author: Gilmore, C. J. White, J.

text:
    Westlake v. Westlake.
    1. A wife may maintain an action for the loss of the society and companionship of her husband, against one who wrongfully induces and procures her husband to abandon or send her away.
    2. In such an action, the declarations of the husband, made in the absence-of the defendant, as to the cause of his abandoning or putting his wife-away are inadmissible.
    3. The acts of the defendant that caused the alleged- injury must have been malicious. "
    Error reserved in the District Court of Jackson county..
    The original petition is as follows :
    “ The plaintiff, Casander Westlake, for her cause of action, complains of said defendants for that said Welling B. Westlake is the son of said Joseph Westlake, and that she was’married to said defendant, Welling B. Westlake, on the 17th day of September, A. D. 1867, in Jackson county,. Ohio, and ever since has been and now is his lawful wife.. 'That on the 21st day of October, A. d. 1873, at said county, •.said Welling B. Westlake was the husband of said plaintiff, and the said Joseph Westlake, well knowing the same, on said 21st day of October, a. ». 1873, and on divers other days and times prior thereto, wrongfully, unlawfully, and maliciously, without any just cause or provocation therefor, in order and for the express purpose of enticing and procuring the said Welling B. Westlake, her said husband, to become alienated in feeling and affection for and disgusted at and with the plaintiff, as his wife, wickedly, willfully, and maliciously spoke of and concerning her, said plaintiff, to her said husband and divers good people, and •cause to be circulated and told to her said husband, for the purposes aforesaid, divers false, scandalous, and defamatory words of and concerning her, the said plaintiff, expressly in order to procure and cause said Welling B. West-lake to believe his said wife was an unchaste woman, and to cause him to become alienated from her and despise and .refuse to live with her, and to induce said Welling B. Westlake to drive and banish her, said plaintiff, from the home, society, and companionship of her said husband, and -.in order to further procure and induce her said husband to •become alienated from her, and drive and banish her from the home and companionship of her said husband, the .said Joseph Westlake promised and proposed to reward the said Welling B. Westlake with property and money if he would expel and drive her, said plaintiff, from his home and companionship ; and the plaintiff further avers that by reason of the false, scandalous, and defamatory words spoken and circulated as aforesaid, by said Joseph Westlake, of and concerning her, this plaintiff, and by reason of the promise of reward by him made to said Welling B. Westlake, and causing the same to be believed .and relied on by her said husband for the purposes afore-said, caused the said Welling B. Westlake to become so ■•alienated and disaffected from and toward this plaintiff as his wife, that the said Welling B. Westlake, on said 21st •day of October, a. d. 1873, against the will and consent of this plaintiff, caused her, this plaintiff, to be removed from the home, society, and companionship of her said husband, .and then and there, by reason of the said conduct and sayings of said Joseph Westlake, the said Welling B. West-lake, against the plaintiff’s will and without her consent, but in compliance with the request, orders, and commands of said defendant, Joseph Westlake, did take said plaintiff, with a small amount of personal property, into a wagon, .and hauled her and said property to the distance of seven miles, and there unloaded and deposited her and said property into a small tenement house on the land of T. C. Mitchell, and from thence, hitherto by reason of the conduct and sayings of said Joseph Westlake, refuses to permit her, said plaintiff, to return to him, said Welling B. Westlake, and cohabit with him as his wife, and refuses to provide for and support her, or to contribute anything toward her support, although said plaintiff has since repeatedly applied to said Welling B. Westlake personally to permit her to return to him as his wife, and to live with him as such. She' further avers that said Welling B. Westlake, •her husband, has no just or other cause to refuse to receive her back as his wife, than the false and slanderous sayings ■and unlawful doings of said defendant, Joseph Westlake.-
    “ She further avers she is damaged by reason of the premises by said defendant, Joseph Westlake, in the sum ■of five thousand dollars.
    “ She further says her said husband, Welling B. West-lake, ever since said Joseph Westlake induced her said husband to cause and compel the said plaintiff to leave and be taken away from her said husband, as above averred, the said Welling B. Westlake is unkind to and unfriendly with the plaintiff, and refuses and is unwilling to join with her in this action as plaintiff' against said Joseph Westlake, and plaintiff therefore makes her said husband party defendant with said Joseph Westlake in this action.
    “Plaintiff’ therefore asks judgment by reason of the premises against said defendant, Joseph Westlake, for her damages so as aforesaid averred and sustained, to wit., for five thousand dollars and for costs.”
    The defense was a general denial of the facts stated in the petition. There was a verdict for the plaintiff for $1,700.
    The defendant moved for a new trial on the grounds, among others: 1. That the petition does not state facts-sufficient to constitute a cause of action. 2. That the coux-t ex-red in admitting the admissions of the husband made to-divers persons, in the absence of the defendant, that he was compelled to separate for a time from his wife because-of the interfei-ence of the defendant, Joseph Westlake. 3. That the court erred in i-efusiug to charge the jury as-requested by the defendant.
    This motion was overruled, to which the defendant excepted.
    On the trial the defendant took a bill of exceptions setting out all the evidence, from which it appears that the plaintiff, against the objection of the defendant, was pei-rnitted to prove, by several witnesses, declarations of the husband, made in the absence of the defendant, to the-effect that the old man (Joseph) was doing all he could to-separate them (husband and wife), to which exceptions-were saved.
    It further appears, that the defendant requested the-court to charge the jury as follows: “ If you find that the-defendant, Joseph Westlake, caused the separation, yet you shall not render a verdict for the plaintiff unless you find the defendant maliciously caused the separation.” Which charge the court refused to give, and the defendant excepted.
    Judgment was rendered on the verdict, to reverse which-the plaintiff in error, Joseph Westlake, instituted these-proceedings.

      O. F. Moore and J. Z. Jones, for plaintiff in ei-ror:
    At common law a married woman could not maintain this action. Pomeroy on R. & R., § 191 et seq.; 20 Ohio-St. 128. Nor does the code permit it. Code, § 28, as amended March 30, 1874 (71 Ohio L. 47). The petition must show, upon its face, a right of action in favor of the plaintiff. 13 Ohio St. 72; 17 Ohio St. 323; 26 Ohio St. 425 ; Code, § 87.
    There can be no recovery, by the wife against her hushand for the wrong complained of. Pomeroy on Remedies, § 240; Bigelow L. C. on Torts, 306; Clark v. Harlan, 1 Cin. S. C. 418.
    On the question of evidence, as applicable to this case, see 13 Ohio St. 1. .
    If, in any event, this action can be maintained, it must be because the conduct of defendant was malicious. Lamley v. Gye, Bigelow’s L. C. on Torts, 306.

      Levi Dung an and James Tripp, for defendant in error:
    The action is maintainable under the code. Code, § 28 (68 Ohio L. 48), and as amended, 71 Ohio L. 47; Phillips v. Graves, 20 Ohio St. 378; 13 Kansas, 112; 63 Ill. 432; 46 Mo. 48; 32 Ill. 493; 48 Ala. 229.
   Gilmore, C. J.

