charter requirements no certificate of stock is necessary to attest the rights of the shareholder in the corporation, and such certificate when issued to the owner of shares of stock is merely an evidence or acknowledgment of the owner’s interest in the property of the corporation, but is not the property itself. In law a corporation is the trustee of the corporate property and holds the same for the benefit of the stockholders; and so long as such corporation continues to have a legal existence and to carry on the business for which it was created it alone is the proper custodian, and has possession of the corporate property. In Cook on Stocks and Stockholders, section 480, the author says:

“It has been held that if a stockholder whose stock has already been attached or sold on execution sells his certificate of stock after the levy of such attachment or execution, the vendee or transferee buys subject to such levy, even though he had no knowledge of it. The stock in contemplation of law has already been seized by the levy, and the purchaser is bound to lake notice of that fact. The only means of avoiding this danger in the purchase of stock is by an inquiry at the office of the corporation at the time of making the purchase.”

In Railroad Co. v. Paine & Co., 29 Gratt. Rep. (Va.), 502, it was sought .by attachment and garnishee process to reach and subject fifteen shares of stock belonging to one Trice, who was a stockholder in the plaintiff; corporation, to the payment of a debt owing by said Trice to defendant, Paine & Co. The court in that case, page 506, says: “Shares of a stockholder are such estate as is liable to be attached in a. proceeding instituted for that purpose by one of his creditors * * * and such estate may properly be considered for the purpose of such proceeding as in the possession of the corporation in which the shares are held, and such corporation may properly be summoned as garnishee in the case.” So in the case at bar, while the certificate for said ten shares of stock was, at the time of the commencement of the proceedings in aid of execution by The Towle Manufacturing Co., and at the time of the service of notice on the bank, in the hands of Webb C. Ball, the judgment debtor, yet the actual property, the stock itself, which such certificate represented, was then in the possession of the bank, and being in the possession of the bank, by force of the provisions of section 5475, such property was bound from the time the notice was served on said bank, and by the service of said notice The Towle Manufacturing Co. acquired a valid lien thereon which it may enforce by a judicial sale of said stock. The circuit court having so found and adjudged, its judgment is

Affirmed.

Burkiot, C. J., Spear, Davis, Shauck and Price, JJ., concur.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    Bradfield et al. v. Hale et al.

      Beal estate mortgage — Conditions broken — Legal title vests in-mortgagee — Mortgagee may elect remedy action — Ejectment or foreclosure suit — Statute of limitations — Sections 4977 and J¡980, Bev. Stat. — Bar of fifteen or twenty-one years .applies, when.

    1. As between the mortgagor and mortgagee in a mortgage upon real estate, after condition broken, the legal title to the mortgaged premises is in the mortgagee, and he may elect, either to sue for foreclosure and sale, or bring ejectment to recover possession of the premises.
    2. If his action is in ejectment, the statutory bar of fifteen years, as provided in Section 4980, Revised Statutes, does not apply. The bar in such case is twenty-one years as provided in Section 4977, Revised Statutes.
    (Decided December 16, 1902.)
    Error to the Circuit Court of Clinton county.
    The action in the court of common pleas was in ejectment. The defendants in error were plaintiffs in that action, and their petition against the plaintiffs in error alleged that the plaintiffs have a legal estate in and are entitled to the possession of certain premises situate in the town of Clarksville, Clinton county, Ohio, which are described by metes and bounds, and ■containing-ohe and thirteen one-hundredths acres of land, more or less.
    It-is further alleged that George Bradfield and Minnie Bradfield unlawfully keep the plaintiffs out of possession of the said premises. The answer of the defendants denied that the plaintiffs have a legal estate in said premises, or that, the defendants unlawfully withhold the possession thereof.
    The cause was tried to a jury, and to maintain the issue on their part the plaintiffs offered and' read in evidence a deed for said premises, executed and delivered by George W. and Susan Garrison to Rachel A. Suttles, on February 29, A. D. 1876, for an expressed consideration of $170.55. This deed was recorded March 2, 1876.
    The plaintiffs below next offered in evidence a mortgage deed, executed and delivered by John and Rachel Suttles to John E. Hale and F. F. Ham, on March 31, 1879, for an expressed consideration of $620.00, which mortgage was recorded on April 9th of the same year.
    This mortgage deed conveyed the premises in fee to the grantees, and contained the usual covenants of warranty, found in such instruments, and also a condition of defeasance, which-recites: “That if said John and Rachel Suttles shall pay to the said John E. Hale and F. F. Ham, or their order, their twenty promissory notes of even date with said deed, to fall due in 3, 6, 9, 12, 15, 18, 21, 24, 27, 30, 33, 36, 39, 42, 45, 48, 51, 54, 57 and 60 months, respectively, each calling for the sum of $31.00, and when due and payable, then the deed should be void; Otherwise to be and remain in full force and virtue.”
    The defendants objected to the introduction of this Instrument, stating the ground" of objection to be “that the mortgage is barred by the statute of limitations.” The court held it not competent evidence and sustained the objection. To this ruling the plaintiffs excepted.
    The plaintiffs introduced John E. Hale, one of the-plaintiffs and'also one of the mortgagees, who testified that when the, mortgage was given John' and Rachel Suttles were in possession of the premises described in the mortgage, and that the first eight of thetwentv notes secured by the mortgage had been paid, and about $25.00 . on the ninth note, but the balance of this note and the other notes were unpaid.
    The plaintiffs offered to prove that F. F. Ham, one-of the mortgagees, was dead, and that Lucy Ham, one of the plaintiffs, is his only child and heir-at-law, and that he died intestate. The court rejected this evidence, stating for reason, that the facts offered “are not pleaded in the case;” and exception was taken.
    The plaintiffs here rested their case, and the defendants also rested. Whereupon the court directed the jury to return a verdict for the defendants, which was. done, and judgment was entered on the verdict.
    The plaintiffs prosecuted error in the circuit court, where the court of common pleas was reversed, on the ground, as the record shows: “That the court erred on the trial of this cause in rejecting as competent evidence, and ruling from the consideration of the jury, the mortgage deed, by plaintiffs offered, to maintain the issues on their part.”
    Error is prosecuted in this court to reverse the judgment of the circuit court.

      Mr. S. W. Huls, for plaintiffs in error, cited and commented upon the following authorities:

      Harkrader v. Leiby, 4 Ohio St., 602; Williams v. Englebrecht, 37 Ohio St., 383; Ranney v. Hardy
      and Zeller v. Bading, 43 Ohio St., 157; Pendery v. Allen, 50 Ohio St., 121; Kerr et al. v. Lydecker, Admr., 51 Ohio St., 240; Gray et al. v. Clyde, Exr., et al., 53 Ohio St., 673; Zuellig v. Hemerlie et al., 60 Ohio St., 27; Miami Exporting Co. v. Bank, Wright, 249; Kernohan v. Manss et al., 53 Ohio St., 118; Hill v. West et al., 8 Ohio 222; Perkins v. Dibble, 10 Ohio, 434; 4 Kent’s Com., 193, 194; Bank v. Johnson et al., 47 Ohio St., 306; Wood on Lim., 542 and notes; Bank v. Railroad Co., 62 Ohio St., 588.

