author: Bradbury, J.

text:
    The Geo. W. McAlpin Co. v. John Finsterwald et al.

      fudg77ieni against firm — By co7ifessioii of firm by oiiepartner only —Firm creditor cannot impeach judgment — Proceeds of execution sale iii hands of sheriff — Action against sheriff attacking validity of judgment — Nature of such action — Appealable under section 5228, Revised Statutes.

    1. Where, in good faith and for a firm debt, a judgment has been rendered against the firm, by confession, on a warrant of attorney executed in its name and on it's behalf by one partner only, without the assent of his co-partner, such judgment cannot be impeached or set aside by a creditor of the firm.
    2. Where a number of judgments had been recovered against a mercantile partnership by its creditors, executions issued on them by virtue of which all the partnership property had been seized and sold, and the proceeds are in the hands of a shei’iff for distribution ; one of the execution creditors made a demand on the sheriff for the share of the fund which it claimed, and on payment being refused by such sheriff, brought an action against him, not as sheriff, but as an individual to recover the sum thus demanded. The sheriff made no defense, but procured an order of court substituting for him certain other execution creditors of the firm. Thereupon the latter filed cross-petitions in the action, setting forth their respective claims to the fund, and also setting forth facts designed and tending to impeach the validity of the plaintiffs’ judgment, and to procure a decree cancelling and setting aside that judgment, together with the execution thereon, and thereby exclude the plaintiff from participating in the distribution of the fund, but asking no relief against the sheriff.
    Held: That the cause of action set forth in such cross-x>etitions is not for the recovery of money only, and that as the trial in the court of common pleas was conducted, exclusively on the issues joined between the plaintiff and the substituted defendants, on the cross-petitions, neither party was of right entitled to a trial by jury, and the action was therefore appealable under the provisions of section 5226, Revised Statutes.
    (Decided February 1, 1898.)
    Error to the Circuit Court of Athens county.

      The plaintiff in error brought an action in the court of common pleas of Athens county, against John Finsterwald to recover of him a proportion claimed by it of $6,000, that had come into his custody as sheriff of said county of Athens, and was the proceeds of a stock of merchandise owned by Palmer & McGrath, a partnership, and which had been sold by said sheriff under two writs of execution issued to him; one on a judgment against said firm recovered by the First National bank of Athens,- the other on a judgment against the firm in favor of James D. Brown. Such proceedings were had in the action, that said bank and said Brown were each made parties thereto, and each answered setting forth a claim to priority over the plaintiff to the fund in controversy. The cause was tried in the court of common pleas to the court, and judgment given in favor of Brown and the bank. The plaintiff gave notice of its intention to appeal the cause to the circuit court and afterwards did so. This appeal was upon motion by the defendants, dismissed on the ground that the action was not appealable. Upon this dismissal of the appeal, the time within which to begin proceedings in error not having expired, the plaintiff instituted proceedings in error in the circuit court to reverse the judgment of the court of common pleas. The circuit court affirmed that judgment. Thereupon the plaintiff, now plaintiff in error, began, in this court, two separate proceedings in error; one to reverse the judgment of the circuit court dismissing the appeal; the other to reverse the judgment of the circuit court affirming that of the court of common pleas. The facts will be stated in the opinion.

      James F. Brown and Stephens & Lincoln, for plaintiff in error.
    1. The judgment, if impeached at all, must be impeached in the court where it was rendered. Critchfield v. Porter, 3 Ohio, 519; Abernathy v. Latimore, 19 Ohio, 286; McKee v. Bank of Mt. Pleasant, 7 Ohio, pt. 2, p. 176.
    2. The Geo. W. McAlpin Company is entitled to a pro rata share along with the other four judgment creditors above named, of the proceeds arising from the sale of the firm property. Revised Statutes of Ohio, section 5382; Wilcox v. May, 19 Ohio, 408; Derckson v. Ried, 2 Handy, 160.
    3. The judgment in favor of The Geo. W. McAlpin Co. is not void but voidable only as to, and at the instance of the non-assenting partner, Mc-Grath, and it may be ratified by him either directly or by waiving his right -to object thereto. Uhlendorf v. Kaufman, 41 Ill., 373; Hamilton’s Appeal, 103 Pa. St., 368; Grier v. Hood, 25 Pa. St., 430; Remington v. Cummings, 5 Wis., 138; Drexel’s Appeal, 6 Pa. St., 272; St. John v. Holmes, 20 Wend., 609; Grazebrook v. McCreedie, 9 Wend., 437; Denton v. Noyes, 6 Johns. R., 296; Farewell v. Cook, 42 Ill. Appeal, 291.
    4. The judgment in favor of The Geo. W. McAlpin Co. cannot be made the subject of a collateral attack. See — Callen v. Ellison, 13 Ohio St., 446; Pillsbury v. Dugan, 9 Ohio, 117; Wiley v. Pratt, 23 Ind.,628; Jackson v. Tift, 15 Ga., 557; Bissel v. Carville, 6 Ala., 503; Beauregard v. New Orleans, 18 Howard, 502; McAlpin v. Sweetser, 76 Ind., 78; Van Fleet’s Collateral Attack, sections 428, 429 and 430, and authorities cited.
    5. One partner has the right to sign the firm name to a judgment note and thereby bind the firm and the firm property. The other partners only can complain. See — H. B. Clafflin Co. et al. v. Evans et al., 55 Ohio St., 183; Knieb v. Graves, 72 Pa. St., 104; Ross v. Howell, 84 Pa. St., 129 ; Boyd v. Thompson, 153 Pa. St., 78; Franklin v. Morris, 26 Atlantic, 364; Budd v. Shock, 11 Pa. County Ct. Rep., 480; Taylor et al. v. Henderson, 17 Sergeant & Rawle, 453; Bitzer v. Shunk, 1 Watts & Sergeant, 340; Harper v. Fox, 7 Watts & Sergeant, 142 ; Corson et al. v. Beans, 4 Weekly Law Gazette (Ohio), 204; Hanchett v. Gardner, 37 Ill. App., 79; Affirmed 28 N. E., 788.
    In Clafflin Co. v. Evans, supra, this court held that a managing partner entrusted with the sole charge of the business and effects of the firm in case of insolvency can make a valid assignment for the benefit of its creditors without the consent of his copartner, who was a non-resident of the state where the business was carried on and absent therefrom. This position was sustained by the court and authorities cited in that opinion. It is alleged in the answers and cross-petitions to which plaintiff’s demurrers were overruled that McGrath had been long absent from the state and that the firm was insolvent. The managing partner, Palmer, signed all the notes both for the plaintiff and defendants upon which judgments were confessed.

      Grosvenor, Jones & Worstell and Jewett & Wood, for defendants in error.
    The levying of an execution upon partnership property where the assets are insufficient to pay the levies, amounts in law eo instante to a dissolution of the firm.

      The bank and Brown, on the 5th of October, levied executions upon all of the property of the partnership of Palmer & McGrath, which property was insufficient to pay the levies of these two executions. As a matter of law, we claim that this act of the sheriff in levying upon said property amounted to an immediate or instant dissolution of the partnership. The authorities upon this subject are as follows :
    Under the head of insolvency as to what effects the dissolution of a partnership. See 17 Am. & Eng. Enc. of Law, pages 1103 and 1104. Sanders v. Young, 31 Miss., 111; Renton v. Chaplain, 9 N. J. Eq., 62; Carter v. Rowland, 53 Tex., 540; Aspinwall v. London & N. W. Ry. Co., 11 Hare, 325; Haberton v. Slurton, 1 DeG. & Sm., 121; 2d Swanst, 586; Hershfield v. Claflin, 37 American Reports, page 239,; 2d Lindley on Partnership, (Ed. of 1888,) star page 359 and authorities cited in note E.
    A partnership will be dissolved by act of the law in the following cases : By the interest of a partner taken in execution. 2d Lawson’s Rem. Rights & Remedies, page 1241; section 671, and authorities cited in note 8.
    The entire partnership property had been seized by the executions of the Bank and Brown, and the property therefore being in legis custodia, there was nothing for the plaintiff’s note, warrant of attorney, and the judgment taken thereon, and the issuance of the execution upon said judgment to operate upon.
    That a partner has no right to give a power of attorney to confess judgment against the partnership and that a judgment rendered upon such power of attorney is void for want of jurisdiction. Huntington & McIntyre v. Finch & Co., 3 Ohio St., 452; Hooper v. Lucas, 86 Ind., 44.
    In an action against a firm, it has been held that one partner has no authority to bind the ñrm by consenting to an order for judgment against it, or by giving a cognovit to pay the debt and costs. 1st Lindley on Partnership, star page 271; Hambridge v. Dela Crown, 3 C. B., 742; Munster v. Cox, 10 App. Cases, 680; Raittibone v. Drakeford, 4 Mo. P., 6 Bingham, 375.
    The general rule is that one partner cannot bind his copartners by a confession of judgment without their consent. Christy v. Sherman, 10 Ia., 535 ; Edwards v. Pitver, 12 Ia., 607; North v. Mudge, 13 Ia., 296; Barlow v. Beno, 1st Blackford, (Ind.) 252; Everson v. Gehrman, 1st Abb. (G. Y.) Prac., 167; Shedd v. Bank, 32 Vermont, 709; Remington v. Cummings, 5 Wis., 138.
    Such judgments will bind the partner who confessed it and be void as to the others. Bitzer v. Shunk, 1st Watts & Serg., (Pa.) 340; Morgan v. Richardson, 16 Mo., 409 ; Sloo v. State Bank, 1st Scam., Ills., 428; York Banks Appeal, 36 Pa. St., 458.
    But a partner has not, by his general power to act as agent for the partnership, authority to confess a judgment against his firm. 2nd Freeman on Judgments, section. 555, (4th Ed.) and numerous authorities cited in note 3. McCleery v. Thompson, 130 Pa. St., 443; Crane v. French, 1st Wendell, 311; Mills v. Dickson, 6th Rich., 487; Canal and Lead Mine Co. v. Walker, 11 L. C. Jur., 433; Richardson v. Fuller, 2nd Oregon, 179; Elliott v. Hodbrook, 33 Ala., 659; Soper v. Fry, 37 Mich., 236.

