source: Caselaw Access Project

author: Crew, C. J.

license: Public Domain

text:
    Brown v. Huber et al.

      Grantor in deed agrees for self and assigns — To restrictive use of his adjacent lot — Such covenant zvill be enforced — Notzvithstanding changed condition of neighborhood, when.

    1. A covenant in a deed of conveyance, whereby the grantor, in part consideration for said conveyance, stipulates and agrees for himself, his heirs, and assigns, touching and concerning an adjacent lot which he then owns, “that the only building put upon said lot shall be a residence and the necessary attachments, and that it shall be used for no other purposes than that of a family residence, and shall cost not less than $5,000 for the residence alone” is a covenant binding on the grantor and all persons claiming under him with notice of the same, and its observance may, in equity, be enforced by injunction.

      2: Where such covenant or restriction is still of substantial value to the dominant lot notwithstanding the changed condition of the neighborhood in which said lot is situated, a court of equity will restrain its violation.
    (No. 10841
    Decided March 30, 1909.)
    Error to the Circuit Court of Lucas county.
    This was a suit in equity commenced by plaintiff in error in the court of common pleas of Lucas county, Ohio, to enjoin the construction and maintenance of certain buildings upon property located on Ashland avenue in the city of Toledo. The trial of the case in the court of common pleas resulted in a finding and judgment in favor of the defendants. Plaintiff thereupon appealed said cause to the circuit court, where, on a hearing upon the pleadings and evidence that court made the following finding of facts:
    FINDING OF FACTS.
    “1. Prior to October 4, 1871, Barnett T. Scott was the owner and in possession of a tract of land in the city of Toledo, Ohio, which he platted into nine lots under the name of Barnett T. Scott’s First Addition. At the time of the platting of this property there were only one or two buildings in the neighborhood. At the time of the platting of the property and the selling of it as hereinafter found, no building restrictions of any kind whatsoever were placed upon any of the lots except Lots 1 and 2 as hereinafter found. At the time of the platting of the property for sale, no general plan of improvement was intended or undertaken by Mr. Scott.
    “Since the first platting this property has been replatted to make the lines of the lots conform to the lines of ownership.
    “The plaintiff is the owner of Lot No. 3 which she acquired as hereinafter set forth.
    “The defendant, Roger Huber, is the owner of Lot No. 2, which he acquired as hereinafter set forth.
    “2. On the 4th day of October, 1871, said Barnett T. Scott and wife conveved bv duly executed warranty deed to one Mary I. Kelley, Lot Three (3) in said Barnett T. Scott’s First Addition to the City of Toledo, according to the terms of the deed, the body of which is as follows: ‘Know All Men by These Presents :
    ‘That I, Barnett T. Scott of the City of Toledo, Lucas Co., Ohio, in consideration of Three Thousand Two Hundred ($3,200.00) Dollars, to me paid by Mary I. Kelley, of the same place, the receipt whereof is hereby acknowledged, do hereby bargain, sell and convey to the said Mary I. Kelley her heirs and assigns forever the following real estate, viz:
    ' ‘Lot number three (3) in Barnett T. Scott’s First Addition to the City of Toledo, Lucas Co., Ohio, and the said Barnett T. Scott hereby covenants and agrees for himself, his heirs, assigns, executors, and administrators, that neither he, his heirs or assigns will at any time erect upon lot Number Two (2) of said Scott’s First Addition to the City of Toledo, thereon, any building nearer than sixty (60) feet to the southwesterly line of Adams street, and that the only buildings put upon said lot shall be a residence, and the necessary attachments, and that it shall be used for no other purpose than that of a family residence and shall not cost less than 5,000 Dollars for the residence alone; together with the privileges and appurtenances to the same belonging.
    ‘To have and to hold the same to the said Mary I. Kelley her heirs and assigns forever, I hereby covenanting that the title so conveyed is clear, free and unincumbered, and that I will warrant and defend the same against all claims whatsoever, except taxes of A.D. 1871.

      ‘And I, Clara M. Scott, wife of the said Barnett T. Scott, in consideration of one dollar to me in hand paid, do promise, release and forever quit claim unto the said grantee all my right, by way of dower or otherwise, in and to the above granted premises.
    ‘In witness wi-iereof, the said Barnett T. Scott, and Clara M. Scott, his wife, hereunto set our hands this 4th day of October in the year Eighteen Hundred and Seventy-one.
    ‘Barnett T. Scott, (Seal.)
    ‘Clara M..Scott. (Seal.)
    ‘Signed, acknowledged and delivered in the-presence of ‘James Kelley,
    ‘Citas. M. Lang/
    “Said deed was duly recorded in Volume 69 of Deeds, page 405, Lucas County, Ohio, records. Within a year after said 4th day of October, 1871, said Barnett T. Scott ánd wife also conveyed to said Mary I. Kelley by duly executed warranty deed, twenty (20) feet off the northerly side of Lot two (2) running the same width from front to rear of said lot in said Barnett T. Scott’s First Addition. All of said premises so acquired by said Kelley making a total of 120 feet front by an average depth of 318 feet on Adams street, and now known as Ashland avenue in the said City of Toledo.
    “3. On the 8th day of August, 1873, Barnett T. Scott and wife conveyed by duly executed warranty deed the southeasterly 80 feet of Lot Two (2) and the northwesterly 20 feet of Lot One (1) of Barnett T. Scott’s First Addition to Toledo, Ohio, to one Samuel B. Wood. The body of which deed is as follows:

      '‘Know all men by these presents :
    ‘That Barnett T. Scott of Toledo, Ohio, in consideration of Six Thousand Dollars ($6,000.00) to me paid by Samuel B. Wood aforesaid, the receipt whereof is hereby acknowledged, do hereby bargain, sell and convey to the said Samuel B. Wood, his heirs and assigns forever the following real estate, viz:
    ■‘Situate in the State of Ohio, County of Lucas, and City of Toledo, and described as the southeasterly eighty (80) feet of lot 2 and the northwesterly twenty (20) feet of Lot 1 of Barnett T. Scott's First Addition to Toledo, fronting 100 feet on Adams street, and running back the same width till it meets the east line of the 20 foot alley and the south side of the 16 foot alley laid out in the plat of said addition; subject, however, to all the conditions as to location of building, etc., contained in the deed from said Scott to Mary I. Kelley of Lot 3 in said Addition. And said Scott also hereby makes the same agreement for himself, his heirs, assigns, executors; and administrators concerning so much of Lot 1 as remains in him after this conveyance a9 is contained in said last mentioned deed; together with the privileges and appurtenances to the same belonging.
    ‘To have and to hold the same to the said Samuel B. Wood, his heirs and assigns, forever, I hereby covenanting that the title so conveyed is clear, free and unincumbered, and that I will warrant and defend the same against all claims whatsoever.
    ‘And I, Clara M. Scott, wife of the said Barnett T. Scott, in consideration of one dollar to me in hand paid do remise, release and forever quit claim unto the said grantee, all my right by way of dower or otherwise, in and to the above granted premises.
    Tn witness whereof, the said Barnett T. Scott and wife, Clara M. Scott, hereunto set their hands this eighth day of August, in the year Eighteen Hundred and Seventy-three (1873).
    'Barnett T. Scott, (Seal.)
    'Clara M. Scott. (Seal.)
    ‘Signed, acknowledged and delivered in the presence of ‘B. W. Rouse,
    ‘W. I. Kelley/
    “Said deed was duly recorded in Volume 79 of deeds, page 165 Lucas County, Ohio, Records.
    “Said premises have a frontage of 100 feet upon said Ashland avenue by an average depth of 325 feet.
    “4. Barnett T. Scott from time to time sold all the property in this addition without placing any building restrictions whatsoever upon any of the lots save and except the restrictions upon Lots 1 and 2 as above found.
    “At the time of the sale Lot No. 3, to Mary I. Kelley, no restriction whatsoever was placed upon the use of Lot No. 3 and no restriction has been placed thereon since.
    “The present owner of Lot No. 1 has joined with the defendants in this case, in making the improvement hereinafter found to be in process of construction.
    “In the year 1872 said Mary I. Kelley constructed a large residence and barn upon Lot No. 3 which cost over $25,000.00. The residence fronts upon Ashland avenue and is not nearer the street line than 60 feet and is 50 feet from the dividing line between Lot No. 3 and Lot No. 2; m other words, 50 feet from the line of the defendant’s property. The residence was occupied by Mrs. Kelley and her family for some years and was later acquired and taken over by a mortgagee, the Connecticut Mutual Life Insurance Company, and for a time stood va-' cant. In 1904 this property was purchased by plaintiff, Frances A. Brown, for $11,000.00 aiid has been improved by her at a cost of several thousand dollars. Since said time the plaintiff and her family have been living in the property. The house is a large ‘old fashioned’ residence. The living rooms, to-wit: the parlor, sitting room and dining room are on the southerly side of said residence next to the premises conveyed to said Wood; and the barn is located upon the rear of the premises about 90 feet from the said party line. Said buildings are still upon said premises in good order and condition.
    “The premises have never been used except for residence purposes.
    “5. Prior to the first day of April, 1905, the premises described in Finding of Fact No. 3, were willed by Samuel B. Wood, deceased, to his wife, Minerva Wood, and upon said date were duly conveyed by deed duly executed by Jethro G. Mitchell, Trustee under the will of Minerva Wood, to the defendant, Roger Huber. Prior to said date these premises were never improved except by fencing.
    “Before said Huber improved these premises as hereinafter stated he was notified by T. P. Brown, the husband of plaintiff, of the terms of the building restrictions aforesaid, and that the same would be enforced by the plaintiff.