      Mr. S. L. Gregory, for defendants in error, cited and commented upon the following authorities:

      Gary v. May, 16 Ohio, 81; Fisher’s Exr. v. Mossman et al., 11 Ohio St., 42; Welsh v. Childs et al., 17 Ohio St., 322; Rife v. Lybarger et al., 49 Ohio St., 427; Kerr v. Lydecker, 51 Ohio St., 254; Belknap v. Gleason, 11 Conn., 160; 2 Wood on Lim., sections 222-223; McAllister v. Hartzell, 60 Ohio St., 87; Heighway v. Pendleton, 15 Ohio, 736; Allen v. Everly, 24 Ohio St., 97; Robinson et al. v. Fife et al., 3 Ohio St., 551; Harkrader v. Leiby, 4 Ohio St., 612; Philly v. Sanders, 11 Ohio St., 490; Brennan v. Whitaker, 15 Ohio St., 452; Williams v. Englebrecht, 37 Ohio St., 386; Hibbs v. Insurance Co., 40 Ohio St., 559; Bank v. Johnson et al., 47 Ohio St., 310.
   Price, J.

If there was no error committed in excluding the evidence offered in the trial court, its judgment was not erroneous, and it should have been affirmed by the circuit court. In the absence of the rejected testimony, the plaintiffs below rested, without haying made a case for recovery. On the other hand, if the testimony offered had been received, a very different verdict and judgment would have been the natural result.

Lucy Ham is one of .the plaintiffs in the action of ejectment, while F. F. Ham was one of the grantees in the mortgage which was offered in evidence.

The plaintiffs offered to prove on the trial that F. F. Ham had died intestate before the commencing of the action, and that. Lucy Ham is his only child and heir-at-law. On the objection of the defendants, now plaintiffs in error, this evidence'was excluded, the court saying: “It is incompetent for the reason that it is not pleaded in the case.”

This ruling was made in utter forgetfulness, or disregard of Section 5781, Revised Statutes, which provides that: “In an action for the recovery of real property it shall be sufficient if the plaintiff state in his petition that he has a legal estate therein, and is entitled to the possession thereof, describing the same as required by section five thousand and ninety-five, and that the defendant unlawfully keeps him out of the possession; and it shall not be necessary to state how the plaintiff’s estate or ownership is derived.”

The petition of the plaintiffs was drawn in conformity with the above provision, and it was not necessary to plead the fact that Lucy Ham had inherited her interest in the premises from F. F. Ham. This could be proven without any . such averment in the petition, and was an important link in the title she asserted. The circuit court could have properly reversed the court of common pleas for this error if no other had been committed.

Was it error to exclude the mortgage? When it was offered counsel for the defendants objected in ■the following language: “We object to that mortgage on the ground that it is barred by the statute of limitations. I see by the date of the mortgage, that it. is more than fifteen years since it has been due.” This objection was sustained and the mortgage excluded.

Tlie defendants did not plead the statute of limitations in their answer, but the court entertained the plea ore tenas, et non aliter, and held, as we must conclude, that the plaintiffs’ cause of action was barred by the fifteen year statute of limitations. No other reason appears in the record for the novel course pursued by the trial court and the direction that the jury should find for the defendants. It seems to us that the reason assigned by counsel for excluding the mortgage was a sufficient reason for its admission to the .jury, in order that his claim of the statutory bar, if correct, might bfe established. It was a question of fact to be determined by the jury under proper instructions from the court. The ground stated for the objection pointed to the weight and effect of the evidence rather than to its competency. But waiving further criticism of the manner in which the vital point was disposed of, we come to the real questions sought to be raised in this proceeding.

While the answer denies that the defendants unlawfully withhold possession of the premises, their actual possession is not denied; and it' is not claimed in the answer, or elsewhere in the record, that the defendants have been in open and adverse possession for twenty-one years next preceding the filing of the petition.

In this court, as doubtless was the case in the lower courts, the defendants in the action, to defeat recovery rely on Section 4980, Revised Statutes. This section . will be clearer when we have read section 4979, which is: “Civil actions, other than for the recovery of real property, can only be brought within the following-periods, after the cause of the action accrues.” Then section 4980: “Within fifteen years: An action upon a specialty, or an agreement, contract, or promise in writing.”

If the plaintiffs had commenced tlieir action for foreclosure of the mortgage and sale of the mortgaged premises, section 4980 might be plead in bar of such action, because it appears that the indebtedness secured by the mortgage had all accrued and become due more than fifteen years next preceding the filing of the petition. This court has decided to this effect in Kerr et al. v. Lydecker, Admr., 51 Ohio St., 240, where it is said: “A mortgage is a specialty,- and an action for its foreclosure and sale of the premises comes within the provisions of Section 4980, Revised Statutes, and the period of limitation is fifteen years, unless extended by virtue of Section 4992, Revised Statutes.”

We have been furnished with numerous authorities, and among them decisions of this court, on the proposition, that a mortgage is a security for the debt described within it, and is a mere incident of the debt, and therefore any action upon the mortgage may be met with the same statutory bar which applies to a suit to recover the amount of the debt. The cases, cited are Harkrader v. Leiby et al., 4 Ohio St., 602-11; Ranney v. Hardy, 43 Ohio St., 157-160. We might add Baily v. Smith, 14 Ohio St., 396.

In each of the cases cited by counsel, the court was. dealing with the rights of parties under a mortgage as security for the debt, or Avhere the fruits of the security were in controversy, and not the title of the mortgagee to the premises.

In Baily v. Smith, supra, it was held that the mortgage was not a negotiable instrument and that its purchaser as a security, was not protected by the law of commercial paper. However, the court was careful to recognize the dual character of the instrument, as being one of security for a debt, and also one of conveyance in fee on condition. None of the cases above mentioned grew out of actions in ejectment wherein the mortgage was used and relied upon as a muniment of titles

The owner and holder of a mortgage securing debt, containing a condition such as appears in the statement of this case, has two remedies that are older than our code of civil procedure, and which are not affected or superseded by it. He may bring an action in foreclosure of the mortgage; have an account taken 'of the debt secured by it and an order of sale, cutting off the equity of redemption. In such an action the statutory bar of fifteen years may be plead, if that period has run since the cause of action had accrued before the action Avas commenced.

Or, he may, after condition broken, assert title under the mortgage and bring ejectment, and recover possession of the mortgaged premises. This remedy does not cut off the right of redemption, and the mortgagor has time to redeem by action, wherein the rights and equities of the parties, including the debt secured by the mortgage, the rents and profits, etc., may all be adjusted by a court of equity.

The ground on which ejectment may be brought, is that, as between the mortgagor and mortgagee, after ■ condition has been broken, the legal title is in the mortgagee. Doe v. Pendleton, 15 Ohio, 735; Frische v. Kramer, 16 Ohio, 125; Childs v. Childs, 10 Ohio St., 339; Allen v. Everly, 24 Ohio St., 97.