      • Hence no partner or other joint obligor is bound by a judgment confessed by his copartners or' coobligors without his express authorization. 2nd Freedman on Judgments, (4th Ed.) section 545 ; Citing in note three, the following authorities: Tripp v. Saunders, 59 How., 379; Wiggins v. Kleinhaus, N. J. L., 144; Ballinger v. Sherron, 14 N. J. L., 144; Conrey v. Rotchford, 30 La. Ann., Pt. 1, page 692. 1st Black on Judgments, section 58 ; Stoutenburgh v. Vaudenburgh, 7th Howard’s Prac. Rep., 229; McKee v. Bank of Mt. Pleasant, 7 Ohio, second part, 175; Sloo v. Lea, 18 Ohio, 279; 7th Howard’s Prac. Rep., 229. Where a partner is absent from State, see Hull et al. v. Laning, 91 U. S., 160, and affirms Thompson v. Whitman, 18 Wall., 457 and 19 Wall., 59; (Mich.) Smith v. Sheldon, 24 Am. R., 529; (N. Y.) Gilmore v. Ham, 40 Am. St., 565.
    We claim the right to collaterally attack the Vinton county judgment. The authority of Palmer to execute the note and warrant of attorney, was a jurisdictional fact that the bank and Brown had a right to inquire into. Horner v. Doe, 1 Smith, (Ind.) 10; Thompson v. Witman, 18 (U. S.) Wallace, pages 457, 467, 468 and 469; and see 19 Wallace (U. S.) 59; Gray v. Smith, 38 N. H., 174; Border v. Fitch, 15 Johnson, 121; Mercer v. Chase, 9 Allen, 244; Cavanaugh v. Smith, 84 Ind., page 380; 1st Black on Judgments, section 278; Frankel v. Southerfield, 19 Atlantic Rep., 898. The Ohio cases are Kingsborough v. Howsley, 56 Ohio St., 789. Fully discusses the question. Pennywit v. Foote, 27 Ohio St., 600. Pennywit’s case is affirmed in 30 Ohio St., 74; Spier v. Corli, 33 Ohio St., 244; VanFleet on Collateral Attack, section 1, page 3. When judgment void collaterally. VanFleet on Collateral Attack, page 14, section 16. Lewis v. Coon, 1st Ohio Circuit Court Reports, is a leading case and settles the law for Ohio in connection with the Ohio cases already cited. Hale v. Friech, 104 U. S., 261.
    Every act of a court beyond its jurisdiction is void. Ex parte Need, 100 U. S., 23; Carrett v. Williams, 20 Wall., 226; Windsor v. McVeigh, 93 U. S., 274; 7 Waits Ac. and Def., 181; Vol. 12, page 148, par. 7 of Am. and Eng. Ency. of Law.
    When partner is absent from state, see Hull v. Lanning, 91 U. S., 160; Morrile v. Morrile, 23Am. St., 118, 119; Moore v. Starks, 1 Ohio St., 373.
    If we are correct in the first proposition that the levying of the executions on the partnership property in an amount greater than the' value thereof caused a dissolution of the firm, then the following- authorities show that there was no power on the part of Palmer to give the note. Huntington v. Mock, 42d N. E., 761; 2d Bates, Partnership, sections 693, 694 ; Stair v. Richardson, 108 Ind., 429; 40th Am. St., 565; 24th Am. Rep., 529; 5th Am. Rep., 244; 98th Am. Dec., 260; 271 monographic note; Stegel v. Chickey, 70th Am. Dec., 125; 20 Ohio St., 95; 4 Ohio St., 21; 1st Disney, 26; 40 Ohio St., 431; Carver v. Scarlet, 9 B., 312.
    Further there is no presumption but that MaGrath was temporarily absent, and there is no claim but that immediate communication could have been had with him by telegraph, telephone, or otherwise. We claim, therefore, that all of the facts upon which the court based the presumption of assent in the Clafflin case, are wanting in this case ; and furthermore that the opposite facts are found affirmatively by the court. Holland et al. v.
      Drake, 29 Ohio St.,441; North & Scott v. Mudge & Co., 13 Iowa, 496; 1 Lindley on Partnership, p. 272, and cases cited;Parsons on Partnership (4th Ed.), section 125; Soper v. Fry, 25 Mich., 236; Freeman on Judgments, section 545; McBride et al. v. Hagan et al., 1 Wend., 335; Tom v. Goodrich et al., 2 Johns., (N. Y.) 213; Williams v. Hodgson, 3 Am. Dec., 563; 2 Oregon, 179; Parsons on Partnership, 180, note; Reynolds v. Fleming, 30 Kan., 106; National Bank of Newton v. Grimes Dry Goods Co., 45 Kan., 510; 9 Kan., 674; 19 Kan., 207; 20 Kan., 14; 3 Ohio, 518.
    One partner cannot confess a judgment in the name of the partnership. Grazebrooke v. McCreedie 9 Wend.,(N. Y.) 439; Green et al. v. Beals, 2Caines, 254; Crane et al. v. French et al., 1 Wend., 310; Doe et al. v. Smith et al., 4 S. & M. Reports (Miss.); Bitzer v. Shunk, 1 Watts & Sergeant, (Pa.) 340; Harper v. Fox, 7 Watts & Sergeant, (Pa.) 142, 143; Collier on Partnership, page 469, note 4, and eases cited; 1 Watts & Sergeant, (Pa.) 519, syllabus; Barlow et al. v. Reno et al., 1 Blackf., (Ind.) 252-3; Hooper v. Lucas, 86 Ind., 44, 52.
    Section 5011, Revised Statutes, authorizes an Ohio partnership to sue or be sued by the firm name ; and section 5370 provides that a judgment against such partnership may be made the basis of an action against the individual members. Therefore, if a partner may confess judgment for the partnership, he may create a judgment liability against his copartner, individually, to which the copartner can make no defense. This would certainly transcend the scope of the partnership business.
    That a partner may not confess judgment against the partnership without the consent of his copartners is sustained by the decided weight of authority in the United States. Such we understand to be the rule in the following states: Iowa, Wisconsin, Michigan, New York, Oregon, Kansas, Illinois, Alabama, Mississippi, Indiana, Pennsylvania, and Ohio. McKee v. Bank 7 Ohio, part 2d, 175; Sloo v. Lea, 18 Ohio, 305.
    Was it competent for the defendants to impeach collaterally the judgment rendered for the plaintiff against the firm of Palmer & MaGrath by the court of common pleas of Yinton county ? We submit that it was. Neither the sheriff, the Bank, nor James D. Brown, was a party to that jiidgment; hence they could not prosecute error, appeal or file a motion to vacate the judgment. They could complain of it only, when and in so far as it was sought to be enforced against them. We take it that the true rule is this: A void judgment can be impeached collaterally by a third person, not a party or privy to the judgment, whenever and wherever such judgment is sought to be enforced against the interest of such third party. A void judgment is no judgment, and has no more force and effect than if it had never existed, therefore, when such judgment is sought to be enforced, the party impeaching it simply denies, in effect, that there is such a judgment. Mills & Co. v. Dickson & Mills, 6 Richardson (S. C.) 487; Koechlept v. Hook's Lessee, 69 Am. Dec., 133 New York Bank’s Appeal, 36 Pa. St., 458.
    A void judgment may be set aside by any person interested. Forman v. Carter, 9 Kan., 474; Butcher v. Bank, 2 Kan., 70. A void judgment may be attacked collaterally. Anderson v. Hawhe, 115 Ill., 33. A judgment absolutely null may be attacked collaterally in any form of proceedings by any one having the least interest to have the nullity pronounced. Conery v. Rotchford et al., 30 La., 692; Parker et al. v. Spencer et al., 61 Tex., 155; Glass v. Smith, 66 Tex., 548; Grimmett v. Askew, 48 Ark., 151; Border v. Fitch, 15 Johns, 141; Mills v. Martin, 19 Johns, 33; Bigelow v. Stearns, 19 Johns, 39; Dorsey & Co. v. Kendall & Co., 8 Bush (Ky.) 293; Grisworld v. Stewart et al., 4 Cowen, 457; Palmer v. McMaster, 8 Mont., 186; Latham v. Engerton, 9 Cowen, 227; Bank v. Gibson, 11 Ga., 453; Towns, Governor, v. Springer et al., 9 Ga., 130; Lewis v. Allred and wife, 57 Ala., 628; Moulin v. Ins. Co., 4 Zab., (24 N. J. L.,) 222; Clark et al. v. Bryan et al., 16 Md., 171; Wightman v. Karsner, 20 Ala., 447; Lamar v. Commissioners, 21 Ala., 772, 4 Sneed (Tenn.,) 332; Eaton v. Badger, 33 N. H. 228; Seidensparker v. Lame, 83 Am. Dec., 572; Sherman et al. v. Union National Bank, 66 Miss., 648; Wilcher v. Robertson, 78 Va., 602; Seamster et al. v. Blackstock et al., 83 Va., 232; Savford et al. v. Weare, 142 Mass., 231; Vose v. Morton, 4 Cush., 27; Alexander v. Gould, 1 Mass., 165; Smith v. Saxton, 6 Pick., 483.
    When a judgment, recovered contrary to law, is prejudicial to a third party, he may avoid it by plea and proof. Downs v. Fuller, 2 Met., 135; Folger v. Columbian Insurance Co., 99 Miss., 273; Tarbell v. Jewett, 129 Mass., 457; Inman v. Mead, 97 Mass., 310; Lafflin v. Field, 6 Met., 287; Leonard v. Bryant et al., 11 Met., 370; Peterson v. Farnum, 121 Mass., 476; Cafford et al. v. Weare, 142 Mass., 231; McAlpine v. Sweetzer, 76 Ind., 82; Laflin v. Field, 6 Met., (Mass.) 297; Van Fleet on Coll. Attack, section 422; Leonard v. Bryant, 11 Met., (Mass.) 370; 12 Am. and Eng. Encyc., 147 j-k-l-m-n-o; 148 h-i-j; 311-12.

      We do not ratify the admission made for us by counsel for plaintiff, that the right of the plaintiff to pro rate in the proceeds of the sale of the firm property, is conceded. That is the very question in controversy. We claim that the bank and James D. Brown are entitled to the entire fund as decided by the common pleas court and affirmed by the circuit court.
   Bradbury, J.