      “The property owned by the defendants up to the time of the commencing of the improvements, has been vacant property, used in the summer time for pasturage purposes, and used generally by the neighbors as a dumping ground, for rubbish of •various kinds.
    “6. Since the construction of the improvements upon Lot No. 3, plaintiff’s property, the character of the surrounding neighborhood has greatly changed. At the time of the construction of the Kelley House, this section was a very high class residence section, with large lots for residence purposes. Since said time in the near vicinity has developed a business center with a number of business blocks,, mostly small, containing about twenty stores and shops, and two large dwellings in the immediate vicinity have been torn down and smaller buildings erected in their place, thereby dividing the large lots. There are within two blocks distant a large apartment house and kindergarten school. At the time of the improvement of Lot No. 3 b)' Mrs. Kelley the property in that neighborhood was reasonably adapted to such improvement. At the present time the property in that neighborhood including the property of the defendants which is 100 feet wide by 325 to 350 feet deep is not reasonably suitable to and cannot be profitably used for the purpose of one single dwelling house upon an entire lot of such dimensions.
    “Said Ashland avenue is one of the main thoroughfares leading from the business portion to the best residence portion of the city of Toledo. It is 66 feet wide and the premises in question are located about ljd miles from the business center of the city. Bancroft street crosses Ashland avenue some 445 feet from the southerly line of the Huber property, and that point is the center of the business houses in that vicinity. Ashland avenue intersects Collingwood avenue two blocks northerly from plaintiff’s said property.
    “Between Bancroft street and Collingwood avenue, Ashland avenue is built up with a good class of residences varying in value from $3,000.00 to $15,000.00. Within the past three years two of the large sized residences upon said portion of Ash-land avenue have been converted into two family flat buildings.
    “At the corner of Ashland avenue and Bancroft streets on the easterly side of Ashland avenue, being the side opposite to that which the Brown' and Huber properties occupy, there was in 1872 a frame horse-car barn. This was replaced some years ago with a two story brick building for storing electric cars, which said buiding has been remodeled into two store rooms fronting on Ashland avenue, the corner room being occupied by a drug store. Immediately northerly of this building an old frame residence was demolished about five years ago and small shops built next to the street, line; making a total of about 180 feet front on the easterly side of Ashland avenue next to Bancroft street now devoted to business purposes. This is the only business property on Ashland avenue between Bancroft street and Collingwood avenge and is included in the business properties referred to in Finding No. 6.

      “7. The defendants have platted said Lot No. 2 as shown by the exhibits in this case by placing a driveway upon the southerly side of said lot and have planned the construction of four modern residences facing upon this driveway.

      “The improvement when completed will be known as ‘Ashland Place’ and will include two other houses facing the driveway upon the other side and located upon the rear of Lot 1.
    “No one of the houses is proposed to be built nearer Adams street or Ashland avenue than 60 feet, and each and every one of the houses will cost to exceed $5,000.00. Two of the houses have been constructed upon the rear portion of Lot No. 2, and defendants propose to construct two more between those erected and Ashland avenue, all fronting upon the driveway. All the houses constructed and those proposed to be constructed will be of modern design and modern construction. There is intended to be no out building or shed of any kind upon the property. The two houses constructed are intended to be heated with hot water circulation from a central station in the neighborhood and those to be constructed are designed to be heated in the same way and the houses although the rear parts thereof are towards plaintiff’s residence are so constructed that no back door thereof is observable from the residence of the plaintiff and none of the houses are proposed to be nearer than fifteen feet from the dividing line between lots 2 and 3. The houses now constructed are rented and occupied by desirable tenants.
    “The defendants have contracted for the beautifying of said premises by landscape architects and are using every means to make the improvement attractive in appearance.
    “8. The property of the defendants cannot now be profitably utilized in any manner except in the way intended to be used by the defendants and this particular property and property in this neighborhood of lots of such large proportions are adapted to the use to which the defendants are putting it and cannot be profitably used in any other manner owing to the great depth of the lots and the requirements of property generally in that neighborhood at the present time.

      “9. On June 12th, 1906, the date this suit was commenced, the defendants had constructed one of said residences known as No. 1 upon the rear of the said Huber lot and had begun work upon the foundation of a second residence (known as No. 2) upon the rear of said lot. Both of said residences have since been completed by defendants, each costing between $5,000.00 and $6,000.00.”
    Upon the foregoing facts the circuit court found and stated as its conclusion of law “that the plainifif is not entitled to the injunction prayed for in her petition and the improvement of lot No. 2 as intended by the defendants should not be enjoined,” and thereupon the court ■ dismissed the plaintiff’s petition at her costs. To obtain a reversal of this judgment of the circuit court Frances A. Brown, who was plaintiff in the courts below, prosecutes the present proceeding in error.

      Mr. Orville S. Brumback,-for plaintiff in error.
    From the beginning of equity jurisprudence, equity has taken jurisdiction to compel the performance of covenants restricting the use of real estate. 1 Pomeroy Equity Jur. (3 ed.), Section 221; 5 Am. & Eng. Ency. Law, 9, 10; Park Co. v. Van Dusen, 63 Ohio St., 183; 5 Pomeroy Equity Jur., Eq. Rem., Section 281; McGuire v. Caskey, 62 Ohio St., 419.
    Clearly the cause of action at bar is “continuous” and the injury to plaintiff in having the comfort, attractiveness and delight o£ her home ruined, is “not susceptible of proper assessment by a jury” saying nothing about the depreciation in value, and ■multiplicity of suits that might be necessary to recover damages, since it is probable she could recover only those suffered up to the time the suit is brought. Nininger v. Norwood, 72 Ala., 277; Rogers Co. v. Railway Co., 5 C. E. Green, 379; Page v. Murray, 46 N. J. Eq., 329; Thruston v. Minke, 32 Md., 487.
    Plaintiff expressly notified the defendants, before they bought the premises, that she would enforce the covenants. But aside from express notice the record of the deeds carries full notice to the defendants. The covenants run with the land because they in terms show intent to inure to the benefit of ultimate grantees. The language in express terms binds the grantor (Scott) “his heirs, assigns, executors and administrators” to not erect more than one residence on the Huber property; and runs to the grantee (Kelley) “her heirs and assigns.” 3 Page on Contracts, 1977; Masury v. Southworth, 9 Ohio St., 340; Platt v. Eggleston, 20 Ohio St., 414; Crowe v. Riley, 63’Ohio St., 1.
    But it is really of no importance in this case whether the covenants run with the land or not. The stipulation relates to the mode in which the premises are to be enjoyed, and.qualifies the estate. This limitation on the use enters into the consideration of the conveyance. Its effect is to bind all deriving title under the conveyance in which the restriction is found. Stines v. Dorman, 25 Ohio St., 583; Heidorn v. Wright, 6 O. D.[ 315, 60 Ohio St., 609. .

