author: Boynton, J.

text:
    Harner v. Batdorf.
    1. A judgment rendered on a special finding of facts made by the court may be reviewed on error, although such finding was not made at the request of either party.
    2. The holder of a promissory note, accepted in good faith, from one of the principal makers thereof, who, to the knowledge of the holder, was insolvent at the time, a conveyance of a parcel of land in payment of the note. Subsequently, and within four months from the time of the conveyance, the holder of the note, on demand therefor, surrendered the property conveyed to an assignee in bankruptcy of the grantor: Beld, That such conveyance did not operate as payment of the note, nor to discharge a surety thereon.
    Error to the District Court of Montgomery county.
    Jobn Batdorf, tbe defendant in error, brought an action against Fuller, Batdorf & Co., Jacob Harner, the plaintiff in error, and Peter Batdorf, on a promissory note, of which the following is a copy :
    “ $3,400. Dayton, 0., August 27,1867.
    “ One year after date, we promise to pay to the order of John Batdorf thirty-four hundred dollars, drawing ten per’ cent, interest from date, for value received.
    “ Fuller, Batdore & Co..
    “ Jacob Harner,
    “ Peter Batdore.”

      The firm of Fuller, Batdorf & Co. was composed of Albert Fuller, "W. H. Batdorf, and said Jacob Harner. Harner,'in answer to the petition, alleged, among other things, that he signed said note individually as surety, and not as principal, and that Fuller, Batdorf & Co., on the 18th day of April, 1869, sold their stock of goods to said Peter Batdorf, who was only surety on said note, for $19,000; and who, as part consideration for the goods, assumed the payment of the note, and that the plaintiff below, John Batdorf, accepted said Peter as his sole debtor, and released Harner from all liability. He further alleged, that “on the 22d day of October, 1870, the said Peter Batdorf paid to John Batdorf the sum of three thousand dollars ($8,000),” to apply on the note.
    The plaintiff, in reply, denied that he ever released said Harner from liability on the note, or that he accepted said Peter Batdoi'f as his debtor, as alleged; or that he was a party to the transaction set up in the answer, or ever assented thereto. But in respect to the alleged payment of $3,000 by Peter Batdorf, on the 22d day of October, 1870, he alleged that said payment was made in a transfer of sixty acres of land, by said Peter Batdorf to the plaintiff"; but that subsequently, and. within four mouths thereafter, said Batdorf was adjudged a bankrupt, and said conveyance, by reason of being given by way of a preference to said plaintiff by said Peter Batdorf, was void, and of no effect as against said assignee of said Peter, and said plaintiff" re-conveyed said lands aforesaid to said assignee in trust for the creditors of said Peter Batdorf.
    A jury was waived, and the cause submitted to the court,who, the record showing no request therefor, found specially as follows:
    1. That at the time of the sale of the stock' of. goods by Fuller, Batdorf & Co. to Peter Batdorf, and the-agreement -of Peter Batdorf to pay said note to the plaintiff, as set up in the answer, the plaintiff, John Batdorf, had no knowledge of said transaction, and did not assent thereto, nor accept said. Peter Batdorf as his debtor on said note, nor agree to discharge said Harner therefrom.
    2. That on the 22d day of October, 1870, said Peter Batdorf was hopelessly insolvent, and that he then executed and delivered to said plaintiff a deed for sixty acres of land, with the understanding that the plaintiff should take the said land at fifty dollars an acre, and credit the said amount on said note then held by the plaintiff, for $3,000, as a payment thereon ; the said plaintiff received said deed, and entered the credit upon said note, in good faith, so far as any law of the State of Ohio is concerned, but with the knowledge that said Peter was then largely indebted upon claims past due ; that very soon after said laud was conveyed to said plaintiff, said Peter Batdorf made an assignment for the benefit of creditors, and thereupon the creditors of said Peter Batdorf filed their petition in bankruptcy against said Peter, and he was adjudged a bankrupt by the United States Court for the Southern District of Ohio; that thereupon one Edward L. Rowe was elected assignee of said Peter, and within four months after the execution and delivery of said deed by said Peter Batdorf to said plaintiff, and the entering of said credit of $3,000 on said note, said Rowe, as such assignee, demanded and received from said John Batdorf, plaintiff’, a reconveyance of said sixty acres of land to himself, for the use and benefit of said creditors of said Peter.
    3. That said plaintiff surrendered said land upon the demand of said assignee, accompanied with the assurance that he had prepared and was about to file a petition to recover said land from said plaintiff, and upon the advice of competent counsel that it was right and proper to surrender it.
    As a conclusion of law upon such finding, the court adjudged that said payment of $3,000, in land, was not a valid payment upon said note, and did not release Harne? therefrom.
    Judgment accordingly, and an exception by Harner.
    On error, the judgment of the common pleas was affirmed by the district court. By. the present proceeding it is sought to reverse it.

      Houk & McMahon, and Gunckel Rowe, for plaintiff in error:
    Jacob Harner, individually, was a mere surety when the note was signed. The firm of Fuller, Batdorf & Co. became mere sureties by the subsequent arrangement, in which Peter Batdorf became' the sole paymaster as between the makers of the note. Kerr on Injunctions, § 78; Bank v. Hoge, 6 Ohio, 18. By reason of the payment the sureties were deprived of the right to step in and pay off the note and sue Batdorf for the whole amount of the note. They were therefore released. 13 Ohio, 104; 18 Ohio, 6; 5 Selden, 242; 10 Paige, 76; Chitty on Contracts, 701; 2 Daniels on Neg. Inst. 225; Arnold v. Camp, 12 Johns. 409.

      William Craighead, for defendant in error:
    1. The question, whether the common pleas erred in entering its judgment in favor of the plaintiff, is not made by the record, in that the record fails to show that either party, on the trial, requested the court to state its finding, with a view of excepting to the decision of the court upon the questions of law involved on the trial, as required by section 280 of the code. Lawrence v. The State, 12 Ohio St. 1; Indiana Code, § 341; Cruzon v. Smith, 41 Ind. 288; Bainter v. Foeltz, 15 Kan. 323; Moore v. Barnett, 17 Ind. 349.
    2. The transaction between Peter Batdorf and the other members of the firm did not change the relations of any of the makers of the note toward the payee. Wilson v. Lloyd, 6 Eng. Cases, 643. If we regard Harner as a surety, it is only by a valid payment, made by the principal debtor, that a surety is discharged. But this payment was invalid under the bankrupt law, by reason of its having been a fraudulent performance. De Colyar on Principal and Surety, 425; Petty v. Cooke, L. R., Q. B. 790; Pritchard v. Hitchcock, 46 E. C. L. 149.
   Boynton, J.

The defendant in error contends that no question arises upon the record, because neither party requested the court to state its conclusions of law separately from its conclusions of fact. It is true that section 280 of the civil code does not require the court, where it tries a question of fact, to state its finding specially, unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in the ease.

Its language is, that it shall not be necessary for the court to state its finding, except generally, unless such request is made. The object of this provision is to give a party a right to require a special finding, by requesting it with the view of excepting to the judgment. But where the court, without such request, finds and states the facts separately, from its conclusions of law, an exception to the judgment rendered upon such finding is as available to the excepting party as if the finding were made at his instance or request. Section 293 provides, that where the decision objected to is entered on the record, and the grounds of objection appear in the entry, the exception may be taken by the party causing to be noted, at the end of the decision, that he excepts.”

No bill of exceptions in such case is necessary; and for the reason that the facts disclosing the alleged error are already where it is the office of a bill of exceptions to bring them, namely, upon the record. So, where the case is one in which a party has the right to require a separate finding, by virtue of section 280, and such finding is made, the same thing is accomplished that would have been, if the findings had been made pursuant to a request of the party.

We, however, find, on looking into the record, that there was no error in the judgment of the court. The agreement between Euller, Batdorf & Co. and Peter Batdorf, by which the latter assumed the payment of the note here sued cn, in nowise affected Harner’s liability thereon to the plaintiff below. Counsel for the plaintiff in error are mistaken in the statement that John Batdorf, the holder of the note) accepted Peter Batdorf as principal, and the firm and Earner as sureties. The court found exactly the reverse — that the plaintiff below was not a party to the arrangement, and that he gave no assent to its terms. Hence, the agreement in no manner affected his relation to the paper, nor, as to him, that of the makers.