On December 27, 1893, plaintiff in error filed in the court of common pleas of Athens county, against John Finsterwald its petition setting forth that it was a corporation under the laws of this state, that said John Finsterwald was sheriff of said county of Athens; that on October 5, 1893, the First National bank of Athens, James D. Brown and Samaria H. Palmer, each recovered by confession in the court of common pleas of Vinton county, Ohio, a judgment against Palmer & McGrath, a partnership; the first named for $4,783.50, the second for $2,117.64, and the third for $489.07; that each of said three parties caused executions to be issued on their respective judgments, and delivered to said sheriff, and by him levied on a stock of dry goods, etc., belonging to said firm, and found in said county of Athens all which was done on the day the judgments were confessed; that on the following day, the plaintiff, itself, and John P. Dana, each recovered by confession in said court of common pleas of Vinton county a judgment .against said firm; the plaintiff’s judgment being for $4,047.32 and John P. Dana’s for $150.00, and that they severally caused executions to be issued on their judgments directed to said sheriff, and that the said sheriff on the same day (Oct. 6, 1893) levied the same on said stock of goods. That the property thus seized by said sheriff was all the property owned by said partnership or by either of its members; that afterwards said stock of goods was sold by said sheriff under the executions issued on the judgments of said bank and said Brown for the sum of $6,000.00; that said sum is insufficient to satisfy all of said executions, and that the plaintiff claims to be entitled to a pro rata share of said sum with the First National Bank of Athens, James D. Brown, Samaria H. Palmer and John P. Dana. That it had demanded of said sheriff such pro rata share of said $6,000.00, and that payment thereof had been refused. The petition concluded with a prayer for judgment in the following terms: “Wherefore the plaintiff prays judgment against the said defendant for the sum of $2,095.69 with interest from the 21st day of December, 1893.”

At the ensuing term of the Athens court of common pleas, upon the application of the defendant, that court found “that the personal property in the petition described was taken by the defendant, as sheriff of Athens county under an execution' in favor of the First National Bank of Athens, and James D. Brown, now * * * it is ordered that said First National Bank of Athens, and James D. Brown, upon their giving- security for costs, be and they are hereby substituted as parties defendant in this action” * * *

Thereupon, after their respective demurrers to the petition had been filed and overruled, each of these substituted defendants, filed an answer and cross-petition, wherein they admit the rendition of the plaintiff’s judgment and their own, the issuing and levying of the executions and the sale of the partnership property as set forth in the petition, but attack the validity of the plaintiff’s judgment. The grounds of this attack are alike in both cases and are set forth in the cross-petition of James D. Brown as follows:

(2) “On the 5th and 6th days, of October, 1893, and long prior thereto, the said James A. Palmer and one Charles D. McGrath were partners for the purpose of, and they were, carrying on business in the state of Ohio, under the firm name of Palmer & McGrath; on said 6th day of October, 1893, said James A. Palmer, in Athens, Ohio, executed and delivered to the plaintiff a promissory note for the sum of $4,047.32, payable on demand with 8 per cent, interest, which promissory note had a warrant of attorney therein written, authorizing any attorney of any court of record in the state of Ohio, to appear in any court of record in said state and confess judgment against said James A. Palmer and said firm of Palmer & Mc-Grath for the whole amount appearing due on said note, with interest and costs, and to release all errors and right of appeal. Said note and warrant of attorney were signed by the said James A. Palmer individually and purported to be also signed by said firm of Palmer & McGrath; said firm of Palmer & McGrath, however, did not sign or execute the same, but the said James A. Palmer, without the authority, knowledge or consent of said Charles D. McGrath, or of said firm or partnership, signed the name of said firm or partnership to said note and warrant of attorney as joint and several maker thereof with himself. At the time said James A. Palmer signed the name of said firm of Palmer & McGrath to said promis ■ sory note and warrant of attorney, said Charles D. McGrath was absent from the state of Ohio, and has ever since remained absent therefrom, and neither he nor said firm has ever ratified or acquiesced in the signing’ of the name of said firm to said note and warrant of attorney. Thereafter, on the' 6th day of October, 1893, and without the knowledge or consent of said Charles D. McGrath or of said firm, the plaintiff herein procured a judgment to be entered on said note and confession in the court of common pleas of Vinton county, Ohio, in favor of the plaintiff and against said James A. Palmer and said firm of Palmer & McGrath; and neither the said Charles D. McGrath, nor the said firm of Palmer & McGrath has since ratified said judgment or acquiesced therein. Said judgment is the same set forth in the plaintiff’s petition.

At the time of the rendition of said judgment and ever since, the said James A. Palmer, Charles D. McGrath and said firm of Palmer & McGrath have been and are insolvent, and the goods and chattels described in the plaintiff’s petition and the proceeds of the sale thereof were and are all the property then or now owned by them out of which said judgments of this defendant and the First National Bank of Athens, or any part therefore can be collected.

This defendant further answering says that by reason of the premises said alleged note and warrant of attorney given by the said James A. Palmer to plaintiff, the judgment rendered thereon and the writ of execution levied thereunder and the seizure of said goods and chattels under said writ, were all null and void, and of no effect so far as the same relate to or affect said firm of Palmer & McGrath, the goods and chattels aforesaid and the proceeds of the sale thereof; if said judgment, execution and levy are permitted to stand and the plaintiff is permitted to receive a pro rata share of said fund, this defendant will thereby suffer great and irreparable injury.

The defendant avers that by reason of the premises it and the First National Bank of Athens have the first and best lien upon said fund and that their liens thereon are equal.

The said judgment rendered in favor of this defendant and against said firm of Palmer & Mc-Grath as aforesaid was rendered upon a promissory note executed and delivered by said firm to this defendant for a debt and liability of said firm or partnership, said property levied upon and sold as aforesaid was the partnership property of said firm.

Wherefore this defendant prays that said pretended judgment, execution, and levy in favor of the plaintiff, as aforesaid, may be vacated and can-celled and held to be null and void so far as relates to said partnership, said chattel property and said fund derived from the sale thereof; that the plaintiff may be held and adjudged to have no interest in or lien upon said fund; and, that the same may be distributed pro rata between this defendant and the First National Bank of Athens, and for all other equitable relief to which this defendant may be entitled.”

To this attack on its judgment, the plaintiff in error replied by making a similar attack on the judgment of the bank, and on that of James D. Brown. These two judgments, it alleges, were founded on promissory notes, and warrants of attorney to confess judgments in all respects like the note and warrant of attorney on which its judgment rested; and that those two promissory notes and warrants of attorney were executed by the same partner with the same authority, and under the same circumstances that its note and warrant of attorney had been executed. The cause was tried to the court and a decree rendered finding the equities of the case to be with the cross-petitioners, James D. Brown and the First National Bank of Athens, and that they are entitled to the relief demanded by them, and thereupon ordering' that the fund thus arising- from the sale of the partnership property be divided between the bank and Brown, ratably in proportion to the amount of their respective judgments, and excluding the plaintiff in error, John P. Dana and Samaria H. Palmer from any participation therein.

The two last named judgment creditors not having been made parties to the action, were, of course, not bound by any judgment that might be rendered therein. The plaintiff below, The Geo. W. McAlpin Co., appealed the action to the circuit court and that court, upon the motions of the bank and James D. Brown dismissed the appeal on the ground that the action was for the recovery of money only and therefore not appealable. Thereupon the plaintiff in error, The Geo. W. McAlpin Co., brought- the cause on error to this court to reverse the judgment of dismissal. It then instituted proceédings in error in the circuit court to reverse the judgment of the court of common pleas thus rendered in favor of James D. Brown and the bank, and that judgment being affirmed by the circuit court, it brought the cause here by another proceeding in error, the object of which is to obtain a reversal of that judgment of the circuit court which affirmed the judgment of the court of common pleas.

Two distinct proceedings in error, are before us both, however, arising out of the same original action. The object sought by one is a reversal of the judgment of the circuit court dismissing- the appeal; the other to reverse the judgment of the circuit court affirming that of the court of common pleas. They were both submitted to and determined by this court together.

1. It will have been observed that the defendants in error, The First National Bank of Athens and James D. Brown, on certain grounds set forth by them, in their respective cross-petitions assailed the validity of the judgment recovered by the plaintiff in error in Vinton county, and that the plaintiff in error in turn on substantially the same grounds assailed the validity of the judgments, that the bank and Brown had respectively recovered there. The cause was tried upon these pleadings in the court of common pleas and judgment recovered by the defendants, the bank and Brown. This judgment necessarily implies that the court found that the judgments recovered by Brown and the bank in Vinton county were valid and that th¿ judgment recovered there by the plaintiff in error was invalid, no bill of exceptions was taken, so that neither the circuit court nor this court was informed concerning the evidence introduced at the trial in the court of common pleas respecting the validity of any of these judgments. The plaintiff in error made its attack on the judgments of the bank and Brown, in a pleading, denominated a reply, and which was filed in answer to the cross-petition of those two defendants. It was treated by the court, and all parties, as the last pleading allowable under our code of civil procedure and its averments, therefore, under section 5081, Revised Statutes, should be “deemed controverted.” This, of course, cast upon the plaintiff in error the burden of establishing by proof those allegations of its reply that assailed the validity of the judgments which the bank and Brown had recovered. The court having heard the evidence and found these issues against plaintiff in error, we must presume, in the absence of a bill of exceptions, that the finding in this respect was correct and that those judgments of Brown and the bank were valid.

We must also, for the same reasons, presume that every allegation made by Brown and the bank, in their respective cross-petitions, assailing the validity of the judgment recovered by plaintiff in error in Vinton county was sustained by evidence. The only question, therefore, before this court, or that was before the circuit court respecting this branch of the case, is the sufficiency of those allegations.

