author:
Scott, J.
      Johnson, C. J.,

text:
    Railway v. Stringer.
    1. The several rulings in the case of the Baltimore and Ohio Railroad Co. v. Cary, 28 Ohio St. 208, are reaffirmed.
    2. Where, in an action pending in a state court, the petition of the defendant for the transfer of the case to a Circuit Oourt of the United States-is improperly overruled, such defendant is not bound, in order to preserve his right of removal, to disregard the overruling of his application, and proceed to perfect the transfer of the case; but may, without, abandoning such right, remain in the state court, and prevent, if possible, the prejudicial effect of its erroneous ruling, by all the means-authorized by the laws of the state.
    Error to the District Court of Ashland county.
    On the 2d day of June, 1870, the defendant in error filed his petition in the Court of Common Pleas of Ash-land county, against the Erie Railway Company, to recover damages for being wrongfully ejected from a passenger train by the conductor of the defendants’ train. He claimed damages in the sum of $5,000. Process was issued and duly served upon one of the company’s station agents. On the 5th day of September the plaintiff- in error, being-a corporation created and organized under the laws of the-State of New York, filed its petition, in the ordinary form,, to remove the case for trial into the Circuit Court of the-United States, and at the same time tendered a bond, iii accordance with the act of congress.
    The defendant in error filed an answer to this petition,, on the 12th day of September, which is as follows:
    “ Now comes E. T. Stringer, and for answer to the petition filed by the defendant to remove this case from this* couft to the next Circuit Court of the United States within and for the Northern District of Ohio, says that it is true,, as stated in said petition, that the said Erie Railway Company were, at the time of the commencement this action,, a corporation organized and doing business under the laws of the State of Hew York, and that the matter in dispute-between said Erie Railway Company and the said E. T. .Stringer, exceeds the sum of $500, exclusive of costs.”
    Said E. T. Stringer, further answering said petition, says: “ That the Erie Railway Company is a company of another state than Ohio, to wit, of the State of New York, and that on the-day of-, a. d. 1870, said Erie Railway •Company did lease from the-Atlantic and Great Western Railway Company the exclusive right to the use and control of said road for the term of--years from and after the making of said lease; that a portion of the said Atlantic and Great Western Railway, so leased to the said Erie Railway Company as aforesaid, is in the State of ■Ohio.”
    And, further answering, he says : “ That at the time of the committing of the grievances complained of by him in his petition filed in this case, and for which he has brought ■suit, the said Erie Railway Company were the lessees of the Atlantic and Great Western Railway Company, and as ■such lessees waived their right to remove this cause from this court, as prayed for in said petition.”
    To this answer, the plaintiff in error replied on the same •day,-as follows:
    “And now comes the said Erie Railway Company, and for replication to the answer of the said E. T. Stringer .says: It ought not to be barred of its right to remove said action to the Circuit Court of the United States, as prayed for in its said petition, because it says that it does not run .and operate said Atlantic and Great Western Railroad under the lease from the said Atlantic and Great Western Railroad Company, such as is contemplated by the said -statute, but under a permission or lease made and given by Reuben Hitchcock, a receiver of the said Atlantic and Great Western Railroad Company, appointed by the Court ■of Common Pleas of Summit county, Ohio, and under the .authority of the said last-named court, during the pendency of a certain action therein pending, a copy of which lease or permit is hereto attached, marked ‘A/ and made a part hereof; that it runs and operates said railroad solely under and by virtue of said instrument, and not otherwise ; that it in no manner, by the tenor of said instrument, waived its right to have said action removed, as prayed for, nor that it in any manner waived or lost its right under the-lease to remove said action, and it prays as in said petition.”
    The lease referred to, attached to this reply, bears date February 24, 1870, and is a contract between Reuben Hitchcock, as the receiver of the Atlantic and Great Western Railroad Company, setting forth that it is made in-pursuance of an order of the Court of Common Pleas of Summit county, Ohio, and an order of the Supreme Courts-of the States of New York and of Pennsylvania. .The lease, by its terms, is to continue through the receivership of said Hitchcock, the lessor, unless sooner put an end to by order of the court, upon cause shown, and by the terms-of the lease the Erie Railroad Company, is to maintain the-road in good order, and operate it for seventy per cent, of' the gross earnings thereof.
    At the October term of 1870, the cause came on to be-heard upon the petition of the,Erie Railway Company to remove the action to the circuit court, and the following is the journal entry of the decision of the court:
    “ This case came on to be heard upon a petition, answer, reply, and exhibits, on consideration whereof, the court find that the petitioner is a citizen of the State of New York, that the said E. T. Stringer is a citizen of the State of Ohio ;. that the amount in controversy exceeds $500, exclusive of costs; that the said Atlantic and Great Western Railway Company is an Ohio corporation, and railroad in the State of Ohio, and that the petitioner is in possession of and running and.operating said Atlantic and Great Western Railroad under the lease or instrument attached to the replication ; and therefore the court hold and adjudge that, by virtue of the act of the legislature of Ohio, passed March 19, 1869, the petitioner waived its right to remove said cause to the Circuit Court of the United States, and refused to allow the prayer of the petitioner, and ordered the said petition to be dismissed, to which riding of the court the said Erie Railway Company excepted.”
    Afterward, upon the 9th day of November, 1870, and after the overruling of its petition for removal, the Erie Railway Company filed, under protest, its answer to the petition of the defendant in error against it, to which the defendant in error replied, and the issue thus made up between the parties was twice tried by a jury, the plaintiff in error having demanded a second trial under the statute.
    On the second trial, at the March term, 1871, the jury rendered a verdict in favor of the plaintiff’ below.
    A motion was made to set aside the verdict, which was overruled by the cdurt, and judgment was entered against the plaintiff in error. A bill of exceptions was taken upon the trial, and the evidence is set forth in the record.
    A petition in error was filed in the district court by the plaintiff in error, and the judgment of the court of common pleas was affirmed. A petition in error has been filed in this court to reverse the judgment of the district court and court of common pleas.
    Among the errors assigned, both in the -district court and here, the plaintiff’ in error alleges that the court of common pleas erred in overruling its petition for removal, and in proceeding with the action after the filing of such petition.

      S. Burke, for plaintiff in error:
    On the subject of removal from a state to a United States court, see Insurance Co. v. Morse, 29 Wall. 445; Railroad Co. v. Cary, 28 Ohio St. 208. As to waiver, the common pleas lost all jurisdiction in the case after the petition to remove was filed, and its subsequent acts were void. 19 Wall. 214; 20 Wall. 445.

      John McSweeney, for defendant in error.
   Scott, J.

The plaintiff in error is a corporation created solely by the State of New York, and is therefore to be regarded as a citizen of that state. And the fact that it is operating a railroad of another corporation, part of which lies within this state,- under a lease from the receiver of the latter corporation, does not give it the character of an Ohio corporation, or affect its status as a citizen of New York. It was so held by this commission in the case of the B. & O. R. R. Co. v. Cary, 28 Ohio St. 208. And we see no reason to doubt the correctness of the views there expressed, and do not hesitate to reaffirm the doctrine of that case. Indeed, it would not be otherwise, even if the plaintiff in error were the absolute purchaser of the property and franchises which it is now operating and using as a lessee. State v. Sherman, 22 Ohio St. 411. The laws of this state which authorize foreign corporations to make contracts and transact business within their appropriate spheres of action, in this state, do not purport to create domestic corporations, but merely to permit and regulate the action within this state, of existing foreign corporations.

The plaintiff in error, then, being sued by a citizen of this state, in the Court of Common Pleas of Ashland county, had a right, as a citizen of another state (the amount in controversy being more than $500), to ask for the removal of the case into the Circuit Court of the United States. Such right is clearly conferred by the judiciary act of congress of 1789. Plaintiff in error, in due time, exercised this right, by petitioning, in due foi-m, for such removal, and complying in all respects with .the requirements of the act of congress in that behalf. The court of common pleas overruled the application for removal, on the sole ground that, by virtue of the act of the legislature of Ohio, passed March 19, 1869, the petitioner had waived its right to such removal. The statutory provision referred to is as follows: “ Provided that it shall be regarded as one of the conditions upon which a railroad company of another state may lease or purchase a railroad, the whole or any part of which is in this state, or make any arrangement for operating the same, under'the provisions of this section, that such railroad company of another- state thereby waives the right to remove any case from any of the courts of this state to any <of the courts of the United States, or to bring a suit in any of the courts of the United States against any citizen of this-.state; and a violation of such condition shall operate as a forfeiture of all rights acquired under such lease, purchase, ■or arrangement.” 66 Ohio L. 33.

Was the court of common pleas justified, by this enactment of the state legislature, in refusing the request for removal, and holding that the right of removal had been waived ?

• The power of a state legislature to require a foreign corporation to waive or forego the exercise of such right of removal as a condition on which it is permitted to do business in the state, has been expressly denied by the Supreme Court of the United States. That tribunal of last resort in the determination of the question, holds such state legislation to be in conflict with the constitution and laws of ^he United States. Home Ins. Co. v. Morse, 20 Wall. 445; reaffirmed in Doyle v. Cont. Ins. Co., 4 Otto, 535.

And, with proper deference, we have followed and conformed to those decisions in the cases of the Assurance Co. v. Pierce, 27 Ohio St. 155, and B. & O. R. R. Co. v. Cary, supra.

In conformity with these precedents, it must be held that -the court of common pleas erred in finding and ruling that the plaintiff in error had waived its light of removal in virtue of the state enactment on that subject.

Nor did the plaintiff in error, defendant in the court below, by proceeding in the cause under protest, after its application for removal had been overruled, waive, or in any way lose, the right to call in question the further jurisdiction of the court of common pleas. Hadley v. Dunlap, 10 Ohio St. 1.