The objection, that the original petition does not state facts sufficient to constitute a cause of action raises the question : Can a wife maintain an action, in her own name, for the loss of the society and companionship of her husband, against one who wrongfully induces her husband to abandon or send her away ?

In answering this question, in view of the legislation of our own state on the subject of the rights of married women, it becomes necessary, not only to look to the doctrine of the common law on the subject, but also to examine the reasons upon which its doctrines rest.

In the early period of English jurisprudence, the personal and marital rights of wives were, in some respects, exclusively cognizable in the spiritual courts, and, in other respects, as far as they wrere recognized at all, in the courts of common law.'

The common law considers marriage in no other light than a civil contract, some of the incidents of which will be mentioned- hereafter. But the holiness of the matrimonial state is left entirely to the ecclesiastical law; the temporal courts not having to consider unlawful marriage as sinful, but merely as a civil inconvenience. The punishment, therefore, or annulling of incestuous or other unscriptural marriages, is the province of the spiritual courts which act fro salute ánimos. I Black. 432.

The spiritual courts also had cognizance of matrimonial causes or injuries respecting the rights of marriage. Sir W. Blackstone enumerates five of such causes, the third of which is: “ The suit for restitution of conjugal rights, which is brought whenever either the husband or wife is guilty of the injury of subtraction, or lives separate from the other without any sufficient reason, in which case the ecclesiastical jurisdiction will compel them to come together again.” 3 Black. 94. “ In the civil law the husband and wife are considered as two distinct persons, and may have separate estates, contracts, debts, and injuries, and therefore, in our ecclesiastical courts, a woman may sue and be sued without her husband.” 1 Black. 444.

It is unnecessary to inquire into the extent to which a wife could obtain redress for injuries to her personal or martial rights in the spiritual courts. The above quotations are made for the purpose of showing that while it may be doubtful, in view of a recent discussion of the subject, that will be noticed below, whether the common law regards the right of the wife to the consortium of her husband, as of such a nature that pecuniary damages can be given her for being wrongfully deprived of it; yet in a jurisdiction that was exercised concurrently with that of the common law, the x-ights of the wife in these respects were x’ecogixized and x-edressed when injured. The fact, that instead of giving her damages for the loss of .the consortium of her husband, the spii’itual eoui’ts restored to her the thing itself, makes no difference in 'the principle involved. -It -is a distinct recognition of the rights of the wife in this respect, by the ecclesiastical law of England, which was founded on the principles of the civil law. But at common law the husband and wife are one person, that is, the very existence of the woman, together with all her personal rights, are suspended during the marriage, or at least are incorporated and consolidated into that of the husband ; and upon this principle, of a union in person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. By the marriage, the husband acquires an absolute title to all the personal property of the wife, and a right to reduce her choses in action to possession, and thereby make them his own; also he becomes entitled to her labor and sendees or the proceeds of it, for which latter he may sue in his own name. An injury to the wife is in legal contemplation an injury to the husband only. Eor a slight battery of the wife, the husband may recover damages, but for this he must join his wife in the action. If, however, she is beaten so enormously, that the husband is thereby deprived for any time of her company and assistance, the law then gives him an action in his owii name for this beating, per quod consortium amisit, in which he shall recover a satisfaction in damages. 1 Black. 442; 3 lb. 139, 140.

By comparison the difference between the civil law as administered in the spiritual courts, and the common law as administered in the temporal courts, in respect to the personal and marital rights of the husband and wife, is. plainly apparent. In the former they are regarded as distinct persons, and the wife could have her injuries, of which those courts had jurisdiction, redressed in her own name; while in the latter, they are regarded as one person — the husband, whose name must always be used either jointly with the wife, or alone for the redress of injuries to the person or personal rights of the wife.

If, in this state, the common law dominion of the husband over the property and personal rights of the wife has been taken away from him and conferred upon her, and remedies in accordance with the spirit of the civil law have been, expressly given to the wife for the redress of injuries to her person, property, and personal rights, all of which I hope to show has been done, then it must follow that she may maintain an action in her own name for the loss of the consortium of her husband against one who wrongfully deprives her of it, unless the consortium of her husband is not one of her personal rights. It has been already shown that this was one of her ecclesiastical law rights; and I have said that it is doubtful whether it is one of her common-law rights. But before coming to the case in which tb e latter question is discussed, I will recur briefly to the ecclesiastical law. The spiritual courts also had jurisdiction of defamations. In Palmer v. Thorpe, 4 Coke, 19, it is said: “ Touching defamations determinable in the ecclesiastical court, it was resolved that such defamations ought to have three incidents,” the first of which is, “that it concerns matters merely spiritual and determinable in the ecclesiastical court, as for calling him 11 heretic, schismatic, adulterer, fornicator, etc.’ ”

And it was in consequence of such defamations being regarded as matters merely spiritual, of which the spiritual courts had jurisdiction, that the temporal courts held such words as those above quoted not actionable per se; for, if they were actionable in both the spiritual and temporal courts, then a party could be twice punished for the same words. Byron v. Emes, 12 Mod. 106; 2 Salkeld, 694. And here we have the reason why words imputing a want of chastity to a modest matron or a pure virgin, however publicly spoken, were not actionable at common law, without an allegation of special damage.

And here the test question under this rule of the common law may be asked : In an action of slander, brought by a wife, the husband being joined for conformity, will the loss of the consortium of her husband, in consequence of the speaking of slanderous words concerning her, constitute special damage, for which the action will lie ?

This question was very fully discussed and considered in Lynch v. Knight and wife, 9 H. of L. 577. This was an action brought by a wife, her husband being joined as plaintiff for conformity, against L., for a slander uttered by him to her husband, imputing to her that she had been “ all but seduced by M. before her marriage, and that her husband ought not to suffer M. to visit at his house;” and the special damage alleged was that, in consequence of the slander, the husband had compelled her to leave his house and return to her father, whereby she lost the consortium of her husband. It was held that the cause of the complaint thus set forth would not sustain the action, inasmuch as the special damage relied upon did not arise from the natural and probable effect of the words spoken by the defendant, but from the precipitation or idiosyncrasy of the husband in dismissing his wife from his house, when he was only cautioned not to let her mix in society.

But Lord Campbell was of the opinion that a wife can maintain an action against a third person for words occasioning to her the loss of the consortium, of her husband; and that had the words contained a direct charge of adultery against the wife, he should have thought the allegation of special damage sufficient to support the action. In which view Lord Cranworth was strongly inclined to concur.

Lord Campbell further said: “Although this is a case of the first impression, if it can be shown that there is presented to us a concurrence of loss and injury from the act complained of, we are bound to say that this action lies. Nor can I allow that the loss of consortium, or conjugal society, can give a cause of action to the husband alone. If the special damage alleged to arise from the speaking of slanderous words, not actionable in themselves, result in pecuniary loss, it is a loss only to the husband; and although it may be the loss of the personal earnings of the wife living separate from her husband, she can not join in the action. But the loss of conjugal society is not a pecuniary loss; though I think it may be a loss which the law may recognize to the wife as well as to the husband.”

