text:
    The Second National Bank of Cleveland v. McGuire.
    1. That all the property of the maker of a promissory note has been assigned to an indorser of such note, for the benefit of all the maker’s creditors equally, does not dispense with the necessity of demand and notice, when that property is not sufficient to meet all the maker’s liabilities.
    2. A waiver of demand and notice by the indorsor must be by words or acts that clearly show that such was the intention.
    3. M. was indorser upon a series of notes made by 0., who had assigned all his property, for the benefit of all his creditors equally, to M. After the assignment, M. told the bank, holder of the notes, to bring them to him as they matured, and he would pay them, or waive protest on them. This was done upon all the notes but the last. At twelve o’clock of the day this one became due, the baulk clerk presented it to M. for payment, who said he would not pay it or waive protest on it, because the signature was not his, but a forgery: Eelcl, The. necessity of demand and notice was not dispensed with.

      Error to the District Court of Cuyahoga county.
    This action was brought in the Superior Court of Cleveland upon the following note discounted by the bank : “$500. “ Cleveland, 0., September 16, 1878.
    “ Three months after date, I promise to pay to the order of P. F. McGuire, five hundred dollars, at 184 Ontario street. Yalue received. James Carr.
    “ Indorsed on the back : P. F. McGuire.”
    No defense appears to have been made by the maker, Carr.
    At the time the plaintiff discounted this note it held several other notes made by the defendant, Carr, and indorsed by the said McGuire.
    Subsequent to the discounting of the note in suit, and before its maturity, and before the maturity of the other notes above referred to, the defendant Carr made a general assignment, for the benefit of his creditors, of all of his property to the defendant McGuire.
    McGuire’s place of business -was on Ontario street, alongside of, and next to, Carr’s place of business.
    Upon the trial, one Proudfoot, clerk of the bank, testified as follows:
    Subsequent to the assignment made by said Carr to the said McGuire, and while said plaintiff was the owner and holder of said note, and of several others made by said Carr, and indorsed by said McGuire, he, the said McGuire, told him, the witness, that said Carr had assigned to him, the said McGuire, and that he need not present to Carr for payment the notes the plaintiff' held, which were made by the said Carr, and indorsed by him, the said McGuire, but, to bring to him, McGuire, all of said notes, as they respectively became due, and he would either pay or waive protest on them. That, in accordance with said direction, he did present to the said McGuire all of said notes, respectively, as they severally matured and became payable, and said McGuire did either pay them when so presented to him, or waive in writing demand of payment, and notice of non-payment, of all of said notes, except the one sued upon in this action. The time of the maturity of the note in suit was at a later date than the maturity of any of the other of said notes made by Carr and indorsed by McGuire.
    About twelve o’clock M., on the day of the maturity of the note sued upon in this action, he presented the said note to said P. E. McGuire for payment, at the place of business of said McGuire, on Ontario street, in said city of Cleveland, which was next door to No. 134 Ontario street, the former place of business of said defendant, James Carr, where said note was made payable, and which was then closed; that he then and there requested said McGuire to pay said note, in reply to which request he, the said McGuire, answered that he would not pay the note, nor waive protest on it, because the signature on its back was not his, the said McGuire’s signature, but was a forgery. Upon this subject, McGuire, the defendant, states that he never received any notice of a demand being made on said defendant, Carr, for the payment of said note, or of a demand being made at 134 Ontario street, where the same was payable, for payment; nor did he ever receive any notice whatever, of the non-payment of said note, except this: that, on the day of the maturity of said note, John Proudfoot, collecting clerk of plaintiff', at about twelve o’clock M., of that day, called on him, at his store, and showed him said note, and asked the witness to pay or to waive protest on said note, which -witness then and there refused to do, and so expressly told said Proudfoot, because said indorsement on the back of the note was a forgery and he would never pay the note.
    Another defense of McGuire’s was that the note was a forgery. '
    It does not seem to be denied that no demand was made upon the maker, Carr, and unless that demand is to be held waived by circumstances in evidence, the bank must fail in its action against McGuire the indorser.
    Among other things, the hank claims that all Carr’s property had been assigned to McGuire, aud, thereupon, no demand or notice of dishonor to the indorser was necessary. It however appears that Carr’s assets were insufficient to pay his liabilities.
    The court charged the jury as follows : “ The next question for you to consider is, whether or not sufficient demand upon the maker had been made for the payment of the note when it matured, and due notice thereof given to the indorser. It is not claimed by the plaintiff that any actual demaud was made upon Carr, the maker, on the day on which the note matured. It is claimed by the plaintiff that this demand and notice was waived. It is conceded by both parties that, after the making of this note and before its maturity, Carr, the maker, became insolvent; that he made a general assignment of all his property to the defendant, McGuire, for the benefit of his creditors, and that McGuire accepted of the trust under the insolvent debtor law of the state. It is also claimed by the plaintiff that Carr’s place of business, where the note was made payable, was closed. It is claimed by the plaintiff- that after McGuire accepted of the assignment from Carr, he notified the plaintiff-that certain notes which it held, made by Carr and indorsed by him, McGuire, it need not present to CaiT, but present them to him, and that the plaintiff-, acting upon this request, did present to him indorsed notes, some of which he paid, and upon others waived demand and notice in writing, and that it presented, in the same manner this note, aud that he declined either to pay it or waive demand and notice in writing, on the ground that it was not his indorsement, and that this conduct of his amounted to a waiver of the otherwise strict demand upon the maker and notice to indorser, which, as a general rule, the law requires.

      “ The defendant denies that he made any general waiver of demand and notice, and as to this particular note gave the plaintiff’s agent, who called upon him, distinct notice that he would waive nothing whatever.
    “ You will inquire into the testimony, and ascertain what are the facts. If the defendant, McGuire, by his conduct and acts, gave the plaintiff to understand they need make no demand ou Carr, the maker, for the notes of Carr, indorsed by him, which it held, and should look to him for the payment of the same, and that this direction was not corrected and the bank notified that he stood upon his liability as indorser alone, then I say to you that the plaintiff would be excused from making a demand upon the maker, and of giving him, McGuire, notice of the maker’s refusing to pay, or if McGuire misled the plaintiff by his conduct so as to prevent them from making a demand upon the maker, which they otherwise would have made, he can not claim excuse from payment because plaintiff failed to make the demand.
    “If, upon this evidence, however, you do not find that McGuire either waived demand and notice, or did not, by Ms conduct, mislead the plaintiff, and so prevent a demand upon the maker and notice to himself, I say to you (and because requested by the plaintiff, and so I understand the law to be) that if, before the maturity of this note, McGuire, the defendant, as assignee in insolvency, had received a transfer from Carr, the maker, of all his, Carr’s, piroperty, and that, on the day of the maturity of the note, the plaintiff made a demand on him, McGuire, for the payment of the note, that would be, in law, a sufficient demand and notice to charge him as indorser.”
    The jury found in favor of the bank and against McGuire in the amount of the note. McGuire then filed a petition in error in the district court, which reversed the judgment of the superior court. Whereupon the bank filed this petition in error to reverse the judgment of the district court.

      W. J. Boardman, for plaintiff in error:
    There was no necessity for demand and notice. Britt v. Levett, 13 East, 213; 1 Parsons on Notes and Bills (ed. 1867), 562, 566, 567, 569; 7 Wend. 166; Bond v. Farnham.
      5 Mass. 170; Barton v. Baker, 1 Serg. & Rawle, 334; Watkins v. Crouch, 5 Leigh. 538.