A proper case having been made by defendant below for the removal of the cause, the court had no discretion in the premises. Its imperative duty was “ to accept the surety and proceed no further in the cause against the petitioner.” It had no longer any rightful jurisdiction of the cause. Gordon v. Longest, 16 Peters, 97.

And, so long as the plaintiff in error continued to stand upon and assert its right of removal, and declined to recognize the rightfulness of the jurisdiction thereafter improperly assumed, all the subsequent orders and judgments of the court, made and entered in the exercise of such assumed jurisdiction, would be utterly invalid as against the plaintiff in error.

After the overruling of the application for removal, the defendant below submitted to the further jurisdiction of the court of common pleas involuntarily and under protest. And, after final judgment in that court, it declined to waive- or abandon its rights in that behalf; and, on the contrary, continued their assertion, by seeking the reversal of such judgment in the district court, on the very ground of error in refusing to grant its application for removal.

And the district court having affirmed the judgment,, plaintiff in error is now here, still demanding a reversal on the same ground. There has, at no time, been an acquiescence, on its part, in the exercise of the jurisdiction wrongfully assumed by the court of common pleas.

But defendant in error now alleges that plaintiff in error failed and neglected to take .the necessary steps to effect and perfect the removal of the cause to the proper Circuit Court of the United States, after the overruling of its application for removal; and it is claimed that such failure and neglect, taken in connection with the fact of its remaining in the court of common pleas, though under protest, and demanding and exercising in that court its statutory right to a second trial, constitute a waiver of its right to have the cause transferred to the circuit court.

¥e know of no case in which it has ever been held that when a petition for removal has been improperly denied,, the petitioner is bound, in order to preserve his right of removal, wholly to disregard such denial of his right, and seek an immediate remedy through the action of the courts-of the United States. On the contrary, a defendant in a state court may, without prejudiee to his right-, prevent the injurious effect of its denial, if he can, by all the means. authorized by the laws of the state. And when these-means are exhausted, without effect, and his right has been denied by the highest tribunal of the state, he may then appeal, by writ of error, to the Supreme Court of the United States, the paramount and final arbiter of the question. This was the very course adopted in the case of Gordon v. Longest, supra. The idea does not appear to-have occurred to either court or counsel in that case, that the plaintiff' in error had lost his right to have the case-transferred, by going to a trial in the state court of original jurisdiction, or by prosecuting a writ of error in the court of appeals of the state to reverse the judgment rendered against him. The Supreme Court of the United States-said that the defendant might have pursued a more summary remedy, but the cause having come into that court through the supreme court of the state, the judgment of affirmance by that court was reversed, and the cause remanded with instructions that it should be transmitted to-the court in which it originated, where an allowance of the petition for removal was directed to be entered nunc pm tunc. And in Hadley v. Dunlap, supra, where the defendant’s application for removal was improperly refused by the court of common pleas, and he thereupon proceeded to trial, and then took an appeal to the district court from the decree rendered against him, and in the latter court renewed his application for a transfer of the case, the question made by the renewed application was reserved for the determination of the supreme court. It was conceded by the learned counsel for complainants in that case, that if the application for removal should have been granted by the court of common pleas, the defendant had not lost the right to demand such removal, by the trial in the court below, and the appeal of the case by the defendant. The court was of the same opinion, and ordered the case to be -certified to the proper circuit court. In neither of these cases had the petitioner taken any steps, after the overruling of his petition, to effect an actual transfer of the case.

In the case of Hatch v. The Ch. R. I. & Pacific R. R. Co., ■6 Blatch. C. C. 105, it is said by Judge Blatchford: “ The right of the defendant to a removal is not dependent on the question whether the state court does or does not make .an order for the removal. If it were so dependent, the refusal of the state court in a proper case to make such an ■order would make it impossible for the defendant to secure the removal except by carrying the suit through the state tribunals, and then carrying it from the highest state tribunal to the Supreme Court of the United States, under the 25th section of the judiciary act of 1789. A defendant is not, however, where a state court is improperly proceeding in a cause, in violation of the 12th section of the act of 1789, restricted to such mode of relief. Where the right to remove a cause is complete, the power of the state court, in respect to the cause, is at an end, and the defendant is not obliged to follow the cause further in any state court, either of original or appellate jurisdiction. Kanause v. Martin, 15 Howard, 198. If he does all that is necessary to secure a removal, then, whether the state court makes an order of removal or not, he can perfect the removal by entering in this court, at the proper time, copies •of the proper papers, and his appearance, and special bail if necessary. When that is done, the cause will .proceed in this court.”

This language clearly implies, that whilst a defendant may disregard the refusal of the state court to allow the removal, and may perfect such removal without an order of allowance, yet that he is not bound to adopt this summary mode of effecting a transfer, and his failure to do so is no waiver of his right to call in question the continuing jurisdiction of the state court.

We find it unnecessary to consider the other errors assigned in the case. The judgments of both the courts below will be reversed, and the cause be remanded to the court of common pleas, with instructions to certify the case-to the proper Circuit Court of the United States.

Johnson, C. J.,

dissenting. I most respectfully dissent, from the opinion just announced on two grounds.

1. I do not think the plaintiff in error, was a citizen of another state, and as such entitled to a removal to the Circuit Court of the United States.

Although the Erie Railway Company was chartered by the State of New York, and is, as to all causes of action growing out of the exercise of all corporate powers conferred by that state, “ a citizen of another state,” for the purposes of a removal, yet, as the lessee of this road and franchises-of the Atlantic and Great Western Railroad Company, an Ohio corporation, and as to causes of action growing out of the exercise of corporate powers directly derived from the Ohio laws, under said lease, I think it stands in the shoes-of the lessor.

The reasons for this conclusion are given in my dissent in the B. & O. R. R. Co. v. Gary, 28 Ohio St. 216, and need not be repeated.

Since that dissent was written, the Court of Appeals of Virginia have unanimously affirmed the doctrine there-claimed, and have indorsed that dissent with their approval.

That court holds : That “ wffiere a railway company, incorporated by another state, leases a railroad lying in this-state, and operates it as owner, and an injury occurs on said road, the person having a right of action for such injury may sue in the courts of this state, and such company has no right to remove the suit to the federal court. B.

O. R. R. Co. v. Wightman (Va. L. J., p. 175, December, 1877; see also McGregor v. Erie R. W. Co. 35 N. J. (6 Vroom, 115.)

2. The second ground of dissent is, that the record shows-an abandonment of the purpose to remove the cause, and. a consent of the company to again submit the cause to the-state court.

The record shows that, after the petition and bond were-filed, the company utterly failed and neglected to perfect Hie removal to the circuit court, by filing copies of the papers, as required by act of congress ; and after the time had ■elapsed for so doing, waived its right to such removal by a trial of the case without objection.

That a party possesses the power to abandon his purpose to remove his cause, after petition and bond filed, either by .a withdrawal of the papers filed for that purpose, or otherwise, can not be successfully disputed.

That he possesses equal power to waive his' right in an .action pending, as well after he has filed his petition and "bond for a removal as before, seems to me to be too clear for argument.

It is a personal right, which may be waived as each case .arises, at the option of the non-resident citizen.

This was expressly decided in Insurance Company v. Morse, 20 Wall. 451, where it was held that a general waiver :in advance, by a citizen of another state, of his right of removal was void; yet “ in a civil case he may submit his particular suit by his own consent to an arbitration, •or to the decision of a siugle judge. So he may omit to-•exercise his right to remove his suit to a federal tribunal .as often as he sees fit in each recurring case. In these aspects any citizen may, no doubt, waive the rights to which 'he is entitled.”

In Home Ins. Co. v. Curtis, 32 Mich. 402, the defendant, .■a foreign corporation, on the 20th of December, 1873, filed ■.a petition and bond fora removal in proper form, but made no motion for a removal, nor called the attention of the •court to the fact. November 24, 1874, the parties went to trial without objection, and without questioning the jurisdiction of the state court. It was held, all the judges concurring, that “ whatever rights the company may have had upon the filing of the bond and petition, it could waive, and it certainly, under the circum.•stances of this case, must be considered as having waived them.”

“ The company could not go to trial upon the merits, take its chances upon the result, and afterward question the jurisdiction of the court.”

So in The Hanover Nat. Bank v. Smith, 13 Blackford, it was expressly held that a party may waive the right of removal in a particular suit, either by agreement or by conduct, which is equivalent to a waiver.

That a party can waive his right to a removal, as well ■after as before the filing of his petition and bond, has been settled by the unanimous decision of this court in the case of Pollock v. Cohen, in which the opinion is now being prepared, and will soon be reported.

In that case, the plaintiff, after his petition and bond in ■due form had been filed, his motion overruled, and his exception entered, proceeded to trial without further objection, which resulted in a verdict and judgment against him.

He took the case on error to the district court, but, in assigning his errors, omitte<l to assign the overruling of the ■motion to remove as error. On error to this court, it is held, that by his omission he waived the error, and must be deemed to have waived his right of removal.

As the facts in the case at bar make a much stronger case •of waiver than that of Pollock v. Cohen, I am unable to see how the two cases can be reconciled. That there was a waiver in this case, and a full consent to a final trial in the common pleas, is conclusively shown by the record. The notion was commenced June 2, 1870. The petition and bond for removal were filed September 5, 1870.

By the weight of authority no action or order of the state court is required to perfect his right to a removal, and without such action the company might have filed the transcript in the circuit court, and thus perfected a transfer of the case. It could have done this, even if the court had refused to order a removal.

At the October term, 1870, the order of-removal was refused, and exception was noted.

The bond which was filed with the petition, September 5th, was conditioned that the company would, on or before the first ■ day of the next session of the circuit court, file therein copies of the papers, as required by the act of congress.