In Doe v. Pendleton, supra, it is said: “When the condition of tlie mortgage is broken as between the parties, the title to the mortgaged premises vests in the mortgagee and remains in him until satisfaction.”

In Doe v. Roll, 7 Ohio (pt. 2), 70, Grimke, J., said: “A mortgage is in reality a conditional fee, which is as large an estate as a fee-simple, though it may not be so durable.”

. In perfect accord with the above cases is Kerr et al. v. Lydecker, supra. In the opinion of Burketj J., ,on page 248, it is said: “The mortgage being in equity, regarded as a mere security for the debt, the legal title to the mortgaged premises remains in the mortgagor as against all the-world, except the mortgagee, and also against him until condition broken, but after condition broken, the legal title as between mortgagor and mortgagee, is. vested in the mortgagee.” Again on page 250, it is said: “After condition broken, the title is vested in the mortgagee, as between him and the mortgagor, and as the right of the mortgagee to recover the possession of the land by ejectment, always existed at common law, and has not been taken away by statute, it still exists in this state.”

The precise question we have here is fully covered by the case of Williams v. Englebrecht, 37 Ohio St., 383, where it is held that: '“In an action by the mortgagee against the mortgagor under Section 5781, Revised Statutes, to recover possession of the lands mortgaged, the fact that such mortgage was given to compound a felony, is not available as a defense.” We are satisfied with the review apd statement of the authorities, as made by Okey, O. J., in that case.

Counsel for plaintiff in error present and urge the claim that the mortgagees, by action in ejectment, should not be permitted to do what they could not do by an action in foreclosure, and thus indirectly avoid the statutory bar which would apply to the debt secured by the mortgage.

In what wé have said it will be seen that such a result may often happen, and in this case the advantage attending the form of remedy chosen is manifest. But we cannot change well established law in order to give operation to a statute of limitations. While such a defense is not now viewed with disfavor, and is regarded as one of merit, it has not yet become a special favorite of the law so as to justify extending it beyond the letter and spirit of its enactment.

The trial court erred in excluding the mortgage. The statute of limitations which applies in actions of ejectment is twenty-one years, and not fifteen years as held by .that court. For this error, its judgment was properly reversed by the circuit court, and the judgment of reversal is affirmed.

Judgment affirmed.

Bueket, C. J., Spear, Davis and Crew, JJ., concur.


author: Shauck, J.

text:
    The Board of Education of Van Buren Township, Darke County v. The Board of Education of Greenville Township, Darke County.

      'Township education boards — Joint meeting to establish joint sub-district — Disagreement—Independent meeting of members of joint boards — Majority of quorum effective, when — School law.

    Under tbe provisions of chapter 5 of the Revised Statutes, a joint meeting of the members of different township boards of education to consider a petition for the establishment of a joint subdistrict is, an agreement failing, an independent body in which a majority of all the members of the interested boards constitutes a quorum, and tbe favoring vote of a majority of tbe quorum is sufficient for the provisional establishment of such district.
    (Decided December 16, 1902.)
    Error to the Circuit Court of Darke county.
    Plaintiff in error filed its petition in the court of common pleas for a decree enjoining the defendant from erecting a schoolhouse in a joint subschool district composed of territory belonging in part to each of said townships, and from taking control of the funds and school matters in said subdistrict, upon the ground that said snbdistrict had not been lawfully established. The allegations of the petition in substance are: The proper petition for the establishment of said district was filed, and due notice was given to the members of the boards of education of a joint meeting to take action thereon. Pursuant to said notice, and at the time designated, there assembled at the joint meeting eleven of the twenty members of the Greenville township board, and seven of tbe nine members of the Van Burén township board. The meeting was organized as an independent body by the election of a president- and clerk. Upon tlie proposition to establish the snbdistrict in accordance with the prayer of the petition, ten who were members of the Greenville board, and two who were members of the Van Burén board, voted in favor of the proposition, thereupon the chairman declared that the proposition carried, and proceedings were undertaken upon the assumption that the action was valid to create the sub-district. The petition also alleges that the school facilities previously provided in the two townships were adequate to meet the wants of the children of school age. In the common pleas a demurrer to the petition was overruled, and a peremptory injunction was granted. On a petition in error the circuit court reversed the judgment, sustained the demurrer, and dismissed the petition, rendering judgment against the plaintiff for costs.

      Mr. A. L. Clark and Mr. A. C. Robeson, for plaintiff in error, cited and commented upon the following authorities:
    Sections 3928, 3931 and 3931, Revised Statutes; State v. Wright, 17 Ohio, 32; Section 3971, Revised Statutes; State v. Davies, 5 Circ. Dec., 525; 12 C. C. R., 218; Board of Education v. Saloon, 7 N. P., 289; Coast Co. v. Spring Lake, 58 N. J. Eq., 586.

      Mr. W. Y. Stubbs and Messrs. Anderson & Bowman, for defendant in error, cited and commented upon the following authorities:
    Section 2, article 6, constitution; Section 3885, Revised Statutes; Board of Education v. Minor, 23 Ohio St., 211; State v. Shearer, 46 Ohio St., 275; State v. Best, 35 W. L. B., 360; State v. Treasurer, 22 Ohio St., 144; United States v. Ballin, 144 U. S., 1; At

      torney General v. Shepard, 62 N. H., 383; Gas Co. v. Rushville, 121 Ind., 206; Launtz v. People, 113 Ill., 137; Cadmus v. Farr, 47 N. J. L., 208; First Parish v. Stearns, 21 Pick., 148; Lawrence v. Ingersoll, 88 Tenn., 52; Cupp v. Commissioners, 19 Ohio St., 175; State v. Wilkesville Tp., 20 Ohio St., 288; Fox v. Fox, 24 Ohio St., 335; State v. Green, 37 Ohio St., 227; State v. Anderson, 45 Ohio St., 196; Everett v. Smith, 22 Minn., 53; Oldknow v. Wainwright, 2 Bur., 1017; Ohio v. Treasurer, 17 Ohio, 32; Board of Education v. Guy, 64 Ohio St., 434; State v. School District, 29 Ia., 264; State v. Powers, 38 Ohio St., 54; Bird v. Perkins, 33 Mich., 30; Stockle v. Silsbee, 41 Mich., 621; State v. Fleming, 147 Mo., 1; People v. Oakland, 92 Cal., 611; People v. Peoria, 166 Ill., 517; State v. Topeka, 31 Kan., 452; Haff v. Fuller, 45 Ohio St., 495; Board of Education v. Stuck, 39 Ohio St., 259.
   Shauck, J.

