author: Longwoeth, J.

text:
    City of Ironton v. Kelley.
    Where the .trastees of water-works in a city, authorized and directed the digging of trenches in the streets for the purpose of laying water mains, in pursuance of a previous ordinance of council, and it is made the duty of the superintendent to cause such trenches to he dug and mains laid, the city is responsible for his negligent acts in doing the work causing injury, while such authority and direction remain an-.revoked; notwithstanding the trustees, individually, while said work was being done, notified the superintendent that they would have nothing further to do with the work.
    Error to the District Court of Lawrence County.

      W. A. JIutoMns, for plaintiff in error.

      O. F. Moore and W. II. Enochs, for defendant in error.
   Longwoeth, J.

The city of Ironton, by its council, resolved to extend its system of water-works by .laying additional pipes in several streets, among which was Chestnut street, and appropriated $16,336 from the sale of bonds, to pay for the same.

The trustees of water-works ordered the extension to be made, and advertised for proposals to furnish the pipe necessary for the extension, and accepted the bid of Dennis Long & Co., of Louisville. Before, however, any written contract was executed, a dispute arose between the trustees and the finance committee of the council respecting the disbursement of the fund so appropriated — the former insisting that it should be under their sole control, while the latter claimed the right to audit all bills for work done and materials furnished.

The trustees were unwilling to go on with the work, under these conditions, and immediately notified Long & Co. that they would not receive or pay for any pipe furnished by them, and refused to have anything to do with the proposed extension. They notified King, their superintendent, to this effect, although it does not appear that any formal, official action was taken by them ; at least no record of such action is found in the‘bill of exceptions.

Certain members of council, being desirous that the work should be done, urged the contractors to send on the pipe, and assured them that payment would be made therefor. The pipe was sent, and subsequently paid for, in some manner not apparent from the evidence. They also persuaded King to go on with the work, and the pipe was laid accordingly. The trustees did not discharge King, or even order him' to stop the work, although they individually notified him that he was doing a thing which he had no right to do, and cautioned him that he was acting upon his own responsibility. ¥e do not think that it appears from the evidence that the trustees, at any time, really objected to the work being done; but that they simply refused to have anything to do with it themselves, or to be in any way responsible therefor.

The evidence tends to show that on the night of November 16th, 1875, the ditch on Chestnut street at its intersection with Third street, which had been dug that day, was carelessly left open at the crossing, without any protection or guard, and without light or precaution used to warn passers-by of the danger; and that plaintiff, Mrs. Kelley, on the night in question, while walking up Third street, without any fault on her part, fell into the ditch, and sustained serious injury.

To recover damages for this injury suit was brought in the court of common pleas and verdict and judgment rendered in plaintiff’s favor, which judgment was subsequently affirmed in the district court.

It is argued on behalf of plaintiff in this court that, upon this state of facts, no recovery could be had against the city, for the reason that the negligent act which caused the injury was not in any sense the act of the city or of its agents. It is insisted that King, acting without orders from the trustees, upon his own responsibility, under the direction of certain members of the council, in their individual capacity, was simply a wrongdoer, and that neither he nor those under whom he acted could render the city responsible for their tortious doings.

We do not think this position tenable. Conceding, for the sake of argument, all that is claimed by plaintiif in error upon this point, it is manifest that the wrongful act which caused the injury was not the digging the ditch, but leavmg it unggroteoted• It is clearly the duty of a municipal corporation, having the control of its streets, to keep them in a condition safe for the passage of vehicles and foot-passengers, using ordinary care, at all times during the night as well as the day. This responsibility cannot be avoided by showing that the danger was caused, not by the acts of the city’s authorized agents, but by mere trespassers or wrong-doers. We concede, where the ground of action is the neglect of the corporation to put the streets in repair, or to remove obstructions therefrom, or to remedy causes of danger occasioned by the wrongful acts of others, notice of the condition of the street, or what is equivalent to notice, is necessary, to give to the person injured a right of action against the corporation (See 2 Dillon, § 789). But in the case before us, the work was done by a city officer whose duty, as such, it was to superintend the digging of all ditches for water-pipe, and who did not cease to be such public officer from the mere fact (if fact it be), that in this instance he was acting without authority. The ditch having been dug, it then immediately became his duty to see that proper precautions against .danger should be taken. More than this, the work was done with the full Tmowledge, if not with the consent, of -the trustees, who saw the work progressing; and under the direct order and supervision of members of council. What other or more complete notice could be given to the city it is difficult to determine.

However this may be, we are by no means prepared to say that the work was performed without authority. The council had provided by ordinance, and the trustees by resolution, that this very work should be done, and this action had not been reconsidered, or rescinded. The trustees simply refused to carry it out. They sought to shield themselves from responsibility by doing nothing. They did not, at any time, seek to prevent the work, although they had full knowledge of its progress under the charge and superintendence of their own servant and officer. We do not think it fair to say, under these circumstances, that the act of Ring was wholly unauthorized.

Numerous exceptions were taken at the trial to the action of the court in refusing special charges, and to the charges given, which we do not consider it necessary to review in detail. They are all covered by what we have already said; and whatever error may exist in any of them, was to the prejudice of the plaintiff below and not of the defendant.

Judgment affirmed.


source: Caselaw Access Project

author: McIlvaine, J.

license: Public Domain

text:
    The State v. Powers.
    1. Common school districts and hoards of education are not corporations within the meaning of section 1 of article 13 of the constitution.
    2. Under section 26, article 2, and section 2, article 6 of the constitution, laws regulating the organization and management of common schools must have a uniform operation throughout the state.
    Quo Warranto.
    The defendants, having assumed to act as the board of education of the New London school district, New London township, Huron county, are called, upon in this proceeding by the state, on relation of the' attorney-general, to show by what title or warrant they assume to do so. They answer by showing an election under the act of the general assembly of March 31, 1879, entitled “ an act to consolidate the territory comprising the township of New London, in Huron county, Ohio, into a special school district.”
    The provisions of the statute are as follows :
    “ Section 1. Be it enacted by the general assembly of the state of Ohio : That upon a vote as hereinafter provided for, the territory comprising the township of New London, in Huron county, Ohio, now consisting of the New London township school district, and the New London village school district, be and the same is hereby organized into a special school district, to be known as the New London school district.
    “ Sec. 2. The trustees of said township shall, at least five days prior to the annual election occurring on the first Monday of April, a. d. 1879, cause written or printed notices to the qualified electors of said township, of an election to be held at the same time and place of said annual election, to determine the question of the proposed consolidation, to be posted in at least five conspicuous places in said township, and at such election the said trustees shall provide a separate box to receive the ballots cast. The electors of said township in favor of such consolidation shall have written or printed upon their ballots the words ‘Special school district — Yes;’ and those opposed thereto the words ‘Special school district — No;’ and the majority of the ballots cast shall determine the question of such consolidation.
    “ Sec; 3. The board of education of such special school district shall consist of six members, who shall be apportioned to the same as follows; Two shall be residents of the territory now comprising the said village district, two shall be residents of the territory'now comprising the township district, and two shall be chosen from the territory of the township at large; and said board of education shall be elected in the manner now' provided by law for the election of boards of education in village districts, except that on the first Monday following the affirmative determination of the question of the proposed consolidation, the board of education of each of said districts shall meet, and each choose three persons to serve as members of the board of education of such special district, as follows; Two persons, resident electors of their respective districts, one to serve for one year and one to serve for three years ; and one person, a resident elector of said township at large, to serve for two years ; and the six so chosen shall constitute the board of education of such special district, and shall serve until their successors are elected and qualified.

