author: Burket, J.

text:
    Wolf, Administrator, v. The Lake Erie and Western Railway Company.

      Actions in name of administrator — Sections 6134 and 6135, Rev Stat. — Rule of damages for separate beneficiaries — Defense op contributory negligence — May be available as to some beneficiaries and not as to others.

    1. In actions in the name of an administrator under sections 6134 and 6135, Revised Statutes, the administrator is a mere nominal party, having no interest in the case for himself or the estate he-represents, and such actions are for the exclusive benefit of the beneficiaries in said sections named.
    2. In arriving at the total amount of damages in such cases, the jury should consider the pecuniary injury to each separate beneficiary, not found guilty of contributory negligence, but the verdict should be for a gross sum, not exceeding ten thousand dollars.
    3. In such actions the defense of contributory negligence is available as against such beneficiaries as, by their negligence, contributed to the death of the deceased, but the contributory negligence of some of the beneficiaries, will not defeat the action as to others, who were not guilty of such negligence.
    (Decided December 15, 1896.)
    Error to the Circuit Court of Mercer county.
    The deceased, Tony Meyer, aged fourteen months, the son of George Meyer and Viola V. Meyer, was killed by a train bn the Lake Erie & Western Railroad on the 9th day of September, 1893. Thereupon Amos Wolf was appointed administrator of his estate, and brought an action against the railroad company seeking to recover the sum of $1,999.00 damages for the negligent killing of said Tony Meyer.
    The railroad company filed its answer, the second defense being as .follows:
    “For second ground of defense the defendant says:
    “That George Meyer and .Viola V. Meyer are the only next of kin of Tony Meyer deceased; that they are the sole beneficiaries of this action.
    “That said George Meyer and Viola V. Meyer, at the time of their alleged injury to their infant child, Tony 'Meyer, lived in and occupied a dwelling house situate upon inlot No. — , in the village of Celina, which said lot adjoined the right of way of said defendant.
    “That on said lot and along the line of the right of way of defendant at the time of the injury complained of, and for a long time prior thereto, was a good and substantial fence.
    “That on the said ninth day of September, 1893, the said George Meyer and Viola V. Meyer, well knowing the location of said defendant’s railroad, and defendant’s operation of its trains thereon, wilfully and carelessly left the gate, situate in said fence, open, and carelessly and negligently permitted their said infant child, Tony Meyer, to wander through said gateway, out to and upon the defendant’s railroad track, and while said child was so upon said defendant’s railroad track and with- ■ out fault or negligence of the defendant or its employes, said defendant’s locomotive ran upon said child, and caused the injury complained of.
    “The defendant therefore asks to be dismissed with its costs.”

      Counsel for the administrator filed a motion to strike out this second defense, and by agreement of all parties this motion was regarded and treated by the court as a general demurrer to said defense. The court sustaind the demurrer, to which the railroad company excepted. Upon trial to a jury, a verdict was returned for the full amount claimed in the petition. A motion was made for a new trial, and on the hearing thereof the administrator, .acting’ upon the suggestion of the court, remitted all above fifteen hundred dollars, and thereupon the court overruled the motion and entered judgment for the sum of fifteen hundred dollars, to all of which the railroad company excepted, and took a bill of exception containing all the evidence.
    The circuit court was of opinion that the court of common pleas erred in sustaining the demurrer to the second defense, and that there was no other error in the record-, and for that reason alone reversed the judgment, and proceeding to render such judgment upon the demurrer as the court of common pleas should have rendered, overruled said demurrer and remanded the case for a new trial. Thereupon the administrator filed his petition in error in this court, seeking to reverse the judgment of reversal of the circuit court.

      Touvelle & Kenney and Edgar B. Kinkead, for plaintiff in error.
    This case calls for- a construction of the statute in Ohio giving or confessing a right of action for injury by wrongful death upon the personal representative of the deceased person.
    While the facts ,in this case may not be exactly similar to those in the other cases, yet we believe that the doctrines announced in some of the other Ohio cases are clearly decisive of the question involved here. R. R. Co. v. Snyder, 18 Ohio St., 399; Snyder v. Railway Co., 24 Ohio St., 670; R. R. Co. v. Crawford, Admr., 24 Ohio St., 631; Davis v. Guarnieri, 45 Ohio St., 470.
    These are the only cases in Ohio to which we may look for guidance here. And yet, the facts in none of them are exactly similar to the facts in the case at bar. And while it is generally conceded by the courts and bar in Ohio that the general doctrine of imputed negligence has been expressly repudiated in Ohio,' this has been done only in the cases above mentioned, each depending upon their peculiar facts. Here we have a case presented which is brought under the statute for the sole and exclusive benefit of the parents of the intestate, who are charged with contributory negligence, which, it is claimed, will bar a recovery by them-.
    An examination of Tiffany on Death by WrOngful Act, sections 68 and 69, will show how the courts of the various states stand upon this subject. Some of them hold that where the parents are solely entitled to the benefit of the action; no recovery can be had if their negligence contributed to cause the death. Railroad Co. v. Wilcox, 27 N. E. Rep., 899; Williams v. Ry. Co., 60 Texas, 205; Cole v. James, 81 Pennsylvania State, 194; also Tiffany on Death by Wrongful Act, 606, section 70, note 48.
    It will be further noticed that Iowa, Virginia and Ohio occupy the same position holding directly contrary to some of the other states, to the effect that, even where the parents are the sole beneficiaries of the action, that contributory negligence of the parents is no defense.
    The action which is created or authorized by sections 6134-6135 of the Revised Statutes, following exactly the language of the Lord Campbell act, is one entirely new in civil procedure. It would not exist but for the statute. Seward v. Vera Cruz, 10 App. Cas., 59; Blake v. Railway Co., 18 Q. B., 93.
    We think this is the key to the solution of the problem. It was the creation of a new cause of action, the only test of which, or the only condition attached to it being that it could be maintained only when the party whose death occurred would have been entitled to have maintained the action had he lived, thus limiting the questions which could be raised to those which would have affected the right of action which the intestate would have been able to have prosecuted, and this apparently, is the view taken by the Ohio courts.
    We call special attention to some cases holding the view expressed in the 18 Ohio St., 399. Wymore v. Mahaska County, 78 Iowa, 396; Noxfolk & Western R. R. Co. v. Groseclose's Admr'x, 13 S. E. Rep. (Va., 1891); Westerfield v. Levi Bros., 43 La. An., 63.
    It will be observed by an examination of the second defense in the answer of defendant company that the only negligence of the parents alleged by this second defense related either (1) to the leaving of the gate open, or (2) to the going of the child through the gateway out to, and upon the track. It is nowhere in said second defense alleged that there was any negligence of the child’s parents at the time of the striking of the child by the engine or that they had any knowledge that" he was on the track at all. It may have been hours before the coming of the train that the gate was left open and that the child went upon the track,- and during all the intervening time the parents may have been searching for the child, as in fact they were from the moment they discovered his absence.
    The negligence alleged was indisputably a mere condition or remote cause of the death of the child and not the proximate cause, as it was not, and as it appears by the pleadings that it was not, concurrent or simultaneously, and therefore as matter of law could not avail the defendant company as a defense. 55 Am. Dec., 668, note with numerous cases. Jeffrey v. R. R. Co., 56 Iowa, 546.
    Construction of sections 6134, 6135, Revised Statutes. W e have spoken before about the matter -of construing the statutes conferring the right of action for wrongful death upon the personal representative and we feel that it has a great deal to do with' the decision of this case. Deem v. Millikin, 6 O. C. C., 357.
    We maintain that it is the settled law that where the complaint charges a wilful injury, the contributory negligence of plaintiff (in this case contributory negligence of the parents) cannot be urged as a defense. I., B. & W. R. R. Co. v. Burdge, 94 Indiana 46; Terre Haute R. R. Co v. Graham, 46 Indiana, 239.
    In order that contributory negligence shall be a defense, two elements must concur.
    There must be (1) a want of ordinary care on the part of the plaintiff, and (2) there must be a proximate connection between such want of care and the injury complained of. When these two ele-' ments concur, the negligence of the plaintiff becomes in law a co-operative cause of his injury, and prevents recovery. To make the negligence of plaintiff a proximate cause of his injury, and a bar to recovery it must be such that but for it he would not have been injured. If plaintiff’s negligence has placed him in danger, but if, by the exercise of ordinary care under the circumstances, the defendant can avoid the injury to the plaintiff, notwithstanding his negligence, he must do so, and is liable if he does not. Phillips, Pleading, section 425, citing Kerwhacker Case 3 Ohio St., 172; Railway v. Kassen, 49 Ohio St., 230.
    Tony Myers was not a trespasser, but the licensee on the track of the defendant railroad company, invited in contemplation of law, to enter on its premises by it; from which it follows that the omission of the parents to keep him from going upon and walking on the track, was not negligence contributing either as a proximate or even as a remote cause to his death. For the child, to do this was an act rightful and proper in itself, irrespective of the age of the child. 7 O. C. C. Rep., 440; Morrissey v. Railroad Co., 126 Mass., 380; 4 Am. and Eng. R. R. Cases, 572, Harriman v. Ry. Co., 45 Ohio St., 11; Palmer v. The Chicago R. R. Co., 112 Ind., 261; Barra v. New York, etc. R. R. Co., 92 N. Y. 219; Byrne v. New York etc., R. R. Co., 104 N. Y., 362; Chicago, etc., R. R. Co. v. Hedges, 105 Ind., 398; Bellefountaine, etc., R. R. Co. v. Snyder, 18 Ohio St., 399; Graves v. Thomas, 95 Ind., 361 (48 Am. Rep., 727; Davis v. Chicago, etc., R. R. Co., 58 Wis., 646; Murphy v. Chicago, etc., R. R. Co., 38 Iowa, 539; Bennett v. Railroad Co., 102 U. S., 577; Kay v. Pennsylvania R. R. Co., 65 Pa. St., 269; Campbell v. Boyd, 88 N. C. 129 (43 Am. Rep., 740.)
    In reference to what constitutes the ‘ ‘invitation” to enter the premises of another. P., C., C. & St. L. Ry. Co. v. Kelly, 12 O. C. C. Rep., 341. (Affirmed by Supreme Court without report, November 12th, 1895; 34 Law Bulletin, 262; Railroad Co. v. Adams, 26 Ind., 78; Cooley on Torts, 074.