The pleadings disclose that Palmer & McGrath was a mercantile partnership consisting’ of James A. Palmer and Charles D. McGrath, engag’ed in business at Athens, Ohio; that on the 6th day of October, 1893, McGrath was absent from the state; that his copartner, Palmer, being left in chargé of the business, executed in his own name and in the name of the firm for a valid obligation of the firm, a promissory note to The Geo. W. McAlpin Co., plaintiff in error; that said promissory note had written thereon a warrant of attorney, authorizing any attorney of any court of record in this state, to appear in any court of record herein, and confess judgment against said James A. Palmer and said partnership for the amount due on the note, with interest and costs and to release all errors and rights of appeal; which warrant of attorney was executed by said Palmer individually and by him on behalf of the firm, and that this execution of the warrant of attorney by said Palmer on behalf of the firm was without the knowledge, consent or express authority of McGrath, the other and absent member of the firm; and that he, McGrath, has not since expressly ratified this act of his co-partner; and that, upon this note and warrant of . attorney the Vinton county judgment of plaintiff in error rests. The question therefore arises respecting the power of one partner, who, for the time, may have the management of the affairs of a firm, to bind the firm by executng such a power of attorney, and if he has not such power, whether a judgment, recovered by virtue of a warrant of attorney thus executed, may be attacked and set aside, on that account by a creditor of the firm. Many cases are found which assert the doctrine that under ordinary circumstances, one partner has no implied authority to bind his firm in this respect, and that his copartners may obtain relief from judgments thus obtained against the firm. Parsons in his book on The Law of Partnership, section 125, states the rule as follows: “The same principles of the common law which operate to disable a partner from binding his copartners by specialty, it would seem, still more completely to incapacitate him to bind them, without their distinct consent by a voluntary confession of judgment. A fortiori, he cannot, by virtue of his implied power, authorize another to do it, (as by giving a warrant of attorney for ihat purpose) even if the authority be not under seal.” In support of this principle the author cites numerous decisions, from the courts of England and America. Green v. Beals, 2 Caines, 254; Crane v. French, 1st Wend., 311; Grazebrook v. McCreedie, 9 Wend., 437; Waring v. Robinson, 1 Hoff. Ch., 524; Gerard v. Basse, 1 Dall., 119; McKee v. Bank, 7 Ohio, 522; Remington v. Cummings, 5 Wis., 138; Hull v. Garner, 31 Miss., 145; Lagon v. Patterson, 1 Blackf., 252; Sloo v. State Bank of Ill., 2 Ill., 428; Harper v. Fox, 7 W. & S., 142; Bitzer v. Shunk, 1 W. & S., 340; Cash v. Lozier, 1 W. & S., 519; Bennett v. Marshall, 2 Mills, 436; Grier v. Hood, 25 Pa., 430; Morgan v. Richardson, 16 Mo., 409; Binney v. Le Gal, 19 Barb., 592; Hambridge v. De La Cronee, 3 C. B., 744; Brutton v. Burton, 1 Chetty, 707; Kinnersly v. Mussen, 5 Tourt; 264; v. Fry, 37 Mich., 236; Ellis v. Ellis, 47 N. J., 69; Perth Amboy Terra Cotta Co. v. Wood, 124 Pa., 367; McCleery v. Thompson, 130 Pa., 443.

These cases go very far towards establishing the general doctrine, that one partner has no implied authority to bind his copartner by a warrant to confess judgment, and that if he attempts to do so, relief against the judgment will be granted to the non-assenting partner, upon his own application made in the action to the court that rendered the judgment, but they afford very little aid in determining whether upon that ground he can attack the judgment collaterally, or whether the creditors of the firm upon that ground alone can attack it at all. Nor do these cases necessarily deny that a power of the character under consideration may not be inferred from the circumstances under which a managing partner of a concern has exercised it.

Counsel for defendants in error have cited many other cases bearing on this question of implied authority. Hopper v. Lucas, 86 Ind., 43; Rathbone v. Drakeford, 6 Bingham, 375; Christy v. Sherman, 10 Ia., 535; Edwards v. Pitzer, 12 Ia., 607; Eversson v. Gehrman, 1 Abb., (N Y.) Prac., 167; Shedd v. Bank, 32 Vt., 709; The Yorks Bank's Appeal, 36 Pa., 458; Mills & Co. v. Dickson & Mills, 6 Rich., 487; Richardson v. Fuller, 2 Oregon, 179; Elliott v. Hodbrook, 33 Ala., 659; Tripp et al. v. Saunders, 59 Howard Pr., 379; Hull et al. v. Laning, 91 U. S., 160; Hoddock et al. v. Crochron, 32 Tex., 276; Smith v. Sheldon, 35 Mich., 42. An examination of tírese cases discloses that most of them while denying in general terms the implied authority of one partner to bind his copartners by a warrant of attorney to confess'judgment, yet, do not bear very materially on the question of the right of creditors of a firm to impeach the validity of a judgment confessed by virtue of a warrant of attorney so executed. In Shed & Co. v. Bank, 32 Vt., 709 (supra) some expressions are found (page 716) that support the contention of the defendants in error, respecting the rights of the judgment creditors of the firm in such case, but they are obiter dicta; in Richardson v. Fuller, 2 Oregon, 179 (supra), a judgment creditor of the firm was allowed to appear in the court that rendered,the judgment and filed a motion to set a judgment aside that had been rendered against the firm on the confession of .one partner; however the judgment was confessed in vacation by one partner personally, who attempted to act pursuant to a statute of that state, and neglected to comply with' its requirements.. The failure to follow the provisions of the statute was of itself sufficient to authorize the relief which the court granted; and seems to have been the chief ground upon which the court acted. Mills & Co. v. Dickson ds Mills, 6 Richardson, 487 (supra) was an application by an agent of the creditors of the firm, made in the court that rendered the judgment and it would seem in the action itsef to set aside a judgment confessed by one partner. After the judgment had been confessed the firm made a general assignment for the benefit of its creditors, the assignee was one of the persons in whose favor the judgment had been confessed. ' Under the statutes of South Carolina, creditors in case of a general assignment are empowered to appoint an agent or agents to represent them. This had been done. The assignee being interested in maintaining the validity of a judgment confessed in his favor, the application was made by this agent, and the judgement against the firm was vacated. Stoutenburgh v. Vanderburgh et al., 7 Howard Pr. Rep. (N. Y.), 229, supports the contention of defendants in error more definitely than any of the others that have been called to our attention.

Some well-considered cases have held, that the creditors of the firm would not be heard to impeach a judgment confessed against a firm by one member thereof. “A creditor of a given firm cannot raise the point that one partner did not authorize another partner to sign a power of attorney to confess judgment upon a note given to another creditor.” Farwell et al. v. Cook et al., 42 Ill. App., 291. “If one partner confess a judgment against-the firm for a partnership debt, another creditor of the firm can interpose no objection to the.judgment on that account.” Grier & Co. v. Hood, 25 Pa., 430.

An actual, but irregular judgment entered on the records of a court without authority, can only be reversed on a writ of error, or set aside in the court below on motion, but only at the instance of the defendant.

“A stranger, or third party, has a right to interfere with a judgment,, only where it is collusive.” Drextel’s Appeal, 6 Pa., 272; Jackson v. Lift, 16 Ga., 557; Martin v. Judd, 60 Ill., 79.

Other cases hold that while judgments confessed in the name of the firm by one partner for a firm debt will not bind the other partner in respect of his separate estate it will bind the firm property. This doctriue is asserted by the courts of Pennsylvania in a number of cases. “One partner has power to confess a judgment against the firm for a partnership debt, but such judgment will not affect the persons or separate estate of the other partners, Grier & Co. v. Hood, 25 Pa., 430: “The interest of all the partners in the partnership property may be sold under an execution upon a judgment confessed by a single partner in the name of the firm and for a firm debt.” Ross v. Howell, 84 Pa., 129; Boyd v. Thompson & Coxe, 153 Pa., 78; Franklin v. Morris et al. (Supreme Court of Pennsylvania, 1893), 26 Atr. R., 364; Kneib v. Groves, 72 Pa., 104.

The appellate court of Illinois held that such judgments were not void, but only voidable at the election of the non-assenting partner. “While a partner is not authorized to sign the firm name to a power of attorney to confess judgment, a judgment entered under such a power is not void, but voidable only as to and at the instance of him whose name has thus been unwarrantably made use of. ’ ’ Uhlendorff v. Kaufman et al., 41 Ill. App., 373.

The question of the right of one judgment creditor of a firm to impeach, collaterally, or at all, a judgment rendered against the firm in favor of another firm creditor, upon a warrant of attorney executed in the name and on behalf of the firm by one partner only is before us for the first time.

If. the judgment was absolutely void, doubtless, it could be assailed whenever or wherever it should be found, and by whomsoever it might affect.

If only voidable, and free from any taint of fraud, it would seem both on principle and authority that it could be impeached only by an application addressed to the court in which it was rendered, and by the non-assenting partner himself. None of the large number of cases cited by defendants in error, go to the extent of expressly holding that a judgment confessed against a firm on a warrant of attorney executed by one partner is void as to the partnership property; most of them simply holding that a judgment thus confessed would be set aside on the motion of the non-assenting partner; and in a considerable number of those cases, fraud and collusion between the creditor and confessing partner, or a mistake as to bhe amount due, was alleged as additional ground for relief and was the real basis on which it was made to rest.

The Supreme Court of Pennsylvania in a number of cases has sustained the validity of judgments thus recovered as against the property of the partnership, though liable to be impeached by the non-assenting partner in respect of its operation on his separate property. Ross v. Howell, 84 Pa. St., 129; Boyd v. Thompson, 153 Pa., 78.

The Ohio cases do not combat this view of the subject. True, they do not directly speak • to it, but in so far as they go, their utterances are in harmony with this doctrine. . Lessee of Matthews v. Thompson, 3 Ohio, 272; Douglas v. McCoy, 5 Ohio, 522; Critchfield v. Porter, 3 Ohio, 518-522; Huntington et al. v. Finch & Co., 3 Ohio St., 445; Martin v. Trustees of Belmont Bank of St. Clairsville, 13 Ohio, 250. In McKee v. Bank, 7 Ohio, 522, the non-assenting partner sought, hy injunction, to prevent a sale of his separate property on an execution issued on a judgment confessed against the firm by virtue of a warrant of attorney executed by his copartner, without his knowledge. No question seems to have arisen respecting the operation of such judgment on the property of the partnership, nor did the court in that case suggest that the judgment was void even as to the separate property of the non-assenting partner; our predecessors in denying him a right to relief by injunction, said that “the complainant has his relief at law by motion in court where the judgment was rendered; that it was fully competent for the court to give the complainant all the relief on motion he could obtain in a court of equity; that it had become one of the plain and accustomed remedies of a court of law to afford full and adequate relief against judgments irregularly or improperly obtained when there had been no fault nor negligence on the part of the debtor; and this relief is to be had on motion to set aside the judgment addressed to the court, by whom it was rendered, and upon whose reco rd it remains. Consequently he cannot be relieved in equity, and this bill must be dismissed.”

The court in this opinion seems to have regarded the judgment thus confessed as one irregularly or improperly obtained only, for if the court had supposed it to have been absolutely void, that might well have been assigned as a ground, also, for denying relief in equity, at least where there was no complaint that the judgment was a cloud upon the title of complainant’s real estate. If the judgment had been void, the sheriff would be a trespasser whenever he seized the property of complainant by virtue of an execution issued on the judgment and the complainant could have obtained relief by an action at law against the sheriff.