      “ Sec. 4:. The said special district shall be governed and controlled in every manner by the laws of Ohio now in force relating to village districts; and the board of education may appoint a board of examiners, in the manner now provided by law for city and village districts having a population of twenty-five hundred inhabitants; provided, however, that no change shall be made in any of the joint sub-districts of said township, except in the manner now provided by law; but in such of ■ said joint sub-districts where the school buildings are now situated in said township, no local director shall be elected, but the same shall be under the supervision of the board of education of said special district.
    “ Sec. 5. All school funds on hand belonging to either of said school districts shall be transferred to the treasurer of said special district, and all school property, both real and personal, belonging to either of said school districts, shall become the property of said special district; provided, however, that if the school funds on hand of either of said districts should exceed that in the other, the amount necessary to make them equal shall be raised by taxation in the district so deficient.
    “ Sec. 6. This act shall take effect and be in force from and after its passage.”
    The relator claims that this statute is unconstitutional; and upon this claim the case depends.

      S. Burke and J. H. Dickson, for plaintiff:
    I. The act under consideration is unconstitutional in that it conflicts .with the 26th section of article 2 of the constitution, which reads: “ All laws of a general nature shall have a uniform operation throughout the state.” The school laws are general throughout the state and exist in their application to all the people in every locality. It divides the state into the smallest political divisions known to the law. Therefore we say, any law that affects the rights of any portion of the people under the school laws, being general in its nature, must, by the supreme law of the land, be uniform in its operations. The subject-matter of the law of which we complain is the schools ; it is the school concerning which this law was passed, the only exclusively general subject concerning all the people in every department and walk in life, touching every individual in the state of which the legislature could take cognizance by legal enactment. By the act complained of we have one law for the election of school boards for all the state except New London township, and another and different method for that township. No special need is shown or claimed for this act. Indeed, the friends of the measure claim they have got a better thing than the balance of the state. That New London is specially favored. No local condition or necessity is claimed to exist there as a reason for the act. So that we say no argument in favor of this act can be drawn from the decision in McGill v. State, 34 O. St. 228.
    II. The act is in contravention of section 1, article 13 of the constitution, which reads: “ The general assembly shall pass no special act conferring corporate power.” It is conceded that this act is special. Does it confer corporate powers % We claim that it does. And as to what is a corporation, see Dartmouth College v. Woodward, 4 Wheat. 636; People v. Assessors, 1 Hill, 620; 1 Dillon on Municipal Corp. 91.
    Here is a grant of the right- of eminent domain and the right of taxation extended by this act over the entire township. So we say that thereby it did confer additional powers upon an existing corporation, which this court, in 20 Ohio St. 36, has held cannot be done. But further, the act creates a corporation. It creates, in a most novel and singular manner, a new school board. In all the state there is none other like it. It is apparent upon the face of the act that it was created for the purpose of retaining political power in the village. And having created it, it provided that the said special district shail be governed and controlled in every manner by the laws of Ohio now in force relating to village districts.
    By the general laws, section 3971 of Rev. Stat., school boards are corporations. By this special act this school board, consisting of the respondents, are made a corporation likewise, and all the corporate power and authority conferred by law is given them. The legislature, by this special act, created a new corporation, which the constitution forbade it to do.
    In the following cases special acts were declared unconstitutional : State v. Cincinnati, 20 Ohio St. 18; State v. Mitchell, 31 Ohio St. 592; State v. Davis, 23 Ohio St. 434.

      It. P. Panney and PenneweTl <& Lamson, for defendants :
    We concede that the act does not have a uniform operation throughout the state, but we deny that it is a law of a general nature. The provisions of the law in question show that it is not, and that it was not designed to be general in its nature. It will not be questioned but that the legislature, under our constitution, has the right to pass local and special acts, except upon certain specified subjects. The grant of power to the legislative branch of our state government is ample for this; and it has been exercised since the present constitution has been in force, as well as before. The very provision of the constitution, that loca? and special laws on certain subjects shall not be passed, recognizes the right of the legislature to pass such laws on all subjects but the .forbidden ones. The subject of schools is not among the forbidden subjects. 18 Ohio St. 22; 21 Ohio St. 10 ; 34 Ohio St. 239.
    “The power of the general assembly to pass local and special laws is embraced in the general grant of legislative power; subject, of course, to such inhibitions and limitations as are found elsewhere in the Constitution. Section 26, article 2, was not intended as a limitation of the power.” 29 Ohio St. 111.
    If, therefore, any subject-matter is in its nature local, requiring special legislation, section 26, article 2, does not prohibit special laws on that subject. The legislature is not required to provide for every local and special matter by general laws, whenever it can be done, but are only prevented from restricting the operation of laws of a general nature to any part of the state less, than the whole. 1 Disney, 202.
    It is clear that every law upon a general subject is not per se, nor by constitutional intendment, necessarily a law of a general nature. The subject may be general, but the law, and the rules and the regulations which it prescribes, may be special, and applicable only to a small portion of the state. 43 Cal. 432.
    It has been held over and over again in our own, and other states, having the same provision in their organic law as the one Ave are now considering, that as to the fees of officers, which constitutes a general subject, one which interests all parts of the state, a statute may prescribe what these fees shall be in a particular county, and may declare that they shall be less or more than those prescribed for the same office in some other county, or in all the other counties of the state. Such a laAv, it has been decided, would not be a laAV of a general nature, Avhieh must have a uniform operation throughout the state to render it valid, but would be a special law on a general subject. 43 Cal. 241.
    And we insist that though the legislature has already passed a general law on a given subject, it has the power to pass. special and local laws on the same subject, if not one of those expressly inhibited. 1 Disney, 39; 18 Ohio St. 9; 21 Ohio St. 1; 34 Ohio St. 245; State v. Covington, 29 Ohio St. 102; McGill v. State, 32 Ohio St. 228.
    The general assembly, then, has power to pass special laws in relation to schools, when special reasons exist, or when the legislature is of the opinion that proper reasons exist for them. This power as certainly comprehends the authority to pass a special act making an exception to the general law, as the authority to pass any other special act on the same subject; and the act in question, whether considered as an exception to the general school law, in addition to it, or independent of it, is entirely within the grant of legislative power to the general assembly.
    We cite, as fully sustaining the view which we have taken of this question, the following California cases : Ryan v. Johnson, 5 Cal. 87; Moore v. Patch, 12 Cal. 265; Smith v. Judge, Twelfth District, 17 Cal. 548; Addison v. Saulein, 19 Cal. 83; Corwin v. Ward, 35 Cal. 195; Brooks v. Hyde, 37 Cal. 360; Exp. Smith, 38 Cal. 702; Peoples. C. P. R. R. Co., 43 Cal. 398; State v. Thompson, 2 Kas. 432; Rice v. State, 3 Kas. 141; Leavenworth v. Miller, 7 Kas. 479; Darling v. Rogers, 7 Kas. 592; Beach v. Leary, 11 Kas. 23; Noffzigger v. McAllister, 12 Kas. 315; Gentile v. State, 29 Ind. 409; State v. Tucker, 46 Ind. 315; State v. County Court, 50 Mo. 317; State v. County Court, 51 Mo. 83; Commissioners v. Shields, 62 Mo. 247.
    II. The board of education of New London school district is not a corporation within the purview and application of section 1, article 13 of the constitution.
    To determine just what a board of education is, see Commissioners v. Mighels, 7 Ohio St. 109; Railroad Co. v. Commissioners, 1 Ohio St. 77; Hunter v. Marion County, 10 Ohio St. 520; Dillon on Municipal Corp. § 10; Angell & Ames on Corp. § 24; Potter’s Law of Corp. § 428; 13 Mass. 192; Cooley on Const. Lim. 240-247; 30 Ohio St. 46; 23 Ohio St. 434; 31 Ohio St. 15; 29 Ohio St. 102.
    These references show the true character of the body known as the board of education — that it is not a corporation, municipal or private, but simply an organization, subject to the constant control of the legislature ; and constitutes the instrument by which the general asssembly administers that department of the civil administration of the state which relates to education and schools.
    The laws relating to the board of education may be changed as often as the legislature shall see fit; or they may be entirely repealed. The powers of the board may be modified, abridged, added to, or entirely taken away, without its consent. The board has no vested rights, and no property. It may hold property, but it is only for the use of the district, never for itself, or stockholders or shareholders.
    The title to the property which it does hold may at any time be taken from it without its consent, and vested elsewhere. The board is simply the custodian of what the legislature sees proper to deposit with it, boynd to use what is thus deposited in the manner directed by it, and not otherwise, and to yield it up when required. It constitutes an agency by which the general assembly works out its policy and purposes in educating the youth of the state. It serves, and is intended to serve, no other purpose.
   McIlvaine, J.