The next session of the Circuit Court for the Northern District of Ohio commenced on the 1st Tuesday of October, the next on the 1st Tuesday of January, and the next on the first Tuesday of April. The case was finally tried April 26, 1871, so that three terms had passed.

November 9, 1870, an answer was filed, under protest, and issue joined.

At the December term, 1870, without objection, the company, being represented by counsel, and defending, the case was tried to a jury resulting in a verdict and judgment for plaintiff.

The defendant demanded and was allowed a second trial under the.statute upon giving the required undertaking.

This was given January 17, 1871, and the case was again-placed on the trial docket.

At the March term, 1871, to wit, April 26, 1871, which was more than seven months after petition for removal was-filed, and after three next sessions of the circuit court had commenced, without the transcript and copies being filed in the-circuit court, the case was again tried, without objection,, the defendant being present and defending, which resulted in a second judgment for plaintiff.

A motion for a new trial was made on several grounds,. but neither in that motion, nor in arrest of judgment, was any objection made to the jurisdiction of the court.

The motion was overruled, and a bill of exceptions taken on the causes assigned in the motion, but no motion in arrest of judgment was filed.

Error was prosecuted in the district court, where one of the causes assigned was that the common pleas erred in refusing to grant a removal.

• Since the case came into this court, the defendant in error has filed an answer, showing that no papers were- ■ ever filed in the Circuit Court of the United States.

Here we have unmistakable evidence of waiver: The time for transfer had elapsed, when the second trial was obtained at the request of the company. The condition of the bond it had given had been broken by neglect or failure, intentional as we must infer, to perfect the transfer.

Until the papers were filed in the circuit court, that court had no jurisdiction, except by certiorari, or other process, on motion of the company to compel the clerk of the common pleas to certify up the papers.

The case was not then in the circuit court. Its jurisdiction had not attached. The company had abandoned, for the time being at least, the intention to remove, and had concluded to take its chances in the state court. As was said in 32 Michigan, before cited, it could not “ take its chances on the result and afterward question the jurisdiction.”

The act of congress provides that, after petition and bond are filed, the state court can proceed no further in the cause.

This is a provision in favor of the party seeking the removal. It is personal to him, and does not divest the state court of jurisdiction over the subject-matter, but only over the person at his election.

It is said that, after petition and bond filed, all further proceedings of the state court are coram non judice and void. Numerous decisions may be cited to this effect. Is it true, in au unqualified sense ?

The opinion of the majority concedes that it is not, when stress is laid on the fact that the company saved its rights by answering under protest, and by assigning for error in the district court the order of the common pl4as refusing a removal. If all subsequent proceedings were coram non judice, and void, no exception is necessary. If the court has no further power, and if, as some of the dicta are, that “ consent can not give jurisdiction,” then all further proceedings are void, whether under protest, or objection, or by consent. The court had jurisdiction over the subject matter. 'It is not within the power of congress to divest it of this, but only of jurisdiction over the person, and that only at his option. Had the company complied with the act of congress, and filed copies of the papers in the circuit, I concede the state court would have been completely ousted of all jurisdiction. Until that was done the jurisdiction of the circuit court did not attach. That is conceded.

Rut, according to the logic of the majority, the case is out of the state court, but notin the circuit court! Where is it?

I concede also, that if a party, after removal is refused, stands on his rights, and continues to contest the case in the state court, and does not waive the question of jurisdiction, hte may, after trial and final judgment, prosecute error on that ground. In such case he can have ample protection — either the state or federal courts. What I deny is, that he can speculate on his chances, after filing his petition and bond, by going to trial without objection, after he has failed to transfer the case, and if he gets defeated, then object to the jurisdiction of the court; but if he succeeds, insist on such jurisdiction.

To have the benefit of the act of congress he should comply with its provisions, as he is free to do, whatever the state court does, and in defiance of any order it may make.

Much stress is laid on certain decisions, where the point now under discussion was not raised or considered, as to the effect, that after petition and bond for a removal have been filed, all further proceedings are coram judice, and, as is said here, “ utterly invalid.”

While this may be, and probably is so, where a party stands on his rights, and complies with the conditions prescribed by the act of congress, it can not be true in case of a waiver of the right to remove.

The case of Hadley v. Dunlap, 10 Ohio St. 1, is a unanimous decision of the supreme court directly in conflict with this theory. In that case, the petition and bond for a removal was filed by the defendant,’ and the motion for such removal was overruled. After this, he answered to the merits reserving his right of removal. Upon final trial judgment was rendered on the merits, against the defendant. He áppealed to the district court, and there renewed his motion for a removal, and the whole ease was reserved for decision in the supreme court.

The syllabus, on that point is: “ Where an .application for the removal of a cause has been improperly overruled by the court of common pleas, such error does not affect the jurisdiction of the court of common pitas so as to render its judgment in the case void. But the application, if renewed in the district court upon appeal, should be granted.”

In considering this point, the learned judge who delivered the opinion (tícott, J.) vigorously combats the doctrine laid down in Gordon v. Longest, 16 Peters, 97 (much relied on in this case), “ that every step subsequently taken in the exercise of jurisdiction is coram nonjudice.” He says: “If we are to understand from this expression that where a state court erroneously declines to certify a cause, and proceeds to trial and final judgment therein, such judgment is not merely voidable for error, but absolutely void for -want of jurisdiction, it would seem to follow7 that no attempted appeal from such void judgment could confer jurisdiction on the district court, and for w7ant thereof we would only direct the case to be stricken from the docket. . . . But as the court of common pleas had unquestioned jurisdiction, both of the parties and the subject-matter of this controversy, prior to and at the time when the defendants moved the court that it might certify it to the federal court, we do not think that an error of judgment in overruling the motion could oust the jurisdiction of the court.”

Again, “ Full jurisdiction having once attached, it must be held to continue until the case is disposed'of, either by certificate or final judgment or decree, however erroneously it may have been exercised.”

This is an emphatic authority that such subsequent proceedings by the state court are merely voidable, and not “ utterly invalid.”

In Eppinger v. Insurance Co., 4 Am. Law Record, 585, the view now contended for was directly affirmed.

That was a decision of Judge Welker (concurred in, it is said, by Justice Swayne), in the Circuit Court for the Northern District of Ohio. Two efforts at removal were made. Of. the first it is said, speaking of the effect of a failure to file copies of the papers in the circuit court: “It would seem from the fact that the'defendant, after having filed the first petition for removal, failed to file copies of the process, etc., in this court, and filed an answer in the state court, and then went to trial on the issue made, as well as the filing of a subsequent petition, affidavit, etc., for removal, in 1874, that it had waived any right to file the 'papers under that petition.”

The second petition for removal was filed February 23, 1874. The first day of the next session of the circuit court was April 7,1874, and copies of the proper papers were not filed until August 26, 1875. After this • petition was filed, and the transfer refused by the state court, the parties proceeded to trial, and judgment was rendered on a verdict against the party seeking a removal. On error to the district court, this judgment was reversed, and then the common pleas granted the order for removal, after which copies of the proper papers were filed in the circuit court. On a motion in the circuit court to dismiss the action, Judge Welker held that it was the duty of the party to comply with the act of'congress, by filing such papers, regardless of the action of the state court: and, by the failure to file the papers in time, the circuit court did not obtain jurisdiction, and therefore struck the case from the docket.

Here the "court of common pleas, as in the case at bar, refused to order a removal, and proceeded to trial and final judgment against the party moving for a transfer. The cases are also alike in the fact that no steps were taken to transfer the ease by filing the papers in the circuit court.

It settles the proposition that the party must comply with the act of congress before the case is transferred from the jurisdiction of the state court.

Most of the cases relied on in support of the opinion in this case simply decide that, the right to have the case removed is perfected by filing the petition' and proper security, not that the case is actually removed.

The first step to a removal is to file the petition and bond. This is a condition precedent to the removal, and not a removal. The removal consists in filing the papers in the circuit court. A party may perform the condition precedent, may perfect his right, and still not exercise it after all. After the right to a removal is perfected, the state court is to proceed no farther without the assent of the mover; but when it appears no removal has taken place within the proper time, the presumption is that the party has abandoned the removal.

In Insurance Co. v. Dunn, 19 Wall. 214, the transfer was completed, and the case was on the docket of the circuit court, and stress is laid on that fact. It is said: “ The cause was out of the common pleas, -and in the circuit court.” Again, “ The conditions precedent having been complied with, the act of congress expressly required the state court to proceed no further in the suit.’ ” Again, “ It is not denied that the requirements of the act of congress have been fully complied with.”

In Dart v. McKinney, 9 Blatchf. 359; Fish v. The Union P. R. R. Co., 8 Blatchf. 299; Dennistown v. Draper, 5 Blatchf. 336; Osgood v. Ch., D. & V. R. R. Co., 6 Bissell, 332; Ellerman v. The N. O., M. & T. R. R. Co., 2 Wood, 120; French v. May, 22 Wall. 250, and several other cases we have examined, where the doctrine relied on, “ that all proceedings subsequent to the petition and bond are coram non judice,” were cases which had been actually transferred. It is conceded that in such cases the jurisdiction of the state court is ousted.

Our claim is, that when the conditions for removal have not been fully complied with by filing copies of the papers in the circuit court within the time fixed, the proceedings in the state court are only suspended, and may be resumed again by consent of the party moving, or, as I think, it may be resumed without his consent, after it is made to appear that the cause has not been transferred.

I fully agree with the opinion, that “ so long as the plaintiff in error continued to stand upon and assert its right of removal, ... all subsequent proceedings were utterly invalid.” But it is denied that, in this case, the plaintiff in error “ continued to stand upon and assert its rights.” The record shows it had slept upon its rights for several months instead of standing on them with due diligence.