      A. D. Marsh; John W.Zoree; W. E. I-laekedorn, and John B. Cockrum, for defendant in error.
    We maintain that the statute does not exclude the defense of contributory negligence of those who seek the remedy, by implication much less by clear and positive enactment. The action below was founded upon the negligence of defendant .company causing the death of Tony Myers, and the application of the law of negligence is the true rule by which this case should be disposed. The statute being an invocation of the common law, its provisions should be strictly construed, and the remedy extended no further than is clearly stated and most certainly contained within its provisions.
    Under the pleadings in this case, it may be correctly said that the injury complained of resulting in the damages sought to be recovered by the beneficiaries is the result of the -concurrent negligence of said beneficiaries and the defendant company. Railway Co. v. Daniel Snyder, 24 Ohio St., 670; Village of Carterville v. Cook, 129 Ill., 152.
    The construction of the statute under which the ease at bar is brought, is the real controversy involved in the quesition before this court. It says to the party for whom the remedy was provided and for whose benefit the statute was enacted, we provide for you a remedy by action against the wrong doer, but if your deceased relative could have maintained an action had he lived by reason of any act of his bringing upon himself the injury you shall not be permitted to maintain your action.
    Counsel for plaintiff in reasoning upon the construction they contend for, say “that death may change the status of the beneficiaries entitled to the profits of the action,” etc., thus intimating that the beneficiary who may have contributed by his own negligence to his injury may be displaced by death and other kin who may not have contributed would be entitled to bring the action. The suggestion involves the survival of the right of the beneficiary. We maintain that the right of the beneficiary who may be living at the time of the 'death of the party injured, does not survive and hence the reason indicated by counsel falls to the ground. Woodward v. Chicago ds M. W. Railroad Co., 23 Wis., 400; Bean v. Louisville & N. Railroad Co. (Tenn. case), Southern Reporter, Vol. 29, 370. Johnson v. Reading City Passenger R. R. Company, Penn. State Vol. 160, 647; Grant v. Fitchburg (Mass, case), Am. St. Rep. Vol. 39, 449; Western Union Telegraph Company v. Hoffman, 26 Am. S. Rep., 759; Westbrook v. Mobile & C. R. R., Am. St. Rep. Vol. 14, 587, and extended note thereto; Westerburg v. Kinzua Creek & Kane R. R. Company, Am. St. Rep. Vol. 24, 510, and note; Bamberger v. Citizen Street Railroad Company, Tennessee 31st, South Western Reporter, 163.
    In numerous cases in Ohio, and other states it has been held that a land owner who permits his fence to become deficient and his domestic animals wander through. the fence, negligently allowed to become deficient, upon a railroad track and they are killed or injured, he cannot recover. P. F. W. & Chicago Ry. Company v. Methven, 21 Ohio St., 586.
   Burket, J.

The petition avers that the railroad company wantonly, carelessly and negligently so operated its train of cars as to cause the death of the child Tony Meyer. This is denied by the answer of the company and in its' second defense of its answer it charges that the parents of the boy wilfully and carelessly left the gate open, and carelessly and negligently permitted the child to wander through the gateway, out upon the railroad track where it was killed without the fault or negligence of the railroad company or its employes. While the answer denies that the company wantonly, carelessly or negligently killed the child, the’ demurrer admits that the parents wilfully, carelessly and negligently left the gate open and permitted the child to wander out upon the railroad track, and thereby contributed towards its death. At the hearng of the cause on demurrer, the allegation in the petition as. to the wanton, careless and negligent conduct of the company stood denied, and for ought that then appeared might never be proven; while the wilful, careless and negligent conduct of the parents stood admitted. At that stage, of the case there was, therefore nothing to prevent the defense of contributory negligence from being made. For ought that appears in the record, the verdict may have been returned as it was, for the reason that the jury found, the railroad company guilty of only ordinary negligence. The verdict would be in the same form whether the jury regarded • the company guilty of mere negligence, or of wilful and wanton negligence.

There is, therefore, nothing in the record to prevent the defense of contributory negligence from being- made unless it be true that such defense cannot be made in actions for negligently causing- death.

The action was brought under sections 6134 and 6135, Revised Statutes. At common law such an action could not be maintained. The action being the creature of the statute must be governed by the statute. Section 6134 is as follows:

‘ ‘Whenever the death of a person shall be caused ■by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued,) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances, as amount in law to murder in the first or second degree, or manslaughter.”

By this section it is provided that when death shall have been caused by such wrongful act, neglect or default as would, if death had not ensued, entitle the party injured to maintain an action and recover damages, the person ©r corporation causing- such injury, shall be liable to an action for damages. This section creates the liability of the person or corporation causing the injury, and limits the liability to cases in which the party injured, if living, could maintain an action for damages. Under this section anything- that would prevent the party injured if living from recovering damages will prevent a liability for damages from arising against the person or corporation causing the injury. The liability is created by this section, and the liability arises only when the party injured, if living, could maintain an action and recover damages. Contributory negligence of the party injured is usually a defense to an action for damages; but in actions under this section, contributory negligence is not, strictly speaking, a defense, but prevents the liability to an action for damages from arising. The burden of proving that the liability has arisen, therefore, rests on the plaintiff.

Should a liability arise under this section, then the action for the recovery of damages for such liability is given by the next section, which is as follows:

‘ ‘Section 6135. Every such action shall be for the exclusive benefit Of the wife, or husband, and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the personal representative of the deceased person; and in every action the jury may give such damages, not exceeding in any case ten thousand dollars, as they may think proportioned to the pecuniary injury resulting from such death to the per sons, respectively for whose benefit such action shall be brought. Every such action shall be commenced within two years after the death of such deceased person. Such personal representative if he was appointed in this state with the consent of the court making such appointment may at any time before or after the commencement of a suit settle with the defendant the amount to be paid and the amount received by such personal representative whether by settlement or otherwise shall be apportioned among the beneficiaries, unless adjusted between themselves, by the court making the appointment in such manner as shall be fair and equitable, having reference to the age and condition of such beneficiaries and the laws of descent and distribution of personal estates left by persons dying intestate.”

The action given by this section is for the exclusive benefit of the wife or husband and children, or if there be none, then for the parents and next of kin.

The petition in this case avers that the deceased left his two parents as his next of kin surviving him and further avers that these parents have sustained damages by said wrongful death in the sum of $1,999.00. So that this action is brought and prosecuted for the exclusive benefit of the parents of the little boy, the same persons who admit by their demurrer that by their willful carelessness and negligent conduct they contributed toward the death of the little boy.

What shall cause a liability for damages to arise is carefully stated in section 6134, but what shall constitute a defense to an action for such liability is not defined in either section but is left to the same principles as in other like cases. The limitation of two years in which to bring the action is held in Railway v. Hine, 25 Ohio St., 629, to be a condition qualifying the right of action and not a mere limitation on the remedy. It is, therefore, not a defense in the proper sense but a necessary condition to the right of action.

While the action must be brought in the name of the personal representative of the deceased person, he has no interest in 'the recovery and the recovery is not for the estate of the deceased. So held in Steel v. Kurtz, 28 Ohio St., 191. The administrator is only a trustee for the beneficiaries and has no interest in the case for himself or the estate he represents. The statute does not even say that he shall' bring the action, but says that it shall be brought in his name for the exclusive benefit of the beneficiaries, in this case the parents. The great weight of the authorities is to the effect that in actions brought by a parent for the loss of the services of his child by reason of its wrongful or negligent injury by another, the contributory negligence of the parent will defeat his recovery. This was clearly held in this state in Railroad v. Snyder, 24 Ohio St., 67 and in very many other cases among which are the following: Beach on Con. Neg. Sec. 44; S. & R. on Neg., sec. 71; Pa. R. Co. v. James, 81 Pa. St., 194; Williams v. Texas &. P. R. R. Co., 60 Tex. 205.

As the parent cannot recover for loss of services when he himself .contributed to the injury which caused the loss, can the intervention of the personal representative, who is a mere trustee, having no interest either for himself or the estate he represents shield him from the' usual consequences of such negligence? I should say not. The damages for loss of services and those arising from the wrongful death are the same in principle and should be governed by the same rules as to defenses. The damages for wrongful death are such as are proportioned to the pecuniary injury resulting to the parent from death caused by such injury. Such is the provision of the statute. The damage for loss of services are the same, being the pecuniary loss resulting to the parent from the injury to the child. If the parent by his negligence contributes toward the injury which causes the death of the child, he is equally guilty with the other party who by his negligence caused the injury; and when both parties, by their combined negligent acts, bring about an injury neither party can sustain an action for damages against the other.

To award damages to a parent guilty of contributory negligence in such case, would permit him to profit by his own wrong, and besides if would be in direct conflict with the universal rule as to contributory negligence.

The following authorities show that the administrator is a mere nominal party, • and that the action will be defeated by the contributary negligence of the beneficiaries.