In the case before us no question arises respecting the operation of the judgment, thus confessed, upon the separate property of the non-assenting partner, nor, even, respecting the right of such partner to set aside the judgment as to the firm’s property; the attack upon the validity of the judgment is not made by him, but by creditors of the partnership, who seek its cancellation, because if not cancelled the execution which was issued on it will withdraw from the operation of their judgments and executions a portion of the fund in controversy.

The judgment thus assailed was taken in good faith upon a promissory note and warrant of attorney executed by that member of the firm who was engaged in the active management of its affairs, the other partner was absent from the state and could not be consulted; it is not assailed for fraud or collusion between the creditor and the partner by whose authority it was confessed; it must under those circumstances be taken to represent a sum of money actually due from the firm to the judgment creditor. The absent partner may not have expressly authorized his copartner to execute the warrant of attorney in question, nor has he since its rendition either assented to or repudiated it. The power of attorney was executed in the name and purported to be the act of the firm. The statute of Ohio, section 5324, Revised Statutes, that regulates a confession of judgment upon warrant of attorney, requires the warrant to be produced to the court before which the judgment is confessed. When thus produced, it becomes evidence of the authority of the attorney to confess the judgment, it is not however necessarily all the evidence that was produced to the court. A judgment by confession is as fully the act of the court as a judgment rendered after a prolonged and stubbornly contested trial. In either case it must be presumed in supportof the judgment that the court performed its duty. In the case of the judgment of the plaintiff confessed in the court of common pleas of Vinton county, we must presume that the warrant of attorney was before the court, and that the court found that it had been executed by the firm. This finding we mus b also presume was supported by sufficient evidence. The only theory upon which that court could be justified in rendering a judgment against the firm of Palmer & McGrath, is that it found, as matter of fact, that the attorney who confessed the judgment had authority to act for them in that behalf. It was within the power of the court to require evidence of this authority in addition to that afforded by the signature of the firm. It was not bound to accept this signature alone as sufficient; on the contrary it should not have acted until reasonably satisfied that the authority had been granted, and we should presume the court did its duty in this respect. Therefore the judgment of the court of common pleas of Vinton county thus rendered should be regarded as the deliberate and solemn act of that court, performed after it had found that the attorney who had appeared for the partnership, had full authority to act for it in that behalf. A judgment thus rendered should not be treated as an absolute nullity, to be disregarded by everyone, and at all times, as incapable of sustaining any rights that might rest upon it. Every object that justice should keep before it, can be attained by regarding the judgment as voidable, only, at the election of the non-assenting partner by an application addressed by him to the court wherein it was rendered. This is all that is required for the protection of the rights of the non-assenting partner,while to regard as absolutely void a judgment which bears on its faceevery feature of regularity might work g-reatinjustice to those who should be required to execute it.

This court, recently, has had occasion to consider the authority of one partner, in the absence of a copartner, over the affairs of the concern, in a connection bearing some analogy to the question under discussion.

In Holland et al. v. Drake et al., 29 Ohio St., 441, this court held that: ‘ ‘One of the members of an insolvent firm cannot, either before or after dissolution of the partnership, make a valid assignment of all its effects for the benefit of creditors, against the will of a copartner, or without his assent when he is present or accessible.” This principle respecting the rights of a partner who is present or accessible, was recognized and approved by this court in McGrath et al. v. Cowen et al., decided at the present term of this court. Notwithstanding the recognition of this principle in those cases, this court held in the case of The H. B. Clafflin Co. et al. v. Evans et al., 55 Ohio St., 183, that: “A managing partner intrusted with the sole charge of the business and effects of the firm, may, in case of its insolvencjq make a valid assignment of its property for the benefit of its creditors, without having obtained the consent of a co-partner who is a nonresident of the state where the business is carried on, and absent therefrom; the assent of the absent partner to the assignment, in such case will be presumed.”

These eases clearly illustrate the difference between the power of one partner to act for the firm and to bind it by his action in its behalf, where his copartner is accessible to consultation, and his power in that respect where the latter cannot be consulted, owing to his prolonged absence from the state, where the business is conducted. This difference, doubtless, rests on the presumed assent of the absent partner to whatever action the resident and managing partner should take if such action, under the pressure of emergencies that arise in the course of the firm’s business, .was usual or reasonable, or such as might fairly be anticipated by the absent partner as probable under the circumstances. If when applied, to cases where one member of the firm has executed a power of attorney in the name of the firm to confess judgment against it, these considerations should be accorded the same weight that has been given to them by this court in respect to the power of one partner to make a general assignment of the firm’s property for the benefit of creditors, we might pause before declaring that the assent of the absent partner could not under any circumstances be presumed, where, in his absence, the managing partner has signed a warrant of attorney to confess a judgment against the firm. However, if the assent of the absent partner should not be presumed, it does not necessarily follow that rights acquired under a judgment regular on its face should be swept aside or totally disregarded upon a motion to set it aside if the judgment was founded on a just claim against the firm and represented the sum actually due to the creditors. A motion of that character, made in respect of a judgment rendered under the circumstances supposed, would be met by grave equitable considerations; and if the moving partner bad no valid defense to the claim that had been thus reduced to judgment, and rights had been acquired on the faith of the judgment a court might not open up the judgment upon his motion, at all, unless he had acted promptly, and even if he had acted promptly, might be disposed to impose conditions that would prevent favoritism or injustice. However this might be, we are of opinion that, in the absence of fraud or collusion, a judgment confessed by virtue of a warrant of attorney, executed in the name, and on behalf, of a partnership, by one member thereof, cannot be impeached by a creditor of the firm. In Kingsborough v. Tousley et al., 56 Ohio St., 450, relied on by counsel for defendants in error, Tousley brought an action in the court of common pleas of Cuyahoga county against King'sborough on a judgment previously recovered by him against him against Kings-borough before a justice of the peace of the same county. He sought in the second action a new recovery upon the judgment as a debt of record. The parties were the same, and this court held that the defendant could in the second action defeat a recovery upon the judgment rendered against him in the first action by showing that at the time the first judgment was recovered he was a nonresident of the state, was not at the time within the state and had not been served with a summons. This court held that this was a direct attack upon the first judgment. Williams, J., speaking for the court, said upon page 458, “A direct attack on a judgment has been defined to be one by which the judgment is directly assailed in some mode author-zed by law; while a collateral attack is an attempt to defeat the operation of a judgment, in a proceeding where some new right derived from or through the judgement is involved.” In the ease at bar the right involved was that of participating in a distribution of a fund that arose from a sale of the property of the judgment debtor, and was derived through or from the judgment upon which the attack was made.

That case in no way conflicts with our conclusions in the case under consideration. In that ease the attack on the judgment was made by the defendant himself, and was regarded by this court as a direct attack; while in .the 'Case under consideration, the judgment is collaterally assailed by strangers.

2. The plaintiff in error sought to recover its proportion .of a sum of money that was in the hands of Finsterwald as sheriff, it made him alone, defendant to the action brought by it for that purpose; the action was against him as an individual and not as sheriff. ■ The petition disclosed that the fund in the defendant’s custody was the proceeds of the sale of a stock of merchandise sold by the defendant as sheriff; that the merchandise sold by him was seized and sold as the property of Palmer & McGrath, and that neither the firm nor its members had any other property. The sum realized was $6,000.00; that five judgments had been recovered against the partnership, by as many different creditors, at the same term of the court of common pleas, and that executions had been issued on each judgment within ten days after the close of the term of court at which they had been rendered; that these judg'ments aggregated nearly $12,000.00.

By virtue of section 5382, Revised Statutes, each of the five judgment creditors, was entitled to a pro rata share of the fund in the hands of the sheriff. The petition clearly discloses that the plaintiff in error was seeking to recover its proportion of this fund; and it discloses also that four other judgment creditors, giving their names and the amounts of their respective judgments, claimed a share of the fund; there might have been many other claimants. The fund subject to distribution is the balance remaining in the hands of the sheriff after all expenses of the sale and taxable costs have been paid. It follows, therefore, that the amount of the fund itself, as well .as the share of each creditor thereto, might have been the subject of controversy between the sheriff and every firm creditor, however numerous the latter might be, if he is liable to be sued by each in a separate action. That' a public officer under such circumstances may not have relief in equity but must defend as many separate actions as there are claimants to the fund would seem to be placing upon him an unreasonable burden.

Conceding, however, that, if he joins issue with the plaintiff in such action on the facts, the issue is of right triable to a jury, because it arises in an action for the recovery of money only, it would not follow, necessarily, that an issue joined in such action between the plaintiff and other claimants of the fund, who had been substituted for the sheriff would be triable also by jury. If the substituted defendants by cross-petitions, sought, and set forth facts entitling them to distinct equitable relief, as a predicate to an order distributing the fund or a portion thereof to them, it would seem clear according to the doctrine announced by this court in Buckner v. Mear, 26 Ohio St., 514; and Gill v. Pelkey, 54 Ohio St., 348, the causes of action set forth in such cross-petitions would draw to themselves the mode of trial appropriate' to their nature.

In Maginnis v. Schwab, 24 Ohio St., 336, this court held that where “an action was for the recovery of money and the original defendant caused a third party claiming the money to be made defendant in his place, and, depositing the money in court was discharged from liability therefor under said section (42) of the Code and an issue of fact was joined between the plaintiff and the substituted defendant material to the determination of the right of the parties to the money claimed by both;” it was held “that the action being for the recovery of money only, either party had a right under the Code, to demand a trial by jury * * • * and' that it was a case for second ‘trial’ * * * and not for appeal to the district court.” No cross-petition however was filed in this case by the substituted defendant calling for affirmative equitable relief; therefore, while it establishes the doctrine that the substitution of a new defendant, or perhaps defendants, for the original defendants does not of itself change the nature of the action, it in no way denies to such substituted defendant any right as respects pleading and mode of trial, that he could have exercised under our system of practice had he been an original defendant. A substituted defendant may bring forward any matter material to the assertion of his rights and pertinent to the cause, when he has done so, it would seem that his pleadings should be construed in the same way and an issue joined on them tried in the same manner as it would have been had he originally been made a party.'

It is necessary, therefore, to ascertain the state of the controversy when it was submitted to the court of common pleas of Athens county. Two judgment creditors had been substituted for the sheriff by the following entry:

It appearing- to the court that the personal property in the petition described was taken by the defendant, as sheriff of Athens county, under an execution issued in favor of the First National Bank of Athens, and James D. Brown, now, on motion of said defendant and of the said First National Bank of Athens and James D. Brown, it is ordered that said First National Bank of Athens and James D. Brown, upon their giving security for costs hereiu, be and they are hereby substituted as parties-défendant in this action.