In compliance with the second section of the sixth article of the constitution, which provides, “ The general assembly shall make such provisions, by taxation or otherwise, as with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state,” general laws have been passed from time to time for the organization and maintenance of common schools throughout the state.

In the system adopted by the general law of May 1, 1873 (in force when the act under consideration was passed, and reenacted in substance in the Revised Statutes), the state was divided into school districts, styled respectively city districts of the first class, city districts of the second class, village districts, special districts, and township districts, and for each district was provided a board of education having the general management of the schools in such district. And it was also provided that The several boards of education now organized and established, and all school districts organized under the provisions of this act, shall be, and they are hereby declared to be, bodies politic and corporate;” and the act under consideration declares that the New London school district shall be governed and controlled in every manner by the laws of Ohio, now in force relating to village districts. Hence, it is claimed by the relator that this act, being a special act, assuming to confer corporate powers, is in violation of the 1st section of the 13th article of the constitution, which provides, The general assembly shall pass no special act conferring corporate powers.”

Whether powers conferred by the legislature upon a common school district be corporate or not, within the meaning of the provision of the constitution, cannot be determined definitively by the mere fact that such district or its board of education is declared by statute to be a corporation; but rather by the object of its creation and the nature of its functions. The district is organized as a mere agency of the state in maintaining its public schools, and all its functions are of a public nature. The evils, which this provision was intended to prevent, are not found in the special privileges conferred upon such public agencies. The evils sought to be prevented were such as resulted from special privileges conferred upon private corporations. That the inhibition extends to municipal corporations, cities and villages, has been settled by adjudications. See State v. Cincinnati, 20 Ohio St. 18, and 28 Ohio St. 445; State v. Mitchell, 31 Ohio St. 592, and cases there cited. In reference to these decisions, it is proper to remark that many of the powers and franchises of municipal corporations are of a private and local character, essentially different from those of mere political subdivisions of the state, commonly called quasi corporations. And again, cities and villages are classified as corporations and provided for in article 13 of the constitution, which relates solely to corporations; section 6 of which provides for their organization by general laws, so that the decisions referred to, iu which the inhibition of the 1st section is held to apply to municipal corporations, are of no weight on the proposition that school districts, or other political subdivisions of the state, are subject to the same inhibition.

On the other hand, school districts are constituted so as to partake rather of the character of counties and townships, which are provided for in the 10th article of the constitution, not as corporations, but as mere subdivisions of the state for political purposes, as mere agencies of the state in the administration of public laws. Hunter v. Mercer County, 10 Ohio St. 515; State v. Cincinnati, 20 Ohio St. 18. In this article reference is made to “ similar boards ” in connection with the commissioners of counties and trustees of townships.

It is quite obvious to us that county and township organizations, although quasi corporations, are not within the meaning of this provision of the constitution; and, upon full consideration, we are unanimous in the opinion, that school districts, as similar organizations, though declared by statute to be bodies politic and corporate, are not within the reason or meaning of this inhibition of the constitution. 11 Kansas 23, a case exactly in point.

¡¡jit is also contended that the statute in question is in conflict with section 26, article 2 of the constitution, which provides that “ All laws of a general nature shall have a uniform operation throughout the state.” Confessedly this statute operates only in New London township, and, under it, the schools of the township are organized and supervised differently from those of any other township in the state.

The true meaning of this constitutional provision is somewhat involved in obscurity, and has been questioned several times before this court. Two propositions, at least, involved in its construction may be said to have been settled: 1. That the general form of a statute is not the criterion by which its general nature is determined. In several instances, portions of the state have been exempted from the operation of a statute, in form general, by the enactment of local and special laws. State v. Judges, 21 Ohio St. 1; McGill v. State, 31 Ohio St. 228. 2. That whether a law be of a general nature or not depends upon the character of its subject matter. Kelly v. State, 6 Ohio St. 272: McGill v. State, 31 Ohio St. 228. It follows, therefore, that if the subject matter be of a general nature, all laws in relation thereto must have a uniform operation throughout the state, and if the subject matter be of a local nature, the legislature may provide therefor by laws either general or local in form.

The difficulty, therefore, in all cases, is in determining whether the subject matter of a.statute be of a general nature or not, and this difficulty, it seems to me, cannot be obviated by general rules, but by the consideration of each case as it arises.

That courts, as well as legislators, will differ as to this question, in many cases, is to be expected. TIence, the presumption in favor of the constitutionality of statutes, when challenged under this provision, is entitled to peculiar weight. But, while this is so, courts dare not trifle with this guaranty of the constitution, or fritter it away by holding the provision to be a mere direction to the general assembly, whose judgment in the premises is final. That there are subjects for leg-, islation of a general nature, concerning which all statutes must have a uniform operation throughout the state, I entertain no doubt. And, although it would be presumptuous to attempt an enumeration of them, 1 will venture to suggest the subjects of marriage and divorce, and the descent and distribution of estates, and others of like common and general interest to all citizens of the state.

In order, however, to avoid misunderstanding, I will here add, that on subjects concerning which uniformity is required, I have no doubt, that judicious classification and discrimination between classes, will not destroy the required uniformity.

Again, I assume that no one will dispute the proposition, that if the constitution declares a given subject for legislation to be one of a general nature, that all laws in relation thereto must have a uniform operation throughout the state, and courts should not hesitate to declare special and local enactments on such subject to be unconstitutional and void.

This brings us to the turning-point in the case. The constitution declares, not only, that the general assembly shall pass suitable laws to encourage schools and the means of instruction, (sect. 7, article 1), but also, that it shall make such provisions, by taxation or otherwise, as, with the income arising from the school trust fund, “ will secure a thorough and efficient system of common schools throughout the state (section 2, article 6). A majority of the court are of opinion that the subject of common schools is thus declared to be one of a general nature. These schools are sustained, in part, by a trust fund in which every section, as well as every individual of the state, has a common interest. This is not all: the interest of every section and every individual is to be secured by a thorough and efficient system of schools, and, as if it were to guard against such special and local legislation as we find in this statute, it is expressly declared that such system shall extend “ throughout the state.” It appears to me that no amount of logic could make plainer the proposition, that the common schools of the state, as a subject for legislation, is one of a “ public nature,” and that all laws in relation to the organization and management thereof must have a uniform operation throughout the state.

It is no answer to this objection to the statute, to say that the system inaugurated by the general law is not interfered with by this local act: inasmuch, as it is provided that the district of New London township shall be governed in every manner by the laws in force relating to village districts: for two reasons: 1st. Because under the general law there is no authority for extending the government of village districts over the subdistricts of townships, or for consolidating village and township districts in the manner provided in this act: and, 2d. There is no authority under the general act for organizing a board of education, as under this local enactment. And surely it cannot be said that these matters are not parts and parcels of the system provided for in the general statute.

"We will not undértake to compare the two systems as to efficiency. If the New London system is more efficient than that provided by the general law, it should be adopted throughout the state, otherwise it should not ;,but this is a consideration alone for the general assembly. We are satisfied, however, that it was a wise provision in the constitution that the system of common schools should be controlled and governed by general laws,- so that the whole state may enjoy the benefits of the best system which the experience and wisdom of the legislature case devise. It does not require a prophetic eye to see, that local legislation to suit the views of this locality and of that, would soon impair the efficiency of our public schools — that while in some places they might be elevated, in others they would be degraded. True, in some localities, from density of population and other causes, different necessities may exist requiring modifications in the management of schools in order to attain the greatest efficiency: but for all such cases, ample provision can be made by judicious classification and discrimination in general laws.