      When defendants purchased their property therefore, they did so with full notice, express as well as implied, that the restrictions in these covenants were imposed upon the property, and their profit or loss is of no importance in the case — -so far as equity is concerned. Village of Ashland v. Greiner, 58 Ohio St, 67.
    The defendants undoubtedly purchased the premises at- a low price because of the restriction and cannot now ask the court to make money for them by the violation of contracts executed with all the formality of deeds of conveyance. 5 Am. & Eng. Ency. Law, 11; Tulk v. Moxhay, 2 Phil., 774; Patching v. Dubbins, Kay, 1; 23 Eng. L. & Eq., 609; Coudert v. Sayre, 46 N. J. Eq., 392; Hills v. Miller, 3 Paige Ch., 254.
    The vital question in this case is not whether there is a covenant running with the land, but whether the restriction was imposed upon the servient estate for the benefit of the land in behalf of which it is sought to be enforced. Peck v. Conway, 119 Mass., 549; Hanilen v. Werner, 144 Mass., 396; De Mattos v. Gibson, 4 De G. & J., 282; Kirkpatrick v. Peshine, 24 JN. J. Eq., 206; Watrous v. Allen, 57 Mich., 368; Reilly v. Otto, 108 Mich., 330; Lloyd v. Railway Co., 2 De G. J. & S., 568; Linzee v. Mixer, 101 Mass., 530.
    Nor is it material that the building restrictions do not in terms run to Mrs. Kelley (plaintiff’s predecessor in title), her heirs and assigns.
    A restriction is presumed to be for the benefit of ■ the land affected, and whoever succeeds to its title has full power to enforce it. High on Injunctions, Sections 1154, 1155; Cooke v. Chilcott, 3 Ch. D., 694; Hays v. St. Paul Church, 196 111, 635; Coughlin v. Barker, 46 Mo. App, 54.
    It does not affect the validity of a restriction whether it is made for the benefit of the land conveyed or for the benefit of the land retained. Gilbert v. Peteler, 38 Barb, 488; Landell v. Hamilton, 175 Pa. St, 327, 34 L. R. A, 227; Trustees v. Lynch, 70 N. Y, 440; PI alie v. Newbold, 69 Md, 265; Mann v. Stephens, 15 Sim, 377; McLean v. McKay, L. R, 5 P. C, 327.
    Damage to the dominant estate from the breach of a restrictive covenant will be implied — none need be proven. 5 Pomeroy Eq. Jur, Eq. Rem, Section 281; Tipping v. Eckersley, 2 Kay & J, 264; Lord Manners v. Johnson, 1 Ch. Div, 673; Richards v. Revitt, 7 Ch. Div, 224; Leech v. Schweder, 9 Ch. App, 463; 2 High on Injunctions (4 ed.), Section 1158; Newbold v. Peabody Co., 70 Mo, 493.
    Even if the breach would only cause the plaintiff slight inconvenience it would be no ground for refusing equitable relief. Kirkpatrick v. Peshine, 24 N. J. Eq, 206.
    Nor will the pecuniary loss which will result to the defendant from a specific performance of a land restriction prevent a court of equity from enforcing it, where the defendant violates the restriction with a full knowledge of its provisions. Hall v, Wesster, 7 Mo. App, 56; Tmstees v. Lynch, 70 N. Y, 440.
    It is true there can be such a change in the character of the property as to justify a court of equity refusing relief, and remitting the plaintiff to an action for damages, but that is only where there is such a radical change in the character of the property and neighborhood as to defeat the object and purpose of the restriction. No case in the books refuses to enforce- a building restriction on the ground asserted in the case at bar, viz.: that it would be unprofitable to the owner of the servient estate to enforce it. Trustees v. Thatcher, 87 N. Y., 311; Jackson v. Stevenson, 156 Mass., 496.
    The rule is, the change in the property protected by the building restriction, and in the neighborhood where it is located, must be so entire and radical as to no longer render the premises suitable for the purpose intended to be protected. Lattimer v. Livermore, 72 N. Y., 174; Amerman v. Deane, 132 N. Y., 355.
    To have structures placed upon the premises as designed and being built by the defendants will not only greatly decrease in value plaintiffs property, but will locate a large number of people around it, and obstruct and interfere with the light, air and space to which the restriction entitles it. To allow it would be to deprive plaintiff of her property rights without compensation, and would be a reproach to the administration of justice. Schwoerer v. Market Assn., 99 Mass., 285; Insurance Co. v. Insurance Co., 14 Abb. Pr., N, S., 266; Burton v. Stapely, 17 O. D., N. S., 1.

      Messrs. Marshall & Fraser, for defendants in error.
    The covenant or restriction placed in the deed from Scott to Kelley amounts simply to a personal contract between Scott and Kelley, and is not such a one as runs with the land.
    In order that a covenant may run with the land, that is, where its benefit or obligation may pass with the ownership, it must respect the estate conveyed, and the act covenanted to be done or omitted must concern the land or estate conveyed. 11 Cyc., 1081; Jones on -Real Property, Section 793; Clark v. Devoe, 124 N. Y., 120, 26 N. E. Rep., 276.
    It is very doubtful, however, under the authorities, whether the courts of equity will specifically enforce a building restriction where there is no' general plan of improvement and where the elements of mutuality are lacking. Schubert v. Realty Co., 25 C. C, 336; Dana v. Wentzvorth, 111 Mass., 291.
    The restriction in this case, fairly construed, does not prohibit the improvement being made. We desire to call attention to the fact that in the determination of this question of the construction of the covenant and in the determination of other questions in this case, all doubts must be resolved in favor of the defendants. Eckhart v. Irons, 128 Jib, 582.
    The above decision was followed and approved by the Supreme Court of Illinois in Elutchinson v. Ulrich, 145 111., 336; McMurty v. Investment Co., 103 Ky., 308; Glenn v. Davis, 35 Md., 208; Robinson v. Edgell, 49 S. E. Rep., 1027.
    We make the assertion that all that can be claimed for this restriction is that it limits the use of the property to residence purposes only.
    The restriction is substantially like the restriction • which is construed in Hutchinson v. Ulrich, 145 111., 336; McMurty v. Investment Co., 103 Ky., 308.
    We say again that a fair interpretation and construction of this restriction, resolving all doubts in favor of the free and unrestricted use of the prop- ' erty, requires nothing more than that the buildings shall cost at least $5,000.00, shall be no nearer Ashland avenue than 60 feet and shall be residence buildings.

      Because oi the change in the character of the property in the surrounding neighborhood, and of this property, since the making of this restriction, it would be inequitable under existing circumstances to enforce it.
    We contend that it is the law, announced by very many decisions, and stated by text writers, that where the enforcement of such .a restriction as this would be oppressive to the defendants and not be of any substantial value to the plaintiff, a court of equity cannot and will not enforce such a restriction. Trustees v. Thatcher, 87 N. Y., 311; Ewertsen v. Gerstenberg, 186 111., 344, 51 L. R. A., 310; Jackson v. Stevenson, 156 Mass., 496; Amerman v. Deane, 132 N. Y., 355.
    We call the court’s attention to the following decisions, all of which sustain the same proposition, and they all hold that where the property, the improvement of which is sought to be enjoined, cannot be beneficially and profitably used under the restriction, a court of equity will not enforce the restriction. Russell v. Harpel, 20 C. C., 127; Orne v. Fridenberg, 143 Pa. St., 487; Bangs v. Potter, 135 Mass., 245; Page v. Murray, 46 N. J. Ecp, 325; Coughlin v. Barker, 46 Mo. App., 54; High on Injunctions, Section 1158; Jones on Real Property, Section 763; 13 Cyc., 719.
   Crew, C. J.

The plaintiff in error and the defendants in error in this case, each and all of them, derive their title to the property here involved through Barnett T. Scott. The deed of said Bar-' nett T. Scott and wife to Mary I. Kelley under which, through various mesne conveyances, the plaintiff in error, Francis A. Brown, acquired the title to lot three (3) in Barnett T. Scott’s First Addition to the city of Toledo, contains the following covenant: “And the said B. T. Scott hereby covenants and agrees for himself, his heirs, assigns, executors and administrators, that neither he, his heirs or assigns, will at any time erect upon lot 2 of said Scott’s First Addition to the city of Toledo thereon any building nearer than 60 feet to the southwesterly line of Adams .street, and that the only buildings put upon said lot shall be a residence and the necessary attachments and that it shall be used for no other purposes than that of a family residence, and shall cost not less than $5,000 for the residence alone.” The deed of conveyance executed by Barnett T. Scott and wife to Samuel B. Wood for lot number two (2) in said Scott’s Addition to the city of Toledo, which lot, through mesne conveyances, was subsequently acquired, and is now owned, by the defendants in error, contains the express stipulation and agreement that the premises thereby granted and conveyed are to be: “Subject, however, to all the conditions as to location of building, etc., contained in the deed from said Scott to Mary I. Kelley of’ lot 3 in said addition. And said Scott also hereby makes the same agreement for himself, his heirs, assigns, executors and administrators concerning so much of lot 1 as remains in him after this conveyance, as is contained in said last mentioned deed.” The only question presented by the record in this case is, whether, upon the facts found by the circuit court, the plaintiff in error, Frances A. Brown, is entitled in equity to have enforced, for the protection of her property, the restrictive covenants and stipulations contained in the foregoing deeds of conveyance. While counsel for defendants in error concede the general rule-to be, that building restrictions and other limitations on the use of real property of a character which the law permits to be attached to land in such a sense as to restrict the use of one parcel thereof in favor of another, will be enforced by courts of equity upon equitable grounds, in favor of the parcel designed to be benefited and against the parcel burdened by the restriction or limitation; they insist, first, that: “The stipulation or covenant in the deed to Kelley is not such a one as is binding upon the defendants in this case, as it is not a covenant that runs with the land owned by the defendant.”