The attempted payment of the note by Peter Batdorf in land failed by reason of being a fraudulent preference within the bankrupt act. Such payment was necessarily contingent, its validity depending on the non-institution of proceedings in bankruptcy, within four months next succeeding the time of the conveyance. That it operated to discharge the principal makers of the note, no one will pretend. But Hamer contends that he is a mere surety; that, in signing the note individually under the name of the firm, he, to the knowledge of the payee, assumed only the obligations of a surety; and that the acceptance by the plaintiff below of the conveyance of land, had the effect to suspend his right to pay the note, and to proceed against his principal, and hence operated to discharge him from liability thereon. But the fact must not be overlooked that as a member of the firm of Puller, Batdorf & Co., he was a principal maker of the note; hence, if by his individual signature he became a surety only, he occupied the anomalous position of being, at once, both the principal debtor and surety on the same instrument. But, if he were a surety only, and not a principal maker, the result would be the same. "What appeared to be a payment of the note turned out to be illusory. In legal effect, it was a mere transfer of title to the land, to John Batdorf, for the use of the assignee in bankruptcy. But instead of being an act injurious to Earner, it was calculated to benefit him. Had no proceedings in bankruptcy been instituted, the debt would have been paid. The only consequence which the bankrupt act attaches to the fraudulent conveyance is, to declare it void, and to subject the property conveyed to the payment of the debts of the insolvent debtorand if the creditor accepting the preference, although with knowledge of the debtor’s insolvency, surrender the property received, as was here done, to the assignee, he may still prove his claim against the bankrupt’s estate. Rev. Stat. TJ. S., § 5084. The law does not hold the creditor bound by the payment, where he has surrendered the property to the estate, from the mere fact that he had knowledge of the debtor’s insolvency. Pritchard v. Hitchcock, 6 Mann. & Gran. 151; Watson v. Poague, 42 Iowa, 582 ; Brandt on Suretyship and Guaranty, § 290.

Judgment affirmed.


source: Caselaw Access Project

author: Okey, J.

license: Public Domain

text:
    Dukes v. Spangler.
    1. Although there may have been no manual delivery of a deed, nor any thing- said, in terms, about its delivery, yet the fact of delivery may be found from the acts of the parties preceding, attending, and subsequent to the signing, sealing, and acknowledgment of the instrument.
    2. "Where real estate is conveyed by a husband to his wife, through the intervention of a trustee, the destruction of the unrecorded deeds by the husband, with the assent of the wife and the trustee, will not, of itself, estop the wife, as against the grantor’s heir, to claim the land under such conveyance.
    Error to the District Court of "Wood county.
    On March 12, 1875, Elvira Dukes filed, in the Court of Common Pleas of Wood county, a petition against Nancy D. Spangler, and George W. 'Spangler, her husband. The object of the action was to quiet the plaintiff’s title to two hundred and forty acres of land in that county, of which she has the possession, the defendant, Nancy, claiming an estate therein.
    The case was appealed to the district court, where it was heard on the petition, amended answer, reply, and testimony. And the district court, having heard the plaintiff’s testimony, dismissed the petition; whereupon, a motion for a new trial having been overruled, a bill of exceptions, embodying all the testimony, was taken, and, on leave, a petition in error was filed in this court.
    The plaintiff is the widow of'John Dukes, and claims the land by conveyance from her late husband, through the intervention of a trustee; and the defendant, Nancy, is the daughter of John Dukes by a former marriage, and claims the property as his only heir at law.
    The defendant, Nancy, insists that the deed to the trustee was never delivered; and, further, that the deed to the trustee, and the deed from the trustee to the plaintiff, were destroyed in the lifetime of John Dukes, and by his direction, the plaintiff and the trustee assenting to such destruction.
    The principal questions presented are:
    1. Do the acts of the parties, as proved, constitute a de livery?
    2. The deeds having been destroyed in the lifetime of John Dukes, and by his direction, with the knowledge of the plaintiff and the trustee, and without objection, is the plaintiff, under the circumstances, precluded from maintaining her action?
    The facts, as they appear in the record, are as follows:
    On November 15, 1872, John Dukes, who resided on the land in controversy, being sick, sent for Lewis E. Dubbs, a justice of the peace, to prepare and take the acknowledgment of certain deeds which he desired to execute. Dukes was then the owner of 1,240 acres of land, and was worth, after deducting debts, between $30,000 and $40,000. The plaintiff was his third wife, and he had been married to her more than ten years, but there was no issue of the marriage, the defendant, Nancy, being his only child and heir at law. He was then about seventy years of age, and was thought to be on his death-bed. He informed Mr. Dubbs that he wanted to convey the land in controversy to Samuel Wood, as a trustee, who would then convey it to his wife, the plaintiff; that he desired to convey eighty acres to Joseph Horn, a young man he had raised; that the remaining portion of his lands he desired to give to one of two objects, concerning which he desired to consult Mr. Dubbs; that one of the objects was to establish an institution at Weston or Milton Center for the education of young men for the ministry, and the other was to make a donation to the Methodist Missionary Society; but that he wanted the deed made to his wife first.
    Mr. Dubbs advised Dukes to make a will, and informed him that he doubted whether the deed could be made to his wife in the way stated, but Dukes said he knew better, as he had consulted a lawyer. He estimated the land in controversy at $12,000, and said that he had given to his daughter Nancy $14,000, which was all he intended she should have.
    Mr. Dubbs prepared the deed to Horn, which was then executed. He also prepared, in the front room, a deed from Dukes and wife to Wood, who was present with his wife. He says: “We then went into the room where Dukes was,” passing through another room on the way. “ I am certain I read all or most of it to him; I exjfiained it to him, I know, so that he understood it; he rose up in the bed and signed it; I do not remember if they held him up or put something behind him; I think they put something before him to write on ; I then carried the deed into the front room, where it was signed by Mrs. Dukes.” It was also signed there by George France and Mr. Dubbs as witnesses, and the certificate of acknowledgment was signed by Mr. Dubbs, at the same time, in his official capacity.
    Mr. Dubbs further says: “After signing the deed to Wood, Dukes said nothing about delivering it; he did not say what I should do with it; I took the deed out on my own responsibility; I had no instruction to give the deed to any person ; what I did with it was without any instruction from Dukes. After the deeds had been signed, Dukes complained that he was unable to go any further; said he had pain in his side; seemed wearied; first wanted me to stay that night and finish, hut finally concluded he would send for me when he got able.” It does not appear, however, that the conveyance for the remaining portion of his real estate was ever executed.
    After the deed to Wood had been thus executed, Mr. Dubbs wrote a deed from Wood and wife to the plaintiff for the same land, which deed was executed in duo form; and Wood then handed both deeds to the plaintiff, who took them and laid them away.
    With respect to the deed to himself, Mr. Wood says: “After tbe deed had been signed and completed as above, Mr. Dubbs handed it to me. When he handed it to me, I was standing near the door between thé room where the writing was done and the room where Mr. Dukes was lying; the door was open and Mr. Dukes was lying with his face toward it; I was standing in full view of him, but ;X do not know whether he saw Mr. Dubbs hand me the deed or not; there was nothing to prevent his seeing, if he had been looking.”
    As to the destruction of the deeds, Mr. Dubbs testified: “In July or August, 1873, I met Mr. Dukes on the road, and he said to me some of his friends were making trouble about those deeds, and he thought they had better be destroyed. lie wanted me to come down and destroy the deeds. A short time after this, I went to Mr. Dukes’ house. I asked Dukes if he still wished to have those deeds destroyed. He said he did, and asked his wife to get them. She brought them from an adjoining room, and handed them to him. He handed them to me. ... I then asked Mr. Dukes what I should do with them. He said, ‘destroy them.’ I asked Mrs. Dukes if it was her wish to have them destroyed. She hesitated some time — it seemed to me some two minutes — and spoke hesitatingly, and so low that I could scarcely hear her, ‘I suppose so, if it is his wish.’ . . . When he said, ‘Elvira, get those deeds,’ she said nothing, but went and got them. Wood (the trustee) and France (the other subscribing witness) were there: it seemed to have all been understood between them before I got there; I saw nothing indicating at the time any feeling or misunderstanding between Dukes and his wife. I took the deeds out in another room and destroyed them.”
    Mrs. McMahon testified to a conversation she had with Dukes about the deeds, after they had been destroyed. She says: “ Mr. Dnkes said to me that his wife was dissatisfied because they were destroyed; that some of his friends were bothering themselves about his business, and were threatening to sue him if he would not destroy the deeds, and to satisfy them, he had caused them to be destroyed ; that his wife had never agreed to it, and he was sorry he had done it; he said that although he had destroyed the deeds, he intended she should have the land ; that he would pay his debts, and then do as he pleased.”
    "William Cost testified to a similar conversation.
    The consideration named in the deed to Wood, and in the deed from Wood and wife to the plaintiff, was $12,000, but no money was paid, or intended to be paid. The deeds were never recorded.
    John Dukes died January 28, 1875, intestate.

      Cook & Troup, for plaintiff in error :
    Dukes’ acquiescence constituted a delivery of the deed. Somers v. Pumphrey, 24 Ind. 240; Stewart v. Weed, 11 Ind. 94; Williams v. Sullivan, 10 Rich. Eq. 217; Mitchell v. Ryan, 3 Ohio St. 377.
    The deeds having taken effect, their destruction was a nullity. 1 S. & C. 461; 1 Greenl. Ev., §§ 265, 568; 3 Wash. R. Prop. 223, 566 ; Nicholson v. Halsey, 1 Johns. Ch. 417; Reifner v. Bowman, 53 Penn. St. 313 ; Holbrook v. Tirrell, 9 Pick. 105 ; Gilbert v. Bulkey, 5 Conn. 262; Schutt v. Large, 6 Barb. 317; 19 Penn. St. 119; 9 Mass. 367; 13 Mass. 498.
    Even if the plaintiff could divest herself of the estate by the destruction of the deed, it could not pass to Dukes except through a trustee. White v. Wager, 32 Barb. 250 ; Winans v. Peebles, 32 N. Y. 423 ; Graham v. Van Wyck, 14 Barb. 531.