And I will add, in conclusion, that in expressing these views, the majority of the court should not be understood as holding, that, under peculiar circumstances, local legislation may not be resorted to for the purpose of enabling localities to discharge duties merely incidental, and such as would be incidental to any system, but would not either change or destroy the system itself; for instance, in the selection or change of school-house sites, or the erection or repair of school buildings and the like.

Judgment of ouster.

White and Johnson, JJ., did not concur in the second proposition of the syllabus.


author: Johnson, J.

text:
    Brick Company v. Pond.
    A., by an agreement in writing, “leased ” to B., “ all tbe clay that is good No. 1 fire clay, on bis land ” described, for a term of three years, subject to tbe conditions that B. “ shall mine, or cause to be mined, or pwy for, not less than 2,000 tons of clay every year, and shall pay therefor, twenty-five cents per ton for every ton of clay monthly, as it is taken away.” Held:

    1. That this was a contract, which gave B. the exclusive right to mine and remove all the good No. 1 fire clay that was on the land, and not a lease of the land itself.

      2. If clay of that quality, and in quantity sufficient to justify its being mined, existed, B., on failure to mine at least 2,000 tons per year-, each year while the contract was in force, was bound to pay for that amount, at the agreed price per ton.
    3. But if, in fact, clay of that quality, and in quantity sufficient to justify its being mined could not, by the use of due diligence, be found on the land, then there was no obligation to pay the amount agreed on, in case of failure to mine. Goolc v. Andreios, 36 Ohio St. 178, followed and approved.
    4. Where it is an open question whether such clay was to be found on the land, and the exclusive possession of the clay lands was vested in the lessee or purchaser of the clay, for the purpose of ascertaining the fact, the burden is upon him, in order to defeat a recovery for the annual sums to be paid in case of a failure to mine and remove the same, to prove that such clay as is contemplated in the contract did not exisj in minable quantity. Cook v. Andrews, supra.

    Error to the District Court of Scioto County.
    The defendant in error brought an action to recover $2,000, less certain credits, under a contract of which the following is a copy:
    “ This agreement, entered into this 25th day of February, A. D. 1873, between Erastus Pond, of Portsmouth, Ohio, of the first part, and the Scioto Fire Brick Company, of Sciotoville, Ohio, of the second part, witnesseth, that the said party of the first part hereby leases all the clay that is good No. 1 fire clay, on his land, situate in Clay township, Scioto county, Ohio, for the term of three years from and after this date, subject to the following conditions, that is to say: providing said parties of the second part shall mine, or cause to be mined, or pay for not less than two thousand tons of clay every year, and shall pay therefor twenty-five cents per ton for every ton of clay monthly, as it is taken away. The party of the first part reserves the right, in case he should sell or dispose of said property on which the clay above leased is found, to cancel this lease any time after the first year shall have expired ; but, in case the land is not sold, then, and in that case, this lease is to remain in force for the three years. The party of the first part, should he conclude to sell or dispose of the property, to allow tbe parties of the second part to purchase it, providing they will pay as much for it as any other good and responsible parties. The party of the first part agrees to give the right of way for any roads necessary to get clay away.”

      “ To the true performance of the foregoing agreements, we, the parties, affix our signatures, the day and date first above written.”
    [Signed] “Erastus Pond,
    “ Scioto Fire Briok Company,
    “ Per W. Q. Adams, President.”
    The petition, as amended, alleged :
    1. The defendant is a corporation duly organized under the laws of this state, and carrying on business at the said county.
    2. The plaintiff, on the 25th day of February, A. d. 1873, was, and has since been thp owner of a tract of land situate in Clay township, in said county, containing about one hundred and seventy acres, and upon which were large deposits of fire clay, viz.: Over six thouscmd tons of good No. 1 fire cla/y, amd over six thouscmd tons of other good fire day. (The last clause being the amendment made necessary by the ruling of the court on a demurrer to the petition for want of such allegation.)
    3. That defendant, desiring to secure to itself the sole privilege of mining fire clay for a term of years on said land, entered into said contract.
    4. That defendant took possession of said land and mined and took away large quantities of fire clay, but not to exceed six thousand tons.
    The prayer is for a judgment for $1,347.72, with interest from February 25, 1876, that amount being the difference between $1,500, which was three years’ rent for said land, in case of failure to mine, and $152.28, payments received on the amount due on said contract.
    Three defenses are pleaded.
    1. It is denied that there was any good No. 1 fire clay on said land, or that defendant received or took away any such, or any other clay that it was required to take and pay for.
    2. It admits that shortly after the making of said agreement, the defendant entered upon said tract of land of the plaintiff for the purpose of mining and taking away the good No. 1 fire clay thereon, and proceeded to open the strata of fire clay on said premises, in order to mine and take away there- ; from whatever good No. 1 fire clay could be found, or was thereon. In opening said fire clay banks, it was ascertained that the fire clay was not good No. 1 fire clay, but with the expectation that the quality would improve as said banks were more fully opened and developed, a small quantity of the fire clay mined on said premises was taken away and hauled to the works of defendant for the purpose of testing the same. The whole quantity so taken away from said premises was 4563s tons. It avers further, that upon testing said fire clay so taken from said premises, it was ascertained that the same was almost worthless; and for the purpose of making fire brick was, in fact, entirely worthless. Defendant avers that said fire clay so received and taken away from said premises was not good No. 1 fire clay ; nor was the same received or taken by defendants as such; nor was the said fire clay so taken of any value.
    3. Is a counter-claim to recover back the above payments acknowledged in the petition, on the ground that the clay taken and paid for was worthless. As no question is here' made on the action of the court below on this counter-claim a further statement of it is unnecessary.
    On the issues joined, evidence was offered on each side, the tendency of which is disclosed in the bill of exceptions. The jury found for the plaintiff for the full amount claimed.
    The bill of exceptions does not purport to set out all the evidence, but only what it tends to prove. Certain charges and refusals to charge are stated, which are assigned as grounds for reversing the judgment.
    Upon the issue made by the denial that there was any good No. 1 fire clay on the land, the court charged, that the burden of proof was on the defendant below; and, if the jury found from the evidence that there was good No. 1 fire clay on the lands, in such quantities as would warrant its being taken out, having regard to the expense ordinarily incurred in mining fire clay, they need inquire no further, the verdict umst be for the plaintiff.
    The court further instructed the jury: “ That if they found from the evidence, that there was no good No. 1 fire clay on the said lands of plaintiff,' it did not follow that they must find the issues for defendant; they must inquire further.” And to guide the jury in their further inquiries in such an event, at the request of the attorney for plaintiff, the court gave to the jury the following instructions, to wit:
    1. “ Under the written contract it was the duty of the defendant to examine and determine, within a reasonable time, whether or not there was such clay on the land as it was willing to accept and pay for under the agreement.”
    2. “If defendant did not, within one year from the date of the contract, examine and test the clay sufficiently to determine its quality and quantity, and continued mining and taking away clay the second year, under the lease, then it became liable to pay to plaintiff at the end of the year for two thousand tons of clay at the contract price, whether it received that amount or not.”
    3. “ If defendant, dining the second year, mined and took away clay under the lease, and did not abandon the lease before the commencement of the third year, and so notify plaintiff, it is liable to pay for 2,000 tons for that year, whether it took away that quantity or not.”
    4. “ A simple verbal notice by the defendant, or its attorney, to the plaintiff, that it should not take any more clay under the lease, is not sufficient; before defendant could release itself from its liability under the written lease, it was required to tender to the plaintiff a written release in writing, executed by the defendant, unless there was a waiver upon the part of the plaintiff of the execution of a written release.”
    Exception was taken to these charges, and then, at the request of the defendant, the court gave the following instructions, to wit:
    1. “ Before the plaintiff can recover in this case the jury must be satisfied, by a preponderance of evidence, that there was upon the said lands of the plaintiff good No. 1 fire clay in quantities that could, and would, by the use of such usual and ordinary means as are ordinarily adopted by careful and prudent men in that business, have been taken out.”
    2. The following instruction was asked by defendant to be given, to wit:
    “ If the jury shall find, from the evidence, that there was to be found on the lands of the plaintiff some good No. 1 fire clay, but that the same was found in such small quantities, or was so mixed up with other fire clay unfit for use, or other ingredients that rendered it unfit for use as a good No. 1 fire clay, that it could not be taken out and made fit for use except at an expense exceeding the value of the clay so obtained, and would not, for that reason, have been mined by any man of ordinary care and prudence in that business, the defendant was not required to take such fire clay as a good No. 1 fire clay, nor is he required to pay for the same, if he should refuse to taire it.”
    But the court refused to give the same without omitting the words, “ nor is he required to pay for the same if he should refuse to take it,” and gave said instruction, omitting said words.
    To which ruling of the court, in refusing to give said instruction as asked, and except by omitting said words, and also in giving the same with said words omitted, defendant, by its counsel, excepted.
    The defendant asked the court to give the following instruction, to wit:
    3. “If, during the first year, the defendant made a reasonable examination of the land, and was unable to find a good No. 1 fire clay on the same, and so imported to plaintiff, and the plaintiff thereupon requested the defendant to made a further examination of the land the next year, and at his request defendant made a further examination of the land the next year and could not, after a full and reasonable examination of the same, find any good No. 1 fire clay on the tract, and the jury shall also find from the evidence, that there was no good No. 1 fire clay upon the tract, the verdict must be for defendant.”
    . Which instruction the court refused to give, and for so refusing, defendant, by its counsel, excepted.