We shall consider briefly this claim of counsel, although we are of opinion that it is not at all essential to the right of plaintiff to have such restrictive covenant enforced in equity, that the same should be, technically speaking, a covenant running with the land of the defendants. In Village of Ashland v. Greiner et al., 58 Ohio St., 67, where a grant of land was made to be used for religious purposes only, and afterwards the owners of the land conveyed a strip of it to the village of Ashland for the purposes of a street, it is said by Burket, J.: “When value is paid for an estate, such stipulation (a .stipulation that the property granted should be used only for particular purposes) is construed to be a covenant running with the land in the nature of a trust for the uses and purposes expressed in the deed of conveyance, and in case of a breach of the trust a court of equity will, in a proper action, decree the performance of the trust by confining the uses of the estate to the uses and purposes expressed in the deed. In such cases the restricted use of the estate becomes a part of the consideration and is consented to by the grantee and it is no hardship on him and his assigns to be compelled to observe the covenants contained in the deed.” In Stines v. Dorman, 25 Ohio St., 580, it is said by White, J., in the opinion in that case: “It is unnecessary to determine whether the stipulation contained in the deed in question is to be regarded, technically, as a covenant running with the land. However this may be, it has, in equity, the effect of such covenant as against the grantee and his assigns. The stipulation relates to the mode in which the premises conveyed are to be enjoyed, and qualifies the estate. This limitation on the use enters into the consideration of the conveyance; and if not unlawful, it ought, upon plain principles of justice, to be enforced. * * * If the effect of the stipulation is not to accomplish an illegal purpose, it is lawful; and where it affects the -land or the mode of its enjoyment, its effect is to bind all deriving title under the conveyance in which the restriction is found.” In Coughlin v. Barker, 46 Mo. App., 54, Thompson, J., in discussing the character and effect of a restrictive building covenant, says: “The question, whether the covenant runs with the land, seenis to be material in equity only on the question of notice; if the covenant runs with the land, then it binds the owner of the land, whether he had knowledge of it or not; for he takes no greater title than his predecessors had to convey. But, if the covenant does not run with the land, but the land is subject to what is sometimes called an ‘equity/ and at other times a ‘negative easement/ in favor of the adjoining land, then, in order to enforce this easement against the land, it is essential that the owner should have taken the land with- notice of it. Tulk v. Moxhay, 2 Phil. Ch., 774. We understand, then, that it is a principle upon which all the court unite, that the right to equitable relief in these cases depends upon the following considerations: First. A precedent agreement, in some form, by which a restriction is imposed upon the lot owned or held by defendant for the benefit of the lot owned or held by the plaintiff. Second. In case the agreement is made by the defendant's predecessor in title, notice in some form to the defendant of the fact and nature of the agreement, either from the language of the title deed under which he holds, or otherwise.”

In Talk v. Moxhay, 2 Phillips Ch., 775, a leading English case, the syllabus is as follows: “A covenant between vendor and purchaser, on the sale of land, that the purchaser and his assigns shall use or abstain from using the land in a particular way, will be enforced in equity against all subsequent purchasers with notice, independently of the question whether it be one which runs with the land so as to be binding upon subsequent purchasers at law.” In the course of his opinion in this case the Lord Chancellor (Cottenham), observes: “It is said that, the covenant being one which does not run with the land, this court cannot enforce it; but the question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased. Of course, the price would be affected by the covenant, and nothing could be more inequitable than that the original purchaser should be able to sell the property the next day for a greater price, in consideration of the assignee being allowed to escape from the liability which he had himself undertaken.”

We think the rule upon this subject, as clearly established by the authorities is, that when the action is in equity to enforce a restrictive covenant controlling the use or enjoyment of land, the vital question is not whether there is a covenant running with the land, but whether the restriction asserted and relied on, was one imposed upon the servient estate for the benefit of the land in behalf of which it is sought to be enforced. 5 Am. & Eng. Ency. of Law, 11. And we apprehend the rule is the same, whether the restriction imposed is charged upon the land conveyed, or upon land retained by the grantor. Second. It is urged by counsel for defendants in error that: “A fair interpretation and construction of the building restriction, so-called, does not prohibit the improvement of this property as it is .being done, even conceding that the covenant is one that runs with the land.” When we consider that two dwelling-houses have already been constructed by defendants on said lot two (2), and that it is their plan and purpose to construct thereon two more, this claim of counsel, we think, finds sufficient answer and refutation in the plain language of the covenant itself, by which it is provided: “That the only buildings put upon said lot shall be a residence and the necessary attachments, and that it shall be used for no other purpose than that of a family residence, and shall not cost less than $5,000 for the residence alone.”

Obviously, this covenant was one made for the benefit and protection of lot three (3) now owned by plaintiff in error, and as shown by its terms, its purpose was to restrict and limit the use and occupancy of lot two (2) to purposes of a family residence with the necessary appurtenances, and if given effect at all should be given effect according to its plain and positive provisions. Third. The further contention is here made that the plaintiff, Frances A. Brown, is now without right to enforce said covenant because: “Even though the covenant is one running with the land and therefore binding upon the defendants in favor of the plaintiff, the change in the character of the neighborhood has rendered the enforcement of such a covenant inequitable and oppressive upon the defendants, and would be of no material value to the plaintiff.” This it would seem was the defense chiefly relied on in the court below, and as appears from the opinion of the circuit court was the ground upon which that court denied to plaintiff the relief she asked. In its opinion the circuit court says: “The important question in the case is, whether there has been any substantial change in the drift of the population and character of the property as to its greater availability and value for use in the manner in which it is proposed to be improved by the defendants, or whether the character is not so substantially changed.” And having found, as appears from the above statement of facts (paragraph 6), that since the construction of the improvements of lot 3 (plaintiff’s property), the character of the surrounding neighborhood had greatly changed in the particulars therein designated and pointed out, and having further found, that by reason of such changed condition (paragraph 8) : “The property of the defendants cannot now be profitably utilized in any manner except in the way intended to be used by the defendants and this particular property and property in this neighborhood of lots of such large proportions are adapted to the use to which the defendants are putting it and cannot be profitably used in any other manner owing to the great depth of the lots and the requirements of property generally in that neighborhood at the present time.” The court held that therefore the defendants were absolved from the duty and obligation of longer observing and keeping said covenant and refused to enforce it against them; predicating such judgment it would seem, largely if not wholly, upon a consideration of the injury and damage, by loss of profits, that would result to defendants from its enforcement. It is important to note in the present case that the covenant which plaintiff is seeking to enforce is one made for the exclusive benefit of the property now owned and occupied by her as a residence, and therefore one which a court of equity will require to be specifically performed so long as said covenant remains of substantial value to her. The rule upon this subject, generally adopted and followed by the courts of this country, is, we think, correctly stated in Kerr on Injunctions (2 ed.), page 356: “If the right at law under the covenant is clearly established and the breach is clear, and the covenant is of such a nature that it can, consistently with the rules and principles of the court, be specifically enforced, the court will not, unless under very exceptional circumstances, take into consideration at the hearing the comparative injury to the parties from granting or-withholding the injunction. There may be cases in which it is clear that the damage to arise from the breach would be -inappreciable, and in which the court would refuse to interfere. But the case must be free from all possibility of doubt. It must be clear that there is no appreciable or at all events no substantial-damage before the court will refuse, upon the ground of smallness of damage, to withhold its hand from enforcing the execution. The mere fact that there has been a breach of covenant is a sufficient ground for the interference of the court by injunction. A covenantee has the right to have the actual enjoyment of property modo et forma as stipulated for by him. It is no answer to say that the act complained of will inflict no injury on the plaintiff, or will be even beneficial to him. It is for the plaintiff to judge whether the agreement shall be preserved as far as he is concerned, or whether he shall permit it to be violated. It is not necessary that he should show that any damage has been done. It being established that the acts of the defendant are a violation of the contract entered into by him, the court will protect the plaintiff in the enjoyment of the right which he has purchased.”