In the same case, Lord Wensleydale stated that he had considerable doubt upon the point, but that he had made up his mind that the action would not lie. He said: “It is contended that it may be supported by analogy to the action which the husband may unquestionably maintain for an injury to the wife, per quod consortium amisit. I agree with Laron Eitzgerald, that the benefit which the husband has in the consortium of the wife, is of a different character from that which the wife has in the consortium of the husband. The relation of husband and wife is in most respects entirely dissimilar from that of the master to the servant, yet, in one respect, it has a similar character. The assistance of the wife in the conduct of the household of the' husband, and in the education of the children, resembles the service of a hired domestic, tutor, or governess; is of material value, capable of being estimated in money, and the loss of it may form the proper subject of an action, the amount of compensation varying with the position of the parties. This property is wanting in none. It is to the protection of such material interests that the law chiefly attends.”

This case bears more directly upon the question under consideration than any other English case of which I am aware; for, if the loss of the consortium of the husband is sufficient to constitute special damage, for which an action of slander would lie at common law, it seems to me that there can be no doubt that, under our statute, such loss will constitute a good cause of action in favor of the wife, directly against one who wrongfully causes the loss; and while the discussion leaves the question in doubt at common law, the grounds upon which the judges differ are clearly indicated.

If the husband can maintain an action for the loss of'the consortium of the wife, then it seems to me that Lord Campbell is clearly right, when he says that he can not allow the action, for this cause, to the husband alone, and that the loss of conjugal society, though not pecuniary, is a loss which the law may recognize to the wife as well as to the husband.

To avoid the force of this proposition, the language of Lord Wensleydaleis open to the inference that the husband can not maintain an action for the loss of the consortium of ,he wife alone, and that it is the loss of her services, which are of material value, and not the loss of her society, which is of no pecuniary value, that constitutes the gist of the action which the husband may maintain for an injury to the wife; but when the action is well brought for loss of services, it is further to be inferred that the jury may, as they always do, give damages, varying with the position of the parties, commensurate with the real injury, including the loss of consortium.

This unsatisfactory state of the common law in reference to the rights of the wife, is, I apprehend, partly owing to the subject being cognizable in two jurisdictions, and partly to the common-law unity of person in husband and wife, and the legal incidents that flow from this unity, both of which were noticed above.

Having shown the doubtful aspect of this question at common law, it will be my object now to show that the reasons that gave rise to those doubts, either never existed in this state, or that they have been swept away by legislation.

In the first place, the subject of marriage and marital rights has never been cognizable in two independent jurisdictions in this state; hence, in defamations, there was no danger of a person being twice punished for the same words; and, consequently, it has long been the 'settled law of this state, that words imputing a want of chastity to a woman, married or single, are, per se, actionable. Sexton v. Todd, Wright, 317 ; Watson v. Trask, 6 Ohio, 532; Reynolds v. Tucker, 6 Ohio St. 516.

In this respect, therefore, the law of this state has never been in accord with the common law.

Neither could a suit for restitution of marital rights ever have been maintained in any of the courts of this state, as it could in the ecclesiastical courts of England; and, hence, none of the embarrassments that grew out of two jurisdictions having cognizance of different branches of the same subject-matter, have ever existed here. With us, as shown below, whatever rights, legal or equitable, are recognized to the wife, she may defend when. threatened, or redress when injured, by actions in her own name.

In the next place, let it be admitted that, at common law, Lord Wensleydale is correct in saying that the benefit which the husband has in the consortium of the wife, is of a different character from that which the wife has in the consortium of the husband; and that the difference consists in the fact that the wife in some respects resembles a hired domestic, to whose services the husband is entitled in his own right; let us see if this doctrine of the common law has not been overthrown by the legislation of this state.

JBy the act of 1861, S. & S. 389: “All personal property, including rights in action, belonging to any woman at her marriage, or which may have come to her during coverture by gift, bequest, or inheritance, or by purchase with her separate money or means, or be due as the wages of her separate labor, or have, grown out of a violation of any of her personal rights, shall, together with all income, increase, and profit thereof, be and remain her separate property, and under her sole control.

Section 28 of the civil code, as amended March 30, 1874, provides as follows: “ Where a married woman is a party, her husband must be joined with her, except when the action concerns her separate property, or is upon a written obligation, contract, or agreement signed by her, or is brought by her to set aside a deed or will, or if she be engaged as owner or partner in any mercantile business, and the cause of action grows out of or concerns such business, or is between her and her husband, she may sue or be sued alone, . . . But in no case shall she be required to prosecute or defend by her next friend.”

This legislation, in effect, abolishes the common law unity of person in husband and wife, so far as that 'unity is represented solely by the husband, and in its stead introduces a rule analogous to that of the civil law, by which the wife is so far regarded as a distinct person, that she may have her separate property, contracts, credits, debts, and injuries growing out of a violation of any of her personal rights, all of which shall be and remain under her sole control; and in matters concerning them, or any of them, she may sue or be sued alone. Even the wages due for the wife’s separate labor, which are of material value, capable of being estimated in money, and to which the common law chiefly attends in giving the husband an action for an injury to the wife, by reason of which he lost her services, has been taken from the husband and given to the wife; not only this, but she may sue for such wages, and also for such injury, in her own name, and the husband can not, without her consent, acquire any interest in either.

Consequently, in this respect at least, under our legislation, the benefit which the wife has in the consortium of the husband is equal to that which the husband has in the consortium of the wife. If, at common law, the husband could maintain an action for the loss of the consortium of the wife, I can see no reason why, under our law, the wife can not maintain an action for the loss of the consortium of the husband. And if it be said that it was the loss of the services of the wife, that constituted the gist of the husband’s action in such cases, it is a sufficient answer to it to say, that the reasons upon which this rule of the common law rested, either never existed or have ceased to exist in this state.

In Clark v. Harlan, 1 Cin. Sup. Ct. R. 418, it is held that the wife may maintain an action for the loss of the conjugal society of the husband.

In Cooley on Torts, 227, in a note referring to Lynch v. Knight, supra, the learned author closes by saying: “We see no reason why such an action should not be supported, where by statute the wife is allowed, for her own benefit, to sue for personal wrongs suffered by her.”

Is the right of the wife to the consortium of the husband one of her personal rights ? If it is, then the statute makes the right of action growing out of an injury to the right, the separate property of the wife, for which the code gives her a right to sue in her own name. Before marriage the man and woman are endowed with the same personal rights. If under no disability, each is competent to contract. When the agreement to marry is entered into, but before its consummation, each has the same interest in it, and either may sue for a breach of it by the other. In this state, neither the husband nor wife unconditionally surrenders their personal rights by consummating the contract of marriage. On the contrary, each acquires a personal as well as legal right to the conjugal society of the other, for the loss of which either may sue separately.

A majority of the court are of the opinion that there is a good cause of action stated in the petition.

2. Bid the court err in admitting the declaration of the husband, made in the absence of the defendant, to the effect that the defendant .was doing all he could to bring about a separation between the plaintiff and her husband? We think it did. This was clearly hearsay testimony, and nothing else.