      Tyler & Denison and Hamilton & Denison, for defendant in error:
    Formerly it was held by some of the American courts, as well as those of other nations, that the mere insolvency of the maker, known to the indorser, relieved the holder of negotiable paper from the ordinary requirements of demand and notice, in order to hold the indorser (1 Mo. 743; 1 Tenn. 260; 2 Brev. 185, etc.); but the current of modern authority is set very strongly the other way, both in this country and in England. Mechanics Bank v. Griswold, 7 Wend. 165; Sanford v. Dillarray, 10 Mass. 52; Shaw v. Reed, 12 Pick. 132; Lawrence v. Langley, 14 N. H. 70; Watkins v. Crouch, 50 Leigh. (Va.), 522; Esdaile v. Sowerky, 11 East, 117, and numerous eases outside of the decisions of Ohio upon that subject. And it has been substantially held, in this state, that insolvency constitutes no excuse for want of demand, or notice to indorser. Develing v. Ferris, 18 Ohio, 179. The same doctrine is held by 1 Parsons, in his Treatise of Notes and Bills (2d ed.), 446, in Story on Promissory Notes, § 286, and in Redfield and Bigelow’s Leading Cases upon Bills of Exchange and Promissory Notes, 461.
    Nor does the fact that the indorser has received funds from the maker of a note, to indemnify him against his liability, furnish excuse for want of demand and notice to such iudorser, unless such indemnity be full, adequate, and complete. Partied indemnity will not excuse such want of demand and notice on the part of the holder, and the indorser still be held liable upon the note. Story on Promissory Notes, § 287; 1 Parsons on Notes and Bills (2d ed.), 568, and on; Redfield and Bigelow’s Leading Cases on Bills of Exchange and Promissory Notes, 462, 463, and all the text-writers who treat of the law merchant. See also the cases of Bunsen v. Napier, 1 Yerger (Tenn.), 199; Durham v. Price, 5 Yerger (Tenn.), 300; Seacord v. Miller, 3 Hernan (N. Y.), 55.
    So, also, the authorities are direct and clear to the effect that a general assignment, by the maker of a note, to his indorser, for the benefit of creditors generally, before the maturity of the note (or after, for that matter), will not relieve the holder from the necessity of due demand and notice of uon-payment, in order to bind the indorser. See cases of Creamer v. Perry, 17 Pick. 332; Haskell v. Boardman, 8 Allen, 38; Moses v. Ela, 43 N. H. 557; Wilson v. Senier, 14 Wis. 380, as well as that of Watkins v. Crouch, 5 Leigh. (Va.), 522; 2 Hammond, 548; 14 Ohio, 495.
   Wright, J.

It is not necessary to consider the question of forgery in this case, as the jury did not seem to give it much consideration, and perhaps, with good ground for so doing.

But it is claimed by McGuire’s counsel, that the Superior Court erred in its charge to the jury, and, therefore, the district court were right in reversing the judgment, and the district court should be affirmed here.

The part of the charge complained of is this: “ If, upon this evidence, however, you do not find that McGuire either waived demand and notice, or did not, by his conduct, mislead the plaintiff, .and so prevent a demaud upon the maker and notice to himself, I say to you (and because requested by the plaintiff, and so I understand the law to be), that if, before the maturity of this note, McGuire, the defendant, as assignee in insolvency, had received a transfer from Carr, the maker, of all his, Carr’s, property, and that, on the day of the maturity of the note, the plaintiff made a demand on him, McGuire, for the payment of the note, that would be in law a sufficient demand and notice to charge him, as indorser.”

The counsel for the bank seem to claim that this assignment of all Carr’s property to his indorser, McGuire, iustead of making the demand on the latter a sufficient demand, was rather an excuse for not making any demand at all. They say, “ McGuire, having obtained an assignment to himself of all the maker’s property, the holder was thereby released from making demand upon the maker of the note, for the reason that such a demand would have been useless, and also for the reason that McGuire knew that a demand would be useless.”

It has been often said that an assignment of all the maker’s property to an indorser, dispensed with demand and.notice, but exactly what the rule is, is a matter of some doubt, as will be seen by reference to the learned notes, in Redfield & Bigelow’s Leading Cases on Bills and Notes, and see Barton v. Baker, 458; 1 Pars. Notes and Bills, 560-575, and the notes thereto. In this case we deem it enough to say, that unless the assignment was sufficient to protect the indorser, demand and notice is not dispensed with. The ground of this rule is, that as the indorser is secured by the property in his hands, there is no occasion for demand and notice. Kent states that the fact that the indorser is “protected,” occasions the waiver of his legal rights, 3 Kent. 113. The evidence shows that Carr’s assets were not sufficient to meet his liabilities, and the charge thereupon was erroneous. The assignment did not make the demand on McGuire a sufficient demaud, nor did it dispense with the necessity of demand. It has already been held by this court in Beard v. Westerman, 32 Ohio St. 29, that “ demand and notice are not necessary as against an indorser, who, at the date of the maturity of the note, has sufficient property of the maker in his posession held as security against his liability.”

But, on behalf of the bank, it is claimed that, conceding this charge to be error, yet the verdict upon the whole was right, inasmuch as McGuire had waived demand and notice, or rather that he had led the bank to suppose he had dispensed with them.

The evidence on this point we understand to be this. There were several of these notes, and McGnire had told the bank they need not present them to Carr, but they should bring them to him as they became due, and he would either pay them or waive protest. This he did until the day of payment of the note in controversy. At noon of that day the clerk came to McGuire with this note, and McGuire said “ he would not pay the note nor waive protest upon it, because the signature on its back was not his, the said McGuire’s, signature, but was a forgery.” This is the clerk’s statement. McGuire’s, which is in effect the same, is: lie says the clerk asked him “to pay or to waive protest on said note, which he (McGuire) then and there refused to do, aud so expressly told Proudfoot, because said indorsement on the back of the note was'a forgery, and he would never pay the“note.”

Ve understand the upshot of this conversation to be that McGuire intended to take back all he had said and done in the matter of waiving protest, and intended the bank so to understand. Under his agreement he had been pursuing a certain line of conduct, waiving protest (which iucludes demand, notice, and all steps necessary to charge the indorser) upon the notes as they came along, but now there is one which is forged, or he thinks it is forged, or says it is forged. Thereupon he repudiates on the spot all existing arrangements, waivers, and understandings, and tells the bank to pursue its legal remedies, whatever they they are. This is the way the evidence strikes a majority of the court.

It is said, with a great deal of force, that McGuire stood in two characters — that of assignee and that of indorser; and that in his character of assignee, he did not intend to insist on demand, knowing it to be useless. But we think he did not intend to waive anything or dispense writh anything, either as assignee or indorser.

If the demand had been made at the close of bank hours, non constat but that the note might have been paid. Perhaps the supposition is far fetched. We concede it to be so. But the indorser had the right to have that done which would exclude the possibility of any supposition, reasonable or unreasonable. He had to the last minute of the last hour of the last day, aud if no one by that time stepped in to meet the demand of payment, he was liable. Bat liow does a demand three or four hours before this time show that no payment could or would be made at this time? This maybe said to be technical. So is the law with regard to demand and notice. It must be complied with, and it is no excuse to show that there wras no use in complying with it.

The law on this subject is strict and well defined, and a waiver of the steps to charge the indorser must be clear and beyond dispute. The bank had plenty of time to take these steps after the indorser had retracted his previous agreement, and to fasten a waiver on him now, it must be upon acts or words that are not doubtful. Parsons well says (1 Bills & Notes, 465):

“"We are unwilling to close this topic of excuse for non-presentment without remarking that the rule requiring presentment is so stringent, and rests upon reasons which require so rigid an adherence to the rule, that it is not safe or prudent to rely upon any of these excuses, except perhaps an express waiver in writing upon the paper itself.”

Judgment of the district court is affirmed.


source: Caselaw Access Project

author: Day, J.

license: Public Domain

text:
    Titus et al. v. Lewis.
    1. A judgment, rendered on the second trial of a case, can not be reversed for error intervening only on the first trial.
    2. A material averment in an answer, not denied in the reply, must be taken as true; and, therefore, a charge to the jury that the burden of proving it, on the trial, rests on the defendant, is erroneous.
    3. A party performing a lawful act, is not responsible for injury arising therefrom, unless it be occasioned by his own negligence, carelessness, or wantonness.
    4. The burden of proof is upon the party claiming that the injury was done, to show that it was occasioned by negligence, carelessness, or wantonness.
    6. In doing only what the law authorized him to do, the party will bo pre sumed to have acted in a lawful manner, until the contrary is shown.