In Woodward, v. Railway, 23 Wis., 400, the court says: “The administrator is a mere trustee, so made by statute with power to sue for the benefit of his cestui que trust or the person beneficially interested. He has no right except in virtue of the right of the real party in interest, and if the right of that party is lapsed or lost, so that no recovery can be hád upon it, it follows that the action can be no longer maintained.”

Booth on Street Railways, in section 391 says: “If the action is for the benefit of those relatives only who were guilty of negligence, their failure of duty should constitute a complete defense; for it would be unreasonable and unjust to permit them by an action of that kind, to recover damages for the loss of services of one whose life they had negligently sacrificed. But where there are surviving brothers and sisters, who by statute are made beneficiaries of the judgment jointly' with their-parents, and they were not at fault, it would seem to be inequitable to impose upon the innocent the penalty which might justly be enforced against the guilty if they alone were interested in the fund. The question was directly presented in a case in Iowa where an action was brought by a father as the administrator of an infant son. The parents were clearly guilty of negligence directly contributing to- his death, but the court held that their negligence would not defeat a recovery although they had a direct pecuniary interest in his estate. But in many other cases decided elsewhere in which the same question was directly in volved, the courts have proceeded upon the theory that negligence of the parents which would defeat a recovery in an action brought by them constitutes an effectual bar to an. action brought by an-administrator for their benefit. ” The Iowa case above referred to is Wymore v. Mahaskee County, 78 Iowa 396 hereafter cited.

In section 69, in “Death by Wrongful Act, ” by Tiffany it. is stated that the contributory negligence of the beneficiary is a defense to the action, and many cases are cited in support of the proposition.

In Beach on Contributory Negligence, section 131, the rule is stated thus: “When an action for the negligent injury of an infant is brought by the parent, or for the parent’s own benefit, it is very justly held that the contributory negligence of such parent may be shown in bar of the action. This is only one phase of the general rule of contributory negligence to the effect that the plaintiff’s own negligence is a defense to his action.”

In Bamberger v. Citizens St. R. Co., 31 S. W. Rep., 163, the fifth syllabus is as follows: “A father who was guilty of contributory negligence in respect to the injuries causing his child’s death, cannot recover therefor by suing as administrator, if he is the sole beneficiary.”

In those states like Virginia, Louisiana, Iowa, and perhaps others, in which the damages arising from the wrongful death survive and become a part of the estate of the deceased, and are inherited from the estate by the named beneficiaries as heirs, the contributory negligence of such heirs does not constitute a defense to an action brought by an administrator for the recovery of such damages, because the damages are part of the estate, and the estate is cast upon the heirs by operation of law. It was this principle that determined the case of Wymore v. Mahaska County, 78 Iowa, 396. 16 Am. St., Rep. 449, and that case and other cases founded upon the same principle, are therefore not applicable to the question here under consideration.

An estate will vest in the heir and be cast upon him by operation of law, even though the heir wrongfully causes the the death of the ancestor for the purpose of obtaining the estate. But it is otherwise as to a recovery for damages under our statute. While the liability is created by the statute, the damages do not become a part of the estate, and are not cast as an estate by operation of law upon the beneficiaries, but must be sued for and recovered by action; and in such action the usual defenses, including contributory negligence, can be interposed, unless otherwise provided by statute. Our statute has no provision on the subject, and hence it would seem to irresistibly follow that the defense of contributory negligence may be made in such actions. Such defense cannot be made as to the negligence of the administrator, because he is a mere nominal party, and has no interest in the damages to be recovered. The contributory negligence of the deceased is not strictly speaking, a defense, but a condition which prevents the liability from arising. But the contributory negligence of the beneficiaries, who are to receive the damages, and for whose benefit the action is brought, in the name of the administrator, is clearly a defense to the action available to the person or corporation causing the injury. This must be so,.unless there is something in the wording of the statute, or in the course of trial of such actions, to require a contrary holding.

As the statute stood when Railway v. Crawford, 24 Ohio St. 631, was decided, the damages were assessed by the jury in a lump sum, for all the beneficiaries jointly, and all had to stand or fall together; and therefore it was held that the contributory negligence of one, should not defeat the action, because thereby those beneficiaries who were innocent, would be made to suffer for the negligent acts of one over whom they had no control, and for whose acts they were not in any manner responsible. A recovery was therefore permitted, even though one who was guilty of contributory negligence should share in the damages, thus bringing, the case within the principle that the rights of the innocent must be protected, even though thereby the guilty reap some benefit.

This analysis of the question is not very clearly made in 24 Ohio St., supra, but it is the ■only sound principle upon which that case can .stand. The case upon this question is meagerly reported, but the Conclusion reached was correct ;as the statute then stood.

Shortly after the report of the Crawford ease, the statute was amended so as to require the jury to give such damages as they may think proportioned to the pecuniary injury resulting from’ such death to the persons respectively for whose benefit such action shall be brought. This word respectively requires the jury to assess the damages . for the beneficiaries distributively; that is, ascertain how much pecuniary injury each beneficiary singly has sustained, and then bring in a verdict in gross, made up of these single sums combined, the whole not to exceed ten thousand dollars.

The Standard Dictionary defines the word “respectively” as follows: “As singly or severally considered. Singly in the order designated. ’ ’ Webster defines the word “As relating to each.” The statute of Wisconsin gives the damages in such cases to the wife or husband, and in their absence to the lineal descendants and ancestors, and the court in construing the statute in Woodward v. Railway Co., 23 Wis., 400, say: “The damages must have been given in reference to the pecuniary injury and loss of the husband alone; and such is the obvious interpretation of the words in the last clause — ‘with reference to the injury resulting from such death to the relatives of the deceased specified in this section’ — which are to be understood distributively, and not' collectively, as counsel seem to suppose.” It therefore seems clear that in arriving at the total amount of damages to be awarded under the statute as amended, the jury should consider the pecuniary injury to , each separate beneficiary (not found guilty of con-; tributory negligence), but return a verdict for a gross sum, which sum should be distributed among the beneficiaries not found guilty of contributory negligence. As to beneficiaries found guilty of contibutory negligence, no damages should be awarded on their account, and the jury should find in its verdict which, if any, of the beneficiaries were guilty of such contributory negligence. This would no more complicate the trial than is usual in trials for torts, in which it often occurs that some are discharged, and others held liable.

Take the case at bar, it may be that on the trial when the ease gets back into the common pleas it shall appear that the father of the little boy was free from all fault or negligence, and that the mother was guilty of negligence which contributed directly to the death. In such ease the jury should assess the damages, if any, which the father has sustained, and return , a verdict for that amount only, and award no damages whatever for the benefit of the negligent mother.

This construction of the statute is borne out by the latter part of section 6135 as to the distribution of the damages recovered. The damages are to be distributed “by the court making the appointment in such manner as shall be fair and equitable, having reference to the age and condition of such beneficiaries, and the laws of descent and distribution of personal estates.” It can easily be seen that a young child in a helpless condition would sustain a much greater pecuniary loss from the death of a parent, than its brother or sister of. mature years, and settled in an ample and comfortable condition in life; and the jury in making up its verdict should assess more damages as to such child, than to its matured brother or sister. The court also would regard it as fair and equitable to distribute to such child a sum proportioned to the loss by it sustained, having reference, to its age and condition as compared with the age and condition of the other beneficiaries.

It is therefore clear that the statute throughout is distributive in its character, and that the damage should be assessed only for the benefit of those who are not guilty of contributory negligence, and that when recovered the damages should be distributed by the probate court only among such as the verdict of the jury shall show to be entitled therto. This throws no clog in the way of the prosecution of the action by the administrator, and awards damages to those who are without fault, and does not reward those who contributed to the injury.

It is urged that the case of Davis v. Guarnieri, 45 Ohio St., 470, arose under the statute as amended, and that in that ^ease a recovery was sutained, notwithstanding the negligence of the husband, who was one of the beneficiaries, contributed directly to- cause the death. Prom the case as reported, it would seem that the question of contributory negligence of one of the beneficiaries, lurked in the record, but upon examining the record in that case, it clearly appears that no such question was made in the pleadings. An attempt was made in the answer to impute the negligence of the husband to the wife, and thereby defeat any recovery whatever, instead of reducing the recovery by with-holding damages from the husband, and awarding them only to the children, who did not contribute to the death of their mother. The case was reported as one in which an attempt was made to impute the negligence of the husband to the wife, and nothing whatever was said as to whether the contributory negligence of the husband should serve to prevent damages being assessed for the pecuniary loss to him, caused by the wrongful death of his wife. The case is, therefore, not an authority upon the question presented in the ease at bar, and not in conflict with this opinion.

Judgment affirmed.


source: Caselaw Access Project

author: Williams, O. J.

license: Public Domain

text:
    Joyce v. Dauntz.

      Mortgage incumbered land — Right of person having interest in same — May pay or purchase incumbrance and be subrogated to rights of incumbrancer.

    1. As a general rule, any person having an interest in property subject to an incumbrance which may defeat or impair his title, has a right to disengage the property by payment of the incumbrance, and when he does so, if the debt is not one for which he is personally liable, he is entitled to be subrogated to the rights of the incuinbrancer against the property; and, subrogation arises by operation of law, whenever a mort. gage debt is extinguished by one entitled to redeem, other than the mortgagor or person ultimately liable for the mortgage debt.
    2. Where land incumbered by mortgage has been sold by the mortgagor for its full value, and the purchase money applied in satisfaction of the mortgage debt, equity will keep the mortgage security alive for the benefit of the purchaser, and enforce it forhis protection as against incumbrances subsequent thereto ; and where the purchase money so appilied is but a partial payment on the mortgage debt, the purchaser will be entitled to enforce the lien to the extent necessary for his reimbursement, when that will not interfere with the mortgagee’s security for the unpaid balance.
    3. The right of the purchaser to subrogation in such case is not affected by notice of the incumbrances when he bought and paid for the land ; nor is it necessary to his right that he show an, intention was then present to keep the mortgage on foot for his protection, for that being to his advantage, the intention will be presumed.
    (Decided December 15, 1896.)