      J. H. & F. A. Reid and Whiteley § Blackford, for defendant in error:
    Delivery is essential, and here there was no delivery. 2 Black. Com. 306; Hammell v. Hammell, 19 Ohio, 17; Mitchell v. Ryan, 3 Ohio St. 377.
    The deeds having been destroyed by direction of the grantor, with the assent of the plaintiff, and not having been recorded, the plaintiff is estopped to offer parol evidence of their contents. 3 Wash. R. Prop. 275; Thompson v. Thompson, 9 Ind. 323; Thompson v. Ward, 1 N. H. 9; Mussey v. Holt, 4 Fost. (N. H.) 248. Dodge v. Dodge, 33 N. H. 487; Com. v. Dudley, 10 Mass. 404; Barnett v. Thorndike, 1 Greenl. 73; Mason v. Grant, 21 Maine, 160; Blaney v. Hanks, 14 Iowa, 400; Barker v. Kane, 4 Wis. 12; 1 Greenl. Ev., § 265.
   Okey, J.

At the conclusion of the plaintiff’s testimony, the court dismissed the action. The question is, therefore, whether the plaintiff' had presented a case which, prima facie, entitled her to the relief demanded.

The character of the conveyance, being in the nature of a settlement, is such as the law will sustain. Crooks v. Crooks, 34 Ohio St. 610; Dale v. Lincoln, 62 Ill. 22. And it could make no difference, even as to creditors, much less as to the defendant Nancy, that Dukes was indebted, when the conveyance was made, in sums amounting, in the aggregate, perhaps, to $10,000 ; for the property retained was, at the time, “ clearly and beyond doubt sufficient to pay all the donor’s debts.” Crumbaugh v. Kugler, 2 Ohio St. 373 ; Evans v. Lewis, 30 Ohio St. 11.

The objection to the parol evidence of the contents of the deeds on any other ground than.that of estoppel,-which will be presently considered, was not tenable. The proof, on this point, was not only satisfactory, but there was no violation of the statute of frauds in admitting it. Rev. Stat., § 4198; Blackburn v. Blackburn, 8 Ohio, 81.

Nor is there any doubt as to the admissibility of the declarations of the grantor, made subsequently to the aeknowledgment of the deed, for the purpose of showing their delivery and the circumstances under which the instruments were destroyed. Tipton v. Ross, 10 Ohio, 273.

We come, then, to consider whether the deed to the trustee was delivered. That a deed is invalid until delivered, is doubted by no one; but an absolute delivery may be made by words and acts, or either, and no particular form is essential, though intent to vest in the grantee the custody of the instrument, no less than the estate, is essential. Rev. Stat., § 4106, note.

Here it appeal’s that Dukes had a fixed purpose to make the conveyance ; he had. consulted an attorney as to the form in which the title should be transferred to his wife; he sent for the justice of the peace to prepare the deeds and take the acknowledgments ; he was in consultation with the officer an hour or more; the deeds were prepared in accordance with his directions; he signed the deed to the trustee while in bed; it was carried by the officer into another room, and signed and acknowledged by the • plaintiff; and then, in full view of Dukes, and while standing in such situation as that he saw or could have seen the act, the justice of the peace handed to Wood both deeds, then perfect in form, and immediately thereafter Wood handed them to the plaintiff’. Not only was no objection made by Dukes, but he recognized the validity of the delivery in a number of subsequent conversations. Indeed, his whole conduct before and at the time he signed the deed, and subsequently, is inconsistent with any other theory than that he intended, when he signed the deed and passed it into the hands of the justice of the peace, to deliver it to the trustee, to the end that the plaintiff should then and there be invested with the title to the premises, and full and final custody of the deeds. Moreover, the plaintiff' retained the deeds, from the time of their execution until the larger part of a year had elapsed, and that, too, with the knowledge and assent of Dukes.

As Dukes intentionally parted with all dominion over the deed to the trustee, with intent that the title, and the custody of the instrument, should then pass to the trustee, and from him to the plaintiff, who at the time accepted the conveyance, a sufficient delivery is shown by what then occurred; for, in a deed of this character, “the assent of the mind of the grantor that the grantee have the deed, is the great inquiry; and evidence of that, if existing, controls the question of delivery.” Brown v. Brown, 1 Wood. & M. 325, 332; Methodist Church v. Jaques, 1 Johns. Ch. 450; s. c., 17 Johns. 548.

Besides, “ a delivery may he made good by a subsequent assent, though originally invalid for want of it, upon the principle, Omnis ratihabitio mandato azquiparatur.” 3 Wash. R. Prop. (4 ed.) 288.

We are of opinion, therefore, that upon the evidence submitted to the district court, the delivery was, prima facie, complete.

The remaining question is as to the destruction of the deeds. The general rule undoubtedly is, that when the instrument conveying an estate -has taken effect, its destrue-, tion by the parties will be ineffectual, even if they intended thereby to revest the estate in the grantor. Raynor v. Wilson, 6 Hill (N. Y.), 469, note; Cranmer v. Porter, 41 Cal. 462; Kimball v. Greig, 47 Ala. 230; 2 Wait’s Act. & Def. 509. Our own cases support the same view. Starr v. Starr, 1 Ohio, 321; Baldwin v. Bank of Massillon, 1 Ohio St. 141. But it has been held, in a large number of cases, that a grantee, who has thus voluntarily consented to the destruction of his deed, shall not have affirmative relief under it. Raynor v. Wilson, note, supra; 2 Wait’s Act. & Def. 510; 3 Wash. R. Prop. (4 ed.) 305. The ground of these decisions, at least the only tenable ground, is, not that the estate revests, but that the grantee is estopped. Farrar v. Farrar, 4 N. H. 191; Trull v. Skinner, 17 Pick. 213.

Under some circumstances, no doubt, we would feel called upon to give effect to such estoppel; but it is unnecessary to say whether we would do so on the facts appearing in any of the cases to which we have been referred. We do not think this is a case for the application of the doctrine. The consent of the grantee to the destruction of the deeds was given reluctantly — simply because her husband desired it. “ She hesitated some time,” says the witness— “ it seems to me some two minutes — and spoke hestatingly, and so low that I could scarcely hear her, ‘ I suppose so, if it is his wish.’” And the request of the husband was induced by the importunity and threats of his relatives, some of whom were his creditors. Subsequently, he regretted that he had made such request, and stated that “ he still intended she should have the land.” Moreover, the property conveyed appears to have been no more than a reasonable provision for the wife, and Dukes died without making any other disposition of the land, so that the rights of no person who stands in the relation of purchaser have intervened.

We are aware that, under some circumstances, a married woman may be estopped. Thus, where she joins her husband in executing a deed of general warranty, she is es-topped by her covenant from setting up a subsequently acquired title. Hill v. West, 8 Ohio, 222; Knight v. Thayer, 125 Mass. 25. So, she may be estopped, in some cases, where her conduct would otherwise directly operate as a manifest fraud. Meiley v. Butler, 26 Ohio St. 535. It is also true, that with respect to her separate property, whether real or personal, she will, in general, be regarded in a court of equity as a feme sole. Hardy v. Van Harlingen, 7 Ohio St. 208. But, with respect to her real estate, the general rule certainly is, that she can only divest her-, self of title in the mode pointed out by statute. Todd v. Pittsburgh, etc., R. Co., 19 Ohio St. 514; Rice v. Railroad Co., 32 Ohio St. 380; Murdock v. Lantz, 34 Ohio St. 589.

In holding that the act of the plaintiff, a feme covert, in consenting to the destruction of the deeds, can not operate against her as an estoppel in pais, we are fully sustained by Wilson v. Hill, 2 Beasley’s Ch. 143, a case decided by a court which sustains an estoppel of the same character as between persons not under disability. Faulks v. Burns, 1 Green’s Ch. 250.

"We have not found it necessary to express any opinion upon the question whether "Wood, the trustee, consented to the destruction of the deeds. The record simply discloses the fact that he was present at the destruction. It is sufficient to say that the consent, if given, was, for the reasons already stated, wholly ineffectual.

As the case was decided by the district court without hearing the testimony of the defendants in support of their defense, and in answer to the testimony offered by the plaintiff, no final judgment in the action can be rendered; but the judgment will be reversed, and the cause remanded for a new trial.