      Error, to the District Court of Meigs county.
    The original action was brought by Penelope Lewis,, against Samuel N- Titus and Calvin Hutchins, to recover damage for wrongfully taking, on the Meigs county fair grounds, certain specified goods and chattels (being the stock of a booth for eating and drinking), belonging to her, of the value of two hundred an sixty dollars.
    Titus and Hutchins answered, setting up, as a special defense, that Titus was the president of the Meigs County Agricultural Society, and that Hutchins wTas a servant of the society; that the society was holding a fair on the grounds belonging'to the society; that Mrs. Lewis entered, into an agreement with the proper officers of the society for the keeping of a booth, on the fair grounds, for the sale-of articles to eat and drink, other than malt, vinous, and spirituous liquors; and agreed that if she brought any such liquors on the fair grounds, to sell or give away, her right to keep such booth should be forfeited, and that the officers of the society might remove her entire stock of goods from the grounds; that she brought whisky on the grounds, and sold it there, in violation of the agreement; that thereupon Titus, as such president, directed her to-remove her goods from the grounds, and upon her refusal so to do, ordered Hutchins to remove the same, which,, they aver, was done by him in a careful manner, doing no-unnecessary damage or injury thereto, and placed them on the outside'of the fair grounds, where they were left; and they deny any other taking or injury of the goods.
    Mrs. Lewis replied, denying that she made any such-agreement; and denied that she sold or gave away any whisky on the fair grounds.
    The case was tried to a jury, which resulted in a verdict and judgment against the defendants below. On the trial they excepted to the rejection of certain evidence offered by them, which is now assigned for error. But they took a second trial, as allowed by the statute, on which they gave evidence tending to prove all the matters set up as a special defense, and asked the court to charge, that if they found such matters to be true, “ then the said defendants, as officers and servants of said society, had a right to remove her goods outside of said fair grounds, and that, in such case,’ the burden of proof was on the plaintiff, to show that the injury to, or loss of, the goods was caused by the negligent, careless, or other wrongful act of defendants, and was not the necessary result of such removal; which charge, as to the burden of proof, the court refused to give, but did charge that the burden of proof was on the said defendants, to show not only that said contract was made and violated by said plaintiff, but also to show that they removed the said goods in a careful manner, and that no unnecessary damage resulted to said property by such removal.” To which refusal to charge, and to the charge as given, the defendants excepted; and, after judgment against them, filed their petition in error in the district court, where the judgment was affirmed. To reverse these judgments, this petition in error was prosecuted in the Supreme Court.
    J. and J. Bradbury, for plaintiff in error, cited:

      Lansing v. Stone, 37 Barb. 15; Story on Bail. 344; Coombs v. Lane, 4 Ohio St. 148; Ward v. Barrow, 2 Ohio St. 247; Sher. & Red. on Neg. § 12; 2 Par. on Cont. 125 ; McCully v. Clark, 40 Penn. 399; 1 Hill on Torts, 121; Tourlettot v. Rosebrook, 11 Met. 462; Am. Law Rev. (Jan. 1871), 210; Curtis v. Railroad Co., 18 N. Y. 535; Holbrook v. Railroad Co., 12 N. Y. 242; Starkie on Ev. 362; 1 Greenl. Ev. § 74; 25 Ind. 436.

      J. Cartwright and D. A. Russell, for defendant in error.
   Day, J.

As to the alleged error in the rejection of testimony bn the first trial, it is only necessary to say, that the judgment rendered on the second trial can not be invalidated for error, if any there was, that intervened only on the first trial; for such errors do not affect the judgment rendered on the second trial.

Did the court err, in its charge to the jury, in regard to tbe extent of the burden of proof resting on the defend.ants below ? To determine this question, we must look to the issues made by the pleadings. The petition is founded •solely on the wrongful taking of the goods. The answer .admits the taking of the goods, but justifies the taking •under a contract, and avers that no unnecessary damage was done in such taking. The reply merely denies the making and breach of the contract. So far, then, the bur•den of proof was cast upon the defendants. To that extent the court was right in its charge. But as to the further fact, that unnecessary damage was done to the goods in their removal, if it be conceded that this fact was ■essential to the defense, it was averred in the answer, and not denied in the reply; it must, then, under the provisions of the code, be taken as true; and, therefore, no proof of the fact wás required. The charge, therefore, that the burden of proving the fact rested on the defend.auts, was misleading; for, under the charge, though the fact was admitted by the pleadings, the jury was left to ■find against the defendants, for want of evidence, where no proof was required.

But, furthermore, under the contract, as it was claimed ■to exist, if the plaintiff sold whisky she forfeited all her privileges, and it then became a lawful right of the society to remove her property from the fair grounds. This right, it must be presumed, the officers exercised in a lawful manner, as there can be no propriety in assuming that they would do a lawful thing in an unlawful manner. If, then, it was claimed, by the plaintiff, that the facts were otherwise, that there was carelessness or negligence on their part, it was for her, who made that claim, to establish it by evidence; the burden, thus, was upon her to show that the injury -was occasioned by defendants’ negligence, and the charge asked by defendants should have been given.

Instead of this, however, the court said that it was for the defendants to 'show, not only that the contract was made and violated by the plaintiff, but also to show that they removed the goods in a careful manner, and that no unnecessary damage was done to the property by such removal. This was misleading, in that it seems to intimate that defendants must not only take care of the goods while moving them, but must also look out for them after the5r were removed. This was no part of their legal obligation. All they had to do was to remove the goods. If the owner saw fit to abandon them, and seek to make the society responsible, it was a risk she voluntarily assumed; their responsibility ceased when the goods were put off the premises.

Judgment reversed.


author: Wright, J.

text:
    Oyler v. Scanlan.
    1. Although the statute providing for the sale of estates tail, directs that the petition shall contain a copy of the will, deed, or instrument creating the estate, yet an omission in this particular is not a ground of error, where the party appearing and contesting has taken no steps to compel a correction of such omission.
    2. The act of April 4, 1859, S. & C. 550, and acts amendatory thereto, of March 30,1864, and April 13,1865, are not unconstitutional as to estates vesting after the passage of those acts.
    3. A tenant for life asked for the sale of the undivided half, held by remainder-men, who objected that such sale would injure them. It was competent for the court to order sale of the whole, with the consent of the tenant for life who held the other undivided half, it appearing that such sale would not injure remainder-men.
    Error to the District Court of Hamilton county.
    On the 4th day of October, 1862, George Selves, of Cincinnati, died, leaving a will, by the terms of which he gave to his widow, Sarah Selves, now Sarah S. Scanlan, the defendant in error hereiu, the life estate of certain real estate described in the petition, with remainder over to Eleanoi Beard, Mary Oyler, Sophia Watterman, his sisters, and to Charles Selves, Jr., in trust for his niece, Mary Paul, wife ■of Thomas Paul, and to his brothers, Richard Selves, Charles Selves, Sr., Edward Selves, and to his nephew, Charles Selves, Jr., their heirs and assigns forever, share .and share alike. The share of Mary Paul to be held by said trustee for her benefit during her life, and after her death to pass to her brothers and sisters, children of David and Mary Oyler, share and share alike. That is, the widow ¡Sarah Selves, now Sarah Scanlan, took the life estate in all the property, aud each of the remainder-men took the undivided one-eighth of the property iu fee, subject to the life estate, except Mary Paul, who took the life estate in •one-eighth, subject to the life estate of Sarah Selves, the fee to go to the children of David and Mary Oyler. Subsequent to the death of George Selves, as follows: on July 14, 1864, the said Eleanor Beard ; on December 16, 1864, the said Richard Selves; and on April 13, 1872, the said Edward Selves and Sophia Watterman, sold their respective interests in said property to Sarah Selves, the widow, now Sarah. Scanlan; and that on Eebruary 1,1871, the children ■.of David and Mary Oyler conveyed their interests in said •estate to Mary Paul.
    Thereupon, the property was held as follows:
    Sarah Selves, now Sarah Scanlan, owned the life estate in the whole property, under the will. She also owned the fee of the undivided one-half by purchase.
    Mary Oyler owns the fee of one-eighth, subject to the life •estate, under the will.
    Charles Selves, Sr., owns the fee of one-eighth, subject to •the life estate, under the will.
    Charles Selves, Jr., owns the fee of one-eighth, subject to .the life estate, under the will.
    Mary Paul owns the fee of one-eighth, subject to the life ■estate, by purchase from the children of David and Mary •Oyler.
    Sarah S. Scanlan, formerly Sarah Selves, files her petition in this case for the sale, in fee simple, of the undivided one-half of said real estate, being the undivided one-half of which she owns the life estate, with remainder over, and’ for the reinvestment of the proceeds under the statute providing for the sale of entailed estates.
    The case was tried in the court of common pleas, and from the judgment then rendered, an appeal was taken. Upon the hearing in the district court, evidence was offered to show that a sale of an undivided half would sacrifice the' interest of owners, and it is so argued here, and probably such would be the fact. The decree, however, was that Sarah S. Seanlan was owner in fee of an undivided half,. Avith life estate in the remainder, and that the sale of said one-half in Avhich she has such life estate, Avith remainder-over to said defendants, will be for her benefit and will do-them no substantial injury, provided the other one-half in which she has the fee simple estate be sold at the same time and place and upon the same terms, to which said plaintiffs have agreed to consent.
    The court do therefore order and direct the whole of thereat estate described in said petition to be sold.
    The defendants excepted to this decree, and filed a petition in error in the Supreme Court.