I am aware that numerous dicta, and general remarks of eminent judges, may be cited in support of the propositions, that all proceedings of the state court, after petition and bond are filed for a removal, are “ coram non judice and void,” “ utterly invalid,” etc., and that “ consent can not give jurisdiction ” (per Swayne, J., 19 Howard, 224); but it is believed no carefully adjudicated case can be found, where the point, now under consideration, was decided, that supports the opinion in this case.

That consent can not give jurisdiction over the subject-matter is obvious, but when that axiom is applied to the person of a litigant, in a court having complete authority to hear and determine the subject-matter, it is a gross misapplication of an admitted principle, which is not only unsupported by authority, but in violation of both principle and authority.

All know how unsafe it is to rely on general remarks found in reported cases, not necessary to the decision of the point. Such generalities are dangerous guides, and likely to mislead. It is only when the case in hand requires that the judicial mind shall be concentrated on a given point, that its conclusions should be adopted as evidence of the law, or be entitled to weight.

It is better to be guided by the certain light of sound legal principles, aided by reason and authority, if we wish to reach a correct conclusion.

Note. — Since the foregoing dissent was written, the supreme court has, in the case of the P. R. R. Co. v. Peoples (31 Ohio St. 537), fully affirmed the principle, that a foreign corporation operating a railroad in Ohio, under the laws of this state, derives all its powers and franchises to do so from Ohio laws, and is, as to all acts done under such powers and franchises, a domestic and not a foreign corporation. The opinion in that case fully sustains conclusions reached in the dissent in case of the B. & O. R. R. Co. v. Cary, supra.

Ashburn, J., also dissented.


source: Caselaw Access Project

author: Day, J.

license: Public Domain

text:
    The State of Ohio ex rel. v. Farmer’s College.
    1. A corporation may forfeit its charter through neglect or abuse of its franchises; but a forfeiture is not allowed, except under express limitation of the charter, unless a plain abuse or neglect of power-, by which the corporation fails to fulfill the design of its creation, is shown.
    2. Where a charter for a college was granted, and the object of the corporation, as evinced by legislative acts in regard to the institution, was to create “ an institution of learning," in which there should be “ a professorship of agriculture,” but the general course of instruction was to be controlled by the trustees. Held, That so long as the trustees maintain under the charter an institution of learning, with a professor of agriculture and other competent instructors for a preparatory and liberal elective course of classical, scientific, and agricultural education, and the general design of the institution is being faithfully accomplished by them to the best of their ability, the franchise to be a corporation will not be regarded as forfeited to the state, merely because of a partial decay of the agricultural department, caused by students refusing to take that special course of instruction.
    Quo Warranto.
    The case is sufficiently stated in the opinion.

      Cary & Morton, for the relator:
    The grant of a charter to, and its acceptance by, a private corporation, constitutes a contract between the state and such corporation; the consideration consisting, on the one part, of special immunities and privileges not otherwise secured, and, on the other, of the services supposed to be rendered to the public, without which no acts of incorporation ought ever to be passed. Angel & Ames on Corporations, §§ 13 and 31; Piqua Br. Bank v. Knoup, 16 How. 369; Dodge v. Woolsey, 18 How. 331; Mech. and Traders’ Bank v. Debolt, 18 How. 380; Jefferson Br. Bank v. Skelly, 1 Black. 436; Matheny v. Golden, 5 Ohio St. 361.
    Neglect or abuse of its franchises constitute a breach of this contract, as a failure of consideration, of which the state may take advantage to rescind by proceedings in quo warranto. Angel & Ames on Corporations, §§ 774 and 776, and numerous authorities there cited.

      Hoadly, Johnston & Colston, for defendant:
    I. Forfeitures, such as here sought to be enforced, are not favored by the courts. High on Extraordinary Remedies, § 649; State v. Commercial Bank of Cincinnati, 10 Ohio, 539; People v. Kingston amd Middleton Turnpike Co., 23 Wend. 211; In re Franklin Telegraph Co., 119 Mass. 448.
    II. Non-user of its franchises by a corporation is no ground for forfeiture, unless the omission has been willful and persistent. Angell & Ames on Corporations, § 776; High on Extraordinary Remedies, §§ 648, 667; State v. Urbana and Champaign Mut. Ins. Co., 14 Ohio, 11; State v. Seneca County Bank, 5 Ohio St. 176, 178; State v. Central Ohio Mut. Rel. Association, 29 Ohio St. 405, 407; Mumma v. Potomac Co., 8 Peters, 281; People v. Washington and Warren Bank, 6 Cowen, 216 ; People v. Bank of Hudson, 6 Cowen, 217; Commonwealth v. Commercial Bank, 28 Penn. St. 389.
    III. The facts of this case show that such non-user as has been proved was unavoidable.
    IV. A judgment of forfeiture will not be ordered if there be any other remedy for the grievance complained of. High on Ex. Rem. 649; Williams v. Pres. Church, 1 Ohio St. 478.
   Day, J.

The proceeding is upon an information in the nature of a quo warranto, by the state, on the relation of the attorney-general, against’the Farmer’s College of Hamilton county. The defendant is a corporation created by the state. The object of the proceeding is to forfeit, or to recover back to the state, the franchise of the defendant to be a corporation. The grounds upon which this is claimed are the non-user and mis-user of its corporate powers.

It is well settled to be a tacit condition of a grant of incorporation, that the grantees shall act up to the end or design for which they were incorporated; and hence, through neglect or abuse of its franchises, a corporation may forfeit its charter as for condition broken, or for breach of trust. A. & A. on Corp., § 774.

Courts, however, proceed with extreme caution in proceedings which have for their object the forfeiture of corporate franchises, and such forfeitures are not to be allowed, except under express limitation of the charter, or for a plain abuse of power, by which the corporation fails 'to ■fulfill the design and purpose of its organization. State v. Commercial Bank, 10 Ohio, 535.

Keeping in view these controlling principles of the case, -we must, then, first look to the charter of the corporation to find the object of its creation; and then examine the evidence to see if it has in fact complied with the conditions or purpose of its creation.

The corporation was created by a special act of the general assembly, passed February 23, 1846 (44 Ohio L. L. 163). Section 5 of the act declares that “ the object of the association shall be to direct and cultivate the minds of the students in a thorough and scientific course of studies, particularly adapted to agricultural pursuits;” and section 9 authorizes the trustees of the association, “ with the approbation of the instructor’,” to establish a course of studies, and to issue “ certificates or diplomas, under the corporate seal, to such students as they may deem worthy of such honor.”

It would seem, then, that the original object of the institution was not so much to train students in the art of practical farming as it was to cultivate their minds by a thorough course of studies, scientific and otherwise, particularly adapted to agriculture. It would be difficult to fix the proper limits of such a. course of mental culture, short of an ordinary collegiate course; for the studies of a full collegiate course are either adapted, to some extent, to agricultural pursuits, or are aids to tire pursuit of those which are so adapted. Even the study of the classic languages could not be ignored as useless, for a knowdedge of those languages is an aid to an understanding of the terms employed in the sciences which are directly applicable to agricultural pursuits.

That the powers of the corporation might be ample to meet either the full design of its original creation, or to modify and enlarge its purposes, the general assembly, at its next session (45 Ohio L. L. 67), passed an act, which provided as follows :

“ That the trustees of the Farmers’ College, Hamilton county, be, and they are hereby, authorized and empowered to establish such number of professorships, in connection with said institution, one of which shall be a professor of agriculture, as they may, from time to time, deem conducive to the interests and welfare of the institution.”

The act further provided for the raisiug of funds, by scholarships, “ to aid in creating a professorship of agriculture in said college, or any other professorship to be created in connection with said institution.”

It is apparent, from these two acts of the legislature, that the object sought by the creation of. the corporation, was the education of students, to be more or less special or liberal, as in the judgment of the trustees would be most conducive to the welfare of the institution, and that there should ever be connected with the institution, as a specialty, a professorship for the promotion of scientific agriculture.

An endowment fund w7as raised, and the corporation became the owner of an existing popular private educational institution, from which 'the incorporated enterprise originated. A liberal course of classical, mathematical, and scientific studies was prescribed, and the institution was so well managed that over three hundred pupils were enrolled on the annual catalogue of 1853.

About this time an additional fund was raised, by means of which an experimental farm wras added to the grounds of the institution, to afford facilities for instruction in practical as well as scientific agriculture and horticulture. A special course was adopted for the farm department; but this course, like the other courses prescribed, was an optional one.

The institution flourished for a number of years, but for want of sufficient funds and other causes, at length began to decline. In this condition of its affairs, the general assembly passed an act, April 5, 1866 (63 Ohio L. 211), authorizing the sale of the farm, with the extensive college improvements thereon, for the purpose, as expressed in the act, to support and maintain the college. The farm w7as sold and a large endowment fund was realized thereby, so that the college now has over $60,000 as a permanent fund, from which it derived an annual income of about $4,000.

After the sale of the farm, the main college edifice, with about seven acres of ground, part of the chemical and philosophical apparatus, and the college and society libraries remained; and the school was continued, to the best ability of those controlling the institution.

Unfortunately for the prosperity of the institution, a division of sentiment arose among the stockholders, as to whether the institution should be continued, or the affairs of the corporation be closed and the assets distributed among the stockholders.

At the election of directors or trustees, in 1870, two boards were elected, and the board opposed to the continuance of the college obtained possession, and the school was closed.

After a litigation during three years, this board was ousted by legal proceedings, and the friends of the college obtained possession and control of the institution. Some vacillation as to the course to be pursued intervened, but the school was soon opened again, and continued to the present time. It now has an attendance of about seventy pupils, distributed through the various classes of the institution.