J udgment reversed.


author: White, J.

text:
    Henry v. The State.
    1. Where, in an indictment for uttering a forged receipt, the instrument set out is not prima facie a receipt, such extrinsic facts must be averred as are necessary to show that the instrument would, if genuine, have the operation and effect of a receipt.
    2. An averment that the instrument set out was a receipt, does not have the effect to change its prima facie character. Nor will the character of the instrument be changed by an averment that by the rules of the bank where the instrument was used, it was upon its face a receipt. It should be shown how or in what way, the instrument, if genuine, would, under the rules of the bank, have the operation and effect of a receipt.
    Error to the Court of Common Pleas of Hamilton county.
    The indictment against the defendant contains eleven counts. The indictment was demurred to generally, there being no reference in the demurrer to the particular counts. The demurrer was overruled. On the trial the defendant' was convicted on the second count, and acquitted on the remaining counts. The arguments in the case relate to the second count, which is the only one passed upon by the-court. The second count is as follows:
    “And the grand jurors of the county of Hamilton, in the-name, and by the authority of the State of Ohio, upon their oaths and affirmations present, that A. Henry, on or about the 16th day of July, in the year of our Lord eighteen hundred and seventy-eight, with force and arms at the county of Hamilton aforesaid, unlawfully did utter and publish as-true and genuine a certain false, forged, counterfeited, and altered receipt for money, which said false, forged, counterfeited, and altered receipt for money is of the purport and value following, to wit:
    “Espy, Heidelbach & Co. Cincinnati, July 16, 1878. Draft wanted for $910 on New York. Order of A. Henry.
    “M. Teller.”
    The said receipt for money being then and there a receipt for money issued by James Espy, Philip Heidelbach,, and Louis Heidelbach, then and there doing business as bankers under the firm name of Espy, Heidelbach & Co., to the draft clerk in the bank of them, the said Espy, Heidelbach & Co., which said receipt for money, by the rules of said bank, upon its face was a receipt for money to-the draft clerk aforesaid, to make and deliver to the said A. Henry the draft of said Espy, Heidelbach & Co., upon their correspondent, the Hanover National Bank, in the city of New York, for the payment of the sum of $910, in current funds, which said draft, when so delivered, was of the value of $910, and which said receipt for money for-said draft upon its face then and there, by the rules of said bank, purported that he, the said A. Henry, -was thereby entitled to receive the draft aforesaid with interest, thereby unlawfully to defraud, he, the said A. Henry, then and there at the time he so uttered and published said false, forged, counterfeited, and altered receipt for money as aforesaid, well knowing the same to be false, forged, counterfeited, and altered, contrary to the form of the statute in such case made and provided, and against the peace and ■dignity of the State of Ohio.”
    • After verdict, there was a motion for a new trial on vari■ous grounds. The motion was overruled, and the accused ¡sentenced on the verdict.
    The present proceeding in error is prosecuted to obtain a reversal of the judgment.

      Walter B. Granger, for plaintiff in error.

      Isaiah Pillars, attorney-general, and Samuel H. Drew, prosecuting attorney, for defendant.
   White, J.

The plaintiff in error is charged in the second count of the indictment with uttering and publishing as true and genuine, a false and forged receipt for money. The alleged receipt is set out, and is as follows:

“ Espy, Heidelbach & Co. Cincinnati, July 16, 1878. Draft wanted for $910 on New York. Order of A. Henry.
“ M. Teller.”

This instrument does not purport on its face to be a receipt; nor are there extrinsic facts stated which show that it could or would have had, if genuine, the operation and effect of a receipt. The rule is that where the forged instrument is actually within the meaning of the statute, but does not sufficiently appear to be so on the face of it, the instrument must not only be set out, but there must be added such averments of extrinsic facts as to make it appear upon the face of the indictment that the forged instrument is one of those intended by and described in the statute. Carberry v. The State, 11 Ohio St. 410; Bynam v. The State, 17 Ohio St. 142; Rex v. Barton, 1 Moody, 141; Starkie’s C. P. 118; Rex v. Hunter, 2 Leach, 711.

It is averred that the receipt was issued by Espy, Heidelbach & Co. to the draft clerk in their bank. But it does not purport to be issued by them. It was signed “M. Teller,” but there is nothing to show what “ M. Teller ” meant; nor is there anything to show a connection between that signature and Espy, Heidelbach & Co. Rex v. Barton, supra. The averment in the indictment that the instrument was a “receipt for money” does not have the effect to change its prima facie character. Nor does the averment, that by the rules of the bank the instrument upon its face was a receipt for money, have that effect. Before effect can be given to such an averment, it must appear how or in what way the instrument, under the rules of the bank, would, if genuine, have the operation and •effect of a receipt for money.

There also seems to be a repugnancy in the count. It is first averred that the instrument is a false and forged receipt for money. By a subsequent averment the same instrument is described as a receipt for money, issued in fact by Espy, Ileidelbach & Co. to the draft clerk in their bank. But any objection on this ground is, perhaps, obviated by the criminal code, which provides that no indictment shall be deemed invalid “ for any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime or person charged.” 74 Ohio L. 334, chap. 4, § 4.

Judgment reversed.


text:
    Wright v. Coller.
    Where suit is brought on an undertaking given before judgment in a civil action for discharge from arrest, the court in which the cause is pending has power, at anytime before judgment is rendered on the undertaking, to grant the bail further time in which to surrender the judgment debtor. Whetstone v. Riley, 7 Olfio St. 514, explained and qualified.
    Error to the District Court of Wood county.
    Wright, Taylor & Co. brought a civil action in the Court •of Common Pleas of Wood county, against A. E. Smith, and caused him to be taken into custody on an order of arrest in the action ; whereupon, Henry Coller and James Y. Owens executed, and the sheriff approved, an undertaking, dated May 13, 1873, which, after reciting the commencement of the action, the amount demanded, and the arrest, contained the condition, that they, said Coller and Owens, did thereby undertake to said Wright, Taylor & Co., in the sum of $671.50, that said Smith, if judgment should be rendered against him in the action, would render" himself amenable to the process of the court thereon, or in default pay the condemnation money and costs.
    At the September term, 1873, judgment in the action was rendered against Smith for $347.60 and costs; and thereupon an execution against the property and body of Smith was issued, of which writ, on January 7,1874, the sheriff made due return that he could find no property of Smith, nor could his body be found.
    On February 6, 1874, Wright, Taylor & Co. brought a civil action in the Court of Common Pleas of Wood county, against Coller and Owens, on the undertaking, setting forth in the petition all these facts, and praying for judgment.
    A summons was issued and served, the return day being February 16, 1874.
    On March 7, 1874, which was the day named in the summons for the answer, the defendants filed a demurrer to the petition, which was submitted.
    On March 15, 1875, the demurrer was overruled, with leave to answer by April 3, 1875, and the cause was continued.
    An answer was filed April 3, 1875, and a reply May 6, 1875.
    On May 7, 1875, on motion of defendants, the court allowed them further time, until May 13, 1875, at four o’clock p. M., to surrender Smith to the sheriff, in discharge of their obligation in the undertaking.
    On May 11, 1875, the defendants, on leave, filed an additional answer, setting forth the last mentioned order; that on May 10,1875, they surrendered Smith to the sheriff, who thereupon executed to them an acknowledgment of such surrender; and that on producing such acknowledgment to the clerk of said court of common pleas, he entered on the undertaking an indorsement to operate as an exoneration of the defendants as such bail; whereupon they asked to be dismissed.
    On the same day, the plaintiffs demurred to the additional answer, which demurrer was, on July 23, 1875, overruled; and the plaintiffs declining to reply to the additional answer, judgment was rendered in favor of the defendants.
    The district court having affirmed the judgment, a petition in error was, on leave, filed in this court.
    J. A. Shannon and G. It. Haynes, for plaintiffs in error.

      S. W. Clay and J. H. F. A. Reid, for defendants in error.
   Okey, J.

Was the court of common pleas authorized to make the order granting further time to surrender the judgment debtor, and render judgment exonerating the bail?

Title 8, chap. 1, of the code of civil procedure, 50 Ohio L. 79 (Rev. Stat., §§ 5491-5520), contains the following provisions :

“ Sec. 166. A surrender of the defendant to the sheriff of the county in which he was arrested, . . . shall discharge the bail; such surrender may be' made at any time before the return day of the summons, in an action against the bail.
“ Sec. 168. The bail will be exonerated by the death of the defendant, or his imprisonment in a state prison, or by his legal discharge from the obligation to render himself amenable to tbe process of the court, or by his surrender to the sheriff of the county in which he was arrested in execution thereof, within the time fixed in section 166.”