The principal contention of counsel for the plaintiff is, that Section 3928, Revised Statutes, which is a part of the chapter relating to joint subdistricts, contemplates the establishment of such subdistricts by the mutual agreement of the boards concerned, to be expressed at a joint meeting, and that by implication a quorum of each board must be present, and that a majority of each quorum must vote in favor of its establishment.- Whether that is the correct interpretation of the particular section cited, if considered alone, need not be determined in the present case. Chapter 5 is devoted wholly to the establishment, maintenance, alteration and dissolution of joint subdistricts. The proceedings had in this instance were supposed to be, and, we think, clearly were, authorized by this, and the succeeding sections of the chapter. These sections contemplate that an agreement failing, the members of the several boards, interested shall constitute a special body for the consideration of the subject. Since the statute makes, no different requirement, a majority of the body is a quorum, and a majority of the quorum may act. This view of the statute need not be rejected from fear of abuse by the preponderating vote of the membelrs from a larger township. What the legislature has evidently regarded as a safe precaution against such possible abuse is found in a timely remonstrance to be filed with the probate judge. The action of the joint board provisionally established the joint subdistrict, and the statute pointed out a mode of procedure to be pursued by any who are dissatisfied therewith.

It may be that the case would, upon consideration of the question, be found to be within the familiar rule that there can be no resort to equity when legal remedies are adequate, and further that the plaintiff’ is without capacity to maintain the present action, but the point decided justifies the judgment of the circuit court and it will be affirmed.

eJudgment affirmed.

Btjrket, C. J., Spear, Davis, Price and Crew, JJ., concur.


text:
    Shumaker v. Pearson et al.

      Lapsing of devises — Section 5971, Rev. Stat. — No distinction be* tween issue of devisee — Who died, before and one who dies after making of will — Law of wills.

    1. The terms of Section 5971, Revised Statutes, to prevent the lapsing of devises, permit no distinction between the issue of a devisee who has died before the making of the will, and of one who dies after it, the provision being that "in either case such issue shall take the estate devised.”

      2. In view of the inadmissibility of such distinction, a former decision of this court in favor of the issue of one who died after the making of the will, that the statute “applies to a devise to children as a class” must be regarded as establishing the same conclusion in favor of the issue of.one who had died before the making of the will; and the former decision should be adhered to as defining a rule of property. Wooley et al. v. Pasoson et al., 46 Ohio St., 307, followed.
    (Decided December 16, 1902.)
    Error to the Circuit Court of Miami county.
    Plaintiff in error brought an action in the court of common pleas asserting her right to take the share of her deceased mother in an estate in remainder, devised by the will of Josiah Pearson. The facts are admitted of record. Those which are material are as follows: The will of Josiah Pearson contained the following items:
    “Second — I give and bequeath to my nephew, James Y. Pearson, and Mahala Pearson, his wife, all of my real estate for and during their natural lives.
    “Third — After the death of James Y. Pearson and Mahala Pearson, I will all of my real estate to the children of said James Y. Pearson and Mahala Pearson, share and share alike.”

      The will was executed on April 14, 1892. The plaintiff is the only child of Eliza Ann Wintrow. At the date of the execution of the will said James Y. Pearson and Mahala Pearson, and three of their children, Albert D., Samuel Pearson and Emma J. Davis, were living. Their daughter, Eliza Ann Wintrow, mother of the plaintiff, had died some years before the execution of the will, the plaintiff being her only child who survived the testator. On these facts the court of common pleas rendered judgment for the plaintiff. Its judgment was reversed by the circuit court.

      Messrs. Gilbert & Shipman, for plaintiff in error, cited and commented upon the following authorities:

      Woolley v. Paxson, 46 Ohio St., 307; Swan’s Revised Statutes, (1854) 1032; section 56 of Will Act; Swan & Critch., section 934; Underhill on Wills, sections 326, 340; Nutter v. Vickery, 64 Me., 190; Murphy v. McKeon, 53 N. J. Eq., 406; Minter’s Appeal, 40 Pa. St., 111; Barnes v. Huson, 60 Barb., 598; Darden v. Harrill, 10 Lea (Tenn.), 421; Moore v. Weaver, 16 Gray, 305; Cheny v. Selman, 71 Ga., 384; Yeates v. Gill, 9 B. Mon. (Ky.), 203; Moore v. Dimond, 5 R. I., 121; Guitar v. Gordan, 17 Mo., 408; Jamison v. Hay. 46 Mo., 546; Stockbridge’s Petition, 145 Mass., 517.

      Mr. A. F. Broomhall, for defendants in error,
    cited the case of Wescott v. Higgins, 58 N. Y. Supp., 938, affirming Wescott v. Higgins, 24 Miscel., 22, as a case exactly parallel with the case at bar.
   Shauck, J.

The sole reliance of counsel for the plaintiff in error is upon Section 5971, Revised Statutes, and the interpretation which this court has placed, upon its provisions. The pertinent provisions of the section are as follows: “Where a devise of real or personal estate is made to any child or other relative of the testator, if such child or other relative shall have been dead at the time of making the will, or shall die thereafter, leaving issue surviving the testator, in either case such issue shall take the estate devised in the same manner as the devisee would have taken, if he had survived the testator.”

Although the section in its present form was enacted March 20, 1866, it appears to have been under consideration by this court only in the case of Woolley et al. v. Paxson et al., 46 Ohio St., 307. Rejecting the view that the statute was intended to apply to such devisees only as were named in the will, it was there held that it applies to a devise to children as a class. The opinion of the circuit court in the present case is before us, and it shows that a different conclusion was thought to be required, or permitted, by the fact that in the case cited the member of the class designated as devisees died after the making of the will, though before the testator, while in the present case she had died before the execution of the will. But that circumstance can have no legal significance in view of the plain terms of the statute. The provisions that if the devisee “shall have been dead at the time of the making of the will, or shall die thereafter leaving issue surviving the testator, in either ease such issue shall take the estate devised,” renders it quite impossible to reconcile the judgment of the circuit court in the present case with that of this court in the case cited. Indeed, to give place to both decisions in the jurisprudence of the state would deny all effect to the amendment of 1866, for prior thereto the section conferred the right in question upon the issue of a devisee who should die after the making of the will.

It is suggested that the interpretation placed upon ■ the section by this court in the case cited is subversive ■of testamentary intention, and that the case should, therefore, be reconsidered and overruled. Certainly attention to the sufficiency of the reasons for the conclusion reached in that case would be in vain if controlling considerations would require us to adhere to the view there taken, although we might conclude that the case was erroneously decided. A majority of the members of the court are of the opinion that considerations of that character are present. The case was decided nearly thirteen years ago, but the interpretation which it placed upon the section has not evoked its amendment. It was decided and published nearly three years' before the making of the will which is now before us. Counsel for the defendant in error does not unduly exalt the duty of the court to give effect to the testator’s intention. But, are we likely to ascertain that intention by assuming that he and the lawyer who drafted his will were ignorant of the decision referred to, or that they offered defiance to a decision of the court of last resort with respect to the effect of this disposition of his property? It is acording to common knowledge that in the execution of wills and contracts, and in the transaction of their daily affairs, parties and their advisers act with reference to judicial decisions respecting the effect of dispositions, stipulations and conduct. It is a conclusive presumption that every instrument is executed with regard to every valid statute by which it may be affected, and, ordinarily, intentions are more likely to be ascertained and rights to be enforced if a like presumption is indulged with respect to judicial decisions by which statutes have been interpreted.