      Sayler § Sayler, for plaintiffs in error.

      Stephen Coles, for defendants in error.
   Wright, J.

The first poiut of error argued by counsel is, that a copy of the deed from David and Mary Oyler to Mary Paul should have been given by the petitioner.

The statute for the sale or lease of estates tail (S. & C.. 550) in its second section provides that: “ The petition shall contain a description of the estate to be sold, a clear' statement of the interest of the petitioner therein, and a copy of the will, deed, or other instrument of writing by which the estate is created.”

This seems to refer to the will, deed, or instrument which creates the estate of the petitioner and defendants, and not subsequent conveyances, by which parties defendant may have changed their interests. But if this were not so, by proper action in the court below, defendants there might have had the desired copy produced, and as no point seems: to have been made on the subject in the district court, we do not find such error as is fatal.

It is further claimed that these acts with regard to entailments — act of April 4, 1859 (S. & C. 550), March 30, 18(34, and April 13, 1865 (S. & S. 346) — are in conflict with, section 19 of article 1, and section 28, article 2, of the-constitution. In Gilpin v. Williams, 23 Ohio St., and 25-Ohio St. 283, they were so held as to estates vesting before their passage. But as to estates vesting after their passage, it has already been held by this court that they were not. unconstitutional, and that each person took his estate subject to existing laws on the subject. Nimmons v. Westfall,. ante, 213.

The will took effect 4th October, 1862, the date of George Selves’ death. By its provisions, Sarah Selves,, now Scanlan, testator’s widow, took a life estate in the property, and subsequently bought the fee of one-half, so' that she holds the fee of one-half and a life estate in the other half undivided.

Mary Paul took a. life estate in one-eighth, and she bought in the fee to that eighth, so as to hold it, subject to Mrs. Selves’ (Scanlan’s) life estate. Mary Paul made this purchase of the fee February 1, 1871.

Thereupon counsel argue that Mary Paul holds the fee to her one-eighth by purchase, and not as “heir” or “in succession, reversion, or remainder,” which are the words of the statute, and therefore she does not hold under the will. Hence it is claimed she holds, not under the statute of 1859, but under the statute of 1864. Then it is said the estate vested in 1862, and therefore, as to an estate vesting at that date, the statute is unconstitutional, under Gilpin v. Williams.

But counsel had already said that Mary Paul’s estate did; not vest under the will, which was in 1862, but did vest under the deed, which was in 1871. And if she claims to hold by purchase, her estate must vest as of the date of that purchase, which'was long after the act of 1864. But the attempt to take the estate in question out of the operation of the act of 1859 can not be successful. That act distinctly provides that on application of the donee for life, the court may authorize the sale of the estate for life with-remainder over, when the sale would be for the benefit of the applicant and not to the injury of those in succession, reversion, or remainder. This will created a life estate in Mrs. Selves with remainder over, and is entirely within the provisions of the act.

It is true that Mary Paul, by purchase from remainder-men, created a new estate in herself, but it could not have been the intention of the law that the remainder-men, by any transactions among themselves, can deprive the tenant-for life of his rights under the statute.

In our view, therefore, the estates vested under the will of 1862, and with regard to them the statute of 1859 is not obnoxious to the charge of unconstitutionality.

It is also objected that the sale of the undivided half would injure the remainder-men, and this is probably so. But it appears that Mrs. Seanlan consents to a sale of the whole, and it is so decreed. This removes the objection on the ground of injury, and the suggestion that Mrs. Seanlan is not bound by that provision of the decree is not sound. If the sale should take place, she could not be heard to-object in the face of the consent which she has given.

Judgment affirmed.


author: Johnson, Chief Judge.

text:
    Hempy v. Ransom et al.
    1. In an action against two defendants to recover a sum of money alleged to be due from them on an account, where it appears, either from the pleadings or during the progress of the case, that a several judgment is proper against one, the court may, in its discretion, render a judgment against him for the amount for which he is liable, leaving the action to proceed against his co-defendant.
    2. The effect of such severance and judgment is to leave the action to be-tried as á several action against the remaining defendant upon the issues joined, as fully as if he had been sued separately on the same cause of action.
    #. On the trial of these issues judgment may be rendered for or against the remaining defendant, as if he had been sued alone, without regard to the amount of the former judgment against his eo-defendant.
    4. In the action, one defendant makes no defense, the other answers, denying a joint liability, but admits an individual liability for part of said account. Judgment, by default, is taken against the one for the amount claimed, less the amount admitted by the other, leaving the action to proceed upon the issues joined by the answering defendant: Held, That, upon a trial and verdict against the remaining defendant for the amount admitted by him, judgment might be rendered thereon as if he had been sued alone.
    •5. The answering defendant having denied all joint liability with his co-defendant, and admitted a separate liability in the cause of action, he is t not prejudiced by the several judgment against his co-defendant by default, for the amount of the account, less the amount he admits he owes individually.
    ■6. In the rendition of each separate judgment the plaintiff recovers his costs to be taxed. This is a several judgment against each defendant for costs, and not a joint judgment against both for all the costs, and authorizes the taxation of costs, as if the defendants had been sued severally.
    7. If the action had originated in the common pleas on a joint claim exceeding one hundred dollars : Q/uere, Whether plaintiff could have recovered costs when his several recovery was less than that amount ?
    Error to the District Court of Cuyahoga county.
    Defendants in error brought an action, before a justice •of the peace, upon an account against Henry and Caspar Hempy for §264.83, and recovered a joint judgment against them. Henry Hempy appealed.
    In the common pleas a petition was filed against hoth, on said account, alleging that there was due thereon from the defendants the amount thereof, “ for materials furnished by them (plaintiffs) to the defendants.”
    Henry Hempy demurred, because it did not appear that ■defendants were jointly indebted.
    This demurrer was overruled, and he then answered, denying: 1. That he was jointly indebted with Caspar Hempy ■on said account in any sum whatever; 2. Denying any
      joint indebtedness with Caspar in any sum on said account, but admitting a separate and individual indebtedness of his own, of certain designated items of said account, amounting to $38.10.
    Caspar Hempy made default, and, as to him, the case was submitted without objection, and, upon hearing the evidence, the court found due from him, on said account, the sum of $252.47, for which judgment was rendered in favor of the plaintiffs, loith costs to be taxed.

    Upon the issue made by the answer of Henry Hempy, the case subsequently was tried to a jury, which, under instructions of the court, rendered a verdict for plaintiffs and against Henry Hempy for the amount which, by his answer, he admitted he individually owed.
    The court charged, that upon the pleadings, the jury must render a verdict against Henry Hempy, for the amount •which he admitted by his answer was due ; and refused to-charge; that if they found there was no joint liability by defendants, and that each 'of them was separately and individually liable for a portion of the account, the verdict should be in favor of plaintiff in error, although he admitted a several liability only for part of the claim.
    The plaintiffs had judgment on the verdict, and for their costs to be taxed, against plaintiff in error.
    Exceptions were noted, and on error to the district court, the judgment rendered on the verdict was affirmed, and this proceeding is to reverse the judgment of both courts as to plaintiff* in error.

      ü. II. Birney, Arnold Green, and Birney Cozad, for plaintiff in error.

      .Hamilton Denison, and Tyler § Denison, for defendants in error.
   Johnson, Chief Judge.

The foregoing facts, call for a construction of certain provisions of the code, and particularly of section 371.

Ry that section it is provided, that “judgment maybe given for or against one or more of several plaintiffs, and7, for or against one or more of several defendants; it may determine the ultimate rights of the parties on either side,. as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled. In an action against several defendants the court may, in its discretion, render judgment against one or more of them,, leaving the action to proceed against the others, whenever a several judgment may be proper.