      The grounds relied on for a reversal are: that the court erred in its charge, and in its refusal to charge as requested.

      Moore c& Newman and J. W. Bcmnon, for plaintiff in error:
    The existence of sufficient minable clay to enable the plaintiff in error to comply with the contract was essential to the right of defendant in error to recover. Cook v. Andrews, 36 Ohio St. 178.

      W. A.Sutchms, for defendant in error:
    „I. The burden of proving that there was not sufficient clay of the kind called for by the contract to enable the plaintiff in error to mine the amount specified was upon the plaintiff in error. Cook v. Andrews, 36 Ohio St. 178.
    II. But the defendant in error was entitled to recover whether or not there was No. 1 fire clay on the land. Pollock’s Principles of'Contract, 1 Am. ed. 356 ; Atkinson v. Ritchie, 10 East, 530; 1 Addison on Cont. § 327; 2 Id. § 949; Hills v. Sughrue, 15 M. & W. 253; Baily v. DeCrespigny, L. R., 4 Q. B. 185; Benjamin on Sales, 3 Am. ed. 556; see also Bank v. Burt, 5 Allen, 113; Eddy v. Clement, 38 Vt. 486; Wells v. Calnan, 107 Mass. 514; Buck v. Coal Co., 54 Penn. St. 291.
   Johnson, J.

The agreement, which is the foundation of the action, is, we think, properly pleaded, as a contract, securing to the plaintiff in error “ the sole privilege of mining fire clay ” on the land for a term of three years.

The agreement itself, is not a lease of the land, but of “ all the clay that is good No. 1 fire clay,” on the land.. If that kind of clay was on the land, the plaintiff in error was bound to mine not less than 2,000 tons each year, the same to be paid for monthly as it was taken away. The exclusive right to possession of the land so far as was necessary to mine and remove such clay was granted. This was not an exclusive possession of the whole tract, but only for • mining purposes. The ownership of the land, with the right to the possession of the same, subject only to the right of possession for the purpose of mining and removing the clay, was in the owner. This was, therefore, a contract for the privilege of mining and removing the kind of fire clay specified, as distinguished from a lease of the land.

This right or privilege commenced February 25, 1873, and unless sooner terminated, ended February 25, 1876.

The action is for three years’ rent, or compensation to be paid on failure to mine, and not for so much clay actually mined. It is founded on that clause of the agreement which provides, that the plaintiff in error, ‘ ‘ shall mine or cause .to be mined, or pa/y for, not less them two thousand tons of c],ay every year, and shall pay therefor twenty-five cents per ton for every ton of clay monthly as it is taken away.”

The petition does not aver, that any particular quantity of clay was taken away.

It is alleged that possession of “ said clay lands,” was taken, and “ large quantities of fire clay mined and taken away, but not to exceed 6,000 tons.

As this was not a lease of the land at an agreed rent per annum, but a contract, for the exclusive privilege of mining and removing during the term, “all the clay that is good No. 1 fire clay,” it follows, we think, that unless there was such clay on the land, nothing was payable under the contract.

The clause of the contract, termed therein a condition, which binds the party of the second part, to mine or cause to be mined or pay for, not less than 2,000 tons of clay every year, is not an obligation to mine or pay for any. other clay, than that leased to the party. The word “ clay ” in this clause means the kind of clay contracted for, viz., “ good No. 1 fire clay.”

The defendant bound itself, in consideration of the privilege granted, to mine and pay for this kind of clay, at the rate spe-cified, payable monthly as it is taken away. It was to mine, or pay for, at least 2,000 per year.

It could not monopolize this clay for three years, without compensation, nor take a less amount than two thousand tons per year, but was to mine at least that amount. If it did not, it was to pay for that amount each year. If it failed to mine this quantity each year, it obligated itself to pay for that amount, To'hold, that the plaintiff below was entitled to an annual rent of $500 per year, if there was no clay of the quality, or in quantity sufficient, that was minable, would do violence to the terms of the agreement and to principles of justice. It would be paying for a worthless privilege.

I. Did the court err in its charge, as to the burden of proof %

The original petition did not allege that there was any good No. 1 fire clay on the land. For want of such an averment, a demurrer was sustained, and an amendment was made, containing this allegation. It was put in issue by the first defense. The issue thus tendered naturally cast the burden on plaintiff, if determined by the form of the pleadings merely.

On the trial the general charge was that the burden on this issue was on defendant, but theffirst request of defendant was given, which was to the effect that the plaintiff must satisfy the jury, by a preponderance of proof, that such clay was on the land in minable quantity.

Without attempting to harmonize these different rulings, let us assume, that the plaintiff in error is correct in saying the effect of the charge was to east the burden on defendant.

Upon general principles applicable to cases of this kind, and in accordance with the opinion in Cook v. Andrews, 36 Ohio St. 178, we think the burden was properly on defendant.

It is admitted in the pleadings, that possession of these clay lands was taken by defendant under the contract. This was an exclusive possession for all purposes embraced in the contract, and included the right to test the lands for such clay, if such test was necessary.

From the bill of exceptions, it appears to have been an open question, whether there was such clay to be found. It was the duty of defendant to mine and remove the same, if found, or pay the amount stipulated per year.

The exclusive right to test these lands being in the defendant, the burden is on him to prove the non-existence of such clay in minable quality and quantity. Cook v. Andrews, supra.

II. The court charged, that if there was good No. 1 fire clay on the land in such quantities as would justify mining -it, the jury need not inquire further, but must find for the plaintiff. That is, if the clay was there, of the quality and quantity that should have been mined and taken away, the defendant must pay for at least 6,000 tons, whether mined and removed or not. In this we think there was no error. They were, however, further charged, that if such clay was not on the land, it did not follow that the issues should be found for the defendant, but the jury must inquire further. '

In this further inquiry, they were instructed: 1st. That it was the duty of defendant, to test the land in a reasonable time for such clay. 2d. If it did not do so in one year, sufficiently to determine its quantity and quality, and continued mining and taking away clay,” during the second year, then it became liable at the end of the ypr for 2,000 tons, whether it received that amount of clay or not; and, 3d. If, during the second year, it mined and took away “ clay ” under the lease, and did not abandon the lease before the commencement of the third year, it was liable to pay for 2,000 tons for that year, whether it t§ok away that quantity or not.