The trustees continue a preparatory course of studies, and a classical and scientific course, together with a special course with reference to agriculture, as in the more prosperous days of the institution. They have inaugurated a full faculty, consisting of a president, professors, and teachers, so that each department is supplied with competent instructors ; and the income of the corporation is expended to the best advantage for the welfare of the institution. The object of its creation is being promoted, to the extent of the available means of the institution, to the utmost ability of those having its control, and the institution is still accomplishing, as it has done in the past, much to promote the end of its creation. The ideal design of its originator never has been, and probably never can be, fully realized ; but the legislative intent, as manifested by the laws creating and controlling it, has been fulfilled according to the best ability of the managers of the corporation. They have never abused their powers, nor have they ceased to use them, except when interrupted by the enemies of the institution. Even then they used their powers, in the only way they could, in efforts to recover the control of the institution, for its preservation and use in accordance with its charter.

Females are now received as pupils in the institution, and this is claimed to be contrary to the purpose for which it was created. If this be an abuse of its powers, the corporation may, in a proceeding for that purpose, be ousted from that abuse, without destroying its existence; but, in this proceeding, it is sought to forfeit all the powers of the corporation. We do not think this is such an abuse of power as must necessarily have that effect. It does not interfere with the general purpose for which the' corporation was created.

It is claimed that by reason of the sale of the experimental farm and its appurtenances the professorship of agriculture has ceased to be of any utility, and that, as that was a leading object of the creation of the institution, it has become impossible to fulfill its design. But the sale of the farm was by legislative authority, and the sale was authorized for the reason, as expressed in the act authorizing the sale, that the institution might “ be continued in usefulness as an institution of learning.” Whatever, therefore, was lost to the agricultural specialty of the institution by the sale, can not now be complained of by the state, so long as the fundamental idea of the institution remains.

Moreover, the act evinces a legislative purpose to preserve the college as “ an institution of learning,” even though the agricultural department should be greatly curtailed by the sale of the farm.

The state, then, has no good ground to complain of the corporation for a non-user ór mis-user of its powers, so long as it keeps up and sustains, to the extent of its ability, “ an institution of learning,” with a professor of agriculture, and the substantial object of its creation as such institution is thereby being accomplished. A. & A. on Corp., § 776.

It is true that the agricultural department, as a specialty, has dwindled to nominal proportions. But this does not seem to have been the fault of the managers of the corporation. They keep the “ professorship of agriculture ” filled by a competent professor, as they are required to do by the act of 1847. The.demand for special instruction in respect to agricultural pursuits does not meet the expectations of the founders of the institution. But this does not appear to have been the only, nor, indeed, the chief, object had in view by the legislature in regard to this corporation. The fundamental object was “ au institution of learning.”

The state is here claiming a forfeiture of tbe corporation. Its charter contains no express limitations of forfeiture. It must, then, show a plain mis-user or non-user of its corporate powers. The testimony is voluminous, and can not be given here in detail. It must suffice to say that it fails to show an abuse or non-use of the corporate powers. Nor does it show an inability to accomplish in a fair degree the great object for which the corporation was created. On the contrary, it appears that the institution is not a total failure, and, except as prevented by unavoidable circumstances, that the trustees of the corporation have faithfully executed its powers. They are still continuing to do so, and the institution is recovering from its adversities. Though it may never fill the measure of the hopes of its founders, it is doing much in that direction. At all events, its “ usefulness as an institution of learning” has not been impaired by the abuse or non-use of the powers of the corporation.

It follows that the issues joined by the pleadings, which raise the questions of the use or abuse of the powers of the corporation, must be found in favor of the defendant, and that the proceeding must therefore be dismissed.

Judgment for defendant.


author: Scott, J.

text:
    Baker v. Pendergast.
    1. A person about to cross a street of a city in which there is an ordinance against fast driving, has a right to presume, in the absence of knowledge to the contrary, that others will respect and conform to such ordinance; and it is not negligence on his part to act on the presumption that he is not exposed to a danger which can only arise through a disregard of the ordinance by other persons.
    2. But where he knows that others are driving along the street, at the place of crossing, at a forbidden rate of speed, and he has full means of seeing the rate at which they are driving, the existence of such ordinance will not authorize a presumption which is negatived by the evidence of his senses. If the attempt to cross pie street, under the circumstances, would "be negligence on his part, the fact of the existence of such city ordinance is not evidence tending to free him from culpability.
    .3. "Where the overruling of a motion for a new trial is assigned for error, and all the evidence offered on the trial, together with the charge of the court, is properly brought up by hill of exceptions, a reviewing court will, in connection with the evidence, look to the charge of the court, whether excepted to or not; and if there is reason to believe that the verdict was the result of erroneous instructions, will reverse the judgment and award a new trial.
    Error, to the District Court of Cuyahoga county.
    The original action was brought in the Court of Common Pleas of Cuyahoga county by defendant in error, to recover damages of the plaintiff in error for driving his horse attached to a sleigh, along Euclid street, in the city of Cleveland, so negligently and carelessly as to strike and run over the defendant with the said horse and sleigh, thereby greatly injuring him. The defendant below answered, denying the carelessness and negligence charged against him, and alleging that the injuries and damage of which the plaintiff complained were the result of his own carelessness, in this, that while the street was filled with teams passing in both directions, among whom was defendant, driving his horse and cutter, at a time when there was a sleighing carnival being held on said street, and while a large crowd, among whom was plaintiff, were. on the sidewalks of said street, watching said carnival, plaintiff, in an unlooked for place, suddenly jumped from the sidewalk on one side of said street into the street, and when well into the street he stopped and attempted to regain the sidewalk from which he started, and in doing so slipped and fell directly in front of defendant’s horse in such a manner that defendant was barely able to rein his horse to one side; that, unavoidably, one runner of defendant’s cutter struck plaintiff, whereby the cutter was upset and defendant was thrown violently to the ground, and his horse ran away; wherefore defendant says, that by reason of plaintiff’s said carelessness, he was injured, and that his injury was in nowise owing to any carelessness on the part of defendant; and defendant denies each and every allegation of carelessness or negligence on his part in said petition contained.
    The averments of this answer were traversed by reply.
    Upon the trial of the case by a jury, the plaintiff, in closing his testimony, offered in evidence an ordinance of the city of Cleveland, which forbids driving on the streets at a rate of speed exceeding six miles per hour. It was offered in evidence for the purpose of relieving the plaintiff from the charge of contributory negligence, and was admitted for that purpose only, against the objection of the defendant, who thereupon took an exception. Defendant also excepted generally to the whole charge of the court to the jury, and took a bill of exceptions, embodying all the evidence and the charge of the court, which was duly made part of the record. The jury having found for the plaintiff, the defendant moved to set aside the verdict and grant a new trial, for the following reasons :
    “ 1; Said verdict is contrary to the evidence.
    “ 2. Said verdict is against the weight of evidence.
    “ 3. Said verdict is against the law, and should have been in favor of the defendant, instead of the plaintiff.
    “ 4. That the jury disregarded the instructions given to them by the court.
    “ 5. That the court erred in the instructions given to the jury in regard to the city ordinance against driving faster than six miles an hour, and in regard to the resolution suspending the same, to which the defendant at the time excepted.”
    This motion was overruled, and judgment entered on the verdict. The defendant, by petition in error, filed in the district court, asked a reversal of this judgment, for the following reasons:
    “1. That the said court erred in admitting in evidence the ordinance of the city of Cleveland, passed on the 23d day of August, 1865, a copy of which is set forth in the bill of exceptions, offered in evidence by the said George E. Pendergast, and to which the said George A. Baker at the time objected.
      t‘ 2. That the said court erred in the instructions and charge given to the jury on the trial of said action, to which the said George A. Baker at the time excepted.
    “ 8. That tfhe said court erred in overruling the motion of said George A. Baker for a new trial in said action.
    “ 4. That the said court erred in sustaining the verdict of the jury, which verdict was against the evidence and contrary to the weight of the evidence.
    “ 5. That the said judgment was given for the said George E. Pendergast, when, according to the law of the land, it ought to have been given for the said George A. Baker.”
    The district court affirmed the judgment of the court of common pleas, and the reversal of this judgment of affirmance is now asked by plaintiff in error.

      Darius Cadwell and Marvin, Hart & Squire, for plaintiff in error:
    The obligation of both parties was unaffected by the ordinance. Baker had a right to drive upon the street, but he must do it carefully.
    Pendergast had a right to cross the street, but he must do it prudently, and with due caution, and he must not attempt it if it is dangerous to do so.
    An injured party is in no case relieved from the exercise and use of all his senses, and no fault of the other party, nor any violation of law or police regulations by the other party can absolve him from this duty. He must look, listen, and watch, and if he fails to do it, in a case where by the exercise of his senses he could have avoided the injury, the law holds him guilty of contributory negligence. Brown v. Buffalo and State Line R. R., 22 N. Y. 191; C. C. C. & I. R. R. Co. v. Crawford, 24 Ohio St. 681; Marietta

      & C. R. R. v. Picksley, 24 Ohio St. 654; Baltimore and Ohio R. R. v. Whitacre, 24 Ohio St. 642; Bellefontaine R. R. v. Snyder, 24 Ohio St. 670; C. C. C. & I R. R. v. Terry, 8 Ohio St. 581; Harty v. Central R. R. Co. of N. J., 42 N. Y. 468; P. Ft W. & C. R. R. v. Metheven, 21 Ohio St. 586;
      Pa. R. R. Co. v. Heilman, 49 Penn. St. 60; Steves v. The O. & S. R. R., 18 N. Y. 422; Griffin Adm’r, etc., v. New York Central R. R. Co., 40 N. Y. 34; P. Ft. W. & C. R. R. v. Dunn, 56 Penn. St. 280; Ernst, Ex’x, v. Hudson River R. R. Co., 39 N. Y. 61; Pa. Canal Co. v. Bently, 66 Penn. St. 30; Gonzales, Adm’r, v. N. Y. Harlem R. R. Co., 38 N. Y. 440; Artz v. The Chicago R. I. & P. R. R. Co., 34 Iowa, 153; The Bellefontaine Ry. Co. v. Hunter, 33 Ind. 335.