In the case at bar there is no express finding by the circuit court, that the contemplated improvement of defendant’s property will not appreciably injure or damage the property of plaintiff, by impairing or diminishing the use and enjoyment of the same for residence purposes, and as a home, thereby greatly depreciating its value. In its opinion the circuit court says: “The plaintiff may or may not have been damaged. The lot of the plaintiff may be more or less valuable by reason of the construction of these buildings by the Hubers; but there would seem to be no greater difficulty, if the plaintiff has been damaged by the depreciation of his property, in ascertaining the amount of such damage by an action, than there is in very many cases where damages are sought and where verdicts are rendered, therefor, although the opinions of witnesses may differ as to the exact extent of such damages. I am not holding or indicating that the plaintiff has been damaged in any substantial way, or has not.” In Lattimer v. Livermore, 72 N. Y., 174, which was an action to restrain defendant from infringing upon 'an alleged easement, Earl, J., says: “The simple fact that since the deeds were given by Hurry, the streets in the vicinity of this block have ceased to a large extent to be occupied for genteel dwelling-houses, interposes no obstacle to the relief sought by the plaintiff. If by the change in the surrounding circumstances this covenant had ceased to be of any substantial value to the plaintiff, she would not be permitted in equity to enforce it, simply to annoy and damage other people. But so long as her house is occupied as a dwelling-house, and -the locality remains suitable for dwelling-houses, and this covenant remains of substantial value to her, and she has in no way extinguished or released her easement, she must be permitted to enforce it.” In Landell v. Hamilton, 175 Pa. St., 336, 337, Mr. Justice Dean, in discussing the binding obligation of a restrictive building covenant similar to the one here in question, .says: “As long •as such restrictions are not unlawful, it is to no purpose to argue that they seriously retard the improvement of the city. We can no more strike down by decree a lawful restriction creating an easement, than we can compel the lot owner to erect buildings in accord with the best style of architecture. Contracts such as this, whether construed as covenants or conditions, since Spencer’s case, have been enforced, both at law and in equity, between the immediate parties to them and their grantees, near and remote. * * • * We concede, some of the cases decided in other states are in apparent conflict with our decision. But what this court has uniformly held, and now holds, is, that where the restriction, notwithstanding the change of use of the land and buildings, still is of substantial value to the dominant lot, equity will restrain its violation, if relief, as here, is promptly sought.” Peck v. Conway, 119 Mass., 546; Coudert v. Sayre, 46 N. J. Eq., 386; McGuire v. Caskey, 62 Ohio St., 419; Trustees v. Lynch, 70 N. Y., 440; 5 Pomeroy’s Eq. Jur., Section 281; 2 High on Injunctions, Section 1158.

The English rule would seem to be, that in cases of the character of the one at bar, relief by injunction will be denied only on the ground of equitable estoppel. In Craig v. Greer, 1 Irish Reports (1899), page 278, the Vice Chancellor, after reviewing many English cases, says: “The principle to be deduced from these authorities seems to me to be that in order to defeat the right of a person with whom a covenant has been entered into restricting the mode of user of lands sold or demised, it must be clearly established that there is a personal equity against him arising from his acts or conduct in sanctioning or knowingly permitting such a change in the character of the neighborhood as to render it unjust in him to seek to enforce his covenant by injunction: a change resulting from causes independent of him will not have such an operation.” The Court of Appeal, affirming the decision of the Vice Chancellor, held: ' “That the right of a person to enforce a restrictive covenant by injunction, could not be defeated by mere change in the character of the neighbourhood, unless there was an equity against him arising from his acts or conduct . in sanctioning or knowingly permitting such change as to render it unjust for him to seek relief by injunction.”

We have examined the several cases cited and relied on by counsel for defendants in error, and find that in many, in fact, in nearly all of them, the decision was governed by certain controlling facts which clearly distinguish them from the case at bar. Without reviewing in detail, or discussing at length, the finding of facts made by the circuit court, which is set out in full in the statement of this case, we think it enough to say, that in the light of the foregoing authorities the facts found do not in^our judgment, show that there has been such a radical change in the character of the neighborhood in which the plaintiff’s property is situated as can be held destructive of the covenant relied on, or such as would render its enforcement oppressive and inequitable. That the neighborhood continues to be a locality suitable for and devoted to residence purposes, affirmatively appears through the fact found by the circuit court, that defendants have recently erected on lot 2, two residence properties “of modern design and modern construction, each costing more than five thousand dollars,” and they are now threatening to construct thereon two more dwellings of like character neither of which is to .cost less than that sum. Before the defendants commenced to improve their property — lot 2 — they had actual notice of the terms of the building restriction imposed on.said lot, and they were advised that the same would be insisted upon and enforced by the plaintiff. Under these circumstances, it being established that the acts of defendants would be in clear violation of the covenant and the restriction thereby imposed, a court of equity will not deny to plaintiff the relief she asks merely because the property of defendants can now be profitably utilized only in the manner contemplated by the proposed improvement. The judgment of the circuit court will be reversed, and upon the facts found judgment will be entered in favor of the plaintiff in error, Frances A. Brown, according to the prayer of her petition.

Reversed.

Summers, Spear, Davis, Si-iauck and Price, JJ-, concur.


author: Price, J.

text:
    Rumbaugh v. McCormick. Rumbaugh v. Blair.

      Where justice of the peace has exclusive jurisdiction — Appeal taken from judgment of justice to common pleas — Petition need not allege taking of appeal — Competency of testimony as to habits of a dog.

    1. If in a civil action of which a justice of the peace has exclusive original jurisdiction, an appeal is taken from the judgment of the justice to the court of common pleas, it is not necessary to the jurisdiction of the appellate court that the petition allege the fact that such appeal had been taken.
    2. It is competent to prove that a dog had acquired a habit of attacking sheep, in support of a disputed allegation that he attacked and injured sheep on a particular occasion.
    (Nos. 10955-10956
    Decided April 27, 1909.)
    Error to the Circuit Court of Wyandot county.

      The facts involved in the two cases are found in the opinion.

      Messrs. Meek & St alter, for plaintiffs in error.

      ■Messrs. Carter & Goodrich, for defendants in error.
   Price, J.

The litigation in each of the cases commenced before a justice of the peace, and after judgment in that court, it was taken on appeal to the court of common pleas. In case No. 10,955, Willard McCormick was plaintiff and Jacob Rumbaugh defendant, and in No. 10,956, Charles Blair was plaintiff and Jacob Rumbaugh defendant. In this court the two cases were argued and submitted together. . In the action brought by McCormick, he sued to recover damages inflicted on a small flock of sheep, on or about the 8th of April, 1904, which damages it is alleged were caused by a dbg then owned and harbored by Rumbaugh on an adjoining farm. It is charged that the dog went upon the plaintiff’s farm and, then and there, chased, worried and injured his sheep — killed a lamb and one of his fine ewes; and that he bit and tore the flesh of others of said flock, which made •them wild and timid, to plaintiff’s damage in all $20. The answer to the petition containing this claim is a general denial. ' The jury found for the plaintiff in the sum of $20, and judgment was rendered for that amount which judgment was affirmed by the circuit court. In the petition filed by Charles Blair against Jacob Rumbaugh, it is alleged that in the fall of 1903 and ensuing winter, the dog of Rumbaugh, which he owned and harbored on a farm adjoining that of plaintiff, chased and worried plaintiff’s sheep, bit and tore their flesh and so injured four of the wethers of said flock that they died and that the entire damage done to the flock amounted to $75. By answer Rumbaugh denied each and all the allegations of the petition. The jury assessed the damages at $54 for which judgment was rendered. This judgment was affirmed by the circuit court. Rumbaugh prosecutes error in this court to reverse the judgments of the lower court, and the points of error presented to us in brief and oral argument are: (1) that the court of common pleas had no jurisdiction in either of the cases; (2) the trial court admitted incompetent testimony in .each case as to the propensity of the dog to attack sheep.