By this order the sheriff ceased to be other than a nominal party to the action. Thenceforward, the actual controversy was conducted by adverse claimants to the fund, between whom, in contemplation of law, the sheriff was neutral; he was simply the custodian of the fund, holding’ it subject to the order of the court. Indeed, as the record discloses no controversy over the amount of the fund, he might have paid it into court, in which case he would have been no loager subject to the orders of the court in respect of it.

The answer and cross-petition of James D. Brown (and that of the bank was in all respects the same) made no demand upon the plaintiff in error for money; nor did the plaintiff in error demand a judgment for money against either James I). Brown or the bank. Neither party had a money demand against the other, neither party was indebted to the other, nor had in his possession or under his control anything’ claimed by the other. Nor did the court render a jud gment for money against one party and in favor of the other. Doubtless, the ultimtae purpose of Brown and the bank was to recover money, but in as far as they sought to obtain that which the plaintiff in error also claimed, their way was barred by a judgment in his favor and a writ of execution that had been issued thereon, which under section 5382, Revised Statutes, was entitled to share with the judgments of Brown and the bank in the fund in controversy. The cross-petitions of Brown and the bank were, therefore, directed against this judgment and exécution, and set forth facts tending to impeach their validity and to entitle the cross-petitioners to a decree for their cancellation. This was a cross-equitable demand, and the prayer for affirmative relief was as follows:

“Wherefore this defendant prays that said pretended judgment, execution, and levy in favor of the plaintiff, as aforesaid, may be vacated and can-celled and held to be null and void so far as relates to said partnership, said chattel property and said fund derived from the sale thereof; that the plaintiff may be held and adjudged to have no interest in or lien upon said fund; and, that the same may be distributed pro rata between this defendant and the First National Bank of Athens, and for all other equitable relief to which this defendant may be entitled. ”

The court of common pleas granted this relief; it cancelled and set aside the judgment and execution of plaintiff in error. This was the gist of the controversy, and upon its determination the ultimate rights of the parties depended. The court having found for the cross-petitioners on this question, it ordered “As to the $6,000.00 now in the hands of said John Finsterwald, as sheriff of said county of Athens, Ohio, that he distribute the same to the said James D. Brown and the First National Bank of Athens, pro rata, in proportion to the amount of their respective claims.” * * *

This order was a mere incident that naturally followed and rested upon the cancellation of the judgment.and execution of plaintiff in error and could not have been made without such cancellation.

The causes of action set forth in the cross-petitions of Brown and the bank, were not, therefore; for the recovery of money only, but invoked the equitable powers of the court as a basis for an order distributing a fund in the custody of the law, and therefore ■ the parties were not entitled to demand a jury trial, and the cause was appealable.

Judgment reversed and cause remanded to the Circuit court.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Charch v. Charch, Exr. , et al.

      Beneficial association — Member may change beneficiary, when— Sections 3630 and 3630e, Revised Statutes— Will of husband directing payment to wife of money borrowed — Not a consideration for promise on her part — Interpretation of will — Intent of testator — ■Oral proof admitted, when — Rule of election tender will.

      \ Where a member of a beneficial association organized under section 3630, Revised Statutes, has caused the beneficial certificate issued by the association upon his life to be made payable to his wife, such member cannot change the beneficiary except in the mode pointed out by the by-laws of the association. And where such by laws provide that a change of beneficiary can be made only by surrender and issue of a new certificate, such change cannot be made (the wife being in life) by will. Arthur v. Odd Fellows' Ass’n., 29 Ohio St., 557, approved and followed.
    And the rule is not different where a like certificate is issued by an association organized in another state doing buisness in this state under section 3630^, Revised Statutes, where the statute which authorizes the organization permits the association to make by-laws regulating the payment of benefits, and by-laws made accordingly, require a surrender of the old and the issue of a new certificate in order to effect a change in the person of the beneficiary.
    2. A provision in the last will of a husband which directs the payment to his wife of a sum of money which is in fact but the return to her of money which he had borrowed from her and used for his own purposes, and was so understood by both parties at the time the will was executed, will not furnish a consideration to support a promise on her part to surrender to the estate property belonging to her in her own right, even though it should be found that the will purports to dispose of such property.
    3. The intent of the testator, the guide in the construction of a will, is to be gathered from a consideration of the entire instrument, and where any part of a will is ambiguous, oral proof may be heard of the circumstances of the testator at the time of the making of the will, of his estate, and of the objects of his bounty. But where a clause of a will, taken in connection with the whole, is not of doubtful import, and the words of the will are applicable to any subject, they are to be applied accordingly, and the intent of the testator must be derived from the language he has used. In such case, parol evidence cannot be admitted to contradict, add to, or explain the contents of the will.
    4, If it be charged that the provision involves a false description, and that there is nothing for the provision, giving to the language its ordinary meaning, to operate upon, the burden of establishing that fact is upon the party alleging it.
    5. The general rule is that when a will assumes to dispose of property not owned by the testator, but belonging to another person for whom provision is likewise made in the will, the latter is bound to elect whether he will claim the property so disposed of, or take the provision made for him in the will. But the language expressive of the intent to dispose of the property of another must be unequivocal. If the provision, taken in connection with the entire instrument, will reasonably admit a construction not involving such disposition that construction must prevail, and no necessity for an election in such case will arise. A fortiori will no election be required where the language of the will clearly excludes the purpose to dispose of the property of another.
    (Decided January 26, 1898.)
    Error to the Circuit Court of Montgomery county.
    The controversy had its origin in the court of common pleas, by the filing of a petition by John P. Charch as executor of John S. Charch, deceased, against Emma B. Charch, Kate Brendel, Nettie Bonner, Minnie Charch and John P. Charch, in which it was averred in substance, that John S. Charch died testate in the summer of 1891, and his will and codicil thereto were thereafter probated, and plaintiff appointed executor; that he left Emma B. Charch, widow, and the other defendants, his children, all of full age; that during his life John S. Charch united with an order called the Legion of Honor, which order created a fund for the protection and benefit of families or mem-, bers thereof, the family or such, or any of them as the member directs, to receive, upon his decease not to exceed $3,000; that when said Charch became a member he directed that in the certificate issued to him, his wife Emma B., should receive the amount payable at his decease, and that after his decease, in the fall of 1891, Emma B. received that amount from the order, no other direction having been given the said order. Then follow like averments respecting membership, etc., in Lodge No. 48, of an association known as the Ancient Order of United Workmen ; the issue of a certificate also payable to Emma B., which was never changed, and the receipt by her, about January 1, 1892, of $2,000 from the association thereon. The petition further stated that the defendants other than Emma B. and John P., claim that the testator, at the time of making the codicil referred to, made an agreement with Emma B., whereby she was to receive a further sum by will, and she in turn was to pay over the amounts she would derive from the aforesaid insurance; that in the codicil the testator bequeathed to her an additional sum of one thousand dollars; that the will and codicil are still in force; that she has accepted under the same, but refuses to pay over the insurance money; that if Emma B. is liable for the return of the money, the amount due is $5,000, with interest, etc., for which judgment is prayed.
    Emma B. Charch answered, asserting her rightful claim to the insurance money, and denying the making of the contract alleged; also setting up the provisions of the will in her favor in these words: “ That the said will provides for the payment to her, during her life, of the sum of $100 per month, so long- as her two daughters, Anna M. Charch and Minnie Charch, remain unmarried, and after their marriage the sum of $70 per month and also secures to her the use of the residence, No. 348 South Main Street, Dayton, Ohio, during her natural life, free of taxes, assessments, and expenses of repairs ; and the furniture contained in said house, and a horse, harness and carriage was devised to her absolutely.” She also averred that the estate was of the value of at least $80,000, and that the provisions under the will which she accepted were much less than she would have been entitled to under the law. She further averred that during her married life she inherited from her father one thousand dollars ; that her husband took charge of it and purchased a piece of land which conveyed to a son-in-law, and that at the time of the making of the codicil she requested him to provide for the payment to her of that sum, which he did by the bequest of one thousand dollars, and that sum was bequeathed for that purpose and no other.
    Kate D. Brendel and Nettie Bonner answered, denying, for lack of information, the averments of the petition as to the certificates providing that Emma B. should receive the amounts named therein; also denied that the widow received the money from the companies, and averred that it was collected by the executor and improperly paid over by him to her. And, by cross-petition, set up that the dues and assessments in both orders were paid by John S. Charch personally; that the widow had no vested right therein; that the sum to be paid by each order upon the death of John S. Charch were subject to his disposition, either by assignment or by will; that by his last will said testator directed that his said executor should collect the insurance upon his life (intending to include and dispose of the insurance in the petition mentioned), and that he should distribute the proceeds of the same in accordance with, the terms of the will and codicil; that this intent was made known to Emma B. at the time of the execution of the codicil, 'and that she then expressed her approval of and satisfaction with the same, and subsequently, after the probate of the will and codicil, elected to take under the same, and has since received the benefit thereby given; that they (these defendants) are legatees and devisees under the will, and that as such there is due to each of them a balance of $2,000, and interest; that the same should properly be paid out of the proceeds of the insurance on the life of decedent, including that improperly paid to said Emma B., and they therefore join in the prayer of the petition for judgment.
    To this pleading Emma B. replied, denying the new matter.
    The common pleas, upon trial, found the issues for Emma B. Charch, and rendered judgment for her. This judgment was reversed by the circuit court. Its finding is: “1st. It was manifest from the will and codicil of said John S. Charch, testator, that he intended to, and did, dispose of all the insurance on his life, amounting to the sum of sixteen thousand, five hundred dollars ($16,500), without regard to the beneficiary stated in the policy. 2nd. That the said widow, Emma B. 'Charch, elected to take under will of her husband, and continues to assert her right under the said will, and that if she demanded the insurance money aforesaid, which is bequeathed to other party than herself, she acts in contravention of said will. 3rd. That having elected to take under the said will, and continuing to assert her right to all the benefits thereby conferred, she is estopped to make any claim to the insurance money covered by the