“ The court may also dismiss the petition with costs, in favor of one or more defendants in case of unreasonable-neglect on the part of the plaintiff to serve the summons-on the other defendants, or to proceed in the cause against' the defendant or defendants served.”

This section is copied from section 274 of the New York Code, as amended in 1849. The eminent jurists who prepared that code say : “ The object of this- section was to. prevent a failure of justice, when there happens to be too-many, or too few, parties brought into court. The questions arising on non-johuler or misjoinder of parties are the' cause of much delay, vexation, and disappointment, resulting not unfrequently in an entire failure of justice. This, section will prevent this hereafter.”

Taken in connection with section 137, which authorizes: the court, before or after judgment, in furtherance of justice, to amend the pleadings to conform to the facts proved, when such amendment does not change substantially the claim or defense, it enables the coart to mold the judgment to. conform to the rights of the respective parties.

By this section, the common law rule that where a joint-contract is the subject of an action, the recovery must be-against all or neither of defendants, has been modified, so as to authorize judgment to be rendered, “ for or against one or more of several defendants, where it turns out upon the trial that only one or more of several defendants in such joint-action is liable, without subjecting the plaintiff to the necessity of bringing a new action against such defendant or defendants, who are found to he liable.” Lambkin v. Chisom,. 10 Ohio St. 450. In that case, it was further held, that where in a joint action against two or more defendants, the verdict is in favor of one or more, and against others, and there be any doubt as to the effect of the judgment to preclude .another action, in respect to the same cause, against all or •either of the defendants, it would be proper for the court, by amendment of the pleadings, or an entry upon the record, to save the parties the benefit of the judgment as a bar.

This case is an authority, where two or more defendants are jointly sued, and a verdict is rendered in favor of one or more, and against others, and settles the practice to be, that in such a case, a judgment may be rendered for those who .are found not liable, and against those who are found liable. As to what may be done, when it turns out upon the trial, "that the verdict is against all the defendants, for distinct portions of the same demand, and not for some and against ■others, this case does not necessarily decide, though the principle settled is controlling in its character, on other •cases belonging to the same general class.

Roby v. Rainsberger, 27 Ohio St. 676, decides that, in an .action jointly against several defendants on a contract where they answer denying that they or either of them are liable, a verdict and judgment is i’endered in favor of all the defendants, it is a bar to another action against either of them •severally on the same contract.

The foundation for this holding was, that in the joint action against all, the several liability of each, upon the contract, as well as the joint liability of all, was involved; and that it was the right of the plaintiff to litigate the one form of liability, as well as the other, and as the verdict might have been against all, if there was a joint obligation, or in favor of some and against others, if some were not liable, .and others were, the judgment on the joint action was a bar to a subsequent separate action on the same contract.

As the plaintiff might have judgment against all, or part only of those jointly sued, accordingly as the proof showed •on the trial, the former adjudication, in favor of all, was in legal effect that defendants were not liable jointly, nor was any one of them liable severally on the cause of action.

The case is in accord with Lambkin v. Chisom, supra, in holding that in such an action a judgment may be for or against one or more defendants jointly sued.

In Aucker v. Adams et al., 23 Ohio St. 543, it was said incidentally, that in an action against several upon a joint,, as well as upon a joint and several obligation, where it appeared upon a final trial that some only of the defendants-jointly sued were liable, judgment might be rendered against those who were liable, and in favor of those not liable.

This was a restatement of the holding in Lambkin v. Chisom, and the doctrine is not controverted by the plaintiff', in error here. The point actually before the court in that case was, as to the power of the court, before final trial, to-render a judgment against one or more of several defendants, and to allow the action to proceed as to the others,, when the action was on a contract joint only, and not joint and several. It was held that, as the action was on a joint contract, a several judgment could not be rendered before-final trial, as it could not be determined until such trial whether a several judgment was proper.

As the action in that case was on a contract joint only,, the question whether a several judgment was proper could not be determined until a final trial; therefore the court, ia advance of such trial, could not permit a several judgment. Error to such judgment might be assigned by the party against whom it urns rendered, but such error could not be-assigned by another defendant, unless his defense was thereby prejudiced. If, however, the action is upon a contract, joint and several, a several judgment would be proper, as the defendant might have been sued alone; therefore judgment might be rendered against one or more, without waiting the final trial.

That was an action upon a contract joint only, and not joint and several, and it was said: “ The rule seemed to be-that the court, in its discretion, may render a judgment .■against one or more of the defendants, leaving the action to proceed ggainst others, whenever it appears that the plaintiff might have demanded a several judgment on the contract, if he had elected to sue the defendants separately. On the other hand, in all cases where the subject-matter of the action is such that the plaintiff could not have prosecuted several actions, bis only remedy being to demand a joint judgment in a joint action, he can not have a several judgment against any of the defendants until the liability of each and all the defendants has been determined upon final trial of all the issues in the case.”

That being an action upon a contract joint only, a sever..ance could not be had until final trial. Therefore the judgment against Aueker upon default, before such trial, was, as .to him, erroneous. Upon his application, it was reversed. The case does not decide that Aucker’s co-defendants ■■could complain of such a judgment after their issues had been determined against them.

Again, wé may remark that the court may render such :a several judgment, when, from the petition, or otherwise, 'before final trial, it appears that a several judgment is proper.

In the case at bar, we must presume that it so appeared •when the separate judgment was taken against Caspar .Hempy. In fact the answer of Henry averred there was no joint liability. In view of his answer, he can not complain that a separate judgment was rendered against his -co-defendant. It prejudiced no defense, set-off, or counterclaim of his. The effect of this severance was to leave the ..action to proceed as if Henry had been sued alone. The ■power of the court to try the issues made by him was as •ample as if Caspar had never been joined.

The claim here is that there is error in rendering a judgment, on final trial, against Henry Hempy, for a separate portion of the account, on the ground that a plaintiff" can not unite in one action several distinct causes against different defendants. For the purposes of this case, we might •concede this, where no severance had taken place. But this claim leaves wholly out of view the status of the case, after the severance, by a judgment against Caspar Hempy. Section 371 relates to proceedings in the termination of a case, and not its commencement. Smithers Harris v. Rainey, 14 Ohio St. 291. Who are proper parties plaintiff' and defendant, and what constitutes a misjoinder or nonjoinder of parties to an action, as well as an improper joinder of causes of action, are to be determined by other provisions of the code; this section relates to power of the court in giving judgment.

It is unnecessary to discuss the question raised by counsel. That question is as to the power of the court, where there has been no severance under the second, clause of section 371, to render a judgment for part of a claim against one, and for the balance against another of two defendants. In, the view we take of this case, we need not consider the effect of a misjoinder of plaintiffs or defendants, where a joint judgment has been rendered in favor of two or more plaintiffs, on a several cause of action in favor of one, as in Bartiges v. O’Neal, 13 Ohio St. 79; Masters v. Freeman and Zent, 17 Ohio St. 323; nor as against two or more defendants, upon final trial, without a severance, where it appears distinct causes have been united. This field of discussion is an inviting one, on which much remains to be said as well as settled, and it is better to confine this opinion to the case actually before us.

In this case, there had been such a severance. The answer of plaintiff in error was ample authority to bind plaintiff’ in error, that a several judgment against Caspar was proper. When it was rendered, the action stood for trial as an action against Henry alone. Had he been sued alone for the whole claim, on a joint and several demand against himself and Caspar, it will not be doubted that a judgment might be rendered against him for part only of the claim, and a fortiori he could not complain when it does not exceed the amount admitted to be due.

We hold, therefore: 1. That in an action on a contract against two or more defendants, where it appears that a several judgment is proper, it may, in the discretion of the-court, be taken against one or more, leaving the action to-proceed as to the others. 2. That such a separate judgment against one or more operates as a severance of the cause of action, and after such judgment the issues made-by the remaining defendants are to be heard and determined as if they had been sued alone. 3. On such final trial a judgment may be rendered against the remaining-defendant for the whole or such part of the cause of action as may be proved against him.

These conclusions are in harmony with the equitable-spirit of this section and of the code. Stafford v. Nutt et al., 51 Ind. 535 ; Hubbell v. Wolf, 15 Ind. 204.