It is not averred in the petition that the case reached the court of common pleas on appeal from the judgment of the justice, nor is there any reference made in the petition to any prior proceedings before that inferior tribunal. For this reason, it is asserted for plaintiff in error, it appears on the face of each petition that the court of common pleas had no original jurisdiction over the small claim made in each suit.

This question of jurisdiction was not raised in either of the lower courts, and it seems to be the proverbial “last straw” to save the plaintiff in error from payment of the judgments against him. Where a case tried before a justice goes on appeal to the ■ court of common pleas, there is no rule of practice requiring the plaintiff to aver the fact of such appeal in his petition. The certified transcript of the docket of the justice, filed in 'due time, furnishes the bridge from one court to the other, and it should show how arid why the court of common pleas acquired jurisdiction — namely, by appeal. The office of the petition is to state the cause of action rather than the birthplace of the suit. If any one is yet disposed to doubt the above conclusion, such doubt may be removed by reference to additional printed record fded here in each case, which shows what knowledge defendant and his counsel had as to the manner in which the cases reached the court of common- pleas. This additional record shows the giving of an appeal bond in each case, which was approved — the date of its filing in the court of common pleas — the date of the filing of the transcript and original papers. It also contains a motion made by plaintiff in error in the latter court, wherein it is recited that “this case comes into this court upon appeal from the docket of J. A. Zeiter, a justice of the peace,” et cet. The motion proceeds to claim that the cause of action set up in the petition varies substantially from the claim made and tried before the magistrate, and the court was asked to strike the petition from the files on account of the variance or departure.

When we look to this additional record and find that counsel for plaintiff in error was surety on the undertaking for the appeal in each case, and that he attempted to convince the court that the petition departed from the bills of particular filed with the justice, the question of jurisdiction so lately made vanishes in the thinnest of' air. We should, not be expected to either seriously or complacently discuss such an empty contention.

2. Did the court 'err in the admission of testimony? Counsel for plaintiff in error, in one of the briefs, designates the evidence admitted as evidence of the reputation of the dog charged with killing and injuring sheep. Such designation is not entirely fair as we read the record. A most diligent search of the record in the McCormick case fails to disclose any evidence admitted as to the character or reputation of the dog — none as to his habit of attacking sheep. ' The brief does not point out any evidence of either kind which went to the jury.

In the Blair case the following questions and answers appear on page 28 of the record: “What do you know about that dog as to having a habit of running and killing sheep?” An objection to the question was sustained. Later, on page 33, the following was propounded to the same witness: “Do you know whether or not this dog is in the habit of attacking sheep?” Objection was overruled and witness answered: “Yes, sir.” Again, he was asked: “Do you know whether or not in the fall of 1903 and spring of 1904 this dog was in the habit of attacking sheep?” Answer: “Yes, sir, he was.” But the witness was not permitted to tell what or whose sheep had been attacked.

In each case evidence was given that this dog had been driven away from plaintiff’s sheep on several occasions prior to the time of the particular injuries sued for. The above covers all we can find in the Blair case as to prior assaults, and as to the habits of the dog. No evidence of reputation was offered and none given. Hence the wasted time spent in the brief, discussing the question of dog reputation.

It is well to state a fact or two before considering the legal question said to be involved. Defendant Rumbaugh urged in each case an alibi for the canine; that he was at home either tied up, or under close surveillance of the family. Again, defendant gave some evidence tending to prove that McCormick owned a dog bearing a strong resemblance to the other, and that witnesses might be mistaken about the animal which perpetrated the mischief — a case of mistaken identity. Intimate acquaintance with the accused animal could be properly shown — such as seeing him frequently about defendant’s premises, at his house and in his company and under his -control. And if the plaintiff’s familiarity was partly made up of having seen the dog at his sheep on former occasions, when he was driven away to prevent injury, that would aid in the matter of identification, and for that reason evidence of such former assaults was competent. In both cases there is direct and positive evidence of the several forays made by the dog including those in which the damages were inflicted. No better means of qualification as to the identity of the guilty animal can be suggested than frequently seeing him upon the sheep of the two plaintiffs from which it was necessary to drive him away. He was a close neighbor’s dog and the ■means of ■ establishing his identity were entirely legitimate. It was the same dog still after the same sheep, in both cases. Whether the knowledge of these former raids was the foundation for the answer made to the foregoing questions as to the habits of the dog, we are not able to say, but we think the answers were competent evidence, when considered in their relation to the other testimony. It tended to prove that this particular canine was viciously disposed towards the neighbor’s sheep, and had a propensity to chase, worry and kill them. Such a disposition in an animal moved by instinct and not by reason, may be shown in corroboration of direct testimony where there is conflict as to his identity. We have examined such authorities as can be found on this subject, and are satisfied they justify the preceding questions. Some of these authorities are text-books, among which is Wig-more on Evidence. In Section 201, Volume 1, and the appended notes, we find the view taken by that author, and several illustrations of the application of the rule are given as well as a reference to the decided cases. In Section 68 of the same volume, the author says, “The character or disposition of an animal is no less relevant than that of a human being, as indicating his probable conduct on a particular occasion, and it is open to none of the objections of auxiliary policy which affect the use of a party’s character. It is therefore commonly conceded to be admissible. The hesitation sometimes observed in the rulings has been due to the time at which the disposition is predicated in the offer; but here, as with human character, the existence of a trait at a given time is evidence that it existed also for a reasonable time before and after-wards, and within liberal limits should therefore be received.” See also foot notes on same page. In Maggi v. Cutts, 123 Mass., 535, it is held “that in an action for personal injuries, caused by an obstruction in the highway, where the evidence is conflicting as to the cause of the accident and the character of the horse which plaintiff was driving at the time of the accident, evidence of the character and habits of the horse, as well after as before the accident, is admissible.” In Broderick v. Higginson, 169 Mass., 482, it is held that “it is competent to prove that a dog has a habit of attacking passing teams, in support of a disputed allegation that he attacked a passing team on a particular occasion.”

Without quoting from other authorities, we have concluded that no error was committed in admit-, ting evidence of habit of the animal, and his vicious propensity towards sheep at and preceding the time when the injuries complained of were inflicted.

Finally, we observe that this sheep loving dog has had “his day in court” — yea, in four courts' — • although uniformly condemned.

We will let the judgment stand.

Judgments affirmed.

Summers, Spear and Shauck, JJ., concur.


author: Shauck, J.

text:
    Smith v. Folsom et al., Receivers.

      Action to enforce right under subrogation — Appealability—Determined by.Section ¡226, Revised Statutes — Participation in trust is sought — No right to jury — Section 5130, Revised Statutes— Doctrine of subrogation — Applies, although primary and secondary liabilities not incurred at same time — Not defeated by cancellation of mortgage.