      Henderson & Kline and S. J. Andrews, for defendant in error:
    For the purpose for which the ordinance was offered, it was properly admitted in evidence. Jetter v. Railroad, 2 Keys (N. Y.) 154; Williams v. O’Keefe, 9 Bosw. 536.
   Scott, J.

Bid the court of common pleas err in permitting the city ordinance, which prohibits the driving of horses at a rate of speed exceeding six miles an hour, to be offered in evidencé by the plaintiff in that court ? It was offered and permitted to go to the jury for one purpose only. That purpose was, that it might be considered by the jury in determining whether the plaintiff was guilty of such contributory negligence as would prevent a recovery. It was offered solely to relieve the plaintiff from the charge of negligence in attempting to cross the street in the manner he did at the time when the accident happened; and was admitted on the ground that the plaintiff, when about to cross, had a right to presume that the defendant would obey the ordinance, and regulate the speed of his horse accordingly ; and that if such rate would not have put the plaintiff in danger of a collision, theu he was not guilty of negligence in attempting to cross. In admitting the ordinance in evidence for such a purpose, under the circumstances disclosed by the previous testimony, we think the court erred.

The ordinance was the last evidence offered on the trial by the plaintiff. The evidence previously offered, including his own testimony, shows that the defendant- and many other persons, at and immediately prior to the time of the accident, were sleigh-riding on the street with fast horses. They were exhibiting their speed, in utter disregard of the ordinance, and were converting the drive-way substantially into a race-course. This .fact was well known to the plaintiff. He had been standing for a considerable time on the sidewalk, with many other spectators, enjoying the scene. He was familiar with fast horses — had owned some —and could judge pretty correctly of their rate of travel. The street was straight, and plaintiff' could have a full view along it, both ways, for a long distance. The defendant was driving at the time at a rate of speed approximating to twenty miles an hour, and others nearly as fast. This was the condition of things when the plaintiff attempted to cross the drive-way, three rods in width. Other sleighs, moving with equal rapidity, were in close proximity to that of the defendant, and while the plaintiff was endeavoring in his passage to escape from the former he was struck by the latter. There was no evidence tending to show that the plaintiff was ignorant of what was thus passing before his eyes. Indeed, under the circumstances shown, such ignorance would, itself, have evidenced the most culpable negligence. The plaintiff, then,, could have no right to act on the presumption of the existence of a state of facts which was negatived by the clear evidence of his senses. He was acting on a known and not a supposed state of facts, which, in the absence of any information to the contrary, the ordinance might have justified him in presuming. In view of this known state of facts,, it was his duty to exercise reasonable care for his own-safety. And from this duty he was in no degree relieved by the ordinance in question.

We are referred by counsel for defendant in error, jn support of the ruling which permitted the ordinance to- be offered in evidence, to the case of Jetter v. N. Y. & H. R. Co., 2 Keyes (N. Y.), 154. In that case it was held by the Now York Court of Appeals, that, “ in the exercise of his-lawful rights, every man has a right to act on- the belief-that every other person will perform his duty and obey the law; and it is not negligence to assume that he is not exposed to a danger which can only come to him through a disregard of law on the part of some other person.”

The soundness of this doctrine, and its proper application to that case, we are not disposed to question.-' That was an action brought to recover for injuries sustained by the plaintiff’s daughter, six years of age, and partially deaf and dumb, who was run over and injured, whilst in charge of a servant, by one of the defendant’s street cars. At the time of the accident she was crossing a street, and was running a little ahead of the woman attendant, and defendant claimed there was negligence on the part of the child and her attendant. The plaintiff' gave evidence tending to show that at the time the servant and child started to cross the street there was no car in sight, and the street was free from vehicles ; that defendant’s car came rapidly round a curve or corner, with the horses on a run or jump, a short distance from where the child was crossing, and so suddenly that the child had not time to see and escape the danger, or the servant time to rescue her from it. The plaintiff also put in evidence the ordinance of the city forbidding cars from turning a corner faster than a walk, or to travel on a street faster than six miles an hour. The court instructed the jury that, under such circumstances, a person about crossing a street, and having in charge a child of tender years, has a right to take into consideration the fact that, by the city ordinances, no vehicle is permitted to turn a corner faster than a walk, nor to travel on a street faster than six miles an hour'; and if the jury should find that the woman and child could have crossed the street in time to avoid any collision, provided the defendant’s car had been driven at no greater rate than the city ordinances permitted ; then they must assume that it was not negligence in the woman to permit the child to let go of her hand for the moment and cross the- street alone; while, on the contrary, if you should come to the conclusion, from the entire evidence of the case, that at the- time when they attempted

to cross the car was in view, then you are to consider whether the car was so near as to render the attempt unsafe, because, if it was unsafe, it follows that it was negligence to allow the child to leave the immediate protection of the woman, and the plaintiff' can not recover.” This instruction was supported by the court of appeals. But it is obvious, in this case, that the jury was allowed to consider the existence of the city ordinance on the subject of fast driving only in the event of their finding that defendant’s car was not in sight, and its illegal rate of speed was unknown to the woman and child when they left the sidewalk and undertook to cross the street.

But if at that time the car was in sight, and its rate of speed, however illegal, was apparent,.it is clear that the court regarded the city ordinance as having no bearing on the question of contributory negligence. That case is, therefore, quite in harmony with the views we have expressed.

The erroneous admission of the ordinance in evidence might, possibly, not have been to the prejudice of the plaintiff- in error, had the charge of the court been such as to give it no significance. But grave importance seems to have been attached to its effect in the charge. The jury was instructed, among other things, that “the ordinance might be evidence for the purpose for which it is claimed to be competent and legal evidence; that is to say, to relieve the plaintiff from any charge or imputation of negligence growing out of the act he did or attempted to do.”

And, again : “ Inasmuch as the ordinance was in existence, of which the plaintiff was presumed by law to have knowledge, he might act with reference to and on the presumption that the ordinance would be conformed to by those who were using the street.”

We think this instruction was clearly erroneous, when ap>plied to the undisputed facts of the case. And though we should not reverse the judgment, solely on account of this eri’or in the charge, to which exception does not appear to have been specially taken at the time; yet it may be properly taken into account in considering the materiality of the evidence improperly admitted. And, as all the evidence is before us, errors in the charge may properly be considered, in connection with the overruling of the motion for a new trial, which is also one of the errors assigned. M. & Gin. R. R. Co. v. Strader & Co., 29 Ohio St. 448; Kline v. Wynne, 10 Ohio St. 223; Mowry v. Kirk, 19 Ohio St. 384.

Upon a careful examination of all the evidence in the case, we are satisfied that had it not been for the evidence improperly admitted, and the charge of the court in relation thereto, the verdict of the jury might properly, to say the least, have been different; and that the motion for a new triaL should have been granted. And, for these errors, we think the judgment of the court of common pleas should have been reversed by the district court.

The judgment of both the courts below will therevfore be reversed, and the cause be remanded to the court of common pleas for new trial.


author: Johnson, Chief Judge.

text:
    Hart et al. v. Gregg et al.
    1. The conveyance by a son of his expectancy in land, owned by his father, which would descend to him if he survived his father and the latter should die intestate owning the same, is the conveyance of a mere naked possibility not coupled with an interest, and passes no estate or interest in the land.
    2. Such a conveyance can not operate to defeat the grantor’s title, afterward acquired by descent, except by way of legal or equitable estoppel.
    3. If such conveyance contains no covenants of warranty, or recitals, and’ there are no acts of the grantor amounting to an equitable estoppel, he is not estopped from asserting an after-acquired titlo.
    4. The grantees under such conveyance, never in possession thereunder, can not, as such, or by way of estoppel, assert a title or interest in the land against one in actual possession under a legal title, though such title is, as against the grantor, his heirs, and assigns, fraudulent and void.
    Error to the District Court of Logan county.

      The plaintiffs below were the heirs of Stephen B. Hart, and one Samuel H. Ruggles, each claiming to own an undivided one-half of the equitable estate, in the land in dispute.
    It is averred, that one Archibald Gordon, a revolutionary soldier, was the owner of a Virginia military land warrant for two hundred acres of land, issued to him by the State of Virginia, July 19, 1822, in'consideration of his services as a soldier in the Virginia Continental line; that he located that warrant, and had the proper entry, survey, and plat made and recorded as early as March 29, 1823, at the land office in Chillicothe; and that said Gordon died, at a date not stated, leaving an only son, Archibald Gordon, his sole heir at law, who, on the 27th of June, 1827, by deed in fee simple, conveyed this land to one Stephen E. Hart. Hart died intestate, in 1865, leaving a widow, and said Margaret A., William II., Erancis B., and Mary C. Hart his heirs, to whom it descended, and who, in 1870, conveyed an undivided half to Jeremiah Hall, who, on the 5th of June, 1871, conveyed the same to plaintiff) Ruggles.
    It is further alleged, that in October, 1851, Daniel Gregg, defendant, with knowledge of the title under which plaintiffs claim, wrongfully obtained possession of Gordon’s warrant, survey, and plat, and procured the then surveyor of said district, one E. P. Kendrick, to write the word “ withdrawn,” on the margin of the record of said entry, and across said plat, without authority of said Gordon or of those now claiming under him, and with intent to defraud them, and for that purpose he located another warrant on the same laud,1 and has carried the same into patent, dated November 20, 1855, under which said Gregg arid his grantees, and co-defendants (who, it is alleged, take subject to plaintiff’s equity), have taken possession.
    It is also alleged, that said Gregg is the executor of Allan Latliam, who was the surveyor at the time of Gordon’s entry and survey,, and as such had possession of Gordon’s warrant and certificate of entry; that in 1871, demand was made .of the surveyor for this warrant and survey, with proper certificate, to enable plaintiffs to obtain a patent, which was refused, and that a like demand was made upon Gregg, in whose possession it is alleged these papers were, and that said Gregg wrongfully withholds said papers.
    For these reasons, it is claimed that the patent to Gregg is void, and that the title and possession of him and his grantees, is, as against plaintiffs, wrongful. The prayer is, that it be so adjudged, and that plaintiffs entry, survey, and equitable title thereby acquired bo perpetuated and also for general relief.
    The material allegations of the petition were put in issue.
    The case was heard upon the pleadings and evidence in the common pleas, and upon appeal, in the district court, with a finding and judgment in favor of the defendant on each trial.
    On the first trial, a bill of exceptions to the overruling of a motion for a new trial was taken, setting out all the evidence, thus presenting for review the whole case, as to whether the court erred in dismissing the plaintiffs’ action, on the ground that plaintiffs were not entitled to the equitable relief sought.