      bequest in the will and codicil, and that she must, therefore, return the said sum of five thousand dollars so received by her, with interest.” Then follows a final judgment against Mrs. Charch for five thousand dollars, interest and costs. She asks a reversal of this judgment.
    Gotschall, Brown & Crawford, for plaintiff in error.
    The fundamental principle is that the naming of the beneficiary in the certificate is an act testamentary in its character and the beneficiary has a vested right in the policy and its proceeds, and the certificate could not be changed without the consent of the beneficiary and in pursuance of the bylaws and regulations of the Association. Bacon, sections 291-311-396.
    We assert that John S. Charch, testator, being a member for years of these organizations, and having been an officer of the local councils and orders, and also of the State Grand Councils and Orders, was perfectly familiar with the manner of changing’ the beneficiary, if he desired, and having- refused to do this, he had no power by will to dispose of this money due and payable in the certificate at his death to his wife, Emma B. Charch. Am. Leg. of Honor v. Perry, 140 Mass., 580.
    The legal representatives of the insured have no claim upon the money, and cannot maintain an action therefor, if it is expressed for the benefit of some one else. Harley v. Heist, 86 Ind., 196; Holland v. Taylor, 111 Ind., 121.
    We apprehend the general rule to be that a policy and the money to become due under it, belong the moment it is issued to the person or persons named in it as beneficiary or beneficiaries, and that there is no power in the person procuring the insurance, by any act of his, by deed or will, to transfer to any other person the interest of the person named. Pingrey v. Nat'I Life Ins. Co., 144 Mass., 374; Bliss 2nd ed., section 318; Wilburn v. Wilburn, 83 Ind., 55, and authorities cited.
    The by-laws of the American Legion of Honor and also of the American Order of United Workmen each provide as to the manner in which the name of the beneficiary may he changed, and unless they are followed, the last will of a member has no force as a change of designation. Daniels v. Pratt, 143 Mass., 216.
    This authority is binding for the reason that the American Legion of Honor is organized under the laws of Massachusetts, Public Statutes, Mass. Oh., 115, section 8; Statutes 1882, Mass. Ch., 195, section 2; Hellenbarg v. Bnai Brith, 94 N. Y., 580.
    We are not without authority in our own state as to the rights of the wife. The wife as to such policies is to be regarded as a femme sole. Manhattan Life Ins. Co. v. Smith, 44 Ohio St., 156; The Fraternal Nat. Life. Ins. v. Applegate, 7 Ohio St., 292.
    A contract of insurance to pay in case of a member’s death “to himself or assigns,” “to his estate,” “to his executors or administrators,” or to any person, whether a relation or not, who is not of his family or heirs, is against public policy and void. State v. Standard Life Assoc., 38 Ohio St., 281; State v. Moore, 38 Ohio St. 7; State v. Peoples, etc. Assoc., 42 Ohio St., 579; Nat'l Mut. Aid v. Gonser, 43 Ohio St., 1.
    The fact that the premiums have been paid by the husband is not sufficient of itself, to overcome the legal effect of the terms of the contract. Weber, Loper & Co., v, Paxton, 48 Ohio St., 266.

      The policy of the A. O. U. W. was issued under the laws of Ohio. It is an Ohio body and is governed by section 3630<?, Revised Statutes. The American Legion of Honor can do and does business in this state under section 3630c, Revised Statutes.
    Hence we claim that John S. Charch named his wife, Emma B. Charch, as benificiary in the two certificates under consideration, he had no power to change the same other than in accordance with the by-laws and regulations of the several orders. Bacon, sections 291, 311, 396.
    When a benefit society has prescribed by bylaws the forms for changing the beneficiary’s name in the certificate issued to members, that form must be pursued, otherwise no. change can take place.
    As to money payable under the benefit certificates of the American Legion of Honor and Ancient Order of United Workmen, and the power of disposal by will, we would call attention.to case of Arthur et al. v. Odd Fellows’ Beneficial Association et al., 29 Ohio St., 557.
    The provision in the will is expressly declared to be “inlieu of dower.” Story’s Equity, section 1090.
    To make an election binding two things must occur : 1st. There must be intention to elect. 2d. It must be shown that the party making the election was fully advised as to his or her legal or equitable rights. Huston v. Cone, 24 Ohio St., 22; Pomeroy’s Eq. Ju., section 472.
    It is only as between the right to be endowed and the right under her husband’s will, that the statute requires the widow to make an election. There is no election required, under the statute, as between the provisions of the will and any other right of the widow. Bowen v. Bowen, 34 Ohio St., 164; Thompson v. Thompson, 6 Ohio St., 481; section 5963, Revised Statutes.
    It is universal law that wills shall receive a liberal construction. 'The intention of the testator must of course be ascertained from the language of the instrument, as applied to the subject-matter and the surrounding circumstances. Moore v. Beckwith, 14 Ohio St., 132; Brasher v. Marsh, 15 Ohio St., 108; Starling v. Price, 16 Ohio St., 32.

      Young & Young, McMahon & McMahon and Gunckel, Rowe & Shuey, for defendants in error.
    It was immaterial whether or not Emma B. Charch had agreed to turn over to the estate all the insurance in which she was interested, at the time when the codicil was made.
    And it was equally immaterial whether or not, independently of the will and her election to take under it, Emma B. Charch would have been entitled as beneficiary to the proceeds of the .insurance in controversy.
    When it appeared that the willand codicil undertook to dispose of all the insurance on the life of John S. Charch, and that the plaintiff had taken-under this will and codicil, and had enjoyed, and was still continuing to enjoy, all the rights and benefits they conferred, it was plain that, without regard to any facts which might still remain in controversy, her right to any part of the insurance had ceased, and that the plaintiff below was entitled to judgment.
    This is so under what is known as the “Doctrine of Election,” the principle of which may be found in 2 Jarman on Wills, Chap. 14 pp. 1 to 43 inclusive, and notes, 6 Encycl. of Law, p. 251; Pomeroy’s Eq. Jur., section 470; 2 Story’s Eq. Jur., section 1075, Vol. 1; Sigmon v. Hawn, 87 N. Car., 450; Whistler v. Webster, 2 Ves. Jr., pp. 371, 372; Jeremy’s Eq., p. 533; 2 Herman on Estoppel and Res. J., sections 619, 1028 et seq; White v. Brockaw 14 Ohio St., 339; Jennings v. Jennings, 21 Ohio St., 56; Huston v. Cone, 24 Ohio St., 11; Hibbs v. Insurance Co., 40 Ohio St., 543.
   Spear, J.

It is established, either by concession or by evidence undisputed, that Emma B. Chareh and the testator, John S. Chareh, were married in the year 1873, and that she continued to live with him as his wife until his decease, June 1, 1891; that during his lifetime he became a member of the two orders named in the pleadings, the Legion of Honor, a Massachusetts association doing business in this state, and the Ancient Order of United Workmen, a domestic association; that he was a charter member of the latter order,. and held the office of treasurer therein from its formation until within about a year of his decease; that a benefit certificate was issued to said Chareh by each of the orders, payable at his death to his wife Emma B. Chareh, one for $3,000,and the other for $2,000, the proceeds of which certificates form the subject of the present controversy; that these certificates evidenced the contracts with the orders for payment of insurance upon the death of John S. Chareh, and that, according to the rules and regulations of the orders, no change could be made as to the person of the beneficiary except by a surrender of the certificate and the issuance of another in its place to another beneficiary, and that no such change was ever made during the life of John S. Charch, but the beneficiary named in the original certificates remained the same; that the testator became a member of other associations and companies, and procured from them other certificates and policies upon his life; all which were in force at the time of his decease, amounting in the aggregate to the sum of $16,500; that on June 7, 1890, John S. Charch made bis last will in which he made provision for Emma B. Charch, in lieu of dower and all statutory provisions and allowances,” as stated in her answer, giving also to his four daughters, Kate D. Brendel, Nettie Bonner, Anna M. Charch and Minnie Charch, each five thousand dollars, to his son, John P. Charch, a business property in Dayton, in fee, and certain rents and income from other property, and providing farther, that at the death of the wife, or before with her consent, the executor should sell all the residue, real and personal, and divide the proceeds equally among his four daughters. The son was made executor without bond. May 21, 1801, he executed a codicil thereto the provisions of which are as follows:

“First — I hereby revoke and declare to be null and void, so much of item 1, of my last will and testament, as relates to my daughters, Anna Charch and Minnie Charch.

“Second — I hereby, give, devise and bequeath to mydaughters, Anna Charch and Minnie Charch, the land recently purchased by me and situated on the north side of the Eaton pike, west of the city of Dayton, and containing 12.98 acres in fee simple, and free of all incumbrance to each the undivided one-half.

“ Third — I direct that my executor collect and realize on my life insurance policies, which I hold upon my life, and distribute the proceeds in accordance with the terms of my will and codicil, and I further direct said executor to pay off any and all incumbrance which may be a lien on the real estate on the Eaton pike, west of Dayton, out of the proceeds so by him realized.

“Fourth — I further give and bequeath, to my widow, Emma B. Chareh, one thousand dollars, which shall be in addition to the other provisions contained in my will, and to be paid by my executor.

u Fifth — Y give, devise and bequeath to my daughter, Nettie Bonner, the lots on the corner of Jay and Wyoming- streets, in the city of Dayton, to her heirs and assigns forever.”

June 1, 1891, John S. Chareh, deceased. June 8, following, the, will and codicil were probated, and, on the same day, the widow appeared in the pro-, bate court and elected “ to take and accept of the provisions made for me in said last will and testament and codicil, in lieu of my dower interest and distributive share of the personal estate.” The allegations of the answer that the estate was of the value of at least $80,000, and the provisions for the widow under the will and codicil were less than that to which she would have been entitled under the law, are not denied.

Evidence was introduced by parties opposed to Mrs. Chareh of the tenor following: At the time the codicil was executed the testator was dangerously ill with heart disease, and the wife and all the members of the family regarded his condition as critical. There were present at the time, Mrs. Chareh, John P. Chareh, the son, and one Carl Baumann, the latter of whom drew the codicil. The matter was talked over by father and son before Baumann was called in, and at the request of the father, the son produced from a desk in the room a box containing the will and- other papers. At the request of the father, the son read to him the will. The father explained that he wanted to change the first item as to Anna and Minnie, and give them land instead. The mortgage on the land, about $4,000, he wanted paid, so that they would receive it clear. Among the papers were certain insurance policies and certificates on the life of the father. At his request the son figured them up and told his father they amounted to $16,500. He asked his father,then, “wherethis money was to come from, and he said it was to come off these insurance policies.” It was mentioned that the executor was'to collect the insurance money, and the iand was to be given to the girls, free of all incumbrance. The father asked the son to draw a codicil, but he declined, wanting his father to wait until morning and call in Judge Elliott; or some other lawyer, but the father, expressing a fea,r that he might not live until morning, refused to delay, and said Baumann could draw it. Mrs. Charch kept quiet and said nothing until it was arranged that Baumann (who was in another room) should be called in to write the codicil, and then she said she wanted one thousand dollars in lieu of the land her husband had bought with her money, which he consented to give her.' After Baumann came in she said something about his giving the girls more than he had, or “you haven’t got money enough to pay all this, ” to which he replied that he thought he had, and explained that he intended Anna and Minnie to have the land instead of the five thousand dollars each. In one part of his testimony the son puts it this way: He stated how he wanted this insurance money distributed, and she asked him: “Papa, what do I get?” or something to that effect. “Why, ” he said, “I provided for you.” She said: “I would like to have a thousand dollars that you had to buy this land,” and he says: “Is there enough left?” I says, “Yes, there will be enough left.” The outline of what was wanted was given to Baumann, and he wrote the codicil, which was then read aloud and duly executed. It is difficult to determine exactly what Mrs. Charch did say, as the two witnesses are somewhat at variance, and the principal one, who undertakes to give it several times, fails to state it twice alike.