No good reason can be given why this should, not be-done. The defendant has not been thereby deprived of any defense, counter-claim, or set-off'. He has had a full and impartial trial. Why should the plaintiff be non-suited and compelled to bring another action because he failed to-establish a joint liability. If issue had been joined by both defendants, and there had been no severance, it has been settled by the cases cited that judgment might have been rendered against plaintiff in error for all or part of this-account, even though it was upon a joint contract, and in favor of his co-defendant for costs. For a much stronger reason may this be done on a contract, when a several judgment is proper before final trial.

Any other construction of this clause of section 371 would render the trial, after such severance, an idle ceremony, and prevent a recovery against the remaining defendant or defendants, unless a joint demand is proved against all.

Again, this case is argued on the assumption that there is a joint judgment for costs, or rather that there is a general judgment for all the costs against plaintiff'in error..

There is a several judgment against each that the plaintiff recover his costs, to be taxed against each defendant separately. Neither is liable to pay costs made by the-plaintiff against the other. All that remains is a question . of taxation of costs. Until the costs are improperly taxed, there is no error of which plaintiff can complain.

3. If ■ this action had been originally brought in the court of common pleas, on a claim exceeding $100, with a recovery against plaintiff' in error on a several liability for less than that amount, it might well be questioned whether plaintiff could recover costs against him; but as it came into that court by appeal, such question does not arise upon this record.

Judgment affirmed. ■


text:
    The Board of Education oe Hartford Township v. Thompson et al.
    Pending a litigation between the board of education of a township, and a special school district-therein, as to the custody and control of a fund in the township treasury, the board permitted the treasurer, by a verbal agreement, to use the fund in his business, on his agreeing to pay interest thereon, the object being to earn sufficient by such use- to meet the interest with which the board would be charged, in the event the pending action should be decided against it. "When the treasurer’s term expired, and for the same reason, the loan was renewed and a note with sureties taken for the amount then due, payable to the board with interest in ten months: Held, 1. Such loan was i» contravention of public policy and prohibited by statute. 2. In an action, on the- note, by the board, the sureties thereon were not estopped from setting up, the illegality of the transaction as a defense, 3, While the boardlmay. do any act in disaffirmance of such an illegal contract, andrecov.e»"h'ack: the money illegally taken from the treasury by an action,.or take- &, note and security for its return; yet it has no power, in the absence of.' statutory authority for that purpose, to ratify and adopt a., contract made in violation of law.
    Error reserved in the District Court of Trumbull county;
    The plaintiff brought an action against-the makers, on-a promissory note, of which this- is a copy:
    “ $828.48. Ten months after date I promise to pay the Board of Education of Hartford Township, eight, hundred, and twenty-eight dollars and forty-eight cents, for value received, at seven per cent, per annum.
    “ Hartford, April 22,1872. “ H. B. Thompson,
    “A. O. "Woodkord,
    “Asa Newman.”
    Thompson makes no defense.
    Woodford and Newman jointly file an answer, setting up two defenses, as follows :
    1. “ That they are sureties merely of Thompson, for his accommodation, without their understanding what was the consideration, supposing it was for a lawful purpose; but they have since learned, and so aver the fact to be, that there was no legal or valid consideration therefor.
    2. “ The said defendants say for a second defense that they signed said paper writing as sureties merely ofisaid Thompson, and without any consideration, under the circumstances and suppositions hereinbefore stated, and not otherwise; and that they have now learned and here aver the facts and circumstances of the making of said paper to have been as follows, and not otherwise : That on the first Monday of April, 1871, the said Thompson was duly elected treasurer of said township of Hartford, and was then duly qualified and entered upon the duties of his said office, and continued to be and was the treasurer of said township until the first Monday of April, 1872, when one Edwin Bennett was duly elected and qualified treasurer of said Hartford township, as his successor, and entered upon the duties of his office, and was and continued to be the treasurer of said Hartford township until the first Monday in April, 1873, and at the expiration of his said office the said Thompson had in his hands about eight hundred dollars of school funds for school purposes, which, according to the statutes in such case made and provided, it was the duty of said Thompson to have then, at the expiration of his term of service as such treasurer, to have delivered over to his successor in office, the said Bennett, as plaintiffs well knew, yet the plaintiffs, in contravention of the requirements and provisions of the statutes in such case made and provided, in utter disregard of their own duties, and thereby enticing and persuading and aiding and inducing the said Thompson to disregard his duty, and contemptuously disobey said statutes, made and induced him, the said Thompson, to withhold the delivery of said moneys, sd then in his hands as treasurer, to his successor in office, by making and delivering to them, the plaintiffs, said writing set forth in said petition, all which was done bj' the plaintiffs as well as said Thompson in their own wrong, in contravention of the statutes, against public policy and good moral.s, aud without any authority; whereupon these defendants submit that said writing is utterly void, and no just right of action hath accrued thereon and thereby to said defendants.”
    For reply, the plaintiff says that said eight hundred dollars was not only “ school funds for school purposes,” but was money set aside for building purposes for school dis+ trict No. 5, in said township, having in fact been raised for that purpose. That after said money was so raised, said district No. 5 became under the laws an independent school district, and said money was claimed by said independent district, known as the Orangeville school district, as belonging to it, and litigation arose between said district aud plaintiff, in which said district was plaintiff and plaintiff was defendant, in which, among other things, said district, or the board of education thereof, asked judgment against this plaiutiff for said money, a decree for its payment with interest, and an order enforcing said plaintiff’s- claim thereon; that at the time said note was given, a tidal of said cause had been had in this court, and a judgment and decree entered in favor of the plaintiffs in said action, and an appeal had been taken by this plaintiff from said decree and judgment to the district court, where said action was then pending, and where it was again tried at the April term of said court, 1873, and decided in favor of thi$ plaintiff
    “ The plaintiff' also avers that the question whether said money was properly in and should remain in the hands ,of said treasurer, or should be held by him while plaintiff was involved in said action, and it having been held by this court that said money was held by plaintiff in trust for said plaintiff in said action, and that this plaintiff was bound to pay interest that had accrued and that should accrue until paid, said board of education in good faith, in what it supposed to be, and which in fact was its duty, let said money remain in the hands of said Thompson for the pei’iod of ten months from April 22, 1872, on his agreeing to pay interest at the rate of seven per cent., and giving surety, which he did by the note upon which this action is brought; all of which was known to said defendants, said Woodford being one of the members of said board of education of Hartford township at the time, and a participator in all said arrangements.”
    Also: “That while it admits that said defendants, Wood-ford and Newman, signed said notes as sureties merely, that said H. B. Thompson was treasurer for said Hartford township for 1871 and some years next preceding said year, and that on the April election for 1872, said Bennett was elected treasurer for the year following, it avers that previous to said 22d day of April, 1872, said Bennett had duly qualified as such treasurer, but did not become the acting treasurer until the evening of said day. The plaintiff further admits that said money came originally into said Thompson’s hands as treasurer aforesaid, but it avers that owing to the facts in said reply stated, it became desirable to put said money at interest, and on the 5th day of September, 1871, said Thompson agreed to pay plaintiff interest for the use of said money, and said plaintiff allowed him to use the same in his individual business in consideration of said agreement to pay interest aforesaid, and said money so remained in the hands and use of said Thompson till the 22d day of April, 1872, when said action, then pending in the district court of said county, having been continued until the next term of said court, the time of the payment of said sum was extended for the period of ten months, or the 22d of February, 1872, on said Thompson giving his note with interest at seven per cent., with security, which said note was executed by said defendants, which is the note sued upon in this action. The plaintiff denies all the allegations in defendants’ answer not herein admitted.”
    To these replies the answering defendants demur, on the ground they do not in law7 constitute an avoidance of their defense, and the court sustained the demurrer and find the allegations of the answer a good defense.
    On error to the district court, the cause was reserved to the Supreme Court for its decision.

      E. B. Taylor, for plaintiff in error.

      Sutliff § Stewart, for defendants in error.
   Johnson, Chief Judge.

The second defense states that Thompson was treasurer of Hartford township from April, 1871, to April, 1872 ; that Bennett was elected his successor in April, 1872 ; was qualified and acted as successor of Thompson, who had in his hands about $800 of the school funds, which should have been paid over to Bennett, yet plaintiffs, in violation of law, and in aid of Thompson in the disregard of his duty, induced Thompson to keep-said money, and give therefor the note sued on, all of which was in contravention of the statutes and against public policy, and void.