      Error to the Circuit Court of Pickaway county. ■
    On the 7th day of February, 1887, Peter Ford gave a mortgage to John M. Shuster, on one small parcel of land in Franklin county, and' five parcels in Pickaway county,- containing altogether, something over four hundred acres, to secure his note of that. date to Shuster for $923.00, payable March 1,1889. Shuster being indebted to Eliza L. Joyce in an amount larger than the note and mortgage, transferred them to her as collateral security, and she brought the action below, which was to foreclose the mortgage on twenty-two acres of the Pickaway county lands; the Franklin county land, and one parcel of 68 acres of that situate in Pickaway county having been released by Shuster from his mortgage, for a sufficient consideration received by him, and the balance of the lands covered by his mortgage, except the 22 acres, having been sold in proceedings under an assignment made by Ford for the benefit of his creditors, and the proceeds exhausted in satisfaction of liens prior to the Shuster mortgage. The 22 acres involved in this suit were not included in the assignment because, as the petition alleges, that parcel had been sold and conveyed by Ford to Frederick L. Dauntz prior to the assignment. Dauntz was made a party defendant, and the petition prays that he be required to set up his claim, and for a sale of the premises, and the application of the proceeds in payment of the amount due the plaintiff:. Dauntz filed an answer in which he alleges, that he purchased the premises in question from Peter Ford, on the 21st day of Decemer, 1889, and on the same day received a conveyance of the land, duly executed by Ford and his wife; that at the time of the purchase and conveyance, the land was incumbered by two mortgages which had been given by Ford, one to Joseph S. Fullerton for $6,000.00, and the other to James Corry, for $1,800.00, both of which were prior and superior to the Shuster mortgage, and both included all the lands described in the latter mortgage; which two prior mortgages were held by W. G. Deshler, to whom they had been transferred, and the indebtedness secured by them was then past due; that Dauntz paid for the land so purchased by him the sum of $1,100.00, which sum was the full value of the land, and more than it would have sold for at forced sale. The answer then avers: “That $150.00 of said purchase money was paid to said Eliza L. Joyce, plaintiff herein, and applied as a payment on the said note of $923.00, in said petition mentioned, and sued on in this case, and-that $950.00 of said purchase money was paid by this defendant to said W. G. Deshler, who then owned and held said notes and mortgages given by said Peter Ford to said Fullerton and to said Corry, as aforesaid, to be applied on said mortgage liens, and the said sum of $950.00 was applied by said W. G. Deshler on said notes and mortgages, and thus went to reduce and did reduce the prior liens on said mortgaged premises to the lien of the plaintiff herein. And this defendant further says, that by reason of said payment of said purchase monejr, $150.00, on the said- note of the plaintiff, and the said $950.00 on the said prior liens, to the lien of the plaintiff on said land, the said plaintiff has received the full benefit of the entire value and proceeds of said sale of 22 acres of land held by him as aforesaid; and the entire value of said security having been applied by this defendant throug’h the said Peter Ford, to the payment of prior bona fide liens on said lands, held as said security as aforesaid, the plaintiff has received the benefit of the entire proceeds of said sale of said twenty-two acres of land, and ought not in equity to be allowed to ask or demand any further sum whatever out of said security.”
    The answer prays that the plaintiff may be ordered to release the lien she is asserting against the land, and enjoined from further proceeding to enforce it; or, if the defendant is not entitled to that relief, that he may be subrogated to the lien and rights of the prior incumbrancers to the extent that the purchase money paid by him reduced the amount due on those mortgages.
    The court of common pleas sustained a general demurrer to the answer, and the defendant not asking leave to amend or plead further, a judgment of forclosure and sale was rendered in favor of the plaintiff; which judgment was reversed by the circuit court for error in sustaining the demurrer, and to reverse that judgment this proceeding in error is prosecuted.

      Thomas E. Steele and Henry P. Folsom, for plaintiff in error.
    It cannot be seriously maintained that Dauntz is entitled to an injunction, one of the remedies prayed for.
    The only question in the case is whether the court will decree an equitable assignment from Deshler to him as against the plaintiff in error. It is immaterial whether the money was pa'id by Ford or by Dauntz. If Dauntz paid this money to Deshler with the consent or procurement of Ford, he of course should be exonerated to that extent from any claim that Ford might have against him. As to the $150 said to have been paid to Mrs. Joyce, it will be noted that the answer nowhere discloses that she knew the source from which it came. So far then as the $150 payment goes, if such payment was ever made, Dauntz has had the benefit of it.
    The remaining question therefore, is whether Dauntz is to be subrogated to the senior mortgage lien of $950 in favor of Deshler. Gerrish v. Bragg, 55 Vt., 337; Am. and, Eng. Ency. of Law, Vol., 15, 865.
    We think the doctrine well settled that subrogation is not invoked for the benefit of volunteers. Bier v. Smith et al., 25 W. V., 830.
    In this ease the lien was discharged. Dauntz took no assignment from Deshler and we do not believe. that against Mrs. Joyce it would have availed him anything if he had. But the fact remains that he did not. The intention of - the parties, which is the crucial test in determining whether subrogation shall be decreed, is here manifest. It was not the intention to keep this lien alive.
    Again, subrogation can never be invoked in favor of one who is a primary debtor. We say that Dauntz stands in this place. He stands in no better position than though he had assumed the Deshler mortgages as part of the purchase-price. Carter v. Goodin, 3 Ohio St., 76; Pom. Eq. Jur., section 1213 and note; Starr v. Ellis, 6 John. Ch., 393; Willson v. Burton, 52 Vt., 394; Cox v. Garrett, 105 Ill., 342.
    It seems clear, therefore, that the defendant in error must take either horn of this dilemma: either this $950 was paid to Deshler by Ford, or it was paid by Dauntz. If it was paid by Ford, Dauntz can claim no benefit therefrom, unless Ford paid it as his agent, or as part of the purchase-price. If it was paid by Dauntz, it clearly was paid as part of the purchase-price. To that extent Dauntz would be exonerated from any claim for purchase money that Ford might make against him. He also would be entirely vindicated from any claim that Deshler by reason of Ford’s mortgage might make against him. But we insist that he will not be subrogated to Deshler’s former lien as against Mrs. Joyce. Aetna Life Insurance Company v. Middleport, 124 U. S., 49.

      P. C. Smith and Milt. Morris, for defendant in error.
    The most common instance where the doctrine of subrogation is applied is in the case of purchasers of the equity of redemption with or without notice of existing liens. Thus, when a purchaser of land pays off a debt of his grantor, secured by a deed of- trust upon the premises as a part of the purchase money, to protect his own property from sale, he will be subrogated to the deed of trust as against an intervening lien of the grantor. Here the payment is not voluntary as if made by a stranger, but is made by the purchaser to protect his own interest in the property. And in such a case a court of equity will keep alive the lien in his favor, notwithstanding it has been formally released without knowledge and consent. Semon v. Terhune, 25 A. L. Reg., 465, n.; 3 Pomeroy’s Eq., section 1211; Stayner v. Bower, 42 Ohio St., 314 ; 8 Am. L. Reg., 63; Etna life Ins. Co. v. Middleport, 124 U. S., 549; Memphis R. R. v. Dow, 120 U. S., 301; Meyer v. Mintinye, 106 Ill., 414; Acer v. Hotchkiss, 97 N. Y., 402.

      The doctrine claimed injures.no one. If this land had not been sold and the proceeds applied to the reduction of the plaintiff’s said lien and the prior liens the land would have been found among the assets of Peter Ford, but his debts would have been $1,100 larger, and his debt secured by-prior liens, to plaintiff’s lien would have been $950 larger, and the proceeds of the twenty-two acres would have been wholly exhausted in paying these liens. The plaintiff would be in no better position than she now is. 2 Pomeroy’s Eq. Jr., sections 798; Brown v. Lapham, 3d Cush., 554; Gibson v. Grehore, 3d Pick., 475; 3d Pomeroy’s Eq. Jr., section 1419; Dempsey v. Bush, 18 Ohio St., 376.
    Dauntz, by purchasing the twenty-two acres, became a junior incumbrancer of that part of the mortgaged premises, and had a right to pay the prior mortgage and be subrogated, either by assignment or by act and operation of law to the rights of the prior mortgagees. Patterson v. Birdsall, 64 N. Y., 298; Baldwin v. Moffett, 94 N. Y., 82.
    Where a junior incumbrancer pays the amount due on a prior incumbrance he is entitled to be subrogated to the rights of such prior incumbrance as against the mortgagor. Penn v. Ry. Co., 11 Am. L. Reg., 576 ; 1 Story Eq. Pl., 121; 2 Pleading Cases of Equity, 238; 1 Jones on mortgages, sections 674, 869; Cate, Ex'x, v. Feck, Guard., 30 W. L. B., 5.
    The same doctrine has been extended to corporations where the contract of loan was ult/ra vires. Peter v. Beverly, 10 Peter, 506; Steel v. McDowell, 9 S. & M., 193; Conger, Adm'r., v. Atwood, 28 Ohio St., 142; Lucht, Admr., v. Behrens, 28 Ohio St., 240; Unger v. Leiter, 32 Ohio St., 210; Sidener v. Hawes, 37 Ohio St., 532; 37 A. R., 794; 31 N. J. E., 135; 23 Wis., 30; 64 N. Y., 400; 57 A. R., 187; 30 A. Dec., 174; Jones, Mort, section 874
    One ground of defense set forth and relied on in the defendant Dauntz’ second defense, was a partial payment.
    To that defense the plaintiff demurred, and the court of common pleas sustained the demurrer. To the extent of the payment, viz., $150, it was a complete defense, but the court of common pleas sustained a demurrer thereto, holding that partial payment is no defense. The common pleas court in so holding erred. Peebles, Ex'r, v. Isanimger, 18 Ohio St., 490; Van Ransselear v. Price, 4 Paige Ch. 174; Lube’s Eq. Pl., 178; Mitf. Eq. Pl., 249; Van Santword Pl. (2 Ed.) 460-461, 472, 705. Tried by these rules it is hardly necessary to say the answer in question is sufficient. Carter v. Longworth, 4 Ohio, 384 ; Shamokin Bank v. Street, 16 Ohio St., 1; Shroyer v. Richmond, 16 Ohio St., 455.
   Williams, O. J.