The foregoing- is a brief epitome of the testimony as to what took place at the time of the drawing of the codicil. Necessarily many statements and incidents are omitted here, but the above, it is believed, contains all that makes against Mrs. Charch. She did not participate in the making of the codicil, by either act or word, save in the making of the bequest as to the thousand dollars, and the suggestion of doubt of there being money enough to pay, whatever that may have been. It was clearly shown by the testimony of the son, that the thousand dollars referred to was money which Mrs. Charch had received from her father’s estate and had loaned to her husband who used it in the purchase of land which he had conveyed to a son-in-law. It does not appear that Mrs. Charch saw any of the insurance papers, or was apprised of their contents. Nothing at all was said about any of the insurance certificates or policies being those which had been made to her, nor was she asked to give up any interest of that kind, nor did she, by word or act, directly attempt to do so, and the claim that she then understood that the policies to be used by the executor in paying legacies, etc., provided by the will and codicil included any which were payable to her, rests entirely on inference. She was present. She may have heard all that was said, and she may not. She did nothing, and said nothing by way of assent or dissent with respect to the use of the insurance money. She may have understood that her certificates were to be included, and she may not.

Of course if a contract is to be found it must rest upon what occurred at the time the codicil was drawn. Statements and acts afterward might throw light on what then took place, hut that which makes for as well as that which makes against Mrs. Charch, should be considered. Conversations about the time of the probating of the will are testified to which, if believed, tend to show that Mrs. Charch then consented that the proceeds of her certificates might go into the estate, and give color to the claim that she had so understood the matter all along, and certain acts shortly after that are consistent with that conclusion, but, on the other hand, other acts and claims made by her about the same time, or shortly after, are wholly at variance with it. Taken together, they evidence a woman somewhat broken, and one who did not well know her own mind. But our conclusion upon the controlling facts of the case renders it unnecessary to dwell upon this feature of it.

The evidence was introduced for two purposes : (1) To establish the alleged contract of Mrs. Charch with her husband to give up her insurance certificates, or the proceeds, and (2) to maintain the claim that it was the intent of the testator to include the certificates which belonged to her among those which the executor was to collect and distribute in accordance with the will and codicil, and that she, at the time of the execution of the codicil, understood that intent and assented to it, and that her election afterward to take under the will and codicil instead of under the law, and the receipt by her of the benefits thus granted to her preclude her from now claiming the benefit of the insurance certificates. If competent for either purpose the evidence was properly received.

First, as to the contract. To sustain it two elements are necessary: a meeting of the minds, and valid consideration. It will be noted that. the evidence shows no discussion upon the night in question respecting the will so far as Mrs. Charch was concerned, and no suggestion that the provisions therein made for her benefit were to be disturbed. It will be farther noted that the only benefit she was to derive from the codicil was the legacy of one thousand dollars. The proposition; then, is, that she, knowingly and intentionally, agreed to surrender the sum of five thousand dollars already secured to her by the certificates and take in return the one thousand dollars provided by the codicil, a thing so inherently improbable that very strong and direct proof of the promise would be needed to justify a holding that she knowingly assented to the proposition. The alleged promise on her part should be clearly shown. It may, however, be said that the evidence tends to show that she assented to such an arrangement, and, while we think that in a case like this one the fact of the promise should be clearly established, or the contention ought to fail, still, as this presents aquestion of preponderance of evidence, this court would not be disposed to disturb the holding of the court below upon such a difference of opinion. Waiving this, there remains the matter of consideration for the promise. What was it in this case? We scan the record in vain to find one that is'substantial, or that will stand in law. The benefit to be derived for this surrender, if any there were, was the thousand dollar legacy. But that was simply a provision for the payment by the husband of a debt he owed her, one which, had he made no provision for paying", she could have collected against his estate, and that without in the least affecting any other benefit which accrued to her by the will. He was, then, paying an undisputed debt, not making a gift, nor giving a legacy in lieu of any other benefit. The consideration for the legacy was the obligation arising from the loan of the money by the wife'; she was in this way simply getting back her own. Under such circumstances the agreement to pay the debt by a legacy can afford no consideration for any other promise by the wife, if one were made ; and it results that the claimed contract wholly fails.

Second, as to the intent of the testator. The proposition is to establish that intent by oral testimony. Can it be done? The provision in question is : “I direct that my executor collect and realize on all my life insurance policies, which I hold on my life, and distribute the proceeds in accordance with the terms of my will and codicil,” etc. The subject-matter is Ms policies — my policies, is the phrase. The words following, “ which I hold ” would, in common parlance, signify manual possession, but the expression is subordinate to that which precedes, and, taken in connection with it, implies possession of that which was his. Nor is the result different if a technical legal meaning be given the word “hold. ” In deeds it signifies tenure. But tenure cannot exist in favor of one respecting that in which he has no property interest. If the question were as to a devise of land in this form : “all my land of which I have possession,” would any intelligent mind assume that the will evinced a purpose to convey land of another which might at the time happen to be in the possession of the testator ? Surely not. The canons of construction will not permit a provision clearly disposing only of property in the possession of the testator of which he is the owner to be held to include property in his possession which belongs to another. It follows that clause three of the codicil means that what insurance policies were his the testator disposed of. Those which were not his he did not dispose of, nor attempt to. By the undisputed facts it is established that the certificates in question were issued to the wife and so remained. Under the law, her interest in them, while not a vested one during the husband’s life, was such as he could not change by testamentary disposition. When the by-laws provide, as those of these two orders do, a method by which the beneficiary may be changed that method must be pursued, and, where-no change is thus made, the company’s promise to pay runs only to the person named in the certificate. This point is ruled for us by Arthur v. Odd Fellows' Association, 29 Ohio St., 557. See also, as bearing upon the subject: Weisert v. Muehl, 81 Ky., 336; Block v. Association, 52 Ark., 201; De Silva v. Supreme Council, 109 Cal., 373; Bacon on Beneficial Societies, section 307; Holland v. Taylor, 111 Ind., 121; Martin v. Stubbings, 126 Ill., 387; Association v. Bunch, 109 Mo., 560; Masonic Association v. Jones, 154 Penna. State, 107. Nor is the fact that the insured paid the dues or assessments sufficient to overcome the legal effect of the terms of the contract. Weber v. Paxton, 48 Ohio St., 266. The by-laws of the orders forbid any other conclusion so long as the certificates remain in force, and this doubtless was known to the testator since he had been for years an officer in one of the orders, and presumably familiar with the rules of both. It follows that, giving effect to the terms of the codicil, the certificates of Mrs. Charch were not disposed of.

But, under favor of the rule that the true intent of the testator is to be the guiding star in the interpretation of a will, it is proposed to extend the meaning of the words used in clause three so as to make them embrace insurance policies not his, and this by oral testimony. It cannot be done unless it be first shown thatthereis a false description, that is, that there are no policies or certificates on which the provision can operate. The rule is so well established that parol evidence cannot be permitted, either to contradict, add to or explain the contents of a written will, that authorities are hardly needed in its support. We content ourselves with citing’ 1 Jarman on Wills, 6th Ed., p. 412; Painter v. Painter, 18 Ohio Rep., 247; Collins v. Hope, 20 Ohio Rep., 493, and Wigram on Wills, section 159, from which latter authority we quote : “If the words of the will are applicable to any subject, the court is inflexible in applying them accordingly.” It therefore devolved upon those attacking Mrs. Charch’s right to the certificate to show that, unless these should be included there would be nothing for the provision, as hereinbefore construed, to operate upon. There is no attempt affirmatively to show this, and the presumption from the whole record is to the contrary.

Our conclusion upon the whole case is that the widow was not required to elect between the provisions of the will and codicil and the benefit secured by these certificates. As held in Huston v. Cone, 24 Ohio St., 11, “where a will assumes to give to one of its beneficiaries property belonging to another person for whom provision is likewise made in the will, the latter is bound to elect whether he will claim the property so disposed of, or take the provision-made for him in the will. ” But it is also well settled that the language of the will expressive of the intent to give another’s property must be unequivocal. If the provision in question, taken in connection with the whole will, will reasonably admit a construction not involving a disposition of such property, that construction must prevail. In order to create the necessity for an election, there must appear upon the face of the will itself a clear, unmistakable intention on the part of the testator to dispose of property which is in fact not his own. The language must be so clear as to leave no doubt as to the testator’s design; the necessity for an election cannot arise from an uncertain or dubious interpretation of the will. We are not, however, required to look farther than the third clause of the codicil, for no other portion helps to explain that. Pomeroy’s Equity, sections 472-3; 1 Jarman on Wills, 6th Ed., 460; 2 Story’s Eq. Jur., section 1086. The case at bar is dissimiliar from Hibbs v. Ins. Co., 40 Ohio St., 543, relied upon in argument, in this important particular. There the description of the property of the wife was clearly defined, and it was clearly included in the devise; here it is not only not clearly included, but is, as we think, clearly excluded by the terms of the codicil.

It results that the controlling considerations in the case were the legal effect of the insurance certificates standing in the name of Mrs. Charch, and clause three of the codicil, as properly construed. The material facts being conceded it remained only to apply the correct rule of law. And the law being how held in her favor, Mrs. Charch is, under the ruling in Minnear v. Holloway, 56 Ohio St., 148, entitled to judgment. The circuit court, therefore, did not err in rendering final judgment, but as we think and hold, did err in giving- judgment for the wrong party. The judgment of the circuit court will be reversed and that of the common pleas affirmed.

Reversed.