    1. Whether a civil action brought within the original jurisdiction of the court of common pleas for the enforcement of a right accruing under the doctrine of subrogation is appealable or not depends, under Section 5226, Revised Statutes, upon the right of either party to demand a jury for the trial of issues of fact under Section 5130, Revised Statutes. When the relief sought is participation in a trust estate in the hands of the defendants, neither party is entitled to demand*a jury, and the action is appealable.
    2. One who in the discharge of a secondary liability pays an obligation is entitled by subrogation to the securities of him who is primarily liable, although the primary and secondary liabilities are not incurred at the same time.
    3. When one in discharge of a secondary liability pays an obligation secured by mortgage upon real estate, his right to subrogation is not defeated by the cancellation and surrender of the mortgage without a stipulation that his right shall be preserved. Neilson & Churchill v. Fry, 16 Ohio St., 552, approved and followed.
    (No. 10762
    Decided April 27, 1909.)
    Error to the Circuit Court of Pickaway county.
    The plaintiff in error brought suit in the court of common pleas seeking subrogation with respect to a mortgage which had passed into the possession of Folsom and Waters as receivers of The New Citizens’ Building and Loan Company-. He alleged a payment by himself on account of a prior mortgage on the same premises, and prayed for á decree awarding to him an interest in a mortgage in the hands of the receivers to the extent of such payment. The answer contained no allegations changing the character of the issues tendered by the petition. A trial in the court of common pleas upon the merits, resulted in a judgment for the plaintiff in accordance with the prayer of his petition. From that judgment the receivers took an appeal to the circuit court. The plaintiff moved to dismiss the appeal upon the three grounds that: 1. They have not executed an appeal bond as required by the statute. 2. They were not authorized or directed by the court of common pleas which appointed them, and which made the order in this case appealed from, to appeal from said order and judgment of the court of common pleas. 3. The case is not appealable. That motion was overruled. The circuit court then proceeded to try the case upon the pleadings and the evidence and rendered judgment in favor of the defendants dismissing the plaintiff’s petition. The. material facts appearing from the pleadings and the circuit court’s special findings of fact upon the issues joined are:
    On the 15th of April, 1902, one H. R. Clarke, borrowed from The People’s Building and Loan Company, of Circleville, $6,884.80, and to secure its payment executed to that company a mortgage on the premises described in the petition. Later he desired a further loan which The People’s Company declined to make, and on the 25th of July, 1902, he made an arrangement with The New Citizens’ Building and Loan Company for a loan of $7,500, to be secured by a mortgage to it upon the same premises, that company to- assume the payment of the prior mortgage which then amounted to $6,500, and to pay to Clarke one thousand dollars. In accordance with this arrangement, Clarke executed his mortgage to The Citizens’ Company and it paid to- Clarke $801.33; On the 27th of August, 1902, The Citizens’ Company, having paid to The People’s Company the interest and dues upon the prior loan from July 25th -to that date, paid to Clarke the balance of the one thousand dollars due him upon the arrangement of July 25th, and procured the cancellation and surrender of the prior mortgage by delivering to The People’s Company a certificate of credit executed by The Citizens’ Company to the plaintiff for $6,500, and by him endorsed waiving notice of non-payment. For this certificate and endorsement there was no consideration whatever, it being executed and endorsed upon the suggestion and request of The Citizens’ Company for the sole purpose of securing the endorsement of Smith to make the certificate acceptable to The People’s Company as an inducement to the cancellation and surrender of the prior-mortgage. Smith’s endorsement was sought and given for that definite purpose. During the time covered by these transactions, The Citizens’ Company was insolvent, but its insolvency was not known by the parties. At the maturity of the certificate, August 27, 1903, Smith paid to The People’s Company, $6,500 with interest in discharge of his liability as endorser, and The People’s Company then cancelled and surrendered its mortgage. There was, at the time, no express stipulation that the mortgage should continue in force for any purpose. In the solicitation of the endorsement by Smith of The Citizens’ Company’s certificate, the company was represented by its treasurer, who then represented to Smith that the company was solvent. The defendants were appointed receivers of The Citizens’ Company, February 19, 1903.

      Mr. Clarence Curtain and Mr. Milt Morris, for plaintiff in error.
    ■ Our claim in support of the motion to dismiss the appeal is, that where a receiver is appointed and is placed in possession of property by the court, and the court subsequently finds and determines that a certain portion of the property placed in the hands of its receiver is the property of a certain claimant, and directs its receiver to pay the same to said claimant, that the said receiver can not appeal from the order of the court directing him so to do, unless he is specially authorized by the court to prosecute said appeal. Section 5590, Revised Statutes; Porter v. Sabin, 149 U. S., 479; McKinnon v. Wolfenden, 47 N. W. Rep., 436 ; 2 Cyc., 641; Polk v. Johnson, 76 N. E. Rep., 634; Herrick v. Miller, 24 N. E. Rep., 112; Crawford v. Schriver, 21 Atl. Rep., 518; Haskie v. James, 23 Atl. Rep., 1030; Lurman v. Hubner, 23 Atl. Rep., 646; McColgan v. McLaughlin, 58 Md., 499.
    It is admitted that Smith’s endorsement of the certificate of deposit was without consideration, and that he was therefore in legal contemplation, a surety only for The New Citizens’ Company, and that is held to be his leg'al status. 2 Randolph on Commercial Paper, Section 474; Greenough v. Smead, 3 Ohio St, 420.
    As to The New Citizens’ Company and all persons standing in its shoes, the payment by Smith of the certificate of deposit was “in the nature of a purchase by” him from The People’s Company and operated as an assignment of the debt and securities of The People’s Company to him. In other words, Smith by making this payment placed himself, legally, in the same position that The People’s Company occupied toward The New Citizens’ Company. In that position he is entitled to assert any right or remedy which The People’s Company might or could have asserted against The New Citizens’ Company. Hill v. King, Exr., 48 Ohio St., 80; Railroad Co. v. Falk, 62 Ohio St., 305; Dempsey v. Bush et al, 18 Ohio St., 381; Zuellig v. Hemerlie, 60 Ohio St., 33.
    We call attention to the holding of this court that the surety’s action is upon “the implied contract of indemnity” and not. upon the note or other security of the creditor which he has paid, for the reason that an erroneous impression seems -to have prevailed in this case that to entitle Smith to the right of subrogation it was necessary that some contract, express or implied, should have been made by him at the time he made said payment in order to give him such right. Zuellig v. Hemerlie, 60 Ohio St., 27; Railroad Co. v. Falk, 62 Ohio St., 305.
    It is true that there is no reported case in Ohio precisely like the one at bar, but we believe that the general principles which have been announced in various decisions substantiate the right of the plaintiff in error to subrogation. Baker v. Ward, 7 Bush, 240.
    The conclusion of law arrived at by the circuit court was that a surety who paj^s the debt of his principal is “purely a stranger and volunteer” and is not entitled to the right of subrogation, in the absence of a contract, express or implied; that he is to have such right in consideration of making such payment.
    This is directly contrary to the holding of this court in several cases. Dempsey v. Bush, 18 Ohio St., 376; Railroad Co. v. Falk, 62 Ohio St., 305; Miller v. Stark, Admr., 61 Ohio St., 421; Poe v. Dixon, 60 Ohio St., 131; Hill v. King, 48 Ohio St., 80; Neilson & Churchill v. Fry, 16 Ohio St., 552; Insurance Co. v. Middleport, Í24 U. S., 534; Sanford v. McLean, 3 Paige, 122; Railroad Co. v. Dow, 120 U. S., 287.

      Messrs. Abernethy & Folsom and Mr. Barton Walters, for defendants in error.
    The receivers in this case had the right to appeal without getting special leave: Beach on Receivers, 258, 296; People v. Steel & Iron Co., 82 Hun, 303; 2 Cyc., 641; Fagan v. Machine Co., 65 Tex., 324; Melendy v. Barbour, 78 Va., 544; High on Receivers, Section 264; Alderson on Receivers, 712, 714, 715, 797, 798.
    Leave to plaintiff to bring an independent suit against the receivers, impliedly directs them to defend the suit in all proper ways. Alderson on Receivers, Sections 520, 585; Wason v. Frank, 7 Colo. App., 541, 44 Pac. Rep., 378; Beach on Receivers, 257, 492, 500, 776; Davis v. Duncan, 19 Fed. Rep., 477; Fluck & Becker on Receivers, 447; Runyon v. Bank, 4 N. J. Eq., 480; Bosworth v. Railroad Assn., 174 U. S., 182.
    Subrogation defined. Bouviers’ Law Dictionary; Bispham’s Principles of Equity, Section 335; Sanford v. McLean, 23 Am. Dec., 773; Uzzell v. Mack, 40 Am. Dec., 648; Insurance Co. v. Middleport, 124 U. S., 534; 3 Pomeroy’s Eq. Jur., 200.
    The doctrine is sometimes extended to one who having no previous interest and being under no obligations pays oft" the mortgage, or advances money for its payment at the instance of the debtor party and for his benefit; but there must be some agreement or understanding or expectation that the lien was being preserved for his benefit in order that he may be subrogated. There is no case reported that holds under the above facts. that the mere payment at the instance of the debtor party gives the person advancing’ the money the right to be subrogated. Pomeroy’s Eq. Jur., 202.
    It is the universal custom of persons making loans to take up prior mortgages, to hold in their hands sufficient money out of the new loan, to pay off said mortgages and in so doing they act as the agent of the debtor. They do not assume and agree to. pay the prior mortgage. Sheldon on Subrogation, Section 240; Gadsden v. Brown, Speer’s Eq. (S. Car.), 37; Nolte v. Creditors, 7 Mart., N. ,S., 602; Curtis v. Kitchen, 8 Mart., O. S., 706; Cox v. Baldwin, 1 La., 401; Shinn v. Biidd, 14 N. J. Eq., 234; Insurance Co. v. Middleport, 124 U. S., 542; Van Winkle v. Williams, 38 N. J. Eq., 105; 24 Am. & Eng. Ency. Law, 283; Leydon v. M'alloy, 10 C. C, 442; Wentworth v. Tubbs, 55 N. W. Rep., 543.
    Where there is no thought, expectation of, or agreement for subrogation, there can be none. Gashe, Assignee, v. Lumber Co., 31 W. L. B., 189; Collins on v. Owens, 6 Gill & J., 4; Miller v. Price, 20 Wis., 117; Wentworth v. Tubbs, 53 Minn., 388; Commonwealth v. Canal Co., 32 Md., 501; Wormer v. Agricultural Works, 62 la., 699; Sheldon on Subrogation, Section 43.
   Shauck, J.