The plain import of these instructions were, that although there was no such clay on the land as defendant had contracted for, yet if the defendant failed to make a test during the first year and held over into the second year, mining and taking away clay (whether of the quality contracted for is not stated), the defendant was liable to pay for 2,000 tons for that year, whether there was any good No. 1 jure clay there or not, and the same rule was given to guide the jury for the second and third years.

Notwithstanding this, the court, at the request of defendant, charged, that before the plaintiff could recover, the jury must be satisfied by a preponderance of evidence, that there was upon said lands, good No. 1 fire clay, in such quantities as would justify its being taken out; but at the same time and in the same connection, refused to give the following charge, without omitting therefrom the words, “ nor is he required to pay for the same if he should refuse to take it,” and gave said instruction omitting said words:

“ If the jury shall find, from the evidence, that there was to be found on the lands of the plaintiff some good No. 1 fire clay, but that the same was found in such small quantities, or was so mixed up with other fire clay unfit for use, or other ingredients that rendered it unfit for use as a good No. 1 fire clay, that it could not be taken out and made fit for use except at an expense exceeding the value of the clay so obtained, and would not, for that reason, have been mined by any man of ordinary care and prudence in that business, the defendant was not required to take such fire clay as a good No. 1 fire clay, nor is he required to y>a/y for the same, if he should refuse to take it.”

That is, if- there was no No. 1 fire clay of sufficient quantity, that could be taken out and made fit for use, except at such great expense as would not justify a man of ordinary care and prudence in that business in doing it, the defendant, though not required to mine it, is yet bound to pay for it, if taken out, though not of the quality contracted for.

This modification of the request is irreconcilable with the prior request of the defendant, which was given, but is in harmony with the main charge of the court, which we have found to be erroneous, in holding defendant liable, during his possession, and while searching for the kind of clay he had contracted for, although none was on the land. In view of the fact that the jury rendered a verdict for the full quantity of the kind of clay that defendant was bound to take out, if there in minable quantity, for the whole term, and of the fact that the evidence put in issue the existence of such clay, we think this judgment should be reversed. It was likely to confuse and mislead the jury upon the most important issue in the case. Eor this reason alone the judgment should be reversed. Wash. Ins. Co. v. Mer. & Man. Ins. Co., 5 Ohio St. 450.

By the charge of the court, and by the modification of the second request of defendant, this issue became immaterial, if there was any quantity of the required kind of the clay, however small, on the land, or indeed, if none at all.

Judgment r&oersed a/nd ccmse remanded.


author: White, J.

text:
    Shorten v. Drake.
    1. "Where a debtor purchases real estate and causes it to be conveyed to his wife in fraud of his creditors, a bona fide mortgagee from the husband and wife, will not be affected by the fraud.
    2. The possession of the husband and wife at the time of taking the mortgage will not charge the mortgagee with notice of the fraud; nor will he be affected by notice of levies made upon the property as that of the husband, subsequent to the conveyance to the wife.
    3. The levy of an order of attachment, in the absence of process of garnishment, has no greater operation than the levy of an execution.
    4. Where, in a court of equity, the fund in controversy is held for distribution, and the equities of the respective claimants are equal in point of merit, the distribution will be ordered according to the maxim, gut prior est tempore potior est jure.

    Error to the District Court of Hamilton County.
    This case was before this court at a former term, and is reported in 34 Ohio St. 645, under the name of Shorten v. Woodrow. In that case the judgment below was reversed and the cause remanded for the ascertainment of the priorities of liens upon the premises in controversy in the case, and for distribution of the proceeds of the sale of such premises. Upon the trial of the case for that purpose, in the superior court, upon the answer and cross-petition, and supplemental answer and cross-petition of Samuel Shorten, and his amended answer and cross-petition, the answer of Alexander McMillan, and Eleanor, his wife, and the amendment to their amended answer and cross-petition, and the answer of said Shorten thereto, the answer and cross-petition of William S. Grant, administrator of Samuel Grant, deceased, and the proof and exhibits submitted by the parties, in addition to the findings of fact reported in 34 Ohio St. 645, that court found: that said Sargent and wife continued to occupy said premises until the sale in this suit; that the judgment in favor of Samuel Grant was based on an indebtedness of said Sargent occurring prior to the said conveyance to Drake, and that at the time of the making of the mortgage hereinafter mentioned, by said Sargent and wife to Shorten, the said Shorten had actual notice of the levying of said execution on said premises as the property of said Sargent; that the order of attachment in the suit of McMillan and wife against said Sargent, was grounded on the statement, verified by-affidavit, that Samuel A. Sargent had property and rights which he concealed for the purpose of defrauding his creditors, and that the indebtedness in said action sued upon arose and was a subsisting cause of action in 1861. At the time of the making of the mortgage by Sargent and wife to Shorten, hereinafter mentioned, the said Shorten had actual notice of the levying of said attachment on said premises, as the property of said Sargent. >
    And as to the Sargent mortgage that court found as follows :
    That on January 1, 1872, the said Sargent and wife executed, in due form of law, a mortgage deed to Samuel Shorten of the premises in controversy, to secure the payment of a debt therein mentioned, which said mortgage was recorded on the day last mentioned; that at the time of the giving of said mortgage the said Shorten was the owner of certain promissory notes given to him by the said Sargent, for money loaned to him by the said Shorten; that on giving of said mortgage the said Shorten surrendered said notes to said Sargent and received in lieu thereof, from said Sargent, the notes described in said mortgage; that at the time of the making of said mortgage the notes, first held by said Shorten, were due; and the amount due thereon was the full amount mentioned in said mortgage, and that by the giving of said mortgage to said Shorten the time for the payment of the amount due from the said Sargent to the said Shorten, was extended by the said Shorten; and that at the time of receiving the mortgage said Shorten did not, in fact, have notice, that said conveyance from Clark to Drake (see first and second findings 31 Ohio St. 615) was made or received in the manner and with the purpose and intent therein set forth, but that the said Shorten, at the time of the taking of said mortgage deed, believed Mrs. Sargent to be the bona fide owner of said premises described in said mortgage deed.
    As conclusion of law from the facts, the superior court found, that MeMillan and wife, by reason of said attachment, acquired a lien on the premises in controversy prior to the claims of all the other defendants except Steele, who was a prior lien bolder; and ordered that tbe unpaid balance of the proceeds of tbe sale of the premises be distributed as follows : 1st. To tbe payment of tbe unpaid costs. 2d.'To Steele, tbe sum of $1,500, with interest from October 27, 1873. 3d. Tbe remainder to McMillan and wife.
    On error to tbe district court, that court affirmed tbe judgment of tbe superior court as to Shorten, and reversed it as to "William Grant, and ordered that out of tbe proceeds of the property there be paid: 1st. All unpaid costs except those adjudged against Samuel Shorten. 2d. To tbe payment of tbe judgment in favor of George W. Steele. 3d. To "William Grant, tbe amount of bis judgment. 4th. Tbe balance to Alexander McMillan and wife.
    This proceeding is on tbe petition in error of Samuel Shorten and tbe cross-petition of Alexander McMillan and wife, prosecuted to obtain tbe reversal of tbe judgment of tlie district court.