In an action for enticing away the plaintiff’s wife, the declarations of - the wife are not admissible in evidence. Winsmore v. Greenbank, Willes, 571.

The confessions of the wife, in an action by the husband against her seducer, are not evidence against the defendant, Bull. N. P. 28.

So, in an action against a third party for inducing the plaintiff’s husband to send her away, the declarations of the husband, made in the absence of the defendant, are not admissible in evidence.

3. Bid the court err in refusing to charge that, to entitle the plaintiff to recover, the defendant must have maliciously caused the separation of the husband and wife ?

This charge ought to have been given. The term malice, as applied to torts, does not necessarily mean that which must proceed from a spiteful, malignant, or revengeful disposition, but a conduct injurious to another, though proceeding from an ill-regulated mind, not sufficiently cautious before it occasions an injury to another. 11 Serg. & R. 39. 40. If the conduct of the defendant was unjustifiable and actually caused the injury complained of by the plaintiff, which was a question for the jury, malice in law would be implied from such conduct, and the court should have so charged.

Eor error in admitting the declarations of the husband, and in refusing to charge as requested, the judgment must be reversed, and the cause remanded to the court of common pleas for a new trial.

Judgment accordingly.

White, J.

I concur in the reversal of the judgment in this case; but, in my opinion, the petition does not show a cause of action. The grounds of this opinion I will endeavor to briefly state.

1. The act of April 3, 1861, “ concerning the rights and liabilities of married women” (S. & S. 389), does not create a cause of action in right of the wife, where none existed before, but merely declares that rights in action, which “ have grown out of the violation of any of her personal rights, shall . . . ' be and remain her separate property, and under her sole control.” It was not the object of the statute to create new liabilities against third persons in favor of the wife, but "to prescribe what property and rights in action should, as between the husband and wife, be the separate property of the wife. What constitutes her personal rights, or a right in action for their violation, is left to be determined by the common law. At common law, the wife had no such right as is recognized in this case. 2 Sharswood’s Black- Comm. 142*, 143.

Eor the violation of every common-law right, there was a common-law remedy ; and no action that could not have been maintained jointly by the husband and wife, for the violation of the personal rights of the wife, before the statute was passed, could be maintained after the passage of the statute. That act did not change the common-law right or the common-law remedy, but merely declared the right which was the subject of the action, to be the separate property of the wife. By section 28 of the code, as amended, she was authorized to sue in her own name; but that section does not create a cause of action where none existed before. It was merely intended to prescribe the cases in which she may sue and be sued alone. Allison & Townsley v. Porter, 29 Ohio St. 136.

2. The decision in Lynch v. Knight, 9 H. L. 577, does not support the holding of the majority of the court in the present case. In England, as in most of the states, words imputing want of chastity to a woman are not actionable, unless they occasion special damage. In Lynch v. Knight, the chancellor, Lord Campbell, and the lords concurring with him, were of the opinion that where the other necessary facts existed to constitute a cause of action, in right of the wife, the loss of the consortium, or conjugal society of the husband, would constitute the grounds of special damages, although not of a pecuniary nature. There is no intimation that there could be a cause of action in right of the wife, when there could be no recovery in a joint action by the husband and wife. On the contrary, it is apparent from the opinions that if there could be no joint recovery, there would be no cause of action. On page 590, Lord Campbell says : “ I place no reliance on the objection that, in a case like the present, the imputation cast on the wife being false, the act of the husband in separating from her is wrongful, and therefore he can not join as plaintiff in an action, the foundation of which is his own wrongful act. If his dismissal of the wife from his house would have been reasonably justifiable, had the words been true, and this act was a natural, probable, and direct consequence of the imputation, I do not think the defendant could avail himself of the objection of the imputation being false, he having intended the husband to believe that it was ti-ue, and having intended the husband to act upon it.” And on page 591 he says: “ Had those words contained a charge of adultery by the wife, which the defendant pretended to know, and which he asserted as a fact, I should have thought the allegation of special damage sufficient to support the action. In that case, the husband believing the charge to be true, would have been justified in separating from his wife, and this separation would have been the natural and direct and probable consequence of the slander.” To the same effect is the language of Lord Cranworth on page 596.

In the present case the alleged slanderous words are not set out in the petition. Hence it does not appear whether they imputed want of chastity to the plaintiff or not, or whether they were of such a character as, if true, would have justified her husband in separating from her. If the words imputed want of chastity to the plaintiff, they would, in this state, have been actionable in themselves, and would have supported an action by the husband and wife; or, under section 28 of the code, the plaintiff might have sued alone.

The averment in the petition that the defendant promised to reward the husband with money and property, if he would expel the plaintiff from his house and companionship, constitutes no cause of action. It was his duty not to accept the promise or act upon it, and, if he did either, it would he his own voluntary wrongful act, and would defeat any action in which he was required to join as plaintiff.

The rule of the common law that requires an action for an injury to the wife, to be prosecuted in both the name of the husband and wife, was not merely remedial in its nature. It defined the rights of the wife, as well as prescribed the remedy for their violation; and grew out of the structure of the common law as a system of rights and remedies.

3. Whether the petition shows a cause of action or not, is to be determined by the common law as modified by our legislation. The ecclesiastical law of England, was no part of the common law, and has never been adopted here. The contract of marriage is regarded by the common law as a civil contract merely, and the relation of marriage as a civil relation; and over civil rights and remedies the spiritual courts .had no jurisdiction. The only pecuniary causes, cognizable in these courts, were such as arose either from withholding ecclesiastical dues, or the doing or neglecting some act relating to the church; and the only process of enforcing their sentences was by excommunication. With due deference, I must be allowed to say that, it seems to me, the jurisdiction exercised by the ecclesiastical courts has no bearing on the question, whether such jurisdiction was exercised for the restitution of conjugal rights, or to create them by compelling the parties to celebrate a marriage in pursuance of their contract, both of which were within their jurisdiction.