Assuming, as is contended in behalf of the plaintiff in error, that in the ascertainment of the amount found due her, in the decree of foreclosure, Dauntz obtained cr.edit for the $150.00 he alleges was received by her out of the purchase money which he paid for the land, the question remains, whether he is entitled to the benefit of the two prior mortgages, and to enforce them against the plaintiff, as liens superior to hers, to the extent that the purchase money paid by him fob the land was applied in payment of the indebtedness they secured. It is a well settled' general rule, that “when any person having a subsequent interest in the premises, and who is therefore entitled to redeem for the purpose of protecting such interest, and who is not the principal debtor primarily and absolutely liable for the mortgage debt, pays off the mortgage, he thereby becomes an equitable assignee thereof, and may keep' alive and enforce the lien so far as may be necessary in equity for his own benefit; he is subrogated to the rights of the mortgagee to the extent necessary for his own equitable protection.” Pom. Eq. Jur., section 1212. Among the persons so protected are grantees of the mortgagor, and any subsequent grantee who has taken the land simply subject to the mortgage. And in Jones on Mortgages, section 869, it is said that: “If a mortgage be paid by a person not personally liable, for the purpose of protecting his estate, he may have the benefit of it in aid of his title without any assignment to him, or proof of any intention on his part to keep it alive.” The rule, it is held, does not include a purchaser who buys the naked- equity of redemption as such, and pays for nothing more, nor one who assumes the payment of the mortgage debt and receives a corresponding reduction in the purchase price of the land, for the reason, that in the one ease he receives all the estate he purchased and paid for, and in the other he becomes the principal debtor; and in neither case can have any equitable right against the mortgagor, or other incumbrancer. The answer in this ease will not admit of a construction warranting the conclusion that the purchase by Dauntz was of the equity of redemption eo nomine, nor that he assumed the p’ayment of the mortgage indebtedness, or any part of it, with a reduction on that account in the price paid for the land. Neither conclusion is consistent with the allegation that he purchased the land at its full value; for that fairly indicates an intention to acquire and be invested with the complete title; and that intention is further shown by the fact that the purchase price was applied toward the payment of existing incumbrances. That application, though made with the assent of the vendor, did not constitute an assumption of the mortgage debt by the purchaser, nor render him liable to the mortgagee, nor exonerate the mortgagor. The purchaser became the owner of the land subject to the unsatisfied incumbrances upon it. True, at the time of the conveyance to Dauntz, the condition of the mortgages had become broken, and the estate he acquired was the equity of redemption; but that is .sufficient to sustain his right to subrogation, if otherwise entitled to it. He is not in the situation of a stranger or mere volunteer discharging anincumberance. Any person having an interest in property subject to an incumbrance which may defeat or impair his title, has a right to disengage the property from the incumbrance by payment, and upon payment, if the debt is notone for whichhe is ultimately liable, he is entitled to subrogation to the fights of the incumbrancer against the property. Sheldon on Subrogation, section 12. “Subrogation arises by operation of law whenever the mortgage debt is extinguished by one, other than the mortgagor, who is entitled to redeem.” Jones on Mortgages, section 874. There can be no doubt that Dauntz, after his purchase, had the right to redeem, by payment of the mortgages. And the rule above stated is frequently applied in favor of the owner of the equity of redemption who has discharged an incumbrance on the land, which was in existence when he became the owner. Redemption consists in payment, and hence, in such case, subrogation by operation of law results from payment of the mortgage debt; and it is not essential to that result that there be an avowed intention at the time to keep the mortgage alive for the protection of the owner of the equity of redemption ; an intention to that effect will be presumed. “Where an owner of lands who is not primarily and personally liable to pay a debt secured by mortgage or other charge on the land, pays it, he may keep the lien alive as a security for himself against other incumbrances or titles. Whether he does so is a question of intention, and when it is evidently for his benefit, that intention will be presumed.” Pom. Eq. Jur., section 798. “The rule that payment by a mortgagor extinguishes the mortgage, is founded upon the reason that there could generally be no advantage to him in keeping on foot his own mortgage against his own estate. But no such reason exists when a purchaser pays an incumbrance existing before the time of his purchase. Frequently there is an advantage in keeping the mortgage on foot as a security; and whenever there is such advantage, the purchaser is entitled to • hold it as a separate title.” 1st Jones on Mortgages, section 869.

Nor is it necessary, as counsel contend, that in order to secure.the purchaser in this right, he should be ignorant of the mortgage, or of the subordinate liens, at the time of his purchase. “The most common instance where the doctrine of subrogation is applied is in the case of purchasers of the equity of redemption with or without notice of existing liens. Thus, when the purchaser of land pays off a debt of his own grantor, secured by a deed of trust upon the premises as a part of the purchase money, to protect his own property from sale, he will be subrogated to the deed of trust as against an intervening lien of the grantor. Here the payment is not voluntary as if made by a stranger, but is made by the puchaser to protect his own interest in the property. And in such a case a court of equity will keep alive the lien in his favor, notwithstanding it has been formally released without his knowledge and consent.” Semon v. Terhune, 25 A. L. Reg., 465, n. It is not believed, however, that equity, will so keep the lien on foot after its cancellation of record, as against rights intervening between that and the assertion, in the proper mode, of the right of subrogation. But that question does not arise in this case. The Shuster mortgage was taken while the two- prior mortgages were subsisting liens, and before Dauntz made his purchase.

It does not appear from the answer, whether, when the money paid by Dauntz on the land was applied on the mortgages held by Deshler, the amount then due on them exceeded the payment, or the pay • ment was sufficient to satisfy the balance then remaining due. But that does not seem important here, for if it were only a partial payment of the mortgage debts, leaving an unsatisfied balance due on them, as against which, and the holder of the mortgages, there could be no equity in favor of Dauntz that could interfere with the enforcement of the mortgage security, his right of subrogation as against the later liens, to the extent of the payment, would nevertheless exist. It has been held that a purchaser of an equity of redemption incumbered with four different liens, who paid off the first two liens and part of the third, was subrogated by the payment to the rights of the creditors under their respective liens to the extent they were so paid, and entitled to set them up and enforce them as against the holder of the fourth lien. Walker v. King, 45 Vt., 526. The same principle is recognized in Sidener v. Hawes, 37 Ohio St., 532. And see Simpson v. Hoyo, 94 N. Y. 189. Deshler was not made a party to the foreclosure suit, which probably would have been done if anything remained unpaid on his mortgages. At all events, he is not asserting any claim against this land, nor interposing any objection to the right asserted by Dauntz; and a consideration of his rights will be in time when' properly brought before the court.

But it is insisted that, as subrogation is founded in equity and can be invoked only when necessary to secure some equitable right, the remedy is inappropriate in this' case, because it would operate unjustly to the plaintiff. If it would, the remedy should be denied; but such we think, will not be its effect. Payment of the full value of land purchased, ordinarily entitles the purchaser to a good title; and when that payment is made toward the satisfaction of a paramount incumbrance, an intention to protect the title by relieving the land of the incumbrance is sufficiently obvious. There is no room for an inference that by payment on the first mortgage liens, there was an intention merely to advance the lien of the later mortgage, or to benefit its holder; although the plaintiff, as a partial holder of that mortgage, was benefited to the full amount of the payment, by reducing to that extent the prior liens on the other lands included in all of the mortgages, and thus augmenting the value of her security. Her position has in no way been changed for the worse on account of the payment, and, in ease the defendant is allowed the benefit of the prior mortgages for his reimbursement, her security remains precisely what it was when she took a partial transfer of the Shuster mortgage. While on the other hand, if the defendant is denied that remedy, he must lose the property he bought and paid for, or pay for it twice in order to keep it. It is here his equity arises which enables him to call to his aid the doctrine of subrogation.

The case of Carter v. Goodin, 3 Ohio St., 75, cited, and apparently much relied upon by counsel for plaintiff in error, we do not regard as irreconcilable with the claim of' the defendant in error. There, it was sought by the grantees of land under a deed that was defective as a release of dower, to avail themselves of a mortgage executed by the grantor, in which the wife had joined, before the conveyance, to defeat an action brought by her for dower in the land, after the husband’s decease. The purchase money paid, was applied in discharge of the mortgage before the debt became due, and before there was any breach of its condition. The mortgage was given to secure the debt of the husband, and the grantees, in taking the conveyance, relied entirely on the release of dower contained in their deed; which, however, proved to be insufficient. The decision is placed upon these grounds, as shown by the opinion in which it is said: “This conveyance, therefore, upon which it was the evident intention of the parties to rely for their title, failing to contain a valid release of the dower, the grantees cannot help themselves by a resort to a satisfied mortgage, and especially one which was discharged by the mortgagor himself before condition broken, and, therefore, before even the mortgagee himself had acquired any right which he could enforce against the premises.”