The court of common pleas having rendered judgment in favor of the plaintiff Smith, and the circuit court against him, it is of práctica! importance to inquire whether the latter court erred in overruling the motion to dismiss the appeal. The only authorizing action required of the court of common pleas was taken when it granted to th: plaintiff leave to bring the suit. The appeal taken by the receivers was in the exercise of their general powers. By the provisions of Section 5658, Revised Statutes, upon their appointment they became trustees of the estate of the corporation for the benefit of its creditors and stockholders having “all the power and authority conferred by law upon trustees to whom assignments are made for the benefit of creditors.”

Since the receivers had given bond for the performance of their duties, and since the appeal was in the interest of their trust, they were exempt from the obligation to give an appeal bond, being parties in a trust capacity within the meaning of Section 5228, Revised Statutes.

Is the case in its nature appealable? That an action brought to assert a right arising under the equitable doctrine of subrogation is not necessarily appealable, is entirely clear. If, for example, one' secondarily liable as surety should pay the entire amount of the indebtedness in ignorance of the fact that the creditor had realized a part of it from securities deposited with him by the principal debtor, he might, upon discovery of that fact, recover the amount so realized by the creditor. But his action would be for the recovery of money only. Section 5130, Revised Statutes, provides, without regard to the principles upon which a recovery may be sought, that for the trial of issues of fact in actions for the recovery of money only, either party may demand a jury. That action would, therefore, not be appealable because it results from the provisions of Section 5226 that an appeal may not be taken in actions in which a trial by jury may be demanded. But the action of the plaintiff in the present case was not for the recovery of money only. It is true that his demand might have been satisfied by the payment of money, but the right which he asserted was to resort to a particular security as a resource for his reimbursement, with the concession that his right could in no event exceed the amount to be realized from that security. It is said that the proceeds of the mortgage are now in the hands of the receivers; but that fact is not found by the circuit court. Nor would it be material since the question must be determined upon the state of the record when the issues were joined. It was a suit for the determination of the extent to which the plaintiff was entitled to participate in a trust estate. It results from the statutory provisions referred to, that being a civil action not triable to a jury, it was appealable.

Did the circuit court err in rendering judgment against the plaintiff on the merits of the case presented? Upon the execution of the second mortgage, the mortgagee, The Citizens’ Company, became charged by its agreement which constituted the consideration for its mortgage with the duty of paying the indebtedness of Clarke to The People’s Company which was secured by the prior mortgage. In its capacity as purchaser it also became entitled, upon a familiar application of the doctrines of equity to be subrogated, upon its payment, to the rights of the- mortgagee of the prior mortgage, if that should be necessary to the copiplete enforcement of its rights. If The Citizens’ Company had complied with its obligation, which, as between it and Smith, was primary, by discharging the prior lien with its own funds, unquestionably the proceeds of the second mortgage would have fallen into the general assets of The Citizens’ Company and, its insolvency having occurred, they would on distribution pass to its general creditors. But the judgment under review necessarily implies the proposition that the general creditors of the company are entitled to a fund which does not arise from its discharge of its primary obligation by payment of its own moneys, but from payment by Smith in the discharge of his secondary liability, and this without his reimbursement. If that proposition is unsound, the judgment of the circuit court is erroneous. The reimbursement of the plaintiff for the payment made by him in discharge of his obligation as surety, incurred by the endorsement of the certificate of credit, would place both of the companies and- the creditors of The Citizens’ Company in the precise position they would have occupied if that accomodation endorsement had not been made. It would not be considerately denied that a judgment for the plaintiff would meet the ends of natural justice since it would enforce all rights which rest upon consideration.

Certainly it should always be admitted that in particular cases natural justice may fail, because It cannot be administered without violating rules and principles which have been considerately established as a part of our system of jurisprudence. The doctrine of subrogation is a creature of equity. Very frequently the rights which it secures are beyond the contemplation of parties to ■ transactions, except in the view that parties are always presumed to contract with reference to the law by which their rights and liabilities will be determined, and it is only in this view that those rights depend upon even implied contract. Always 'the end of subrogation is to place the burdens of obligation upon those to whom they primarily belong, though in recognition of the rights of others they may have been, for a time, borne by those who are only secondarily liable. However diverse may be the facts to which in the reported cases ■ the doctrine has been applied, and the remedies which those facts have made appropriate, that end is always in view. That the plaintiff in the present case has discharged an obligation with respect to which his liability was only secondary, and that the object of his suit is to charge the burden upon the party primarily liable, will admit of no doubt.

But it is said that he should not prevail because it is a recognized limitation upon the doctrine of subrogation that it may not be invoked by one who voluntarily discharges the obligation. That limitation is recognized in the statement that the doctrine is for the relief of one who, in the discharge of a secondary liability, pays an obligation upon which another is primarily liable; and it has been expressly held that the doctrine may not be invoked by a volunteer, or intermeddler, 'to use a term indicating the light in which he is regarded. But how can the plaintiff be regarded as a volunteer?- He asserts a right arising upon actual payment by him, and when he paid, it was in discharge of his obligation as accommodation endorser of the certificate of credit which had matured, leaving him no alternative. It is quite true that he might have refused to become such accommodation endorser, but the same observation may be made generally of those who incur the liability of sureties. Nor is it of the essence of the doctrine of subrogation that the primary arid secondary liabilities be incurred by the same instrument or at the same time. It gives conclusive effect to the relation of the parties at the time of the discharge of the obligation, having no regard whatever to the immaterial circumstance as to the contemporaneous incurring of the obligation. The relation of the primary and secondary liabilities involved in considerations respecting this doctrine do not, in any sense, differ from the same considerations with respect to the kindred doctrine' of contribution which was devised by the chancellors to secure equality among persons secondarily liable. Upon very conclusive reasons it was decided in Robinson v. Boyd, 60 Ohio St., 57, that, "to give rise to the application of the doctrine of contribution between sureties, it is not necessary that there should be privity of contract between the parties, nor that the liability of each should have been incurred at the same time; all that is required is, that the debt or burthen should be common to the parties, and primarily that of the same person.”

Consideration seems to be thought due to the fact that when Smith discharged his secondary liability to The People’s Company its mortgage from Clarke was cancelled and surrendered without any stipulation that it should be kept alive for the purpose of substituting him to its rights. If it should be assumed that technical considerations require a strict application of the doctrines of subrogation to that mortgage instead of to the mortgage of Clarke to The Citizens’ Company, which is more than doubtful in *view of the direct methods by which equity reaches the results which its principles require, there was no necessity for such stipulation. The earlier cases recognized such stipulation as necessary, but the manifest inconsistency of that requirement with the principles involved in the doctrine of subrogation received early recognition. The object of the cancellation and surrender is completely accomplished by the discharge of the mortgagor and his property from further liability. To him it is a matter of no moment whether there is or not such a stipulation to affect the rights of others. It is fundamental that the right to be subrogated arises out of the relation of the parties and not out of contract. It is now settled in this state that although the surrender of the security is effective' as to the obligor, its continued existence for the benefit of the surety who pays it is presumed. Neilson & Churchill v. Fry, 16 Ohio St., 552; Dempsey v. Bush, 18 Ohio St., 376.

The plaintiff’s case seems to be clearly within the doctrine which he invokes and he is entitled to be paid out of the proceeds of the Clarke mortgage, the amount which he paid to The People’s Company with interest thereon, if the proceeds of the Clarke mortgage are sufficient. To hold otherwise would be to ignore the reason of the doctrine involved as it has been declared as the basis of decision, not only in the cases cited, but in many others, including Hill v. King, Exr., 48 Ohio St., 75; and L. E. & W. Rd. Co. v. Falk et al., 62 Ohio St., 297.

The judgment of the circuit court will be reversed, ■ and the cause will be remanded to that court to render judgment for the plaintiff in accordance with this opinion.

Reversed.

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