New maxims of the law require more careful dis-' crimination in their application than that which enjoins adherence to the doctrine of decided cases. It may be wholly unimportant when, former cases have not influenced the conduct of parties, but it would be difficult to overestimate its importance when, as here, according to every safe presumption, a disposition has been made in reliance upon the doctrine of a former case. Our duty in the present case seems to be plainly suggested by the familiar admonition that the doctrine of a former case should be adhered to if it has become a rule of property for the case under consideration. Assuming that the case cited was wrongly decided, its michief was that by a mistaken‘interpretation of a statute affecting a testamentary disposition, it defeated the testator’s intention; but, if proceeding upon that assumption, we should adopt the contrary interpretation in the present case it is reasonably certain that we should repeat the mischief.

Judgment of the circuit court■ reversed and that of the common pleas affirmed.

Burket, C. J., Spear, Price and Crew, JJ., concur.

Davis, J., dissents.


author: Davis, J.

text:
    Cornell v. Commissioners of Franklin County et al.

      When order to open road may be executed — Section Jft86, Rev„ Stat. — Applies only to roads of specified hinds — A road crossing or not parallel to free turnpike an exception to statute— Injunction against construction of road — Free turnpikes— Law of public roads.

    1. The exception in Section 4786, Revised Statutes, applies only to roads of the specified kinds, which, being unconnected with the proposed free turnpike, run along such proposed ■free turnpike on either side within less than two miles, and in the same general direction as, or approximately parallel with, the proposed road.
    2. Neither a road which crosses a proposed free turnpike and which does not run approximately parallel with such turnpike on either side, nor a road terminating or beginning at a point within less than two miles of a proposed free turnpike and unconnected with such proposed free turnpike, is such a road as is contemplated in the exception provided for in Section 4786, Revised Statutes; and when the boundaries of the free turnpike district have been limited to one-half the distance of such road, or roads, such district is illegal, and the construction of such free turnpike with such bound- ‘ aries will be enjoined.
    (Decided December 16, 1902.)
    Error to the Circuit Court of Franklin county.
    The facts appear in the opinion.

      Messrs. Edrnhart & Hennessey, for plaintiff in error, cited and commented upon the following authorities :

      Bowles v. State, 37 Ohio St., 35; Elliott on Roads, section 556-7; Bank v. Hines, 3 Ohio St., 1; Norwood v. Baker, 172 U. S., 269; Walsh v. Barron, 61 Ohio St., 15; Chamberlain v. Cleveland, 34 Ohio St., 557; State v. Commissioners, 54 Ohio St., 333; State v. Ferris, 53 Ohio St., 339; Brinkerhoff v. Smith, 57 Ohio St., 617; Collins v. Parker, 63 Ohio St., 21; State v. Ottman, 6 Dec., 265; 4 N. P., 195.

      Messrs. Donaldson & Tussing, for defendants in error, cited and commented upon the following authorities :

      Musser v. Adair, 55 Ohio St., 466; McMillen v. Anderson, 95 U. S., 37; Davidson v. New Orleans, 96 U. S., 97; Miller v. Hixon, 64 Ohio St., 39; Bowles v. State, 37 Ohio St., 43; Cooley Const. Lim., section 178; Allen v. Louisiana, 193 U. S., 80; Railway Co. v. Commissioners, 48 Ohio St., 251; Cooley Const. Lim., 587; Lear v. Halstead, 41 Ohio St., 566.
   Davis, J.

This action is to enjoin the construction of a free turnpike laid out and established in Franklin county under the “one mile assessment law.” Among the grounds for the relief asked, the plaintiff alleged that the board of county commissioners had laid out and established such free turnpike, beginning at the east end of East Broad street free turnpike and running in a northeasterly direction along the center line of the Granville road to the county line, a distance of about five miles; that in 1817 there was laid out and established a county road, crossing the proposed improved road about one mile from the western terminus- thereof and extending over and across the proposed road about three hundred feet; that in 1893 another county road was established, commencing at the northern terminus of the road established in 1817, and extending thence in a northerly direction about two miles; that the board of county commissioners in determining whether a majority of the resident landowners within the bounds of the proposed free turnpike had signed the petition, excluded landowners residing within one mile of the proposed free turnpike, but more than one-half the •distance from the proposed free turnpike to the county road which was established in 1893; and that the board of county commissioners have excluded from the taxing district of the proposed free turnpike, the lands beyond one-half the distance between said free turnpike and said county road established in 1893. For our present purpose the other allegations contained in the petition may be disregarded. A demurrer on the ground that the petition does not state facts sufficient to constitute a cause of action against the defendants, was sustained by the court of common pleas, and the plaintiff not desiring to plead further, judgment was rendered for the defendants. The circuit court, on a petition in error, affirmed the judgment of the court of common pleas.

It is contended here by the defendants in error, and it was so held by the courts below, that although the county roads established in 1817 and 1893, respectively, may constitute one continuous road in fact, yet they are separate and distinct roads in law; and that the road established in 1893 is “unconnected” with the proposed free turnpike, and therefore is within the exception in Section 4786, Revised Statutes, which reads as follows: “Extra taxes, when levied as hereinbefore provided, shall be on real and personal property within one mile on each side of the free turnpike road, except where any road improvement of free turnpike road, or any toll road, or unimproved state or county road, being unconnected with the same, runs upon either side of such proposed road, within less than two miles, then the extra taxes shall only be levied upon such lands and personal property as lie within one-half the distance of such roads.” It is also urged that the judgment below is sustained by Lear v. Halstead, 41 Ohio St., 566.

The exception in section 4786 does not apply in case of a county road which is only unconnected with the proposed road, but to a county road, Avhich, “being-unconnected AA'ith the same, runs upon either side of such proposed road.” By the expression “runs upon either side,” the legislature clearly meant to designate roads which run along, and not across, the proposed road. It Avas intended to specify roads Avhich, in a general sense, run parallel with the proposed road. With such, and with such only, it is practicable that the “extra taxes shall only be levied upon such lands and personal property as lie Avithin one-half the distance of such roads,” that is, one-half the distance between such roads. The statute does not contemplate the division of territory betAveen the point of termination of one road and the line of the proposed road; nor between the line of the proposed road and the line of a road crossing it. The opposite construction would be putting something into the language of the statute which is not there. So that the meaning of the statute, as well as the meaning of this court, Avhen it uses the words of the statute in Lear v. Halstead, is that a road which runs in the same general direction as, or approximately parallel with, the proposed road, is a road which “runs upon the side of the proposed road,” and that a road located on either side of the proposed road, which runs perpendicularly, or practically so, to the proposed turnpike, is not a road which “runs upon the side” of the latter. If anything more is needed to make this construction clear, a reference to-the original section (72 O. L., 93, section 8, and 73 O. L., 96, section 8), and a study of its provisions will be suggestive. It was there provided that when any free turnpike in process of construction shall cross a free turnpike road either completed or in process of construction, then the lands and property on either side of where such free turnpike cross each other shall be assessed and taxed in proportion to benefits, etc.; but there was not then, nor has there ever been, any exception as to any unimproved state or county road crossing the proposed turnpike, and there is none now in regard to any road of any kind crossing the proposed road. The commissioners were, therefore, in error when they limited the taxing district as they did in this case, whether the county roads be regarded as a continuous road crossing the proposed turnpike, or whether the county road established in 1893 be regarded as a distinct road, running in a direction approximately perpendicular to the line of the turnpike. The plaintiff does not show in his petition for injunction that a majority of the landholders, residing in the county, who own lands within the bounds of the turnpike, petitioned for it; but it does appear that taxable property which should have been within the taxing district was excluded, and the plaintiff was thereby proportionately injured. “To any extent that one man is compelled to pay in order to relieve others of a public burden properly resting upon them, his property is taken for private purposes, as plainly and as palpably as it would be if appropriated to tire payment of the debts or the discharge of obligations which the persons thus relieved by his payments might owe to private parties.” Cooley on Taxation. 112.