The reply says this $800 was school funds belonging to district No. 5 in said township; that said district became an independent school district and claimed this money; that litigation between the township and the independent district was pending as to the ownership of this money; that at the time the note sued on was given the common pleas had rendered judgment for the amount and interest against the township and in favor of the district, and it had appealed to the district court where the action was then pending. The question was whether the treasurer held said money for the independent district or the township, and the judgment appealed from being against the township for the amount and interest, said board of education, in good faith, let said moneys remain in said Thompson’s hands, and took the note sued on, with surety, thus placing the money at interest pending the litigation.

Another reply is substantially the same, but adds, that, owing to this litigation and while it was pending, to wit, on the 5th of September, 1871, Thompson agreed to pay interest on said money, if the board would allow him to use it in his individual business, which they did, without note or surety, until April 22,1872, when his term as treasurer expired, and this note with surety was given, extending the time for repayment ten months, in order to earn interest.

The litigation was subsequently determined in favor of plaintiffs, who. brought this action on the note to recover the amount due thereon, in order to restore it to the treasury.

The facts in brief, then, are, that, pending this litigation between the township and the independent district as to this money, to wit, September 5, 1871, by verbal agreement, the board allowed the treasurer to take and use this money in his private business, on his agreeing to pay interest, and that at the expiration' of his term, April 22, 1872, instead of requiring that he pay the amount over to his successor’, and in order to keep the money on interest, extended the loan teu months, taking the note sued on with these defendants as sureties.

Being sureties, these defendants have no equities against them, and have the clear right to'assert the illegality of this transaction, if it be illegal.

This verbal agreement, made September 5,1871, by which the money was loaned to their treasurer, and the further action of April 22, 1872, of extending the loan ten months, and taking this note, was clearly in contravention, not only of the 29th section of the school law (S. & C. 1357), requiring the treasurer to deliver over to his successor all the moneys, etc., but also, of the 15th section of the independent treasury law (2 S. & C. 1610). Said section provides: “ That if any officer or other person charged with the collection, safe-keeping, transfer, or disbursement of the public money, or any part thereof, belonging to the state, or any county or township, or organized city or village in this state, shall convert to his own use, or the use of any other person or persons, body corporate, association, or party, whatever, in any way whatever, or shall use by -way of investment in kind of security, stock, loan, property, land, or merchandise, or in any other manner or form whatever, or shall loan with or without interest, to any company, corporation, or association, or individual, any portion of the public money, . . . received, controlled, or held by him for safe-keeping, transfer, or disbursement, or in any other way or manner, or for any other purpose, or if any person shall advise, aid, or in any manner participate in such act, every such act shall be deemed and held in law to be an embezzlement of so much of the said moneys ... as shall be thus converted, used, invested, loaned, deposited, or paid out as aforesaid, which is hereby declared to be a high crime and misdemeauor, . . . and on conviction, sentenced to imprisonment in the penitentiary not less than one, nor more than twenty-one years.”

The transactions of the treasurer and the board, by which this money was taken from the treasury, and loaned upon this note, amounted to embezzlement under this statute. Such an act is punishable by fine and imprisonment in the penitentiary. The purpose of this and other statutes, as was said of similar acts then in force, in State v. Butler, 3 Ohio St. 321, is to operate on the agents, officers, and others having charge of the public moneys, and deter by fines and penalties, the commission of such acts. The power is denied them to make such contracts. If they can not make, they can not ratify or adopt such a contract.

There is not, as in the Butler case, any power in the principal to adopt or ratify such illegal contract.

It was there held, that as the state, by its legislation, made the law to prevent such loans, it could, by legislative act, ratify and adopt a contract thus made and sue omit. No such power is conferred, on a board of education to defeat positive enactment. That the board might sue for and recover the money from the treasurer, and replace it in the proper custody, to secure its return after, or take security for the repayment of money illegally loaned, we do not doubt, and the fact that the individual members of the board were particeps criminis, would be no bar. That would be an action not on the illegal contract, but in repudiation of it. So, under like circumstances, and for the same reason, the board might secure public moneys already embezzled and in danger of being lost, by taking a note and security.

The promise to refund moneys illegally taken from the treasury is valid, but a promise which is the consideration for the illegal act of embezzlement, and which procures it to be done is void. No action can be brought on such a promise.

We hold: That the verbal understanding with the treasurer, in September, that he might use the money in his business if he would pay interest, and the note in suit taken by the board at the expiration of the tei*m of office of sueh treasurer, for a continuance of sueh loan upon interest, at a time the money should have been turned over to his successor in office, was contrary to public policy, and in violation of express statute, which the board had no power to ratify or adopt, and that no action can he maintained on sueh illegal contract. Spurgeon v. McElwain, 6 Ohio 442 ; States. Findley, 10 Ohio, 54 ; Bloom v. Richard, 2 Ohio St. 387; Rossman v. McFarland, 9 Ohio St. 387; Butler v. The State, 3 Ohio St. 321; Vining v. Bucker, 14 Ohio St. 331; Huber v. German, 16 Ohio St. 371; Delaware v. Andrews, 18 Ohio St. 49 ; Comm’rs Hancock Co. v. First National Bank (Supreme Court Commission, January 30, 1878, not yet reported); Beaman v. Tugnot, 5 Sandf. 153; Bartons. Pt. Jackson Road, 17 Barb. 397 ; Smith v. City of Albany, 7 Lansing, 14; 2 Parsons on Contracts, 747-767.

The judgment of the court of common pleas is affirmed.


author: Ashburn, J.