A more satisfactory ground for the decision, perhaps may be found in the fact that the charge created by the mortgage on the wife’s dower interest was for the security of her husband’s debt, and not her own; so that, the relation which she and her dower interest sustained to the creditor was analogous to, if not strictly that of a surety, which gave her the right to insist on the application of her husband’s estate to the satisfaction of the mortgage, to the exoneration of her own; and, as his property, the consideration paid him for the land, was so applied, the release of her estate thus accomplished, from the mortgage, simply secured to her what she was equitably entitled to. Mandel v. McClave, 46 Ohio St., 407. If her interest in the land had been subjected to the payment of the mortgage debt, leaving any part of her husband’s estate therein unappropriated to that purpose, she would herself have been entitled to be subrogated to the mortgage as against later liens, and would not be estopped from maintaining that right against the grantees in the deed, for the deed was not binding on her. See 24 Am. & Eng. Encyclopedia of Law, p. 228, and cases there cited.

The answer of Dauntz is sufficient to entitle him to priority over the plaintiff’s lien, to the extent that the consideration paid by him on the land was applied toward the satisfaction of the prior mortgages.

Judgment affirmed.


author: By the Court.

text:
    The Baltimore & Ohio Railroad Company v. Ambach.

      Issuing- of summons — Time of commencing action — To bring case within section 4988, Rev. Stat.

    To bring a case within the saving provisions of section 4988, Revised Statutes, a summons must be caused to be issued before the expiration of the statute of limitations governing the cause of action.
    (Decided December 19, 1896.)
    Error to the Circuit Court of Franklin county.
    The plaintiff in error filed its petition in error and precipe for summons in error in the circuit court within six months after the rendition of the judgment in the court of common pleas, but the clerk did not issue the summons in error until some days after the expiration of the six months.
    The defendant in error made a motion in the circuit court to dismiss the petition in error for the reason that the proceeding in error was not commenced within the six months limited by statute. The circuit court sustained the motion and dismissed the petition in error, to which plaintiff in error excepted, and filed its petition in this court, seeking to reverse the judgment of the circuit court.

      J. Jl. Collins, and Frank A. Davis, for plaintiff in error.

      Powell <& Minahan, for defendant in error.
   By the Court.

That sections 4987 and 4988 apply to proceedings in error was held by this court, in Ross, Sheriff v. Willet, 54 Ohio St. 150. —In that case a summons in error had been issued within the six months, and served by an officer not qualified to make the service, and upon motion the service was set aside, and on the next day another summons was issued and properly served, but this last summons was issued and served after the expiration of the six months limitation, but within sixty days after the attempt to commence the action by the issuing and service of the first summons.

In the case at bar the summons was not caused ' to be issued within the six months allowed by section 6723, Revised Statutes, but the petition in error and the precipe were filed within such six months. The question, therefore, is, whether the filing of the petition in error and precipe for a summons is an attempt to commence an action, and whether the party, by such filing of petition and precipe can be said to have diligently endeavored to procure a service.

It is thé diligent endeavor to procure a service that brings the case within the saving provisions of section 4988, and it cannot be said that there is diligent endeavor to procure service when no summons has been issued to be served upon any one. If a summons has been caused to be issued, there can be an endeavor to procure service of such summons, but where no summons has been caused to be issued, there can be no endeavor to procure a service. The burden of causing a summons to be issued is cast upon the plaintiff in error, and as no summons was caused to be issued, in this ease, there was no endeavor to procure the service of summons, and therefore the plaintiff in error does not bring itself within the saving provisions of section 4988, and the circuit court was right in dismissing the petition in error.

Judgonent affi/i'med.


text:
    State of Ohio v. Bohn.
    7 rial and proceedings — Reversal of conviction in circuit court — Section 7306a, Rev. Stat.

    Section 7306a, Revised Statutes (Ohio Laws, vol. 92, p. 187), contemplates the l’eversal by the Supreme Court of a judgment of the circuit court, reversing a conviction in any court inferior to the circuit court, and requires the filing of a petition in error within the time limited by the general statute.
    (Decided January 12, 1897.)
    On Exception to the Circuit Court of Cuyahoga county.

      Theo. Stirimple and Glcvrke <& Thompson, for plaintiff.

      Goulder do Holding, for defendant.
   By the Court.

Bohn was found guilty by a justice of the peace of Cuyahoga county, on a charge of violating the law against the sale of cocoa from which a portion of the oil had been abstracted. On error to the court of common pleas the judgment was affirmed, and this judgment was reversed by the circuit court.

Exceptions taken to the judgment of the circuit court are brought here, but without the filing of a petition in error in this court. Counsel for the state insist that the proceeding is authorized by' section 7306a of the Revised Statutes. Ohio Laws, vol. 92, p. 187.

The object of the section is not only to settle the law for the government of future cases, but in the cases contemplated, to obtain a reversal of the judgment of the circuit court, if it be erroneous, and to reinstate the judgment which it reversed. No petition in error having been filed, as contemplated by the statute, the proceeding is dismissed.

Proceedings dismissed.


text:
    Davis v. Coffman et al.

      Construction of will — Section Sp6S, Revised Statutes — Error may be prosecuted jrom judgment of the circuit court.

    From the construction placed on the provisions of a will, at the suit of a widow, under the provisions . of section 5963, Revised Statutes, as amended April 8, 1894 (91 Laws, 204) error may be prosecuted to this court from the judgment of the circuit court, for the reversal of the same.
    (Decided January 12, 1897.
    In Error.
    Motion to dismiss the ease.

      8. W. Winn and O. M. Vanderbw'h, for plaintiff in error.

      J. T. Grow and Fred 8. Gates, for defendants in error.
   By the Court.

On June 15, 1894, John W. Davis, of Muskingum county, died testate. By his will he devised all his property, real and personal, to his Wife, “So long as she shall remain unmarried and my widow, but upon her remarriage the residue or part of my estate which is then on hand after allowing my wife her lawful dower,” be disposed of, to certain of his “heirs or their living children,” as therein provided. The will was duly probated. On July 12, 1894, his widow, Ella Jane Davis, not yet having made any election, under the provisions, of section 5963, Revised Statutes, as amended May 8, 1894, 91 Laws, 204, filed her petition in the court of common pleas, making the proper parties, and asking the court to “give such construction of said will and advice to the plaintiff as is authorized by law. ’ ’ The case was heard in the common pleas, and construction given the will. From this judgment of construction, the plaintiff appealed to the circuit court where, on the hearing, a similar construction was placed on the will; and the plaintiff now prosecutes error in this court to obtain a reversal of the judgment of the circuit court. The ground of the motion is that this court has no jurisdiction to review the judgment of the circuit court in cases of this kind, as, while the statute as amended provides for an appeal from the common pleas to the circuit court, it makes no provision for the prosecution of error from the common pleas or the circuit court to this court. It is true that the amendment of section 5963 makes no such provision, nor was it necessary. Jurisdiction is conferred on this court by section 6710, Revised Statutes, to reverse, vacate, or modify any judgment or final order of the circuit court. The construction placed by the circuit court on the will of John W. Davis, deceased, is a judgment and conclusive of the rights of the plaintiff, should she elect to take under the will as his widow. Hence it was not necessary that the statute as amended should confer the right on either party to prosecute proceedings in error in this court for the reversal of any construction placed on the will by the circuit court or by the common pleas, such jurisdiction being included within the provisions of the section above referred to.

Motion overruled.


author: Minshall, J.

text:
    Brinkerhoff, Trustee, et al. v. Tracy, Administrator.

      Mortgage in trust for preferred creditors — Respective rights op . other creditors and mortgagor — Section 6344, Revised Statutes.

    Where one, in embarrassed circumstances, makes and delivers a chattel mortgage to a third person, in trust for certain of his creditors, with the requirement that he shall sell the property at retail and apply the proceeds, to the claims of the preferred creditors until paid in full; and afterwards, with the consent of his other creditors, to continue to sell and apply the proceeds to their claims pro tata, and the property so mortgaged is largely in excess of the amount of the claims of the preferred creditors, the legal effect of such mortgage is to hinder and delay his other creditors within the meaning of section 6344, Revised Statutes, and no action for damages can be maintained by the mortgagor against the trustee for a failure to execute the trust.
    (Decided January 26, 1897.)
    Error to the Circuit Court of Richland county.
    The suit below was brought by Philopena L. Harrison, to recover damages from the defendants for the breach of contract, set forth in the petition. The defendants demurred to the. petition. The demurrer was sustained by the common pleas; but, on error, was overruled by "the circuit court, and the case is brought here for a reversal of the latter court.
    The petition is as follows:
    “That the defendant, Roeliff Brinkerhoff, did on the 5th day of January, 1891, acting for himself • and as the agent of the defendant, The Mansfield Savings Bank, enter into a contract with plaintiff, in writing-, a copy of which is hereto attached, marked Exhibit A, by which contract the defendant, Roeliff Brinkerhoff, promised and agreed for himself and for said bank, for a valuable consideration, and in consideration that the plaintiff would execute and deliver to defendant as trustee for. The Mansfield "¡Savings Bank and others, her chattel mortgage on the stock of goods consisting of dry goods, ladies’ and gents’ furnishing goods, notions and all of the goods and merchandise of every kind and description, together with all furniture and fixtures in and connected with the store then owned by her in Smith’s Opera House block, in Mansfield, Ohio, and thus secure a claim of about $5,300 held by the said .Mansfield Savings Bank, that he, the said Roeliff Brinkerhoff, for himself and for said bank, would accept a conveyance of said stock of goods, furniture, fixtures, etc., by said chattel mortgage and by the said contract, and that he would employ in the conducting of the business, and the sales to be made from said stock, Charles S. Harrison, a competent salesman, who had theretofore had charge of business and stock for plaintiff and was fully acquainted with it and the trade, to superintend the business and sales. That said business should be run, and enough of said stock and furniture and fixtures sold until sufficient amount had been realized to pay the claim, of said bank, and, if satisfactory to other creditors, until enough had been realized to pay all the creditors of plaintiff, and that after the payment of all her indebetedness, the balance of the stock, etc., or the proceeds thereof should be turned over to her. And she avers that said stock of goods, etc., were more than double in value the whole amount of her indebtedness, and that she was the owner of a large amount of real estate in addition to the goods, etc., above described.