      D. Thew Wright, for Shorten :
    Tbe interest of Samuel A. Sargent in bis wife’s property was only an - equitable interest, and therefore could not be levied on either in execution or attachment.
    1. As to executions, see 2 S. & C. 1063; Roads v. Symmes, 1 Ohio, 314; Manly v. Hunt, 1 Ohio, 257; Jackman v. Hallock, 1 Id. 320; Baird v. Kirtland, 8 Id. 21; Scott v. Douglas, 7 Id. 227; Douglas v. Hudson, 6 Id. 156; Haynes v. Baker, 5 Ohio St. 253; Morris v. Way, 16 Ohio, 469; Lawrence v. Belger, 31 Ohio St. 175.
    Tbe code provides bow any “ equitable interest ” in “ real estate ” may be reached. § 458, 2 S. & O. 1086. By proceedings in aid, or “ by action.”
    Why this, if there could be a levy and sale on execution, and this remedy could only be bad after judgment? Drake on Attachments, § 225.
    Tbe very language of tbe code (§ 458,2 S. & 0.1086) shows that an interest like this cannot be levied on.

      “ When a judgment debtor has not personal or real property subject to levy on execution, . . . any equitable interest which he may have in ’real estate,” &c., may be subjected “ by action.”
    “ If the equitable interest ” was “ subject to levy,” why the necessity of an “ action ” ? It is because the equitable interest is not subject to levy that the action is a necessity.
    Neither was Sargent’s interest such as that it could be seized in attachment.
    What is it that can be attached % “Lands, tenements, goods, chattels, stocks, or interest in stocks, rights, credits, moneys, or effects.” Code, § 194, 2 S. & C. 1004; R. S. 5524. This interest was attached as “lands or tenements.” The same language is used in regard to what can be taken in execution. Code, § 420 ; 2 S. & C. 1063. But it does not cover equities. Lawrence v. Belger, 31 Ohio St. 180.
    It may be that if McMillan had garnisheed Mrs. Sargent, he might have reached this interest. Section 200, 2 S. & C. 1005, provides that, if the garnishee has “ property ” of defendant, it may be reached. Section 205 provides that the garnishee shall be liable for all property, moneys, and credits in his hands.” Page 1006.
    The learned counsel misconceive the effect of section 221, Code, 2 S. & C. 1009, and Cary v. Fenstemaker, 14 Ohio St. 457. The “ equitable title” referred to in section 221 refers to personal property, as also does the case of Cary v. Fenstemaker. This case' recognizes the general principle that equitable titles cannot be taken in execution at common law, though the code prescribes that, such interests may be attached.
    The property belonged to Sargent’s wife. However fraudulent the deed to her may have been, it is good, until set aside by a proper party and proceeding. Floyd v. Smith, 9 Ohio St. 546; Swift v. Holdridge, 10 Ohio, 230; White v. Brocau, 10 Ohio St. 339; Crumbaugh v. Kugler, 2 Ohio St. 373. The property, therefore, was the wife’s, and the possession of the husband was a possession under her, not in his own right. Possession follows the deed. Lessee of Borland v. Marshall, 2 Ohio St. 308, 313, 314. The following are cases where the insolvent debtor pays for land, but has it conveyed to some one else than himself. Wall v. Fairley, 77 N. C. 105; Rhem v. Tull, 13 Ire. (Law) 57. And, in these cases, it is held that there is no interest of the Judgment debtor that can be levied on and sold. Freeman on Judgments, § 347.
    The case of Jeffries v. Sherburn, 21 Ind. 112, is a case where the debtor held an equity, coupled with possession, yet a judgment was not a lien thereon; and the same is held in Modisett v. Johnson, 2 Blackf. 431.

      O. B. Matthews, for McMillan :
    1. No lien was obtained by Grant’s levy. A mere equity cannot be taken upon execution. Haynes v. Baker, 5 Ohio St. 255; Roads v. Symes, 1 Ohio, 281; Morris v. Way, 16 Ohio, 478; Baird v. Kirtland, 8 Ohio, 25.
    The reason of this is very obvious. An execution is a legal process — the legal machinery whereby the debtor’s property is applied to the payment of a judgment. The law does not recognize equitable interests. Its machinery has not that elasticity necessary in order to deal with them.
    A mere possessory interest may be sold upon execution, because it is recognized by the law as a legal interest, though the lowest. Scott v. Douglass, 7 Ohio, 228. If Sargent had any equitable estate at all, it was the fee, but it did not arise by reason of his possession, if he had any, but from the payment of the purchase-money. His alleged possession alone would not enable him to go into a court of equity to control the property. Therefore it would seem plain that the equity could neither coalesce with nor follow the legal possession. Huntington v. Rogers, 9 Ohio St. 511. It is doubted whether the principle that a possessory interest may be sold is one of universal application. The court declines to decide whether the equity goes with such a sale. But Sargent was not in possession at all. The possession of Sargent was the possession of Mrs. Sargent. Lessee of Barton v. Heirs of Morris, 15 Ohio, 430.
    Sargent had no equitable title, either because no trust would result to him under the circumstances. Vanzandt v. Davies,
      6 Ohio St. 52. Therefore there was no kind of interest in Sargent to be sold upon execution. We say upon execution, because that there was an interest somewhere that could be appropriated by other means is certain. A sale on execution carries only what belongs to the judgment debtor. Klein's Lessee v. Graham, 3 Caines, 188. The effect of a conveyance in fraud of creditors is that the conveyance is good as to all the world except creditors. Bump on Fraudulent Conveyances, 256, 448, 451, 456. It is good as to all creditors except those who institute the proper proceedings to annul it. Bump on Fraudulent Conveyances, 452, 454, 455. The statute of frauds is merely declaratory of the common law. Bump on Fraudulent Conveyances, 256; Story Eq. Jur. 350, 352, 371, 377, 381; Lessee of Barton v. Heirs of Morris, 15 Ohio, 430.
    II. The attachment of McMillan was based on the fraud of Sargent. The judgment in that case was for the amount, and was entered on the date stated in the answer and cross-petition of McMillan and wife, in this cause, and it ordered the said land to be sold to satisfy it. The estate was subject to the levy and lien of an order of attachment, and was so bound from May 27, 1870. Section 191 of the Code, 2 Swan. & Or. 1002, provides that the plaintiff in a civil action may have an attachment against the property of the defendant, upon the grounds, among others : 7. That the defendant “ has property or rights in action which he conceals.” Or 8. “ Has assigned, removed or disposed of, or is about to dispose of his property, or a part thereof, with the intent to defraud his creditors.” . Here are statutory provisions in favor of attaching creditors in excess of those in favor of execution creditors. These provisions are very broad, and must reach property situated as this land was, or else, under the seventh ground and a part of the eighth, no real estate could be reached. A debtor may conceal his interest in real estate only by suffering the legal estate actually, or apparently, to remain in another. Actually, by not taking any deed or taking a deed in the name of another, or apparently, by abstaining from recording his deed. The creditor cannot, so far as the record informs him, ascertain which means have been adopted. The eighth clause reaches eases where he has conveyed real estate with the intent to defraud his creditors. In which case he has neither legal nor equitable title, for, as against him the conveyance is good, but upon the principle that he must be just before he is generous, the law allows creditors to step in by process of attachment, and reclaim that which was substantially their own before the conveyance. Section 221 of the Code (2 Swan & Cr. 1009), provides : “ If judgment be rendered for the plaintiff, it shall be satisfied as follows : So much of the property remaining in the hands of the officer, after applying the moneys arising from the sale of perishable property, and so much of the personal property, and lands, and tenements, if any, whether held by legal or equitable titles, as may be necessary to satisfy the judgment, shall be sold by order of the court, &e. And tile money arising therefrom, &c., shall be applied to satisfy the judgment and costs. The two sections settle the matter beyond dispute. An attachment issued as a provisional remedy, under the code, authorized the sheriff to seize any property which the defendant therein has disposed of in any manner with intend to defraud his creditors. Hall v. Stryker, 27 N. Y. 596; Rinchey v. Stryker, 28 N. Y. 45; Rinchey v. Stryker, 31 N. Y. 140; Sykes v. Keating, 118 Mass. 517. The claim of McMillan and wife is not a mere equity.- They obtained a specific statutory lien at the date of the attachment. Skinner v. Oettinger, 14 Abb. Pr. (N. Y.) 109.
    III. As to Shorten’s mortgage. It was taken nearly two years after the levy of McMillan’s attachment, at a time Avhen this suit-was pending, and after an order for the sale of the premises had been entered. The property was already incumbered by four prior mortgages which subsisted until paid out of the proceeds of the sale herein. He also took his mortgage with full actual notice of the attachment of McMillan and wife, and without advancing any money at the time, but merely extended a subsisting indebtedness. As Shorten took his mortgage after the court had ordered a sale he took nothing but a lien on the proceeds. For that reason, and further, because the legal estate had been conveyed to a prior mortgage, he did not get in the legal estate. Shorten was not a bona fide purchaser or mortgagee. He paid nothing for his security. As between Sargent and himself a mere extension of payment would be a consideration, but as between McMillan and wife and him, it was not a valuable consideration, otherwise he might create it for the very purpose of defrauding them without costing him anything. A bona fide purchaser must pay a valuable consideration without notice of the rights of others. Shorten paid nothing and had notice. He advanced his money without security, and knowing that Sargent was being sued and having his property levied on, took what he could get ut a venture. Could he, knowing of the rights of McMillan, by his own act, a mere extension of time, which cost him nothing, make himself a bona fide purchaser ?