text:
    Richardson v. Curtiss.
    1. It is not error to charge that if the jury finds a specified fact in a case, decisive of the rights of the parties, proved, they should find a verdict for the party in whose favor such fact is established.
    2. Calls in a deed can not be controlled or qualified by any supposed intention of the grantor, so as to affect the rights of an abutting landowner.
    Error to the District Court of Summit county.
    The action was one in the ordinary form to recover possession of eight and eighty-one one-hundredths acres of land, situate in Summit county, Ohio, and for mesne profits.
    A more extended statement of the pleadings in the case is unnecessary to an understanding of the questions in the ease.
    The record shows that one Roger Haskill was the common source of title. On the trial, the parties respectively introduced in evidence their deeds, evidencing their proper titles.
    The dates and description of the land in but three of them reflect directly upon the questions involved in error.
    Roger Haskill owned a tract of land known as lot No. 22. The north part he sold to one Wooden, and that part was called the Wooden lot; the other part of lot No. 22 he sold to one Miller. Plaintiff owns the Miller lot, conveyed to him by deed dated November 30, 1873, executed by the heirs at law of Roger Haskell, and describes the land as follows:
    “ Situated in the township of Boston, in the count}' of Summit and State of Ohio, and known as the south part of lot No. 22, bounded east, south, and west by the lot lines, and north by the south line of land heretofore called the Wooden lot, but now owned by Joseph Drake, and containing one hundred and thirty-five acres of land, be the same more or less.”
    The deed under which Joseph Drake held title was made by Humphrey and Ashman, to Joseph Drake and Nathan Drake, dated December 18, 1857, and was for part of lot No. 22, called the Wooden lot, and described as follows:
    “ Situate in the township of Boston, county of Summit and State of Ohio, and is bounded and described as follows: Being all that part of lot No. 22 heretofore couveyed by John Harrison to the said Ashman and Humphrey, excepting that portion of the same lot which lies north of the road leading from Esquire Ozman’s to Boston village, which has been sold to Henry Post, containing one hundred and ninety-five acres of land, more or less.”
    The deed from Joseph Drake and Nathan Drake to Mary M. Richardson, dated November 80, 1863, describes the premises therein as follows :
    “Situated in the township of Boston, in the county of Summit and State of Ohio, and is known and described as follows : Being all that part of lot 22 heretofore conveyed by John Garrison to George P. Ashman and Van R. Humphrey, and same conveyed by said Ashman and Humphrey to the aforesaid Joseph and Nathan Drake, being all that part of said lot 22, excepting what lies north of the road leading from Esquire Ozman’s to Boston village, which has been sold to Henry Post, containing one hundred and ninety-five acres of land, be the same more or less.”
    The plaintiff’, fui’ther to maintain the issue on his part, introduced testimony to show that continually from and after the 18th day of December, 1857, Joseph Drake was in possession of that part of said lot 22, which was known as the Wooden lot, but that said Drake had no title by-deed to any part of said lot except by said deed from Humphrey and Ashman to said Joseph and Nathan Drake, but that he occupied under his said grant down to the line fence built by Wooden and Miller, claiming the whole as the Wooden lot. And the plaintiff, further to maintain the issues on his part, introduced evidence tending to show that the south lino of said two hundred acres, being the north part of lot 22, and bounded south by a line parallel to the north line thereof, would be about five rods north of the south line of the land in the possession of the defendants at the time of the commencement of this action, and the quantity of land lying between said south line of said two hundred acres aud said south line of what was so in possession of the defendants is eight and twenty-two hundredths acres. And the plaintiff, further to maintain his side of said issues, gave evidence tending to show that in the spring of the year 1842 said Roger Haskell sold said north part of said lot 22 to B. S. Wooden by contract of sale; that the whole of said lot being then wild, said Wooden cleared off a part of said north part, and, after holding possession thereof a few years, and failing to make payments on said contract, he surrendered the same to said Roger Haskell.
    And the defendants, to maintain the issues on their part in said trial, gave evidence tending to prove that in the spriug of the year 1842 said Roger Haskell sold said two hundred acres, the north part of said lot 22, to E. S. Wooden, who took possession, cleared off, and cultivated a considerable part thereof, and that about the same time said Roger Haskell sold all of said lot 22, south of said tw'o hundred acres, to one Miller, who also took possession of said south part, and cleared and cultivated some part thereof, and that while said Wooden and Miller were so in possession they, by consent of said Haskell, procured a surveyor to measure off the said two hundred acres in the north part of said lot, in order to fix the boundary line between the parts of said lot so sold as aforesaid respectively to said "Wooden and Miller, and that they thereupon made and built a fence from the east line of said lot across the same westward on said agreed line, which they agreed upon as making the boundary between their lands, . . . and that all the land north of said fence had been called the Wooden lot ever since Wooden occupied it, and such lot, called and known as the Wooden lot, included all of said lot 22, which lies north of said fence so agreed upon as making the boundary line between the possessions of said Wooden and Miller. The defendant then offered other testimony, and rested.
    And thereupon the plaintiff, further to maintain the issues on his part by rebuttal, gave evidence tending to prove that said fence was fixed at its starting point on the east line of said lot by mistake and an erroneous survey; that it was made only part of the way across said lot, while the same was in possession of said Wooden and Miller; that said fence was crooked, in some parts varying some rods from a straight line, and that some part of the way no fence was ever made, and that said plaintiffs and defendants, who each took and held possession (the defendants north of said fence aud the plaintiff' south thereof) from the dates of their respective deeds aforesaid had never, either of them, recognized and acknowledged said fence as the proper boundary line between their lands.
    On the conclusion of the testimony, and argument to the jury, the court charged the jury, after other instructions to them, as follows:
    “ If you find that the southern boundary of the land, in dispute between the parties, was also the southern boundary of the Wooden lot, so called, and commonly known as such, then the plaintiff' can not recover, and you must find for the defendants.”
    And the plaintiff then asked the court to charge the jury : “ That the south line of the Wooden lot, as intended in the deed from Haskells to Curtiss, could not be south of the south line of the land described in the deed of Drake.”

      This instruction the court refused to give to the jury, but, iustead thereof, said to the jury “that the words ‘ now owned by Joseph Drake’ did not qualify the description, in that deed, so as to give the plaintiff title to any land north of the south line of what was known as the "Wooden lot.”
    To which charge of the court to the jury, and refusal to charge as aforesaid, the plaintiff excepts.
    The jury returned into court a verdict for defendants. A motion for a new trial was made and overruled. On a petition in error, prosecuted in the district court, the judgment of the court of common pleas was reversed. The errors assigned in the district court were as follows:
    1. That the court aforesaid erred in the instructions given to the jury on the trial of said action. ■
    2. That the court erred in refusing to give the instructions which the said plaintiff prayed the said court to give.
    3. That said judgment was given for the said defendants when it ought to have been given for the plaintiff according to the law of the land.
    This proceeding in error is to obtain a reversal of the judgment of the district court reversing the judgment of the court of common pleas.

      H. McKinney, for plaintiffs in error:
    “Intention of parties will not control a call in a deed; lands and titles are transferred by deed, not by intention.” McAferty v. Conover, 7 Ohio St. 104; Pernam v. Weed, 6 Mass. 131; Hower v. Pass, 2 Mass. 380; Powell v. Clark, 5 Mass. 355.
    “A highway, mentioned in a deed as a boundary, must be understood, the highway as it practically exists, the apparent and traveled highway, aud not the highway as it exists of record merely.” 31 Conn. 165; Sproul v. Foye, 55 Me. 162.
    “ Where the boundary lines, as given in a deed, will satisfy either of two conflicting hypotheses as to what was meant to be conveyed, and the lot conveyed is further described as ‘ the McKay farm, so called,’ the finding of the jury, as to the location of the ‘ McKay farm,’ will render the description certain, and determine what land passes.” Madden v. Tucker, 46 Me. 367; Howell v. Merrell, 30 Mich. 283.
    “ What are the termini of the premises conveyed, is a matter of law. Where they are is a matter of fact.” 70 N. C. 706; 33 Iowa, 110.
    “ A tract of land, having a well-known name, may be described thereby in a deed.” Haley v. Amnesty, 44 Cal. 132; Cutter v. Caruthers, 48 Cal. 178.
    The.case last cited holds, that where one tract is bounded on one side by another tract, the deeds of conveyance of the respective tracts are not competent evidence to show where the line was ; reliance must solely be had in the deed conveying the land in controversy. Cox v. Couch, 8 Penn. St. 178; Lodge v. Barnett, 46 Penn. St. 477 ; Hare v. Lessee of Origin Harris, 14. Ohio, 529; Mann v. Pearson, 2 Johns. 37; Marion v. Bennett, 26 Wend. 169; 4 Mason C. C. 414; 26 Texas, 34; Snow v. Chapman, 1 Root (Coun.), 528.

      N. W. Goodhue and J. S. Carpenter, for defendant in error.
   Ashburn, J.

I. By the testimony on the record developing the issue of title, the controlling question of fact for the jury to determine was the location of the southern boundary of the lot of land known as the Wooden lot. Its location was a controverted fact. When found, it constituted the divisiou line between the lands of plaintiff and defendant. The southern boundary of the Wooden lot was the northern boundary of Curtiss’ land.

The true location of this division line was the main question of fact to be determined by the jury. So treating it, the court, in effect, charged the jury as a question of law, that if they found the southern boundary of the parcel of laud in dispute was identical with the southern boundary of the Wooden lot, so commonly known as such, the plaintiff could not recover. This charge being clear, distinct, and directly applicable to the facts of the case, we discover no error in it.

II. Curtiss claims, the court of common pleas erred in refusing, on his request, to charge the jury, “ That the south line of the "Wooden lot,.as intended in the'deeds from the Haskells to Curtiss, could not be south of the south line of the land described in the deed to Drake.”

As already stated, the south boundary Hue of the Wooden lot, wherever found, would be the division line between the lands of plaintiff and defendant. The above request, in effect, required the court to charge that the words, “ and north by the south line of the land heretofore called the Wooden lot,” were controlled and limited by a supposed intentiou of the Haskells implied by the words in the Curtiss deed, “ but now owned by Joseph Drake.” The ex parte intention of Curtiss’ grantors could not rightfully override an express call in his deed, and take a material fact in the case from the consideration of the jury.

. At the time the Curtiss deed was. executed, Drake did not have a scrap of title to any portion of the Wooden lot. By the deeds in evidence he deeded the land to Mrs. Richardson in 1863, and the Curtiss deed was not executed until 1873.

We think the court did not err in refusing to charge as requested, nor in charging, “ That the words ‘ now owned by Joseph Drake’ did not qualify the description in the deed so as to give the plaintiff title to any land north of the south line of what was known as the Wooden lot,”

The defendant in error claims the words in the Curtiss deed, “but now,” are “very significant; — it is the definiteness of what is now and here, contrasted with the iudefiniteness of what was once — heretofore^but is gone.” These words lose all special significance, ■when we find that, at the date of the Curtiss deed, Joseph Drake did not own any portion of the Wooden lot. The court was correct in denying to the phrase “now owned by Joseph Drake” any qualifying quality.

The judgment of the district court is reversed, and this court now proceeding to render the judgment the district court should have rendered, affirms the judgment of the court of common pleas.