      “Plaintiff says that the Mansfield Savings Bank is a corporation organized under the laws of Ohio, and that at the time of the execution of said contract held a claim against her for about $5,300; that said Roeliff Brinkerhoff was and is, one of the largest stockholders of said bank, and that-he and various members of his family were, and are, the principle stockholders of said bank.
    “That on the 5th day of January, 1891, at 3 o’clock, P. M., plaintiff did, in accordance with the terms and conditions of the contract above described, execute and deliver to the said defendant her chattel mortgage in accordance with the terms of said contract, which chattel mortgage was duly filed with the recorder of Richland county, at 3 o’clock of said day.”
    “Plaintiff further says that by said chattel mortgage she turned over and delivered to defendant Roeliff Brinkerhoff, as such trustee and agent aforesaid, property of the cash value of $25,000, and that the said defendant, Roeliff Brinkerhoff, was placed in possession of the same at 3 o’clock of said fifth day of January, 1891.
    “Plaintiff says that the defendants, in violation of said contract and agreement by virtue of which said goods, furniture, fixtures, etc., were turned over to them on or about the 5th day of January, proceeded to ' Ashland county court of common pleas, and in violation of their duty toward plaintiff in the premises, f raudently procured a judgment against her, and had issued on said judgment an execution to the sheriff of Richland county, and had the same levied on said stocks of goods, furniture, fixtures, etc., and the same taken from the possession of said Roeliff Brinkerhoff, acting as aforesaid.

      “Plaintiff says that the facts constituting the fraud in taking said judgment and the levy of the execution and defendant’s violation of said agreement are as follows:
    “The said hank had agreed, on or about September 1, 1889, in consideration of the transfer to it of a judgment plaintiff had against Charles S. Harrison, for about the sum of $7,000 to loan the plaintiff a sum, the principle of which should not exceed $5,000, for three years, and that said defendants, on or about the 5th day of January, A. D. 1891, in consideration of said agreement of September 1, 1889, made the contract hereinbefore alleged and accepted the chattel mortgage, by the terms of which mortgage the sum owing said bank was not due until four months from the said 5th day of January, 1891. And she further alleges that the said defendants made said agreement, and procured her to execute and deliver the said chattel mortgage and the possession of the said stock of goods, furniture, and fixtures to them for, and in consideration of, an extension of four months as alleged herein of the time of payment of money owing to said bank, and she says there was nothing owing said bank at the time said judgment was taken that was due, and she avers that the defendants falsely and fraudulently represented to her that if she would put into the possession of said Roeliff Brinkerhoff said stock of goods, furniture and fixtures, that they would satisfy the claims of all her creditors, and carry on said business and sell said stock, etc., as in said agreement provided, but she says that said defendants did not intend to perform the said agreement, but on the contrary they falsely and fraudulently induced her to enter into it for the purpose of procuring from her the possession of said stock of goods, etc., and to hold possession thereof until they could secure the said judgment and levy.
    ' ‘ ‘That said judgment so taken against plaintiff in Ashland county was in favor of The Mansfield Savings Bank and that the said defendant, Roeliff Brinkerhoff was, at the time the judgment was so taken and at the time of accepting the trust herein-before stated, and entering into the contract before set forth was vice president of the said bank, and the active business manager of said bank, and that the said defendants caused the said sheriff of Richland county to take possession of the goods and property of plaintiff specified in said chattel mortgage, and of which defendant, Roeliff Brinkerhoff, was trustee and agent as aforesaid, and that they, the said defendants, neglected and refused to advise the creditors as to the value of the large amount of property thus held by them, or to advise them of the terms and conditions of the contract above set forth, and by his failure so to advise the creditors and his refusal to carry out the trust according to its true intent and meaning, all of creditors of plaintiff caused judgments to be taken against plaintiff and executions to be issued on said judgments and levies made on her said property.
    “And the said defendants, instead of securing the services of competent parties to invoice said stock, and to superintend the sale thereof, caused the same to be done by persons wholly unfamiliar with the value of said property, and caused said stock of goods and property to be appraised greatly below its real value.
    “And by reason of his violation of said contract and the manner of selling and disposing of said goods, and their failure to advise all other creditors of plaintiff of their said contract and the value of the property turned over to defendant as well as the value of the real estate of plaintiff, they caused the same to be sold at less than half its actual value by reason of which wrongful acts and fraud on the part of defendants, plaintiff has been damaged in the sum of fifteen thousand dollars ($15,000).
    “Wherefore plaintiff prays judgment against defendants for the sum of $15,000, her damages so far as aforesaid sustained by her, and for costs of suit.
    “A. J. Mack,
    “Jenner & Tracy, “Attorneys for Plaintiff.”
    EXHIBIT “A.”
    “This agreement witnesseth:
    “That, whereas Philopenia L. Harrison has this day executed and delivered to R. Brinkerhoff, as trustee for The Mansfield Savings Bank, Mollie V. Harrison, Hiram R. Smith and Jenner & Tracjr, her chattel mortgage on her stock of goods, consisting of dry goods and ladies’ and gents’ furnishing goods, notions and all of the goods and merchandise of every kind and description, together with all the fixtures and furniture in and connected with the store, now owned by her in Smith’s Opera House block, in Mansfield, Ohio.
    “Now, it is agreed by the parties hereto, that the said trustee shall first pay off the indebtedness to the parties for whom he is a trustee, and all necessary expenses of running the business, together with the sum of $-- — - per month to Roeliff Brinkerhoff, Jr., for his services in taking possession, superintending the sale of goods and taking charge of the proceeds thereof, as the representative of the trustee, and it is further agreed that said trustee shall employ Chas. S. Harrison to superintend the sale of said stock of said goods, and that he shall receive twenty-five dollars per week.
    “It is further agreed that after a sufficient amount has been realized to pay off the claims represented by said trustee and the expenses attending the same, that if it shall be satisfactory to the other creditors of Philopena L. Harrison, the said trustee shall continue to act under said chattel mortgage as trustee for all other of the creditors of Philopena L. Harrison, and that he shall continue to sell and dispose of said goods, furniture and fixtures, and that whenever the sum of one thousand dollars shall be in the hands of said trustee, a dividend shall be paid on the claims of each and all of the other creditors of Philopena L. Harrison not represented by said R. Brinkerhoff, trustee, and after the payment of all the indebtedness the remainder of said stock to be turned over to Philopena L. Harrison, her assigns or legal representatives.
    “Signed by
    “P. L. Harrison,
    “R. Brinkerhoff, Trustee.”

      Gummings c& McBride and B. Brinkerhoff, Jr., for plaintiffs in error.
    We claim the circuit court erred in reversing the common pleas court and ordering the case remanded with instructions to overrule the demurrer for the following reasons, viz:

      First — The cause of action, as shown by above quotation from petition, is based upon a contract that is void because it is a contract to hinder and delay creditors. The contract being void no action will lie, either for specific performance or for an action for damages against the party who fails to carry out its provisions.

      Second — Stipulations tending to coerce the creditors into a compromise or release a part of their debts, or imposing other unreasonable conditions as the terms on which they are to be allowed to participate in the distribution of the trust fund, or reserving to the assignor the control and disposition of the uses to which the trust property is to be applied.

      Third — The reservation of a use or benefit to the grantor or his family, or anyone not a creditor will invalidate the instrument. Huffman & Co. v. Mackall, et al., 5 Ohio St., 124.
    Again it is a well established rule of law “that when an act done will necessarily have the effect of hindering and delaying creditors, the law presumes that it was done with fraudulent purposes and intent.” Hastings v. Jockers, 29 Am. State, 341; Dickson v. Dawson, 5 Ohio St., 223; Trimble v. Doty, 16 Ohio St., 118.
    In a late Ohio report we find a case where an action was brought to enforce a specific performance of contract which the court held was one to hinder and- delay creditors, and dismissed the petition. Robinson, Exr., v. Robinson, 17 Ohio St., 480.
    “The agreement set forth in the petition was fraudulent on the part of both the plaintiff and defendant, and a breach of it by either would * afford no ground for an action by the other.”