The judgments of the circuit court and of the court of common pleas are therefore reversed, and the cause remanded to the court of common pleas for further proceedings.

Reversed.

Burket, C. J., Spear, Shauck and Price, JJ., concur.


author: Speak, J.

text:
    DeWitt v. DeWitt.

      ¡Rights of parties when divorce granted for husband’s aggression — Section 5699, Rev. Btat'. — Act of May 19, 1894 — Conditions attached to payment of alimony error, when — Wife required to quitclaim dower, etc. — Alimony.
    1, Under Section 5699, Revised Statutes, as the same stood prior to the amendment of May 19, 1894 (91 O. L., 348), it is error for the court, having granted the wife a divorce for the aggression of the husband and awarded her alimony payable in money, to attach to the payment of such alimony a condition that'she quitclaim to the husband her interest in her own lands, and of dower in his lands, and surrender to him promissory notes which she holds against him.
    Í. The amendment of May 19, 1894, can have no application to such suit unless it is found by the court affirmatively that tho condition therein expressed actually exists, viz.: That the husband has but little or no property or means, and the wife is the owner of lands or personal estate, or both.
    (Decided December 16, 1902.)
    Error to the Circuit Court of Seneca county.
    The action in the common pleas was by plaintiff in error, Ella S. DeWitt, against C. Douglass DeWitt for divorce and alimony, and the custody of their minor child. In her petition plaintiff alleged divers grounds for divorce. She further alleged that she and the defendant were the owners, as tenants in common, of the farm of eighty acres upon which they lived, subject to a mortgage of $1,500.00; that the farm was well stocked with cattle, sheep, hogs, etc., and Avith farming implements, tools, and other personal property, all accumulated by the joint labor of plaintiff and defendant, and that defendant had recently disposed of a large amount of personal property, and had the cash on hand therefor.
    Defendant, by his ansAver, admitted the marriage, the birth of the child; that there is a mortgage of $1,500.00 on the farm, and that he is the owner of the personal property described, and denied all other allegations.
    On trial, the plaintiff Avas granted a divorce on the ground that the defendant had been guilty of gross neglect of duty; also custody of the child. A decree for alimony Avas thereupon entered, from which both parties gave notice of appeal, but appeal was perfected only by the plaintiff.
    An amended petition was .filed in the circuit court in AAdiich, among other things, it was averred that, in addition to the personal property and real estate described in the original petition, the defendant was the owner, at the commencement of the suit, of the undivided half of a tract of 90.55 acres, describing the same; also of a 60-acre tract, both in said county, and both subject to a life estate in favor of one Samuel H. De'VV'itt. No answer was filed to this pleading, nor was the original answer refiled, nor is it in any way referred to in the record of the proceedings after this date.
    On trial in the circuit court, it was adjudged “that the defendant pay to the said plaintiff as her reasonable alimony the sum of $2,600.00, payable in sixty days from the date of this decree, and that the same be and hereby is made a charge and lien upon the lands of said defendant, but subject to the condition that the said plaintiff quitclaim to the said defendant all her interest in and title to the eighty acres of land, and the defendant’s other land described in the pleadings ; that she surrender to the defendant the $1,250.00 note that she holds against the defendant, and that she pay and surrender the $400.00 note upon which there is yet due the sum of-$275.00, given by defendant and plaintiff to plaintiff’s mother.”
    The plaintiff refused to abide by this adjudication, and brings this proceeding to reverse the judgment of the circuit court so rendered.

      Messrs. Brewer & Brewer, for plaintiff in error.

      Messrs. Seney & Sayler, for defendant in error.
   Speak, J.

The ground of complaint on the part of the plaintiff is that the conditions imposed upon her are unjust and oppressive, and that the court was without authority to require her acceptance of them as a condition to her recovery of alimony. On the other hand it is contended that the court, having the proper parties before it, and having the general power to allow alimony, had also full power to adjust all their property rights.

i It is apparent that the circuit court proceeded upon the assumption that it possessed full equity} powers, and might properly take cognizance of all the property, and interests in property, possessed by each of the parties, and make as full and final a decree and order as though the cause were strictly one in equity. v And there is some support for this assumption to be found in one of the recent text books, and in a paragraph of an opinion in this court. We refer to the comprehensive and able treatise of Mr. Nelson, of the Nebraska bar, on the Law of Divorce and Adjustment of Property Rights. At page 858 of the second volume, the author observes: “We have seen that the decree for a permanent allowance is a final adjudication of all property rights between the parties. After such decree neither party has any claim upon the other of any kind. The parties have, in the proper tribunal, and at an appropriate time, had an opportunity to litigate their property rights, and the decree is presumed to be an adjudication of all matters which might have been tried in such action. It follows that, in ascertaining the proper amount for the wife, all her claims against the husband must be considered.” Expression of the same idea is found in other parts of the work. The decision in this court referred to is that of Petersine v. Thomas, 28 Ohio St., 596, cited by counsel, opinion by Ashburn, J. He remarks: “Under our statute, a divorce contemplates a final separation of the parties. Their paths in life henceforth diverge, and, in legal contemplation, they are to each other as strangers. When not otherwise provided, we think the statute contemplates that, at the time of decreeing the divorce, the court will adjust all the pecuniary rights of the parties in relation to each other springing out of the marital relation about to be forever annulled. To this end the court is given full discretionary authority to make such order concerning the division of the property and support of the children as to the court shall appear, under all the facts and circumstances, just, equitable, and reasonable.” Exactly what meaning should be attached to the phrase “all the pecuniary rights of the parties in relation to each other springing out of the marital relation,” is not clear. But, assuming that it is meant to include all rights of property of every kind acquired by either or both before and during coverture, it is proper to say that the case before the court did not involve so wide a scope of inquiry. The question presented, and the judgment upon it, is clearly set out in the second paragraph of the syllabus as follows : “After a suit for divorce and alimony has been finally determined by the court granting the divorce,, and in lieu of alimony confirming an executed agreement as to the amount paid as alimony, a new action for additional alimony cannot be maintained when the reasons for such additional allowance existed or might have been provided for in such final judgment,, and when it is not sought to impeach such final judgment.” 'It is apparent that the court was dealing with the effect of an executed agreement of the parties, and that its decision did not call for an expression upon the phase of the general subject quoted from the opinion of the learned judge. Attention is. also called to the recent case of Julier v. Julier, 62 Ohio St., 90. But that case, also, deals with the effect of an agreement of the parties which the court finds to be just and reasonable, and aids but little, if any, in determining the question here presented; and we are' not cognizant of any reported case in Ohio which, in the decision upon the point at issue, gives authoritative support to the circuit court’s assumption.