The court is not vested with discretion in any of these cases. The right of the bail to insist on exoneration is absolute. But it is further provided, in section 168, that, in addition to this unqualified right, the bail may apply to the ■court for an order granting to them the power to make such surrender; and thereupon, during the pendency of the suit against them, they may be authorized to make the surrender “ within such further time as the court in which the action is pending may allow.” Such application for-further time is, of course, an appeal to the discretion of the court; and, upon general principles, the bail should be prepared to show that, in failing to make the surrender within the time specified in section 166, théy were guilty of nolaches; and, also, that they have in their hands no means of indemnifying themselves in case of a recovery against them. While the record does not show whether such facts as warranted the order were presented to the court, that will be presumed; and we are unable to discover any thing in the statute which, either expressly or by any fair implication, limits the power of the court to make such order at any time before final judgment against the bail. Indeed, the authority to make the order at any time during thependency of the suit, is granted in clear, unambiguous terms; and, in such case, there is no room for construction. And the provisions of the New York code on the subject, from which the chapter under consideration was borrowed,, had been so construed before the adoption of our code. Bank of Geneva v. Reynolds, 12 Abbott, 81; s. e., 20 How. Pr. 18, reversed on other grounds, 33 N. Y. 160.

Reference is made to section 167 of the chapter under-consideration, which contains the provision that at any time before the bail “ is fiually charged,” they may arrest the judgment debtor, for the purpose of surrendering him. The right to make the arrest, at any time before the return-day of the summons, is absolute; but we do not doubt that, by a fair construction of the chapter, the bail may make the arrest and surrender afterward, if the court grant further time for the purpose.

The views of the learned judge who delivered the opinion-in Whetstone v. Riley, 7 Ohio St. 514, are not in harmony with this construction of the statute. He was of opinion-that the bail is finally charged on the return of the execution against the judgment debtor, “ not found;” and that the “ further time ” which the court may allow the bail to surrender the debtor, can only be granted “ previous to the bail becoming finally charged.” But this, as we have seen, is opposed to the clear words of the act, and we do not. think the decision of the case involved such construction of the statute. The discretion of the court does not end when the “further time,” provided for in section 168, is-granted. The court may, for sufficient reasons, finally refuse to give effect to a surrender thus authorized; and, whatever reason may have been given, in the court below or in this court, for the judgment in Whetstone v. Riley, the decision must- rest on the exercise of the discretionary power' of the court below. There a default for answer had been entered on the docket. “ The record,” says the judge, “ shows no reason for the motion or the order. The order was for two days’ time. . . . There is no more reason shown for an extension of the time two days than for two months. . . . Nor does the record offer explanartion for the neglect, on the part of the bail, of any attempt to surrender the principal from the date of the judgment against him, at the April term, down to the 4th of September, when they sent their agent to Maryland for him.” It may have clearly appeared in the court below that the discharge of the bail would be inequitable and unjust; and it is certainly not to be inferred from any thing decided in this court, that if the bail in that case had been discharged' in the court below, where all the facts appeared, this court, on the record presented, would have disturbed the judgment.

In this case, it does not appear that in making the order granting to the bail “ further time,” or in giving effect to the surrender, there was any abuse of discretion.

Judgment affirmed.


author: Gilmore, C. J.

text:
    The State, ex rel. John P. Winters et al., as the Transcript Printing Company, v. Milton Barnes, Secretary of State, et al. The State, ex rel. Peter G. Thompson, v. Milton Barnes, Secretary of State, et al.
    Application for a writ of mandamus.
    June 23,1879, the defendants, in accordance with an act •of that date entitled “ an act to provide for the printing nnd distributing the laws of the present session and the revised statutes in permanent form, and to repeal an act therein named,” advertised for proposals for furnishing materials and printing the revised statutes of Ohio.
    So much of the act as is necessary to an understanding of the case will be found in the opinion.
    The Transcript Printing Company duly filed its proposal, which among other things stipulated that it would execute the contract for printing the revised statutes of •Ohio, in accordance with the provisions of the notice for proposals, “ on or before the first day of December, 1879, or thirty days sooner if copy is furnished.”
    The proposal of Peter G-. Thompson contained the same stipulation, as to time, except the condition “ or thirty days sooner if copy is furnished.”
    The contract was let to H. W. Derby, who had also filed a proposal.
    Each of the relators claims that the contract should have been awarded to him, as the lowest and best bidder, and has filed his petition in this court, for a writ of mandamus to compel the defendants to award the contract accordingly.

      To each of the petitions the defendants filed a general ■demurrer.

      Harrison, Olds & Marsh, and George Arthur, for the Transcript Printing Company.

      Matthews, Ramsey & Matthews, and Ozro J. Dodds, for P. G. Thompson.

      C. N. Olds, G. L. Sites, A. Cope, and II. J. Booth, for defendants.
   Gilmore, C. J.

These applications may be disposed of together. It is incumbent on the relators, in order to succeed, to show that they have a clear legal right to have the contract awarded to him or them, as the case may be; for on no other ground can an award be ordered and enforced in favor of either of them. Before the contract can be .awarded, therefore, the party must show that all the requirements of the law under which the‘ proposal for the ■contract was made, have been substantially complied with.

It is perfectly apparent that the legislature intended that the work of annotating, printing, binding, and publishing the revised statutes should be done in the shortest time that was practicable for the performance of so important an undertaking.

It is clear that five months — i. e., from July first to December first — was deemed sufficient for the purpose.

The statute, in all its parts, is so framed as to effect the object within the time named.

The 3d section (76 Ohio L. 192) provides that the annotators shall do their work in such a way that the “ volumes shall be completed and ready for distribution not later than December 1, 1879.”

The 13th section, among other things, requires the annotators “to give bond in $10,000, to be approved by the secretary of state, for the faithful performance of their duties within the time herein prescribed, and shall supply the copy required to complete said work within the time to be named in the contract aforesaid.” The words “ contract aforesaid” refer to the contract for printing which had been previously provided for in the act, and which will now be noticed.

Section 4 prescribes the size of the page, the quality and size of type, electrotyping, etc.

Section 5 reads as follows:

“ The attorney-general, together with the secretary of state and supervisor of public printing, shall, immediately after the passage of this act, insert for at least five days in two newspapers in each of the cities of Columbus, Cleveland, and Cincinnati, a notice that sealed proposals will be received at the office of the attorney-general for the paper, composition, electrotyping, and press-work of said publication. Said notice shall specify the number required, the quality and style of the printing, electrotyping, and press-work, which shall all be of the best quality, and samples, including ink, shall accompany each bid; the proposals shall distinctly and specifically state the price per thousand ems for composition, the price for electrotyping, the price per token for press-work, and also for furnishing the necessary quantity of strictly number one book paper, supersized and calendered, upon which said work shall be printed, and shall state the time when said work shall be completed; each proposal shall be accompanied by a bond executed in due form by the bidder, with at least two good and sufficient sureties, satisfactory to the attorney-general, in the sum of twenty thousand dollars, conditioned for the faithful performance of the contract, if the same be awarded to him, and for the payment as liquidated damages by such bidder to the state of two hundred dollars for each day such work is unreasonably delayed by such contractor, and any excess of cost over the bid of such bidder which the state may be obliged to pay for such work by reason of the failure of such bidder to complete his contract, the bond to be null and void if no contract be awarded to him; and a bid unaccompanied by such bond shall not be entertained; provided, that the whole cost under such bids shall not exceed four dollars per copy for both volumes, the computation to be made by the secretary of state, attorney-general, and the supervisor of public printing; and provided further, that after such bids shall have been accepted, a contract shall be entered into with such parties to whom the same may be awarded by the attorney-general, acting for the state, providing that one-fourth part of each payment, to be made as therein directed, shall be retained until the conditions of said contract shall have been fulfilled.”

The advertisements that were published followed the requirements of the section, which, among other things, required the proposal to state “ the time when said work shall be completed.”

Now as the law requires the work as a whole to be completed and ready for distribution not later than December 1, 1879, a reasonable construction of it would indicate clearly that the printing would have to be done and completed a sufficient time before the first of December, 1879, to allow the volumes to be bound and prepared for distribution by that time; and a proposal that did not fix a time for completing the printing by a date that would allow a reasonable time for binding the volumes so that they might be ready for distribution by the time required by the law, would not be a bid that the defendants were authorized, under the law, to accept.

The acceptance of the proposal of Peter Q-. Thompson would not have required him to complete the work awarded to him until the 1st of December, the time when, under the statute, the volumes were to be ready for distribution. This would leave no time for binding. The defendants, therefore, can not be required to accept his proposal.

The proposal of the Transcript Company is like that of Thompson, except that it contains the condition, “ or thirty days sooner, if copy is furnished.”

The provision of the statute, requiring the proposal to state the time when the work will be completed, is intended to accomplish a double purpose: 1. To fix the time within which the bidder must complete his work; 2. To fix the time within which the annotators are bound to supply the bidder with the copy required to complete the work.

Under a contract made on the basis of the proposal of the Transcript Company, the annotators could not be required to supply copy faster than would enable the company to complete their work by the time named in the proposal, the 1st of December, 1879. Under the statute, the time allowed to the bidder, by his contract, to complete his work, is the standard by which the annotators are bound to supply him with copy. He can not, therefore, make the time of supplying him with copy a substitute for stating the time within which he undertakes to complete the work.

Any delay caused by failing to furnish the bidder with copy, would not be unreasonable delay on his part, and would not subject him to damages. For delay thus caused, the annotators would be liable under section 13 of the act.