Okey, J., concurs in the foregoing opinion of White, J.


source: Caselaw Access Project

author: McIlvaine, J.

license: Public Domain

text:
    The City of Tiffin v. McCormack et al.
    1. Where the owner of a stone quarry, by blasting with gunpowder, destroys the buildings'of an adjoining land owner, it is no defense to show that ordinary care was exercised in the manner in which the quarry was worked.
    2. The owner of a stone quarry hired a person “to go into the quarry, quarry stone therein, break the same to a certain size, and pile them up so they can be measured,” and “had no other or further control” over the employe, who was “to furnish and find the gunpowder and other tools,” and receive compensation at the rate of $1 per perch; and the employe, by blasting with gunpowder, destroyed the buildings of an adjoining proprietor: Held, that the employer is liable for the injury inflicted by the employe.
    Error to the District Court of Seneca county.
    The original action was brought by defendants in error against plaintiff in error, in the Court of Common Pleas of Seneca county. The plaintiffs, in their petition, alleged that, previous to the injury complained of, they were the owners of a certain lot of land in the city of Tiffin, together with the dwelling-house, barn, stable, fruit and ornamental trees thereon. And they further alleged as follows:

      “ That, at said time, the said defendant, the city of Tiffin, which was then, and is now, a municipal corporation, duly organized under the laws of the State of Ohio, was the owner and had the use and possession of a certain lot of land immediately west of the lands and tenements of the said plaintiffs, and adjoining and contiguous thereto. That said premises of the said defendant were used, possessed, and occupied by the defendant, and for the purpose of a stone quarry. That on or about the first day of August, A. n. 1872, the said defendant, by its agents or employes, did •intentionally, carelessly, and negligently blast stone in its said stone quarry, with powder, whereby fire was thrown upon the barn of said plaintiffs, situated as aforesaid, by which the said barn, together with the hay and food contained therein, were entirely consumed by fire, to the damage of the said plaintiffs five hundred dollars. Also a large number of fruit and ornamental trees situated on said premises, belonging to said plaintiffs, were consumed by said fire, caused by the said defendants as aforesaid, to the damage of the said plaintiffs two hundred dollars. That the said plaintiffs, on account of the said acts and negligence of the said defendant, did sustain still further loss by said fire, to their said property, in all amounting to the sum of eight hundred dollars.”
    And prayed for judgment. The defendant, for answer, denied “ that the defendant, by its agents or employes, intentionally, carelessly, or negligently blasted stone in its ' said stone quarry, or that the defendant, or any person, by blasting stone in said stone quarry, caused the buildings or trees of the plaintiffs to be consumed or injured by fire.”
    It also said: “ That the persons engaged, at the time alleged in said petition, in blasting stone in said quarry, if any persons were then so engaged, were not, nor was any one of them, the agent or employe of the defendant.”
    On the trial, a verdict and judgment were rendered in favor of the plaintiffs, whereupon the following bill of exceptions was taken:
    “ Be it remembered that upon the trial of this cause by a jury in said court pf the February term thereof, 1874, the plaintiffs, to maintain the issues upon their part, offered and gave evidence tending to prove that one Joseph Ardner, on the day the building and other property mentioned in the petition was burned, was engaged in blasting stone in a stone-quarry near to the building so burned, and tending to prove that said building and other property was burned by fire communicated by the operations of said Ardner in blasting stone in said quarry, and also proved that said Ardner was quarrying stone for the defendant in a stone-quarry belonging to the defendant, which stone were to be broken-by said Ardner, and to be used by the defendant in improving or repairing its streets.
    “And thereupon the said defendant, the city of Tiffin, to maintain the issues on its part, proved that, upon the occasion mentioned and referred to in the petition of the said plaintiffs herein, and in their said testimony, it had hired or engaged the said Ardner to go into its said stone-quarry, quarry stone therein, break the same to a certain specified size, pile them up in said quarry, so that they could be measured, and to furnish and find the powder and tools for said work — all for and at the agreed price of one dollar for each and every perch as measured in said quarry.
    “ That it had no other or further control over said Ardner in said work.
    “And that the said stone so quarried, broken, and piled up by said Ardner, in said quarry, under said engagement, was for improving the streets of the said defendant.
    “ The defendant thereupon requested the court to charge and instruct the jury — ■
    “ That if Mr. Ardner quarried this stone and broke it to a certain size under an agreement with the city of Tiffin, to get a certain price a perch for the quantity of stone so broken and quarried, aud if under his agreement with the city he was to manage the work in his own way, and the city did not reserve the right to control and direct him in said work, and the mode and manner of doing it, further than to require said stone to be broken to a certain size and so piled up as to be measured, then and in that case he would not be the agent or servant of the city, and if not such agent or servant, then the city would not be liable for any injury resulting from the mode and manner of doing the work, or the means used in its performance. "Which charge and instruction the court refused to give to the jury, and the same was not given.
    “ But the court did thereupon charge the jury, that if the said property of the said plaintiffs was burned and damaged by fire communicated to it by said Ardner in his blasting the said stone in said quarry, under the said engagement proven by the said defendant, then the plaintiffs were entitled to their verdict for the value of their property so burned and damaged.
    “ To which refusal to charge as requested, and to which said charge as given, the said defendant then and there excepted, and presented this, his bill of exceptions, asked that the same be signed, sealed, and filed, and ordered to be made a part of the record in this case. All -of which is done accordingly.”
    On error in the district court, the judgment of the common pleas was affirmed. It is now assigned for error, that the district court erred in affirming the judgment of the common pleas, and that the court of common pleas erred in its charge to the jury.

      John McCauley and A. Lanclon, for plaintiff in error:
    As to the rule' respondeat superior, see Clark v. Fry, 8 Ohio, 358; Cincinnati v. Stone, 5 Ohio St. 38; 1 Parsons on Contracts (5th ed.), 102-104; Dillon on Mnn. Corp., §§ 772, 773; 19 Am. Rep. 267; 1 Parsons’ Contracts, 108; 2 Mich. 368 ; 2 Met. 363; 16 Wall. 566. We claim the rule-does not apply to the city.

      George W. Bachman and N. L. Brewer, for defendants in-error :
    The city is liable, under the rule of respondeat superior. 12 Wheat. 40; Carman v. Railroad, 4 Ohio St. 309; 10 Ohio, 169 ; 15 Ohio, 474; Lowell v. Railroad, 23 Pick. 24; Hay v. Davidson, 13 Minn. 523; Stone v. Railroad, 19 N. H. 427.
   McIlvaine, J.

It is claimed, by plaintiff in error, that the relation shown to have existed between'the city and Ardner was that of employer and independent contractor, from which no liability falls upon the employer on account of the manner in which the employment is prosecuted, the rule being, in such case, that the contractor is alone responsible for an injury inflicted upon third persons by reasou of his wrongful act.

We concede the general rule of law to be that an independent contractor is alone responsible for an injury inflicted by him upon third persons, and that his employer is not within the principle upon which the doctrine of respondeat superior rests. Yet, it is equally certain, that the employer is also liable for the wrongful act of the contractor under circumstances which show that he, as clearly as the contractor, was the author and promoter of the injury. Eor instance, where the prosecution of the work as authorized by him necessarily produces the injury, he, as well as his contractor, is responsible for the damage. McCafferty v. The Railroad Co., 61 N. Y. 178. And again, when the contractor prosecutes his work in the manner authorized by the employer in the express terms of the contract, the employer must be regarded as having assented to, and as procuring the unlawful act to be done, and is, therefore, liable as a joint wrong-doer. Carman v. S. & S. Railroad Co., 4 Ohio St. 399. Within the principle of the case last cited, the liability of the city for the wrongful act of Ardner, although he be considered as an independent contractor, must be affirmed; for it clearly appears, that the work of quarrying stone on the city’s premises, by blasting, was clearly assented to and authorized.