We gather from a somewhat extended examination, of authorities that, in so far as we derive any common law rules respecting divorce and alimony from the-mother country, we inherited those administered in the Ecclesiastical courts, for, outside of parliament, no other tribunal had or assumed cognizance of such controversies. Such power did not, in England, belong to a court of equity. The Ecclesiastical court. was not, and never had been, a court of equity. It was a canonical court, and never deviated from the canon law. MacQueen on Divorce, 55, note; Slielford on Marriage and Divorce, Law Library, 377, 598, 599. Bee also Adams’ Equity, 17. Mr. Henry Folsom Page, in his valuable work on Divorce, 297, states that: “It is now settled in England that' courts of equity have no general authority to decree alimony to the wife.” 'Mr. Browning, in his work on Marriage and Divorce, speaking of the jurisdiction of the courts of England at the present time, at page 1, observes: “The court for divorce and matrimonial causes owes its jurisdiction — in part original and in part derived from Ecclesiastical courts — to the act of parliament by which it was created, and the several amending acts by which that jurisdiction has been in various ways altered and amplified.”

The state of Ne law in this country on that phase of the question is probably more in doubt. Mr. Page expresses the opinion “that, in the United States, courts of chancery exercise jurisdiction to decree the allowance of alimony in cases of cruel usage or desertion, and this jurisdiction is placed on the ground that the wife has no remedy at law.” Decisions of the courts of South Carolina, North Carolina, Virginia, Kentucky and Maryland, support the view above stated, but the author cites no Ohio case sustaining the text. Story Eq. Juris. (2), section. 1423», says the doctrine that courts of equity should have power to adjudicate claims of deserted wives to reasonable support out of the husband’s estate is on the ground that there is no adequate remedy at law, but doubts that it can be said to be an established doctrine in this country. On the other hand, Mr. Bishop, in his work on Marriage and Divorce, vol. 1, section 114, gives this as the law: “Of the several branches of the unwritten law of England, there is one, properly to be deemed common law, yet technically called ecclesiastical law; another, technically, the common law; another, the law of admiralty; and another of very great importance, is known as equity. To the branch of the common law called ecclesiastical the subject of marriage and divorce, in England, pertains.” The same author, speaking of the assumption by some of our courts of equity of jurisdiction of the subject because of the absence in this country of ecclesiastical courts, observes, section 1393: “Wisely and well our judiciary has uniformly decided, after thinking, that the mere non-existence of ecclesiastical courts with us does not empower our equity tribunals to take up and exercise their divorce jurisdiction.” The trend of the author’s entire remarks upon the subject indicates clearly that iñ his judgment, courts of equity, in this country, have not general and full equity jurisdiction in matters of alimony. In volume 2, Am. & Eng. Ency. of Law, 93, under the head of Alimony, article by Mr. Edmund Randolph Williams, it is stated unreservedly that: “The jurisdiction of chancery courts, as organized under the commonwealth, did not become a part of the law of the colonies, and so could not be exercised by them on this ground. And in the United States at present it is maintained, by the apparent weight of authority, that, in the absence of legislation to the contrary, alimony should not be allowed in an independent suit in courts of equity.” Decisions from fourteen states of the Union are cited as supporting the text. Professor Pomeroy, Eq. Juris., volume 1, section 171, speaking of remedies in courts of equity, remarks: “A fifth class contains certain special remedies which do not belong to the original jurisdiction of chancery, but are wholly the results ©f statutory legislation,” * * * among them “suits for divorce, absolute and limited, and for alimony in many of the states.” Again, volume 2, section 1120, the same author observes: “Under the judicial system originally prevailing in England, it was granted and regulated solely by the Ecclesiastical courts which had exclusive jurisdiction of divorce. It is very clear that the original jurisdiction of equity did not include the power to decree alimony as an incident of divorce; nor is there any jurisdiction to grant alimony to a wife as a provision to be made by her husband for her maintenance unconnected with proceedings for divorce. The American courts have generally conformed to this view, and have denied* the existence of any jurisdiction to award alimony as a provision for the maintenance of a wife by her husband. In several states, however, such a power has been asserted and exercised as belonging to the general jurisdiction of equity.” He then refers to a number of the cases cited by Mr. Page, and some others, but in a note the learned author expresses disagreement with their conclusions. In Parsons v. Parsons, 9 N. H., 309, the Chief Justice remarks that “we have not a general jurisdiction to compel husbands to deal justly and kindly with their wives.” So in Michigan, in Peltier v. Peltier, Har. Ch., 19, the court refused, as a court of chancery, to entertain the bill of the wife for alimony, on the ground that courts of chancery, as such, have no jurisdiction of such cases.

It may be fairly claimed from the foregoing that the courts of Ohio have not general equity jurisdiction in suits for alimony, but that the jurisdiction is such, and such only, as is given by the statute. We do not forget that there are occasional remarks in-some of the earlier opinions which, at a hasty glance, might seem to contradict this proposition, as in Mattox v. Mattox, 2 Ohio, 234, where a party applied for a divorce on the ground of adultery while herself living in adultery, and the court in refusing the decree, speaks of the application as being to the equity jurisdiction of the court, and adds that the complainant must come with clean hands, etc. Certainly a proper construction of the statute required this holding. It was impossible to construe the statute as offering a bounty to guilt. In another case, reported in Wright’s Report, the court is quoted as speaking of the petition “as in chancery.” This expression is fully satisfied by the consideration that, as in chancery, the petition was, under the old practice addressed to the court, and was not required to be sworn to; the cause was then, as it is now, tried by the court. There was then no appeal because the cause was tried in the highest court of the state for trials of fact. This was by force of the first general statute on the subject, enacted December 29,1804 (3 O. L., 177), which gave sole cognizance in such cases to the supreme court, and made specific provision for awarding alimony to the wife and full restoration to her of her lands and tenements where divorce was granted for the aggression of the husband, and, where granted for the aggression of tin wife, such part thereof, and such share of the husband’s personal property as to the court may appear reasonable. Earlier than this, in 1795, the governor and judges at Cincinnati passed a law respecting divorce, which was repealed by the act above cited* •Now that the common pleas has jurisdiction, the right of appeal as to alimony is provided for. These features are “as in chancery,” but it does not follow that the court, in dealing with the subject, exercises full ■equity powers. The terna “as in chancery” itself implies that the case is not strictly a chancery proceeding. Lane, J., speaking for the court in Bascom v. Bascom 7 Ohio, 465, and referring to the statute, holds: “Under this law it is claimed that all the incidents of a suit in chancery attach to these proceedings, and among others the right of review. It ■seems plain to us that such could not have been the intention of the legislature.” And the learned judge then proceeds to point out obvious and important distinctions. It may be of interest to the general reader to note, in passing, that in the early history of the .state and general assembly itself exercised the power to grant divorces, one instance being, found in volume 2, O. L., 67, where Hannah Willis wns granted a ■divorce from Isaac. Doubtless many others will be found in subsequent volumes. This pernicious practice was continued at intervals until 1848, when this ■court, by the decision in Bingham v. Miller, 17 Ohio, 445, set its seal of condemnation upon it, which, was followed by a provision in the constitution of 1851, art. 2, sec. 32, absolutely prohibiting it. It is to be remarked as an instance of the confusion pervading the legislative mind respecting the division of the powers of government, that, having by the first act passed by that body on the subject, conferred upon the supreme court sole cognizance of granting divorces, and given to that court like exclusive jurisdiction by subsequent acts, the general assembly should itself continue to assume jurisdiction of the subject, and from time to time divorce mismated couples.