The proposal of the Transcript Company is not, therefore, under the statute, different, in legal effect, from the proposal of Thompson.

The demurrer to the writs respectively must be sustained on the ground above indicated, and it is unnecessary to examine the other grounds stated in the demurrer.


author: McIlvaine, J.

text:
    Clements et al. v. Hull.
    A power of attorney, attached to a sealed note payable to bearer, authorizing the waiving of process and the confession of judgment in favor of the holder of the note, may be executed in favor of an equitable owner and holder, to whom the note may be transferred by delivery, but without indorsement thereon.
    Error to the Court of Common Pleas of Morrow county, reserved in the district court.
    The defendant in error, to whom a sealed note, payable to J. N. Cooley or bearer, had been transferred by delivery, took a judgment thereon against the makers, plaintiff in error, by confession under a warrant of attorney attached thereto, at the October term, 1874, of the court of common pleas.
    The following is a copy of the note and warrant of attorney :
    “ $200. , Elint, Ohio, October 17,1871.
    “ One year after date, we, or either of us, as principal debtors, for value received, promise to pay to J. N. Cooley or bearer the sum of two hundred dollars, payable at the Eirst National Bank of Mt. Gilead, Ohio.
    “We hereby authorize any attorney at law to appear for us, or either of us, at any time after the maturity of the above note, in any court of record in the State of Ohio, or elsewhere, and waive the issue and service of process, and confess judgment in favor of the holders of said note, for the amount of said note and interest, and interest on said judgment at the rate of eight per cent., together with costs of suit, and release all errors, and waive all right of second trial in said action.
    “ Witness our hands and seals this 17th day of October, 1871.
    “ C. M. Clements, [l. s.]
    “ C. C. Clements, [l. s.]
    [stamps.] “ Susan W. Clements.” [l. s.]

      Thereupon the plaintiffs in error filed their petition in error, in the district court, to reverse said judgment, and made the following assignments of error:
    “ 1. That said court erred in rendering judgment for said Isaac Hull, who was not the payee of said note.
    “ 2. That said court had no jurisdiction of the persons of these defendants, and erred in rendering said judgment.
    “ 3. That said court erred in rendering judgment upon said cognovit without first bringing in said defendants below by summons.
    “4. That said court erred in rendering a judgment in favor of Isaac Hull upon said warrant of attorney.”
    The proceeding in error has been reserved here for decision.

      Andrews & Allison, for plaintiffs in error.

      T. H. Dalrymple, for defendant in error.
   McIlvaine, J.

Upon the proposition that a power of attorney to confess a judgment, attached to a negotiable promissory note in favor of the holder thereof, may be executed in favor of an indorsee, I need add but little to what was said iu the opinion in the case of Watson v. Paine, 25 Ohio St. 340.

In strictness, the question is not, whether such a power of attorney is negotiable, but whether the attorney upon whom the power is conferred may execute it in favor of the holder, according to the express terms of the grant, when such holder is other than the payee of the note. The doctrine advanced in that case, upon this question, is now approved.

In a very recent case, Osborn v. Kistler, ante 99, it was decided that a sealed note, though payable to bearer, could not be transferred, so as to vest the legal title in the transferee, except “ by indorsement thereon.” See also 14 Ohio, 542. But, on the other hand, all the cases clearly recoguize the doctrine that a purchaser of such paper, to whom it is transferred by delivery merely, acquires an equitable ownership and title thereto, whereby he may prosecute an action thereon in his own name, subject, however, to such defenses as existed against it while in the hands of the payee.

It only remains, therefore, to be determined, whether such a power of attorney can be executed in favor of such equitable owner and holder.

The code of civil procedure provides that every-action must be prosecuted in the name of the real party in interest, and the case before us being within this rule, we think, it must have been in the contemplation of the donor of the power, as it is clearly within the words of the grant, that the attorney should confess judgment in favor of such equitable owner and holder.

The scope of the power is not limited, in this case, as it was in the case, Cushman v. Welsh, 19 Ohio St. 536, in favor of the legal holder only. The authority here given is “ to confess judgment in favor of the holder of said note,” and we think these words were intended, and should be construed, to embrace any holder who might lawfully prosecute an action on said note, in his own name and for his own use.

Judgment affirmed.


text:
    Weir v. Day et al.
    1. Under the act of May 1, 1873, entitled “an act for the reorganization and maintenance of common schools” (70 Ohio L. 195), boards of education are invested with the title to the property of their respective districts in trust for the use of public schools, and the appropriation of such property to any other use is unauthorized.
    2. A lease of a public school-house for the purpose of having a private or select school taught therein for a term of weeks, is in violation of the trust; and such use of the school-house may be restrained at the suit of a resident tax-payer of the district.
    Error to the District Court of Portage county.
    'The defendants, Day, Payne, and Ewing, who constituted the board of education in and for a special school district, in Edinburg township, Portage county, on the 6th of September, 1875, leased to defendant, Speirs, the school-house belonging to the special school district, for the term of eleven weeks, for the purpose of teaching therein a private or select school, for the consideration of five dollars, alleged to bo a reasonable rent for the term. Eor this term a private school, under the sole control and management of Speirs, was opened in the school-house, to which pupils were admitted upon payment of certain fees, but no part of the public school funds wei-e expended in its support.
    The plaintiff, who was a resident tax-payer of the district, had a son within the school ages of six and twenty-one. This son was excluded from the privileges of the select school by Speirs, although the usual fee was offered to be paid. Thereupon, the original action was commenced in the Court of Common Pleas of Portage county, by the plaintiff in error, to restrain the use of the school house for the purpose of teaching therein the private school from which his son had been excluded.
    The board of education, by its answer, admitted the leasing of the school-house to Speirs, but disclaimed acting in reference to the exclusion of plaintiff’s son from the schoolSpeirs undertook to justify the exclusion of plaintiff’s son, under the lease.
    A demurrer to these answers was overruled, and judgment rendered for defendants. This judgment, on error, was affirmed by the district court. This proceeding in error is now prosecuted to reverse both the judgments below.

      J. D. Horton and W. B. Thomas, for plaintiff in error:
    The board of education is a body corporate, and as such holds the school property in trust, for the uses and purposes to which it is designed by law, and for no other purpose. That a corporation can exercise only such powers as are' either expressly conferred upon it, or are incidental to the powers expressly conferred, is too well settled in this state to be questioned. Bank of Chillicothe v. Swayne, 8 Ohio, 257; Strauss v. Eagle Ins. Co., 5 Ohio St. 59; White’s Bank v. Toledo F. & M. Ins. Co., 12 Ohio St. 601.
    The board of education had no power to make this lease,, and the tax-payer is entitled to an injunction. Scofield v. School District, 27 Conn. 499; Perry v. Kinner, 42 Ill. 160; High on Injunction, § 792.
   McIlvaine, J.

The questions in this case relate solely to the power of a board of education to appropriate the public school-house of its district to private, uses, or, indeed, to any use other than public schools.

Section 37 of the. “ act for the reorganization and maintenance of common schools,” passed May 1, 1873 (70 Ohio L. 195), in force when the original action was commenced, provides: “ The several boards of education of all school districts now organized and established, and all school districts organized under the provisions of this act, shall be and they are hereby declared to be bodies politic and corporate, and as such capable of suing and being sued, contracting and being contracted with, acquiring, holding, possessing and disposing of property, both real and personal, and taking and holding in trust for the use and benefit of such districts any grant or devise of land, and any donation or bequest of money or other personal property ; and of exercising such other powers and having such other privileges as are conferred by this act.” And section 89 reads as follows: “ All property, real or personal, which has heretofore vested in and is now held by any board of education, or town or city council, for the use of public or common schools in any district, is hereby vested in the board of education provided for in this act, having under this act jurisdiction and control of the schools in such district.”

By virtue of these sections, all public school-houses are vested in the boards of education, in trust for the use of the public or common schools, and the appropriation of' them to any other nse is unauthorized and unlawful. The power of “disposing of property” conferred upon such boards by section 37, was intended to and does relate solely to property not needed for the use of the public schools.

"We do not mean to say that a court of equity will interpose its extraordinary power, by writ of injunction, against every casual or temporary use of such property for other than public school purposes, but it is quite clear to our minds that its appropriation, by lease, for a private school for a term of weeks, ought to be restrained.

It has been suggested that a distinction might be made between uses other than for the public schools; and that those which are educational in character might be allowed, while those not educational should be prohibited. "We can see no ground for such distinction. The property having been acquired and maintained by general taxation, for the use of public schools, to which all the youth of the district are entitled to admission, it would be a violation of the-trust to devote it to any educational purpose to the benefits of which, each youth within the district, of school age,' might not of right demand admission upon equal terms with others in like condition.

. It is also suggested that the plaintiff has not shown an. injury to himself. As a resident tax-payer in the district, and hence a quasi corporator, it is his legal right to have the corporate property used solely for corporate purposes; and any diversion of the property to other uses is an injury to him in law. And in addition to this, the unauthorized use to which this property was devoted, necessarily results in damage to’a greater or less degree, to say nothing-of the risks.