      John W. Herron, for Grant:
    As to creditors, the property in dispute belonged to Sargent. It is admitted that he purchased and paid for it, and, for the purpose of cheating his creditors, caused the title to be placed in another. He was in possession of it all the time. He owned the property. There was nothing outstanding but a naked legal title, left outstanding for the purpose of cheating his creditors. And hence it was subject to execution, levy and sale as his property. Scott v. Douglas, 7 Ohio, 228; Minor v. Wallace, 10 Ohio, 404; Bunker v. Rand, 19 Wis. 259; Jackson v. Scott, 18 Johns, 94; Turner v. Saunders, 4 Scam. 527. The cases cited seem to me to establish these points : 1. The possessory title of the defendant may be seized on execution and sold. 2. Neither the debtor nor those claiming under him will be permitted to deny as against the purchaser at such sale, that he owned the property at the time of the sale. It has been held in a variety of cases cited in Freeman on Executions, § 189, that the interest of a party under a resulting trust may be seized on execution and sold. Foote v. Colvin, 3 Johns. 216. So the interest of a mortgagor in possession, after condition broken, was always held subject to levy, and yet his interest was merely an equity of redemption. Is the case different where the property, as in the present case, was conveyed to another for the purpose of concealing it from the creditors of the judgment defendant, the purchase-money having been furnished by him ? What was the interest of the judgment defendant in this property ? As to creditors, it was his property. Had the conveyance been made by him to Drake, it would have been void and the property subject to levy by any creditor having a judgment. If the conveyance is procured to be made to a third party in order to defraud creditors, declaring the conveyance void would not help the creditors. The rule is stated by Bump, page 265. The debtor will not be permitted to set up his own fraud, and therefore he cannot claim the benefit of a resulting trust in his favor; but as to the creditors, no such disability prevails. They can pursue and hold the property and subject it to the payment of their claims, by execution ; by attachment; by proceedings in aid of execution, or by an action to subject it. The law will not quibble about the mode of procedure; it will not permit justice to be defeated or evaded by subterfuges; it will take the debtor’s property wherever it may find it, and hold it for the benefit of the creditors. Winder v. Starling, 7 Ohio, 539; Rankin v. Harper, 23 Mo. 579; Ghormly v. Potter, 29 Ohio St. 598.
   White, J.

This case was before this court at a former term, and is reported in 34 Ohio St. 645. It was there held that the conveyance from Clark to Drake, and the subsequent one from Drake to Mrs. Sargent are not within the operation of section 17 of the act regulating the mode of administering assignments in trust for the benefit of creditors, as amended February 12, 1863. S. & S. 397; 1 Sayler, 354. The judgment of the court below was reversed and the cause remanded for distribution of the proceeds of the sale of the property.

The question now before the court is as to the respective rights on distribution of Grant, a judgment creditor, whose judgment was recovered March 8, 1870, and execution levied April 12, following; McMillan and wife, attachment creditors, whose attachment was levied May 27, 1870; and Shorten, a mortgagee, whose mortgage was executed by Sargent and wife January 4, 1872, and recorded the same day.

1. As to the priority of the mortgage. At the time of taking tbe mortgage the legal title was held by Mrs. Sargent, and the findings show that the mortgagee had no notice of any fraud or infirmity in it. The mortgage is supported by a valuable consideration passing a* the time of its execution, and the mortgagee took it, as is said in the finding, believing Mrs. Sargent to be the bona fide owner of said premises described in said mortgage.”

The mortgagee therefore stands on the footing of a bona fide purchaser for value of the legal title, and is entitled to be protected as such.

This position of the mortgagee is sought to be impugned on two grounds; (1) That Sargent, the judgment debtor, was in possession at the date of the mortgage, and that the mortgagee was chargeable with notice of such possession; (2) That he had notice of the levies of the execution and of the attachment.

As to the first ground. ‘The possession of Sargent was not adverse to the title in his wife, but consistent with it, and in the absence of fraud, his possession was referable to his marital rights in her property. The notice of possession with which the mortgagee was chargeable was the possession as it existed at the time of taking his mortgage, and not as it may have existed anterior to the conveyance to Mrs. Sargent.

As to the second ground. The execution and the attachment were not against Mrs. Sargent, in whom was vested the legal title, but against her husband, a stranger to the title, except as respects his possession in his marital right, which, under the statute concerning the rights of married women, was not subject to be taken in payment of his debts. The levies were subsequent to the conveyance to the wife, and could not affect a bona fide purchaser or mortgagee under such conveyance.

2. After satisfying the mortgage, the remaining question is as to the priority between the execution and the attachment.

In the first place it may be remarked that no question arises as to what rights may be acquired by the creditor under the process of garnishment in the proceeding in attachment. No such process was had in the present case. The levy of the attachment, like that of the execution, was made as upon the lands and tenements of the debtor ; and where the attachment is thus executed its operation is no greater, in our opinion, than the levy of an execution. It has the like effect before judgment that an execution has after judgment.

The present suit is in equity. The fund, in controversy was raised by a sale made in a court of equity, and is now held for distribution upon the principles by which such courts are governed. The only parties that can be supposed to have any interest in the distribution are the execution and the attachment creditors, the debtor, and his wife. The title of the wife is held in fraud of the rights of the creditors; hence cannot be set up to defeat those rights. In equity, as against these creditors, she stands on the same footing as though her title had not been acquired. The debtor himself can of course assert no claim to the fund, neither as against his wife nor the creditors.' The question then simply is as to the respective rights of the execution creditor and the creditors in the attachment. Their equities are equal in point of merit; and where the equities are equal, the law or the analogy of law will prevail. The maxim in such case is, qwi prior est tempore potior est jure.

In Adams’ Equity (*p. 162) it is said: “If there be no legal right, or, in respect of equitable subject-matter, no perfect equitable right in any of the claimants, as, for example, if the estate be still outstanding in the original owner, or in some third person not constituted a trustee for any claimant individually, the claims will be satisfied in the order of date.”

In Brewster v. Power (10 Paige, 562), the application of the principle is thus declared : “ Where there is a resulting trust in favor of the creditors of the person who pays the consideration for real estate and takes a conveyance in the name of another, in fraud of their rights, it seems that a judgment recovered by one of such creditors is in equity a lien upon such real estate, except as against bona fide purchasers without notice ; although such estate cannot be sold under an execution upon the judgment.” The same principle is applied in Lynch v. Utica Ins. Co., 18 Wend. 236, 253.

In the present case the equities of the creditors were perfect against Mrs. Sargent to have the property subjected to the payment of their judgments; and they are entitled to share in the proceeds according to the dates at which their respective equities accrued.

Judgment reversed, <md distribution ordered in aocorda/nee with the foregoing opinion.