But we are of opinion that the true relation between the city, as proprietor of the stone quarry, and Ardner, was that of master and servant, instead of employer and independent contractor within the principle of the rule above stated. There.was no “job” or defined quantity of work contracted for. The services of Ardner were subject to be determined at the pleasure of either party. The compen-. sation was to be measured by the quantity of labor performed. It appears to us to have been an ordinary contract for work and labor, which creates, between the employer ánd employed, the relation of master and servant, within the meaning of the law in regard to that subject. It is' true that the service, namely, the quarrying of stone in the employer’s quarry, was to be done by the use of powqler and tools furnished by the employe; but this condition in the contract, did not affect the legal relation between the parties. It was significant only as a matter affecting the rate of compensation. And it is also true, that the city ■“ had no other or further control over Ardner in said work.” Whether this language means that the city exercised no other or further control, or that the city contracted with Ardner that it would not exercise any other or further control over the work, makes no difference. If it were a mere failure to exercise control, it was the fault of the city. If it was part of the contract with the servant, that no other or further control should be exercised by the city, it is enough to say that a master can not exonerate himself from responsibility to third persons, which the daw imposes upon him, for injury resulting from the misconduct of his servant, by contracting with the servant that he will not exercise any control over him, and will not, therefore, be-responsible for any injury that he may wrongfully inflict.

It only remains, therefore, to be considered whether the city of Tiffin, if the injury complained of had been inflicted upon the defendant in error, by its own act, would be liable for the damages. That a municipal corporation, as the proprietor of lands, would be responsible for an injury resulting from the use of its own property to an adjacent proprietor, to the same extent as if it were a natural person, is not questioned.

As between tbe owners of adjacent lands, the maxim of the common law, Sic utere tuo ut alienum non Icedas, applies with special force; not because it forbids the exercise of the right of dominion or control of property, according to the pleasure of the owner, in one case more than in another, whether it be real or personal property, or whether it be owned for special or general uses, but because the right to use or control it, according to the pleasure of the owner, is limited under some circumstances more than under others. Undoubtedly, the right to use property as the owner may please, provided that reasonable care is taken not to do unnecessary injury to others, is the ordinary rule. But this rule can not be interposed to justify the committing of a trespass Or the maintaining of a nuisance. A man who digs a pit on his own land, whereby the soil of an adjoining proprietor is disturbed on account of the loss of lateral support, can not justify his act on the ground that ho used reasonable care to prevent the injury. Neither can one in possession of a parcel of land operate and manage a mine or quarry upon it in such manner as to injure or destroy the property of an adjoining proprietor, justify himself by showing that he used ordinary care in the use of his own property. In such eases, the right to use is subject to the limitation that its use will not injure his neighbor. The true doctrine upon this point is well stated in the case of Hay v. The Cohoes Co., 2 Comstock (N. Y.), 159, as follows: “ The use of land by the proprietor is not therefore an absolute right, but qualified and limited by the higher right of others to the lawful possession of their property. To this possession the law prohibits all direct injury, without regard to its extent or the motives of the aggressor. A man may prosecute such business as he chooses upon his premises, but he can not erect a nuisance to the annoyance of the adjoining proprietor, even for the purpose of lawful trade. 9 Coke, 58. He may excavate a canal, but he can not cast the dirt stones upon the land of his neighbor, either by hum an agency or the force of gunpowder. If he can not construct the work without the adoption of such means, he must abandon that mode of using his property or be held responsible for all damages resulting therefrom. He will not be permitted to accomplish a legal object in an unlawful manner.” And in Tremain v. The Cohoes Co., Ib. 168, it was held, that, in such case, evidence to show that the work was done in the most careful manner is inadmissible where there is no claim made for exemplary damages.

Judgment affirmed.


author: Boynton, J.

text:
    Shorten et al. v. Woodrow et al.
    1. The 17th section, as amended February 12,1863 (S. & S. 397), of the act regulating the mode of administering assignments in trust for the benefit of creditors, operates only upon fraudulent transfers, conveyances, and assignments made by the debtor himself.
    2. An insolvent debtor purchased real estate, and, with the fraudulent intent to conceal from his creditors his interest or ownership therein, caused the vendor to convey the premises to a third person, who, at the debtor’s request, conveyed the same to the latter’s wife: Held, 1. That neither of said conveyances falls within the operation of the 17¿h section of the act above referred to. 2. That the wife, in equity, holds the legal title to the premises conveyed, subject to the right of her husband’s creditors to subject the same to the payment of their claims.
    Error to the Superior Court of Cincinnati.
    The original action was brought by Woodrow against Samuel A. Sargent and others to foreclose a mortgage executed by Sargent and wife to Woodrow, on the premises therein described, and to marshal the liens thereon. The amount and priority of all liens were determined and paid, except those which were made the subject of the following special finding of facts:

      “First. That on November 4, 1865,- one Asa Clark, by deed duly executed, conveyed to Thomas N. Drake, in fee simple, the premises in controversy; that the purchase-money was wholly furnished by said Sargent; that Sargent was then largely insolvent, and that the intent with which said purchase-money was furnished and the said convey- / anee so taken in the name of said Drake was on the part of said Sargent to conceal his interest in said premises from his creditors, and to hinder and delay them in the collection of their debts.
    “Second. That said Sargent, upon the execution of said conveyance to said Drake, entered upon the possession of said premises, and afterward occupied, and continued to occupy the same as a residence for himself and family, until July 2, 1868, without accounting or being required by said Drake to account for the use or occupation of the same.
    “Ihird. That on the said 2d day of July,- 1868, said Drake, by direction and at the request of said Sargent, by deed duly executed, conveyed said premises in fee simple to Mary A. Sargent, wife of said Samuel A. Sargent; that no valuable consideration jDassed upon said last-named conveyance, as between said Drake and said Mary A. Sargent, or as between said Mary A. Sargent and said Samuel A. Sargent; and that the said transfer of said title by Drake to Mrs. Sargent was wholly volantary, and made and received by way of gift and settlement by said Samuel A. Sargent to and for the use and benefit of his said wife, which deed of transfer was recorded May 6,1871.

      “Fourth. That on the 12th day of April, 1870, execution was duly levied on said premises, which said execution was duly issued upon a judgment rendered in this court, and still in force and unsatisfied, and in favor of Samuel Grant, and against said Samuel A. Sargent, which judgment was rendered on the 8th day of March, A. d. 1870, for the sum of $1,161.64.

      “Fifth. That on the 27th day of May, 1870, said premises were duly levied on, under an order of attachment issued in an action then pending in this court for the recovery of money, brought by McMillan and wife against said Samuel A. Sargent; that said proceedings have been had, that final judgment therein has been rendei'ed against said Samuel A. Sargent, and that said judgment remains in full force and unsafisfied, and the same orders said attached premises to be sold; the amount and date of said judgment being as stated in the answer and cross-petition of said McMillan and wife.