      Jeremiah Hall, for plaintiffs in error:
    The deed of the son, under which we claim, belongs to that class or kind of estoppels that pass after acquired titles (4 Kent, 98), and at the death of the father, leaving the son surviving him, the legal right or title to the location descended from the father to the son, his sole heir, and fed the estoppel and vested in the grantee the fee in the location, as of the day the deed was executed, as against the whole world. Douglas v. Scott, 5 Ohio, 195; Kinsman v. Loomas, 11 Ohio, 478; Potts v. Dowdall, 11 Am. R. 761; Herman on Estoppel, 233: Van Ransselair v. Kerney et al. 11 How.; Jackson ex dem. of Monroe v. Parkhurst et al., 9 Wend. 209 ; Jackson v. Carver, 4 Pet. 83.
    And it is no objection that the title was acquired by inheritance. Herman on Estoppel, 286.

      The evidence shows that Gordon’s location had not been abandoned. Galt v. Galloway, 4 Pet. 332; Moore v. Dodds, 1 Marshall, 140; Wallace v. Seymour, 7 Ohio (pt. 1), 156.
    The doctrine of notice does not apply to cases in the Virginia Military District, or, indeed, anywhere else, where the parties claim under distinct locations or original titles. McArthur v. Phœbus, 2 Ohio, 415.
    The location of Gregg and his patent are both therefore void. McArthur v. Gallaher, 8 Ohio, 512; Harlow’s Heirs, y. Thatcher, 18 Ohio, 48; Jackson ex dem. of Anderson v. Clark, 1 Pet. 628 ; Thomas v. White, 2 Ohio St. 548; Galloway v. Finley, 12 Pet. 264; McArthur’s Heirs v. Dun’s Heirs, 7 How. 262.
    The plaintiffs’ right of action is not barred by lapse of time. Hart v. Young, 3 J. J. Marshall, 180; Hill v. Bodly, 4 Munroe, 284.

      William Lawrence & Joseph H. Lawrence, for defendants:
    The plaintiffs must fail because,
    I. A conveyance by a son of an expectancy in the real estate of his parent in the life of. the latter is void.
    This is so on grounds of public policy, (a) to prevent the sacrifice of expectant estates; (6) on grounds of morality, decency, and honesty; (c) to prevent clouds on title passing by devise and descent; (d) and for the.safety of life, which requires that the law should give no inducement to those who are without the ties of kindred and of blood to the holders of projserty to desire their death, 1 Story Equity (Redfield Ed.), §§ 337a, 342, 343; Earl Aldborough v. Frye, 7 Clarke & Finnel, 436, 456; Kane v. Clough, 16 Am. Law Reg., 482 (August, 1877), Michigan Supreme Court.
    II. If any exception could be made, it could only be when the record affirmatively shows the sale to be fair, for a full consideration on a conveyance with warranty and with no circumstances of imposition. This is not shown.
    1. Authorities above — and 1 Hilliard on Vendors, 364, 365; 2 Kent Com. 475; 4 Kent, 261; 1 Hilliard on Real Property, 571, § 35, note; Earl of Portmore v. Taylor, 4 Simon, 182;
      Gilson v. Jeyes, 6 Vesey, 266; Peacock v. Evans, 16 Vesey, 512; Gowland v. DeFaria, 17 Vesey, 20; Varick v. Edwards, 1 Hoffman, 395; Cobarn v. Hollis, 3 Metcalf, 125; Needles v. Needles, 7 Ohio St. 432; 8 Bacon Abr. 280; Pellitreau v. Jackson, 11 Wend. 110; 9 Johns. 123; 4 Kent, 206; Shephard’s Touch, 322, 328; Smith’s Real and Pers. Prop. 192.
    2. There is, in this case, no estoppel even at -law. But in equity, as this case, is, the court is not bound to give effect to any estoppel, which, in a proper case, might arise at law on the covenants of warranty in the deed. Morris v. Burroughs, 1 Atk. 398; 7 Ohio St. 446.
    3. But the question of estoppel can only arise where a grantor with warranty seeks (or those claiming under him seek) to oust hi's grantee, or deny the title of such grantee. But here the defendants are not estopped — they do not claim under or in privity with the grantor, Gordon. Carver v. Astor, 4 Pet. 1; Crane v. Morris, 6 Pet. 598; 2 Abbott Nat. Dig. 286; 2 P. Wms. 432; Willes, 9; 1 Salk. 285; 6 Mod. 44; 1 Salk. 276; 6 T. R. 171; 2 B. and Ald. 242; Co. Litt. 352a; 3 Johns. Cas. 174; 4 Binn. 231, 314; 17 Mass. 244, 571; 3 Litt. 447.
    III. A court of equity will not aid a stale claim. The plaintiffs’ deed was unrecorded thirty-five years, and forty-five years elapsed between its date and the time when suit was commenced. Ridley v. Hettman, 10 Ohio, 524.
    • IY. A court of equity will not aid purchasers of stale claims, who buy to litigate at their own expense for a share of the property recovered.
    Their right to appeal to the conscience of the chancellor is by no means equal to bona fide claimants. The repose of society, the security of land titles, public policy, and justice require that all who buy litigation, or agree to maintain expenses, are entitled to no consideration in a court of equity. McArthur v. Gallaher, 8 Ohio, 512.
    V. The record in the office of the principal surveyor of the Virginia Military District, showing the Gordon entry and survey “ withdrawn,” is a public record which imports absolute verity, and can not be impeached in the mode now attempted. Anderson v. Wallace, 5 Wheat. 291; Public Land Laws (pt. 2), 143-150; 1 Greenl. Ev. 507; Page Va. Military Titles, 17; Hollingsworth v. Barbour, 4 Pet. 474; McArthur v. Nevil, 3 Ohio, 178; Galt v. Galloway, 4 Pet. 339; Taylor v. Myers, 7 Wheat. 23; Wallace v. Porter, 16 Ohio, 277; Jackson v. Clark, 1 Pet. 629.
    On grounds of public policy and for the security of titles, parol evidence is inadmissible to impeach - them. Baldwin v. Snowden, 11 Ohio St. 203.
    YI. The record of the alleged deed of June 27, 1827, is unauthorized and void.
    1. The act of February 8, 1810, provides for a recorder (1 Chase, 664); the act of February 24,1820, provides that “ when a man . . shall execute a deed . . by which any lands . . shall be conveyed, . . all deeds executed agreeably to . . this act shall be recorded.”
    If executed out of this state, the recording is to be within six months, but may be afterward, and shall be from day of record notice to subsequent purchasers (2 Chase, Stat. 1140, §§ 1, 3, 4). At common law, there is no authorized record of deeds. Such deeds only can be recorded as the statute authorizes, and it is to be strictly construed.
    This statute, in express terms, only applies to deeds which are operative as conveyances, at their execution, and not those which may operate by way of estoppel in futuro.

    As a question of law, it will not be pretended that this deed was ever operative as a conveyance. Hence it can not be recorded.
    2. The alleged deed can not be recorded because not acknowledged as the statute requires. Lessee v. Culver, 10 Ohio, 189.
    3. The act of February 24, 1820, under which it was made, was repealed before the deed was recorded, by the act of February 22, 1831, which is prospective in its operation, and only authorizes the record of deeds thereafter made. Its language is, “ when any man, etc., shall [thereafter] execute,” etc.