That the early law-makers did not understand that ■our courts had, irrespective of statutory authority, full equity powers respecting the reciprocal rights of husbands and wives is. shown by the enactment of March 2, 1846 (44 O. L., 115), which provides for the filing by any married woman, by her next friend, of a bill in chancery to enjoin her husband from squandering her estate, and gives the court power to appoint a receiver, etc. This was wholly superfluous legislation if the subject was already within the equity power of the chancery court.

Having, we think, satisfactorily shown that the court in allowing alimony does not exercise general equity powers, but is controlled by the statute, and is authorized to exercise such power as that expressly gives, and such as is necessary to make effective its orders and decrees thus made, such an injunction to maintain the statuo quo and prevent action by the defendant which may tend to render nugatory a decree favoring the plaintiff, we turn to the statute to ascertain just what it does prescribe. Section 5699 provides that: “When a divorce is granted by reason of the aggression of the husband, the wife shall, by force of the judgment of divorce, be restored to all her lands, tenements and hereditaments not previously disposed of and the husband shall be barred of all right of doAver therein.” * * * “She shall be alloAved such alimony out of her husband’s real and personal property as the court deems reasonable, having due regard to the property Avhich came to him by marriage, and the value of his real and personal estate at the time of the divorce, which alimony may be alloAved to her in real or personal property, or both, or by decreeing to her such sum of money payable either in gross or installments, as the court deems just and equitable; and if the wife survives her husband, she shall also be entitled to her right of dower in the real estate of her husband not alloAved to her as alimony, of which he was seized at any time during the coverture, and to which she had not relinquished the right of dower.” It is to be noted that here are certain important mandatory provisions. She shall be restored to all her lands. This does not in terms include personal effects or choses in action, but such is, without doubt, the spirit of it. She shall be allowed alimony out of her husband’s real and personal property, and, if she survives her husband, she shall be entitled to her right of dower in his real estate not allowed as alimony and to which she has not released her right. While the court is granted much latitude as to the amount of alimony to be allowed, it may not disregard these mandatory provisions; and while, also, the court may make conditions respecting the time and manner of payment of the alimony allowed, it may not attach such conditions to the allowance as will nullify any of these positive requirements of the statute, or neutralize the allowance actually made. Giving effect to the foregoing provisions, the conclusion follows that the circuit court was without authority to require that the plaintiff quitclaim to the defendant her interest in the eighty acres of land, or in any of defendant’s lands, and equally without power to require her to surrender to him the notes which she held against him.

Counsel for defendant in error confidently urge their personal belief that there is power in the court, in malting; a money allowance for alimony, to dispose of the wife’s contingent dower in her husband’s lands and to make any order respecting the transfer of any property that may to the court seem just, and that they never have before heard it questioned. The counsel are lawyers of wide experience, and of course it is possible that their understanding may be in accord with the practice heretofore prevailing in some jurisdictions. We do not think, however, that it has been general, nor do we know of a reported case of any court in this state which holds that doctrine. On the other hand there is reported in 7 Re., 646, 4 W. L. R, 645, the case of Foote v. Worthington, decided by the district court of Cuyahoga county, opinion by Hale, J., in which, with convincing reasoning in its support, it is held that: “Under the law as it was in 1856 (section 5699, Revised Statutes, is the same), on a divorce being granted for the aggression of the husband, and a certain Ipt awarded as alimony, a further order that the wife be barred of dower in any other property of the husband, and enjoined from instituting proceedings to obtain it, is wholly void, and if she survive her husband she can obtain dower in any property of his, though sold by him before his death.”

But it is thought by some that an amendment to this section enacted May 19,1894 (91 O. L., 348), may have the effect to authorize the decree of the circuit court. That amendment is: “but in any case, when it appears to the court that the husband is the owner of but little or no property or means, and the wife is the owner of lands or personal estate, or both, the court may adjudge to the husband such share of the wife’s real or personal property, or both, or may decree to him such sum of money out of her estate, payable in gross or in installments, as the court deems just and reasonable, having due regard to all the circumstances of the parties.” It may be that, at first blush, this construction might seem to be justified, but we think the claim will not stand examination. The statute, it will be borne in mind, must be construed as a whole. The language of the amendment is permissive, and the' relief thereby permitted is made to depend upon a certain state of facts appearing. The amendment conld not, in any event, we think, without doing violence to all accepted rules of construction, be construed, by force of its own language alone, as annulling the previous positive requirements of the section. They forbid what the court in this case undertook to do. We do not hold that the trial court may not, in fixing the amount of alimony, acquaint itself with the wife’s pecuniary condition, but we do hold that the court may not abrogate the statute. It seems clear that no such case is made in the record as this amendment provides for. It is true that there is no special finding of facts, nor any bill of exceptions. But the plaintiff’s case is made in her petition and amended petition, and to these pleadings there is no answer at all unless the original answer should be regarded as before the court, and if it is, the legal effect is only to deny all charges of wrong-doing on the part of the defendant, and to admit the other allegations. The plaintiff’s case thus made negatives the conditions of the amendment hereinbefore referred to on which only the court is permitted to adjudge to the husband the property of the wife. In this state of the record it is reasonable to hold, as we do hold, especially in view of the guarded language of the amendment, that it has no application to the present case. The amendment, if taken unqualifiedly, is contradictory to the earlier part of the section, and if the defendant desired to avail himself of its provisions, he should have made a case justifying its application. The purpose of the amendment probably is to place the erring husband in a position respecting property akin to that given an erring wife by the succeeding section, but the language is less general and noticeably more guarded.

It follows from the foregoing that the court was. without authority to impose the conditions prescribed in respect to release by the plaintiff of her interest in her own lands and of dower in defendant’s lands, and the surrender of notes held by her against the defendant, and that the decree rendered is in those respects erroneous. The judgment of the circuit court will, therefore, be reversed and the cause remanded to that court for further proceedings according to law.

Reversed.,

Burket, C. J., Davis and Crew, JJ., concur.

Price, J., not sitting.