      “Sixth. That on the 4th day of January, 1872, the said Sargent and wife executed in due form of law a mortgage deed to Samuel Shorten of the premises in controversy to secure the payment of a debt therein mentioned, which said mortgage was recorded on the day last mentioned; that said debt was justly due from said Samuel A. Sargent to the said Shorten, and for the full amount stated in said mortgage; and that at the time of receiving the same the said Shorten did notin fact have notice that said conveyances mentioned in paragraphs numbers first and second of these findings were made or received in the manner and with the purpose and intents therein set forth; but that such debt formed the consideration of said mortgage deed, and the same accrued prior to the execution of said mortgage deed, and that no money or other yaluable consideration was paid by said Shorten at the time of the execution of said mortgage, or on the credit thereof, the amount of said mortgage debt being as set out in answer and cross-petition of said Shorten.
    “ That the deed of July 2,1868, made by Thomas N. Drake to Mary A. Sargent, was made to hinder, delay, and defraud the creditors of the husband, Samuel A. Sargent; that the debt upon which the judgment against Samuel A. Sargent and in favor of Alexander McMillan and wife was rendered arose in the year 1864, before the execution of the deed from the said Clark to the defendant, Drake, of July 2, 1868, and that the defendant, Mary A. Sargent, wife of the defendant, Samuel A. Sargent, remained in possession of the premises described in the petition after July 2,1868, and until they were sold in this cause.
    “And the court do further find, as conclusions of law upon the facts found, that the deed to Mary A. Sargent is void, that the same inures to the benefit of the general creditors of the said Samuel A. Sargent after the payment of the mortgage liens already paid out of the proceeds thereof, and that she was a trustee of said premises for said creditors; that said Alexander McMillan and wife, William S. Grant and Samuel Shorten obtained no lien upon said premises, nor priority over each other or the general creditors of said Samuel A. Sargent.
    “ Wherefore, it is ordered that if no assignee be appointed by the Probate Court of Hamilton county, or-any of the creditors of said Samuel A. Sargent appear within twenty days of the entry hereof, and ask to set up their claims, after first allowing the said Alexander McMillan and wife, William S. Grant and Samuel Shorten their reasonable costs and expenses for obtaining the fund to be distributed, and set up their claims by answer, then the fund to be divided between the said Alexander McMillan and wife, William S. Grant, administrator of Samuel Grant, deceased, and Samuel Shorten, in proportion to the amount of their respective claims.
    “ To which finding and judgment, and to each of the said conclusions of law, the said Alexander McMillan and wife, and the said Samuel Shorten, and the said William S. Grant, administrator of Samuel Grant, deceased, severally excepts.”
    During the pendency of the action, Samuel Grant died, and William S. Grant, his administrator, was made defendant.
    There were $1,500 remaining of the fund to be distributed.
    Shorten filed a petition in error, assigning as error:
    “ That the said superior court, in general term, erred in finding as a conclusion of'law from the facts found that the said Samuel Shorten, by the mortgage made to him by Samuel A. Sargent and wife, dated January 4, 1872, obtained no lieu on the premises described in said mortgage, and no priority over Alexander McMillen and wife, William S. Grant and the general creditors of said Samuel A. Sargeut.”

      McMillen and wife filed a cross-petition in error, assigning :
    “ First. The said court erred in holding that the fund distributed by its judgment was by law to be distributed under and in accordance with the provisions of the seventeenth section of the act entitled “An act regulating the mode of administering assignments in trust for the benefit of creditors, passed April 6, 1859.”
    “ Second. The court erred in finding and declaring that said cross-petitioners in error acquired no lien upon the said fund or the land out of which the same proceeded, under and by virtue of the attachment levied thereon at their suit against Samuel A. Sargent.
    '“ Third. The court erred in not finding and declaring that the lien of these cross-petitioners acquired by their said attachment was the first and best lien upon said fund, and entitled to be first paid in full therefrom.”

      M. S. Williamson, and Dodds § Wilson, for Shorten:
    On the state of facts the question in the case is: Did Shorten, by the mortgage made to him by Sargent and wife, obtain a lien on the premises described in said mortgage prior to the claim of McMillan and wife, Grant, and the general creditors of Sargent ?

      We claim that he did — 1st, on the principle that where the equities are equal, the legal title must prevail; 2d, because he is a bona fide purchaser without notice; 3d, Sargent had a right to prefer Shorten over his other creditors.
    I. Where the equities are equal, the legal title must prevail. Under section 17 of the “ act regulating the mode of administering assignments in trust for the benefit of creditors,” as amended February 12, 1863 ,(S. & S., 327), lands conveyed for the purpose of defrauding creditors inure to the benefit of such creditors, and any one of them, whether his claim be reduced to judgment or not, may bring an action to set aside such conveyance, and have the proceeds of the land applied to the payment of the creditors, as provided in said section. Combs v. Watson, Supreme Court Commission, February 6, 1878.
    Each creditor of Sargent had the equitable right to have the conveyances from Clark to Drake and from Drake to Mrs. Sargent set aside, and the proceeds of the land applied to the payment of the creditors. In that respect the equities of the creditors of Sargent are equal. But Shorten, in addition to having that equity in common with the creditors of Sargent, has obtained the legal title, and that legal title must prevail over the equities of the other creditors. Jamison v. McNally, 21 Ohio St. 295 ; Oliver v. Moore, 26 Ohio St. 298.
    II. Shorten stands in the position of a bona fide purchaser.
    The finding of facts states that Shorten’s mortgages were taken to secure a pre-existing debt from Sargent, and without notice of the fact that the conveyances from Clark to Drake, and from Drake to Mrs. Sargent were fraudulent. As against the other creditors of Sargent, this made Shorten a bona fine purchaser, and his claim superior to that of Grant by execution, or that of McMillan and wife by attachment. Lewis v. Anderson, 20 Ohio St. 281; Bank v. Teetors, 31 Ohio St. 36.
    III. Shorten had a right to take a mortgage from Sargent, and is entitled to the priority thus obtained.
    A creditor of an insolvent debtor may lawfully take from him a mortgage to secure such debt and will be protected in priority thus obtained. Brown v. Webb, 20 Ohio, 389; Fassett v. Traber et al., 20 Ohio, 545; Doremus v. O'Harra, 1 Ohio St. 49, 50; Atkinson et al. v. Tomlinson ct al., 1 Ohio St. 239; Bloom et al. v. Noggle et al., 4 Ohio St. 45.