We think that the demurrers to the answers should have been sustained by the court of common pleas, and that the -district court erred in affirming the judgment.

Judgments reversed


text:
    The Baltimore and Ohio Railroad Co. v. McElroy.
    The provisions of the act of April 18, 1874 (71 Ohio L. 85), relating to the inclosing of railroads by fences and cattle-guards, apply to all railroads then in operation and unfenced, and extended the time within which such railroads were required to be fenced for the period of six months after the date of the passage of the act; and until the time thus extended had elapsed, no liability for an-injury to trespassing animals arose from the failure to construct such fence.
    Error to the District Court of Berry county.
    The original action was brought before a justice of the peace by the defendants in error, who were plaintiffs below,to recover the value of a horse killed by a train on the road of the plaintiff in error, on the 16th day of July, 1874. The case was there tried to a jury, and there was'a verdict and judgment for the plaintiffs below for the value of the horse.
    A bill of exceptions, which is made part of the record was taken by the defendant below, from which it appears that on the trial the' justice, at the request of the plaintiff: below, charged the jury:
    “ That if the jury should,find from the clear preponderance of the evidence that on or about the 16th day of July,' 1874, the said defendant had the control and 'management Of the said Newark, Somerset and Straitsville Railroad, and had controlled and managed the same for more than a year then last past; and if they further find that by one off the trains run on said road by the said defendant the horse of the plaintiffs was run on and injured, on or about the 16th day of July, 1874( whereby he died; and if they shall further find thaf said horse was turned out by the plaintiffs' on their own premises, and without any fault or neglect of the plaintiffs, but by reason of the want of a fence along the said railroad track, and was run upon and injured by one of the defendant’s trains aforesaid, then the jury would be authorized, under the law, to find in favor of the plaintiffs.”
    To this charge the defendant below excepted. On error duly prosecuted, the judgment of the justice was affirmed in the court of common pleas, and that of the latter court was affirmed in the district court.
    This proceeding is prosecuted to obtain a reversal of the several judgments in the courts below.
    One of the errors assigned and throughout insisted upon is, “that the justice ei’red in giving in charge to the jury the instructions asked for by said plaintiffs ” (defendants in error).

      Butler & Huffman, for plaintiff in error:
    At the time of this injury there was no law in the state requiring railway companies to fence their roads. It occurred before the expiration of the six months allowed in the act to companies in which to build their fences after its passage, and taking effect on the 18th day of April, 1874. Ohio Laws of 1874, p. 85.
    By this act railway companies were required to fence their roads within six months after its passage and taking effect, which repealed section 1 of the act passed April 26, 1871, amending section 1 of the act entitled “ an act providing for inclosing railroads by fences and cattle-guards,” passed March 25, 1859 (¡Swan & Critchfield, 331), repealing or superseding all law in the state requiring railway companies to fence their roads. The 1st, 2d and 3d sections of the act of March 25, 1859, wore repealed by the act of April 26, 1871, and the 1st section amended, or, rather, enacted into the last act, which contains only one section. It is true the 4th section of the act of 1859 remained unrepealed in words, but this section contained only the penalty for the failure to build the fence required to be built by the sections so repealed. But we think a court would hardly impose a penalty on a company for failing to build a fence when there was no law making it the dufy of the company so to fence.

      We claim that upon the passage of the law of 1871 there was no law requiring railroads to fence, except that act, which by its own limitation did not operate to require railroads to fence for one year after its passage; and by the act of April 18, 1874, the first section of the act of .1871 is repealed, which is the entire act, and sweeping away all law requiring such fencing.
    We claim that this act is to be construed as if it were the first one passed by the legislature on this subject. This being the true construction, railroad companies were not required by law to fence their roads after the passage of the act of April 18, 1874, until after the lapse of six months after that date, and during this interval of time the injury complained of occurred.
    On the construction of this statute, and similar statutes, see 27 Ill. 30; lb. 41; 13 Wis. 637; Redfield on Neg. 530-532, aud § 457.

      W. E. Finck, for defendant in error:
    It has been the well-settled policy of this state, since 1859, to require railroads to fence their tracks, so as to preserve life and property. 1 S. & C. 331, §§ 1, 5; 68 Ohio L. 78, 79, § 1. By this act last cited, sections 1, 2) 3, of the act of March 25,1859, are repealed; the act of April 18, 1874 (71 Ohio L. 85), repealing section 1 of the act of April 26, 1871.
    It is true the act required the fence to be built within six mouths after the passage of the act, or within six months after cars commence to run on the road. But this • did not release the company from liability for damages which might result from the want or insufficiency of such fence.
    What I claim is that the act does not postpone the lia-. bility of the railroad company, for such damages, for any time after the passage of the act, but that this liability, under the several acts aforesaid, has been continuing and constant ever since the 25th day of March, 1859, under the several acts already referred to.
   Gilmore, C. J.

On the 18th of April, 1874 (71 Ohio L. 85), the general assembly passed an act “to amend section 1 of an act entitled an act providing for inclosing railroads by fences and cattle-guards/ as amended April 26, 1871.” The amendatory act, as far as it is necessary here to recite it, provides : “ That any railroad company, or other party having control or management of a railroad, .the whole or part of which is now or shall be in this state, is hereby required, at their own expense, to construct good and sufficient fence to turn stock along the whole line, except as hereinafter provided, on both sides of said railroad, within six months after the passage of this act, which then have not been fenced as required by this act, and within six months from the time cars are commenced to be run for the transportation of passengers or freight, on all railroads that .have not commenced running regular trains at the date of the passage of this act, and at their own expense to keep said fences up in good repair thereafter, and also to make and maintain safe and sufficient crossings, of good width, at every point where a public road, street, lane, or highway, may cross said railroad, that is or may be used by the public, with the necessary cattle-guards, on each side of said .crossings, to prevent cattle or other domestic animals from endangering themselves and the lives of passengers by getting upon such railroads, and every such railroad company or party shall be liable for all damages sustained in person or property, in any manner, by reason of the want or insufficiency of any such fence,-crossing, or cattle-guard,” etc. This act took effect, and was in force, from and after its passage.

The horse, for the killing of which the action was brought before the justice, was killed on the 16th of July, 1874, being less than six months after the passage of the act. The remedy was sought, and the recovery had under the act above quoted from; the charge of the justice on this point being, that if the plaintiffs were without fault, and the horse was killed “ by reason of the want of fence along the said railroad track, by one of defendant’s trains, .then the jury would be authorized, under the law, to find in favor of plaintiffs.”

If the time within which the railroad company (defendant below) was required to feuce its road, was six months from the date of the act, then, inasmuch as that period had not expired at the time the injury complained of occurred, it follows that the charge of the justice was erroneous; for it authorized the jury to find for the plaintiffs if the horse was killed by reason of the want of fence along the railroad, whether the railroad company or its agents acted negligently in committing the injury or not.

The only question therefore is: Did the act of 1874 give the railroad six months in which to fence its road, as required by the act ? .

We think it did. Until required to do so by legislation, railroads, in this state, were not bound to'fence the line of their roads. The whole subject .is therefore within the control of the general assembly, and in seeking for the intent with which the act in question was passed, we must look to prior legislation on.the same subject. The rule is, that where it is manifestly the intention of the legislature that a subsequent act shall not control the provisions of a former act, the subsequent act shall not have such operation, even though the words, if taken strictly and grammatically, would repeal the former act.

The contention of counsel for defendants in error is, that it has been the well settled policy of this state, since 1859, to require railroads to fence their tracks, so as to preserve life and property. But it is not, and can not be, contended that a subsequent act of the legislature will not control the provisions of a prior statute, if it were intended to have that operation. The legislative intent, in this respect, must be sought, not only in the act of 1874, but also in the prior acts relating to the same subject. Two such acts preceded that of 1874. The first was passed and took effect March 25, 1859. S. & G. 331. It contained five sections. The first required every railroad company, or other party having control of a railroad then in operation, in this state, to construct good and sufficient fences on both sides of its road, within two years from the date of the passage of the act, or within two years after commencing to run regular passenger or freight cars thereon. By the second section, such fences, when built, as between the railroad company and the owners of improved lands through which the road passed, became partition fences, on the terms therein prescribed. The third section related to the repair of such fences. The fourth section provides that the act shall not affect contracts between railroad companies and the proprietors of adjoining lands, for the construction and maintenance of fences, cattle-guards, and crossings. The fifth section prescribes a penalty, not exceeding fifty dollars, for each and every day any railroad company refuses or neglects to comply with the provisions of the act.

This indicates the scope of the first act. The declared policy or purpose of the act was to “prevent cattle and other animals from endangering themselves and the lives of passengers by getting upon such railroads.” The sub- • sequent acts have not changed this declared purpose or policy.