      Goudy v. Gebbart, 1 Ohio St., 262; Randall v. Howard, 2 Black U. S., 585.
    The parties are in pari delicto, as well as participes fraudis, and in such eases neither can maintain an action against the other upon the contract, or from any other consequences resulting from it, though it proceeds upon a repudiation of the contract. Robison v. French, 13 Metc., 24; Roll v. Raquet, 4 Ohio St., 419; 7 Ohio, 76; Moore v. Adams et al., 8 Ohio St., 372; McQuade v. Rosecrans, 36 Ohio St., 442; Kahn v. Walters, 46 Ohio St., 195; Jacobs v. Mitchell et al., 49 Ohio St., 601; Reed v. Reed, 49 Ohio St., 654; Emery et al v. The Ohio Candle Co., 47 Ohio St., 321.
    No right of action can spring out of an illegal contract, and this rule applies, not only when the contract is expressly illegal, but whenever it is opposed to public policy. C. C. C. & I. R. R. v. Closser, 9 L. R. A., 754-760; Shirey v. Ulsh, 2 C. C. Rep., 401; Cowell v. Harris, 2 C. C. Rep., 404; Parsons on Contracts, Vol. 2, page 673; McNamara v. Garrett, 12 Am. St., 355.
    The transfer of goods in payment of a preexisting debt is no consideration for the transfer as against the owner from whom the goods were obtained by fraud. Eaton & Co. v. Davidson, 46 Ohio St., 355.
    As the consideration must have some value and reality, the assumption of a supposed danger or liability, which has no foundation in law, or in fact, is not a valuable or sufficient consideration, nor is the performance of that which the party was under a previous valid, legal obligation to do. 1st Parsons on Contracts, page 437.

      Neither the promise to do a thing, nor the actual doing of it, will be a good consideration if it is a thing which the party is bound to do by the general law, or by a subsisting contract with the other party. Pollock on Principles of Contracts, page 161; Bartlett v. Wyman, 14 Johns, 260; Crosby v. Wood, 6 N. Y., 369; Am. and Eng. Ency. of Law, Vol. 3, page 834.
    And a promise by the beneficiaries, in a consideration that he would resign, to cause the note and. mortgagee to be cancelled and surrendered, in addition to procuring him said allowance for his services, is void. Withers v. Ewinq et al.. 40 Ohio St., 400.
    No benefit, profit or advantage in a legal sense resulted to the plaintiff, nor any detriment or loss to the defendant. The promise alleged, in point of legal obligation, was in no wise different than if it had been a mere naked agreement to extend the time for the payment of the entire amount due. Jenkins v. Clarkson, 7 Ohio St., 72; City of Cleveland v. Lenge, 27 Ohio St., 384.
    A promise to extend the time of payment of g debt is void, unless founded upon a good consideration, and a payment of a part of the debt, or the interest already accrued, or an agreement to pay interest for the future, is not a sufficient consideration for such a promise; nor will the saving of a new obligation with additional security for a part of the debt, be a good consideration for a promise to extend the time as. to the residue. Parmalee v. Thompson, 45 N. Y., 58; Cobb v. Cowdry, 94 Am. Dec., 370.
    No damages are recoverable for the breach of a contract made without consideration. Hemly v. Kier, 59 Cal., 138.

      Under the above authorities, we claim the facts stated in the petition show that the contract was without consideration, and therefore no damages lie for a breach of it. Butterfield v. Cowing, 112 N. Y., 486.

      Jenner, Jenner <& Weldon, for defendant in error.
    It seems to .us that section 6344, Revised Statutes, has no application to the legal questions raised by this demurrer. There is no averment in the pleading that can be construed to mean that the plaintiff intended to “hinder, delay or defraud creditors.”
    Nor was there any intention to delay any creditors, beyond what would naturally result from the appointment of a trustee, for under the very terms of the chattel mortgage and the written contract, all creditors were to be paid in full, by Roeliff Brinkerhoff, as trustee. If creditors not secured by the chattel mortgage, refused to allow Roeliif Brinkerhoff to act as trustee, then they had the legal right, under section 6343, Revised Statutes, as construed by the Supreme Court, to treat the transfer to R. Brinkerhoff as an assignment in trust for all creditors.
    This question has been before the Supreme Court of this state so frequently that it seems to be hardly necessary to cite authorities, and yet we will take the liberty of referring the court to a few citations. Bloom et al. v. Noggle et al., 4 Ohio St., 45; Hyde & Co. v. Olds et al., 12 Ohio St., 591; Cross, Trustee, v. Carstens, 49 Ohio St., 548.
    The language of the judge in the latter case, describes with accuracy the plaintiff in error, Roeliff Brinkerhoff, who became a trustee, by the terms of the chattel mortgage and his contract, when he took possession of the stock of goods by the terms of the same. And on page 568, the Chief Justice, after a review of earlier cases, uses this language: “In none of the contemporaneous decisions do we get an intimation, even, that the payment, or securing, of an honest debt by a failing debtor was unlawful, or was deemed an evil which called for legislative interference. ’ ’ And on page 569, this language: “In the many decisions upon the general subject from Atkinson v. Jordan, supra, to its last deliverance upon the question, (save in the overruled case of Mitchell v. Gazzam, 12 Ohio St., 315,) this court has not omitted to affirm the right of a debtor in failing circumstances, in good faith, to pay or secure one or more creditors in preferance to others.” We also cite the late cases of Pendery et al., v. Allen et al., 50 Ohio St., 121, and Gashe v. Young, 51 Ohio St., 376. These decisions are in line with the holding of this court extending over a period of more than fifty years, giving the diligent creditor the benefit of his diligence and the debtor managingandcontrolling his property, the right to prefer one or more creditors. And this is all Mrs. Harrison attempted to do, by her chattel mortgage and contract.
    The duty of this trustee, for Mrs. Harrison and her creditors, after he had taken possession of the stock of goods is clearly defined in text books and adjudicated cases. 2 Story’s Eq. Juris., section 1268; section 1275; Perry on Trusts, section 847; 27 Am. and Eng. Enc. of Law, 245.
   Minshall, J.

The point made on the demurrer is that the agreement for the breach of which the action is brought, was made to hinder and delay creditors, and no action will lie for the breach of it. There is no averment in the petition from which it can be inferred that it was made in con-temptation of insolvency. If that were so, then there is no question but that under section 6343, Revised Statutes, it would have inured to the benefit of all the plaintiff’s creditors; and the only remedy she would have had, in such a case, would have been to have caused it to be administered, by the appointment of a proper trustee, in the probate court of the county. The agreement attached to the petition tends to suggest that it was made under such circumstances; but in the absence of a positive averment or admission of that kind, a court would hardly be warranted in drawing such inference from it. But though the mortgage was not made in contemplation of insolvency, still does it not appear from the agreement of the parties, that it was made to hinder and delay creditors, within section 6344,‘Revised Statutes, as claimed by the demurrant? We think it does, and that no action will lie on behalf of the plaintiff for the breach of it for this reason.

Prom the petition it appears that the plaintiff, at the time named, made and delivered a chattel mortgage on her stock of goods, and on the furniture and fixtures, in her store in Mansfield, Ohio, to Roeliff Brinkerhoff, in trust for certain of her creditors, among whom was the Mansfield Savings Bank, its claim being about $5,300. By the agreement made at the same time, the property so mortgaged was placed in the possession of the mortgagee, to be disposed of at retail in the usual vay, he employing certain persons named to attend to the business. The business was to be so run until enough should be realized from the sale of the property to pay the claim of the bank, and the other preferred creditors, and then, if satisfactory, to her other creditors, it was to be continued until enough had been realized to pay all her other creditors ; and for any balance he was to account to her. The property so mortgaged to the trustee Brinkerhoff, is averred to have been of the cash value of $25,000 and double the value of all her indebtedness. It is also averred that she had a large amount of real estate in addition to the property so transferred, but it is not averred that it was sufficient to satisfy the claims of her other creditors. ■ Now what was the necessary effect of this mortgage as to the creditors, not provided for in it. If the mortgage, as to them, was a valid one, they could not touch a dollar of the property covered by it, until the preferred creditors were paid, although the value of the property was double the amount of all her indebtedness. As to this property they could take no steps to subject it to their claims, during the continuance of the trust. The legal effect of this mortgage was, then, to hinder and delay her other creditors, in any effort to obtain from any part of the property included in the trust mortgage, satisfaction of their claims — although largely in excess of the claims of those preferred by it. It is not like the case where a debtor, in failing circumstances, prefers a creditor by executing to him a mortgage on property as a security for his debt. This may be done. Cross, Trustee, v. Carstens, 49 Ohio St., 548. But in such case the mortgage must be directly to the creditor, and not to another for his use ; and the creditor must deal with an eye single to his own interests. Dickson v. Dawson, 5 Ohio St. 218; Pendery v. Allen, 50 Ohio St., 121. Here the mortgage is to a trustee for the use and benefit of certain of the creditors of the mortgagor — and all others are hindered and delayed with respect to the property mortgaged, until the favored creditors are satisfied by the execution of the trust. If what a debtor does in disposing of his property necessarily tends to hinder and delay his creditors, the law presumes that his intention corresponded with his act, and adjudges all such acts as contrary to its policy. A court in such case can afford him no relief from the consequences of his act, nor sustain any action in his favor founded on any agreement in regard to it. Trimble v. Doty, 16 Ohio St., 118; Pride v. Andrew, 51 Ohio St., 405; Emery v. Candle Co., 47 Ohio St., 321. As said by Boynton, J., in McCortle v. Bates, 29 Ohio St., 419: “It is one of the oldest rules of the common law, that contracts contrary to sound morals, or against public policy, will not be enforced by courts of justice — ex facto illicito ‘non oritur actio / and the court will not enter on the inquiry, whether such contract would, or would not, in a given case, be injurious if enforced. It being against the public interest to enforce it, the law refuses to recognize its claim to validity.”

The legal duty of the trustee, Brinkerhoff, was, under the circumstances disclosed by the petition, to have filed the agreement with the mortgage in the probate court, and have had the trust administered as an assignment for rhe benefit of all the creditors of the plaintiff; for such, in law, was its legal effect. But neither he nor the prefer led creditors were under any legal duty to the mortgagor to carry out the agreement. And whatever right of action accrued from the course puisued by them, accrued to the creditors and not to Mrs. Harrison.

Judgment of the circuit court reversed, and that of the common pleas affirmed.