      4. Upon general principles, a deed which, has been executed twenty-one years without record is not entitled to be recorded. The right to have a deed recorded, like every light at law, is lost by lapse of time.
    On grounds of public policy, the law will not permit men to carry concealed weapons, with which to destroy land titles at pleasure. The concealment is a fraud which induces men to acquire titles and make improvements with no apprehension of danger ; to allow the holders of such torpedoes to wait and watch and explode them only when it has become profitable to do so, would be a wrong which justice must abhor.
    The delay is an abandonment of claim. Chambers v. Mifflin, 1 Pa. (Rawle, Pen. & W.), 79; Strauch v. Shoemaker, 1 Watts & S. 178.
    A judgment is presumed to be paid in twenty years. It can not be revived, and will not support an action of debt. Allen v. Everly, 24 Ohio St. 97; Bissell v. Jandon, 16 Ohio St. 498. Shall a county recorder have power to put in force any paper presented twenty years old, with no evidence of authenticity, when a court can not revive a judgment having full evidence of original validity ?
    This would give a wide license to forgery and fraud, when ■the witness who could detect them may be dead. Ancient deeds thirty years old may be given in evidence without proof of execution, provided, first, they are unblemished by alterations; second, that it be proved they came from such a custody as to afford reasonable presumption of genuineness ; and third, that they are otherwise free from just suspicion. 1 Glreenl. Ev. 821, 144, 570. Tliese are questions for a jury, but shall mere secondary evidence of the same paper (a copy from a record made thirty-three years after date of the alleged deed) be competent without the aid of that auxiliary proof requisite to support the original ¿in court? If so, a recorder can abolish the common law.
    The common law is as much law as a statute. The statute which authorizes the record of deeds was not designed to repeal the common law as to ancient deeds. It must be construed in subordination to it, and as only authorizing the record of deeds not subject to the common-law rules as to ancient deeds.
    A copy of a deed can only be evidence where the original duly proved would be so. State v. Forsyth, 11 Ohio, 261; King v. Henry, 4 Ohio, 83; Ramsey v. Riley, 13 Ohio, 166.
    VII. The occupants are innocent purchasers under a patent, with nothing on the record to charge them with notice of an adverse claim.
    When the patent issued to Gregg, the prior entry and survey were on the record withdrawn. There was nothing to charge purchasers from Gregg with notice of an outstanding equity. He conveyed the legal estate to bona fide purchasers, and they and their grantees, even with notice, are all innocent purchasers, entitled to protection. Cardv. Patterson, 5 Ohio St. 319 ; Woodworth v. Paige, 5 Ohio St. 70; Rudloio v, Kidd,, 3 Ohio, 550.
    VIII. The law presumes a conveyance to the parties in possession from the plaintiffs or those under whom they claim. 13 Am. Law. Reg. (N. S.), 69, February, 1874; McArthur v. Gallaher, 8 Ohio, 512.
   Johnson, Chief Judge.

From the evidence, we are clearly of the opinion that the entry, survey, and plat made on the warrant in favor of Archibald Gordon, were all regular, and vested in him a good equitable title in fee^to the land in controversy; and that as against him, or those claiming under him, the marking of said entry and survey as “ withdrawn,” and the entering another warrant on the.same land by Gregg and others, was wholly unauthorized and fraudulent, and his title thereby acquired null and void. Tn the light of the testimony of E. P. Kendrick, the surveyor, who indorsed the word “ withdrawn ” on the entry and plat, there can be no doubt of this.

Archibald Gordon, Sr., who located this warrant, was a revolutionary soldier, who died (at a date not given) intestate, leaving an only son and heir, Archibald Gordon, Jr., who inherited this land.

June 27,1827, the son, his father being still alive, conveyed the same to Benjamin F. Hart, under whom plaintiffs claim. Gordon, Sr., survived for some years after this deed was made by the son to Hart in 1827. Gordon, Jr., survived his father, and the claim of plaintiffs is, that as this land descended to him, his title thus acquired passed to Hart under the deed of June 27, 1827, which ivas made during the father’s lifetime. The title of the elder Gordon, acquired by his location, survey, and entry, vested in him an equitable estate in fee in the land. This descended to his son on his death, subsequent to the son’s deed to Hart.

As Gregg’s title in fee simple, under his entry and patent, was, as against the prior entry of Gordon, fraudulent and void, it follows that, as against Gordon or those claiming under him, he has no paramount title, and that the latter would be entitled to the relief sought. But Gordon, the elder, and the owner of this equitable title, never conveyed the same. It is alleged that it passed by descent to Gordon, the son.

It also is shown, that this son, during the life of the father, conveyed the laud to Hart, and it is claimed, on behalf of plaintiffs, that this after-acquired title by descent to the son passed to Hart and his heirs by way of estoppel. This depends upon the terms of this deed.

The following is a cop3>- of that instrument:

“.This indenture, made and entered into this twenty-seventh day of June, in the year of our Lord eighteen hundred and twenty-seven, between Archibald Gordon, late of Cecil county, Maiyland, of the one part, and Stephen F. Hart, of the county of Baltimore, in the State of Maryland, of the other part, witnesseth that Archibald Gordon, for and in consideration of one hundred dollars, paid by Joseph Hart, he doth grant, bargain, and sell unto Stephen F. Hart, his heirs and assigns forever, all his lands in Ohio, Indiana, and Illinois — one tract in Ohio, surveyed on military warrant No. 6,508, and on entry No. 12,017, by D. S. of military lands in Ohio, beginning on the waters of Rush creek, at a stake northwest corner to Alexander Parker’s survey No. 9,958, in the line of Sawyer’s survey No. 10,239, thence south 12° east 246 poles to two beeches in the line of Sawyer’s to a corner in Aiken’s survey Nos. 10.387 and 10,388, thence with his line of said survey south 78° west 134 poles to an ash and beech, thence north 12° west 246 poles to a hickory and elm in the line of Sawyer’s said survey, thence north 78° east 134 poles to the beginning, containing two hundred acres, more or less; also, all the land surveyed on warrant 5,684, and on entry No. 838, in the military tract of Ohio; also, 1G0 acres in the military district of Illinois, patented to Archibald Gordon.
“ To have and to hold the same forever.
“ In witness whereof, the said party of the first part hath hereunto set his hand and affixed his seal, the day and year aforesaid. ARCHIBALD GORDON, [seal.]
“ Signed, sealed, and delivered in the presence of
“ JOHN AI^QUITH,
“ SAM’L T. DEWEES.”

It will be noted that there are no covenants of warranty in this deed, nor are there any recitals of fact, which would estop the grantor or his heirs from asserting an after-acquired title. Neither does this deed purport to convey any interest of the grantor in the# premises.

At the date of this deed the grantor had no interest in the land that could be assigned or released.

No one is an heir to the living. During the father’s life? all that the son had was a mere naked possibility, not coupled loith an interest, -which could not be released, assigned, or devised. Neither would it descend to his heirs. It could only be extinguished by estoppel. Needles v. Needles, 7 Ohio St. 433; Jackson v. Waldron, 13 Wend. 178; 4 Kent’s Com. 262, and note.

As Gordon, Jr., the grantor, had no such interest in the estate, owned by his father, as could be conveyed, this deed, if it operate at all, must do so by -way of estoppel, by reason of the covenants of warranty or recitals in it. Jackson v. Wright, 14 Johnson, 193; Coke on Litt. § 446; Dart v. Dart, 7 Conn. 259; Nash v. Spofford, 10 Met. 192.

Coke, in commenting upon section 446 of Littleton, says : “ Eor if there be a warranty annexed to the release, the son shall be bound. Eor, albeit, the release can not bar the right, yet the warranty may rebut or bar him and his heirs of a future right, which was not in him at the time; and the reason (which, in all cases, is to be sought) wherefore a warranty, being a coveuant real, should bar a future right, is for avoiding a circuity of action, which is not favored iu law; as he that made the warranty should recover the land of the terretenant, and he, by force of the warranty, to have as much in value against the same person.” See also Sheppard’s Touch. 182.

In Lessee of Boyd v. Longworth, 11 Ohio, 258, it is said: “An express warranty is the only contract which has the effect to estop the warrantor. . . . The covenant must be one running with the land.” This rule is recognized and strongly affirmed in White v. Brocaw, 14 Ohio St. 339; Kinsman v. Loomis & Wood, 11 Ohio, 475.

Counsel for plaintiffs rely on Kinsman v. Loomis.

In that case, it is said that a person defending his possession on no other ground than that one of the grantors had no title, is bound, by the recitals of the deed, to the same extent as if he were privy to the grantor. -This rests upon the ground, it is said, that he is not a stranger, but privy in estate to him whose title he retains, and is concluded by what destroys it in his hands; for it is not just that a stranger, standing on the claim of the grantor only, and relying on no superior right, should be permitted to contest the existence of a fact which those interested have settled.

In that case, the claim was that Swift, the grantor, had no title at the time of his conveyance, because it did not contain covenants of warranty, but it did contain a recital, under a whereas, to the effect that the lawful owner had conveyed to him. It was held that the recital was as , effectual as a warranty to bind Swift and his heirs and assigns, and that a stranger, who rests his defense solely on the defects of Swift’s title, was bound by such recital by Swift.

Applying that principle to this case, the claim is that as Gregg has no title, his defense rests solely on the defects of plaintiff’s title, and he is, therefore, as effectually estopped as plaintiff’s grantor would be if he were here, defending; instead of Gregg.

Admit this to be so, the question then is: Would Archibald Gordon, the son, or his heirs or assignees, if defending in this action, be estopped by reason of any recitals in this deed of June 27,1827? We think not; for it is well settled, that where no estoppel arises from warranty, recital, or otherwise, a release or conveyance operates only on existing rights. Lessee of Kinsman v. Loomis, 12 Ohio, 478.

In the deed before us, as there are no covenants of warranty, nor any recitals of fact that he had any title, or any right to make the conveyance, there is nothing that would estop the grantor, either at law or in equity, from settiug up an after-acquired title, where, as in this case, there is no possession under the deed, and no charge of fraud in the transaction. See Doe v. Oliver, 2 Smith’s Leading Cases, 605-828; for a full discussion of this question, where all the cases are ably reviewed.

These plaintiff's have not shown any equities in themselves, or their grantor, Hart, such as possession, improvements, payment of purchase money after title was acquired, or any act of Gordon, the son, after the death of his father, ratifying his previous deed, or any fraud on his grantees, so as to make him a fraudulent grantor, or that it would otherwise operate as an equitable estoppel against him. No such estoppel therefore exists as against Gregg, though in possession under a fraudulently-acquired title.

The title acquired by Archibald Gordon, the son, by descent, is outstanding in him or his heirs or assignees. They are not parties to this action, and, as plaintiff’s title is defective, because the conveyance under which they claim does not cover the' after-acquired title of their grantor, they have no such equitable estate as authorizes the relief sought.

Judgment affirmed.

Scott, J., clid not set in this ease.