The first section of the act of 1859 was amended by that of 1871. (68 Ohio L. 78.) The only material changes made by the amendment were, that by this act railroads were required to fence their roads within one, where by the former act they were required to do so in two years, and railroad fences were declared partition fences only when the railroad ran on the boundary of any inclosed farm or farms.

There is, however, a noticeable proviso in the first section of this act, which reads as follows : “ Nothing herein shall be construed to extend the time within which any existing railroad company, or other party, is required to fence its railroad, by the act hereby amended.” This proviso is a clear indication of the legislative intent as to existing railroads, and it continued the first act in force as to existing roads. In other words, there was only a partial repeal of the first section of the first act, although the second section of the amendatory act expressly repeals sections one, two, and three of the amended act.

The first section of the act of 1874 amends the first section of the act of 1871. The material changes made were that six months is fixed as the time within which existing railroads are required to fence their roads, instead of one year, as required by the first section of the act of 1871, and railroad fences do not become partition fences, but are to be built and kept in repair at the expense of the railroad company.

The second section of.the act of 1874 reads as follows: “ Section one of said act, passed April 26, 1871, amending section one of an act entitled an act providing for indos ing railroads by fences and cattle-guards,’ passed March 25, 1859, is hereby repealed.” But the second section of the act of 1871, which repeals sections one, two, and three of the act of 1859,,is not repealed. I do not mention this because it is of legal significance in this case, but because it reflects upon the intention of the legislature, and when taken in connection with the fact that the proviso of the act of 1871 is omitted in the act of 1874, it shows conclusively that it was the intention of the legislature to repeal, not only the first section of the act of 1871, but the first, second, and third sections of the act of 1859, which we find was done. This left the first section of the act of 1871, and the fourth and fifth sections of the act of 1859, only, in force.

Independent of legislation, there is no state policy in reference to the fencing of railroads, which we are authorized to recognize.

The act of 1874 clearly gives to l-ailroad companies then in operation, and whose roads were not fenced, as was the case with the defendant company (plaintiff in error), six months from the date of the passage of the act within which to fence their road. This period had not elapsed at the time the injury occurred for which the plaintiffs below brought their action, and the liability imposed by the statute could not attach to the company at the time of the injury, for it was not then in default in fencing its road.

This decision does not touch questions that may arise in reference to fences that were built by railroads in pursuance of the requirements of the acts of 1859 and 1871.

■ The charge of the justice was erroneous.

The judgments of the district court, court of common pleas, aud justice’s court respectively, are reversed, and cause remanded to the court of common pleas for such further proceedings as may be authorized by law.

Judgment accordingly.


text:
    The State ex rel. the Commissioners of Washington County v. The Marietta and Cincinnati Railroad Company, as reorganized, and John King, Jr., Receiver of said Company.
    Where the court of common pleas, having jurisdiction in an action against a railroad corporation, has appointed a receiver who is in possession of the road, its property and assets, and is proceeding in the execution of the trust under the direction and orders of the court, a mandamus will not be issued against such corporation and receiver directing their conduct in operating the road.
    Petition for mandamus.
    The case is stated iu the opinion.

      Ewart, Sibley $ Ewart, for plaintiff

      W. B. Loomis, for defendant,
    claimed that, while the decree creating a receivership of the property of the defendant remains undisturbed, the defendant company had no power to interfere in the operation of the railroad, and that decree could only be vacated, modified, or reversed by a direct attack upon it either in the same court or in proper proceedings in error or appeal. The receiver is the officer of the court appointing him; his possession is the possession of the court, Should the railroad company attempt to interfere either in the maintenance or operation of the road, it would at once be in contempt of that court. This court will hardly require, by mandamus, that this railroad company should do that which another court of this state has lawfully deprived it of the power and resources to do — ■ require it to do that which would constitute a contempt of the lawful orders of another court of competent jurisdiction.
    Mandamus will not issue where the ordinary course of law affords a plain and adequate remedy. ■ 75 Ohio L. 812, §§ 4, 5. The writ can not, therefore, issue against the receiver, as asked for, because if the relator is entitled to have the said piece of road in controversy maintained and operated, his remedy is in the court appointing the receiver. If the order appointing the receiver is broad enough to embrace the operation of this piece of road, and the receiver refuses to do so, the relator maj-, through that court, by motion, compel him to do so. And if not broad enough, the relator can, on application to that court, if entitled to it, obtain the necessary order.
   Gilmore, C. J.

It is unnecessary to an understanding of the grounds upon which the decision is made to rest, to state the facts constituting the merits of the claim of the relators against the defendant company, as set forth in the petition, which is quite lengthy. It is sufficient to say' that the object of the proceeding is to obtain a mandamus to compel the Marietta and Cincinnati Railroad Company, as reorganized, to repair and operate that portion of its road, as originally located and constructed, lying between Warren’s station, in Athens county, and Scott’s Landing, in Washington county, about three miles from Marietta; the distance between the points named being over thirty miles; which, it is averred, has been measurably abandoned since 1876, and that the business of the defendant company has, since that time, been almost exclusively thrown over the Baltimore Short Line Railroad, from Warren’s station, above named, to Belpre, in Washington county, opposite to Parkersburg, West Virginia. After stating tbe facts that it is claimed entitles the relator to the relief asked against the defendant compauy,the facts upon which the case turns are stated as follows: “ That said John King, Jr., has been appointed, by the Court of Common Pleas of Ross county, Ohio, and is now acting as receiver of said Marietta and Cincinnati Railroad Company, as reorganized, and wholly neglects and refuses to operate said road further east than Warren’s station, in Athens county,” etc. A supplemental petition has also been filed, which reads as follows: “ The plaintiff says that since the filing of the original petition herein, the said defendant, John King, Jr., has made, a report to the Court of Common Pleas of Ross county, being the same court that appointed him, that the expense of operating and running two trains per week each over the portion of such company’s road from the station called Scott’s Landing, in Washington county, to Big Run station [eight miles east of Warren station], in the edge of Athens county, during the year ending in July, 1879, exceeded by $2,000 or more the income from the business done, and that in order to the safe operating of said portion of said company’s road, it would be necessary to expend a large sum in repairs on the same; and said court thereupon directed said receiver to discontinue the running of trains over said portion of said company’s road, and he has, since the 25th of July, 1879, wholly discontinued the running of auy trains over said road, and abandoned the same.”

On the facts stated in the petition and supplemental petition, we unite in holding that even an alternative writ must be refused in this case.

It is true that the petition does not state the nature of the action pending in the Court of Common Pleas of Ross county; but in this collateral proceeding it will be presumed that the cause is one in which a receiver may be appointed, and that the court had jurisdiction to make the order mentioned in the supplemental petition. The code provides that a receiver may be appointed by the Supreme Court, the district court, the court of common pleas, or by a judge of either, in the cases provided for.

Either of the courts named may take jurisdiction in a proper ease, and the jurisdiction of the court first acquiring it is exclusive, and can not be collaterally questioned in either of the others; the rule being that where there are courts of concurrent jurisdiction that the court possesses the case in which the jurisdiction first attaches. Per Read, J., in Merrill v. Lake, 16 Ohio, 405. It can not be doubted that the statute makes the courts above, named of equal and concurrent j urisdiction in the appointment of receivers in the eases provided for.

The receiver now has possession of the property and assets of the defendant company, and is administering the trust under the direction and orders of the court appointing him. That court has ordered him to discontinue the running of trains over a designated portion of the defendant company’s road. The defendant company is powerless to do any thing except by order of the court «which has taken away its power of control by the appointment of the receiver. The relators are here asking this court for a mandamus to compel this powerless company and its receiver to repair, resume, and continue the running of trains over that portion of the company’s road that the court of common pleas has ordered to be abandoned.

If the mandamos is awarded, as prayed for, and the defendants fail to obey it, the officers of the company and the receiver will be liable to the process of this court for contempt; and if, on the other hand, they obey it, they will be equally in contempt of the court of common pleas for disobeying its valid order. Under such circumstances, the mandamus will be refused.

In principle, Merrill v. Lake, supra; O. & I. R. R. v. The Commissioners of Wyandot County, 7 Ohio St. 278; Ex parte Fleming and another, 4 Hill, 581, are in point.

To avoid the effect of this rule of law, it is suggested in argument, in substance, that the court of common pleas and the receiver are acting for the benefit of the stockholders and creditors alone, and that the jurisdiction of the court of common pleas is exclusive only so far as their ■rights are concerned; but that by the terms of the charter of the defendant company, it owes to the public the duty of repairing and operating the portion of its road in question, and that inasmuch as the court of common pleas has not jurisdiction to compel the performance of this duty to the public by mandamus, that this court, which has such jurisdiction, will compel the performance of such duty. The answer to this proposition is that the court of common pleas has full and complete jurisdiction of the case before it, and it is required to see, not only that the railroad company performs its duties to its stockholders and creditors, but also that it performs its charter duties to the public, and it has the same power to construe the charter in these respects as this court would have in a case properly before it involving the same questions. That court would, therefore, have power to decide the very questions that are made here upon 'application being properly made to it.

Writ refused.