      G. B. Matthews, for McMillan and wife:
    I. The original conveyance to Drake, vested in him the legal title merely in trust for Sargent, who was the beneficial owner of the equitable estate in fee simple.
    The conveyance by Drake to Mrs. Sargent operated simply to devolve the legal title upon her, leaving Sargent’s equitable estate entirely unaffected. Perry on Trusts, 51; Livingston v. Livingston, 2 Johns Ch. 541; Dickinson v. Davis, 43 N. H. 647; Wallace v. Bowens, 28 Vt. 638.
    II. This equitable estate of Sargent, was subject to the levy and lien of an order of attachment, and became so bound on the 27th day of May, 1870, by the attachment of McMillan and wife. § 191 of the Code, 2 S. & C. 1002; § 221 of the Code, 2 S. & C. 1009; Bond v. Swearingen, 1 Ohio, 395 ; Carty v. Fenstemaker, 14 Ohio St. 457. See also, Armstrong v. McAlpin, 18 Ohio St. 184; Morgan v. Spangler, 20 Ohio St. 38.
    An attachment, issued as a provisional remedy under the code, authorizes the sheriff’*to seize any property which the defendant therein has disposed of in any manner, with intent to defraud his creditors. Rinchey v. Stryker, 28 N. Y. 45 ; Ib. 31 N. Y. 140 ; Sykes v. Keating, 118 Mass. 517.
    The claim of McMillan and wife is not a mere equity. They obtained a specific statutory lien upon the interest of Samuel A. Sargent, which dates from the levy of the attachment. Skinner v. Oettinger, 14 Abb. Pr. 109 N. Y.
    III. We claim priority to Grant because he obtained no lien by his judgment and levy. Morris v. Way, 16 Ohio, 469.
    IY. We claim priority over the general creditors, for the reason that the transaction disclosed here does not bring the ease within the operation of the seventeenth section of the act regulating the mode of administering assignments; for here there was no transfer or conveyance by Sargent to hinder, delay, or defraud creditors, as in Conrad & Bro. v. Pancoast, 11 Ohio St. 685 ; Stanton v. Keyes, 14 Ohio St. 443; Thomas v. Talmadge, 16 Ohio St. 437; Jamison v. McNally, 21 Ohio St. 295. But it is governed by the principle of Fowler v. Trebein, 16 Ohio St. 493.
    Sargent concealed his property, but the statute was aimed at one class of frauds, namely, that of a conveyance or transfer by the debtor himself of his title, legal and equitable, so as to be effectual as against himself.

      Collins <f* Herron, for Grant:
    Did Grant’s levy effect a lien in Ms favor? The levy, in point of time, was prior to the seizure in attachment in favor of McMillan, and also prior to the mortgage made by Sargent and wife to Shorten. Shorten had, therefore, at least constructive notice of it.
    If Grant had proceeded to sell on his levy, the sheriffs deed would have passed whatever title, possessory and equitable, Sargent had. Boyd v. Longworth, 11 Ohio, 235, 252 ; Oviatt v. Brown, 14 Ohio, 285.
    “ If a judgment debtor is in possession of land, it may be levied upon and sold.” Haynes v. Baker, 5 Ohio St. 255.
    Inasmuch as the finding is, that Sargent caused the title to be placed in Drake, “ to conceal his (Sargent’s) interest in the premises, such deed was fraudulent and a nullity, and a judgment creditor might, notwithstanding, levy his judgment, and cause the land to be sold as Sargent’s, for the satisfaction of his judgment.” Westerman v. Westerman, 25 Ohio St. 510; Gormley v. Potter, 29 Ohio St. 599.
   Boynton, J.

The judgment of the superior court was placed upon the ground that the conveyance from Drake to Mrs. Sargent was void, under section 17, as amended February 12, 1863 (S. & S. 397), of the act regulating the mode of administering assignments in trust for the benefit of creditors, and being so declared, that the fund arising from the sale of the property conveyed to her,inured to the benefit of the creditors of Samuel A. Sargent, to be distributed in accordance with the provisions of that section. It appears from the finding that at the time Clark conveyed the premises to Drake, Sargent was insolvent, and that the object of taking the conveyance in the name of Drake was to conceal Sargent’s interest in the property, and to hinder and delay his creditors in the collection of their debts. The same purpose was found to accompany the conveyance from Drake to Mrs. Sargent. Thomas A. Sargent never held the legal title. The question therefore arises whether section 17 of the act above referred to operates upon conveyances made by a trustee Of the debtor, or is limited in its operation to conveyances made by the debtor himself. That section provides, that “ all transfers, conveyances, or assignments made with intent to hinder, delay, or defraud creditors, shall be declared void at the suit of any creditor, and the probate judge of the proper county, after any such transfer, conveyance, or assignment shall have been declared by a court of competent jurisdiction to have been made with the intent aforesaid, shall, on the application of any creditor, appoint an assignee, according to the provisions of this act, who, upon being duly qualified, shall proceed by due course of law to recover possession of all property so transferred, conveyed, or assigned, and administer the same as in other cases of assignments to trustees for the benefit of creditors.”

It was not the object of this provision of the statute to enlarge the class of transfers or conveyances, which section 2 of the statute of frauds declares “ shall be deemed utterly void and of no effect.” Its purpose was to supply a new remedy to creditors, by authorizing the fraudulent conveyance or transfer to be converted into an assignment at the suit of a creditor, and the fund to be distributed, if the creditors so elect, in the same manner as if the debtor had formally assigned the property conveyed for the equal benefit of all his creditors. But the conveyance, which lays at the foundation of the proceeding, and upon which alone the statute was designed to operate, is the fraudulent conveyance of the debtor himself. It has no - application to a conveyance made by a mere trustee of the legal title, although such conveyance is made at the instance of the cestui que trust or beneficial owner.

It is the same conveyance which the statute of frauds declares utterly void and of no effect, and which, being void, leaves the title, as between him and the creditor, in the fraudulent grantor. The judgment given in the court below, declaring the conveyance of Drake to Mrs. Sargent void, left the legal title in Drake; and if this conveyance was one upon which, the statute operated, so was the one from Clark to Drake ; and if that were set aside, the title would revest in Clark. It does not help the matter to say that, although the conveyance is ineffectual to carry the estate to the grantee, it still is so far valid as'to divest the title of the grantor, and vest it in the assignee to be appointed by the probate court. It may be that no assignee will be appointed. The appointment can be made only upon the application of a creditor, and no application may be made.

It is also true that the court, declaring the conveyance void, may, where no assignee is appointed, proceed to execute the trust and distribute the fund, in accordance with the provisions of the statute. Conrad, v. Pancost, 11 Ohio St. 685. This, however, the parties to the suit may not desire. The fraudulent conveyance having been adjudged void, and the cloud thereby cast on the title of the grantor removed, the creditors attacking the conveyance may be quite content to be left to their remedy by execution. Where this is the case, and the action goes no further, the title remains in the grantor, and the property may be seized and subjected to the payment of his debts, precisely as if no conveyance had been made.

That the statute was designed to operate exclusively upon fraudulent transfers and conveyances made by the debtor himself, is not only clear upon principle, but is well sustained by authority.

In Bump on Fraudulent Conveyances, 262, the author, in commenting on the object of the statute, says: It “ intends simply to guard a creditor from the fraudulent attempt of his debtor to delay, hinder, or defraud him in the recovery of his debt, by disposing of the property which he would have a right to seize as soon as he obtains a judgment.” And, on the exact question involved in the present controversy, the author remarks: “At one time, there was some question whether creditors could reach property which was paid for by the debtor, when the title was fraudulently conveyed by the vendor to another. The statute makes all fraudulent conveyances void; but if such a transfer were void, the title would remain in the grantor, and, consequently, the creditors could not seize the property. Such a contrivance is manifestly not within the provisions of the statute.” Id. 265.

In Gowing v. Rich, 1 Ired. 553, land was purchased by A. , but the title was made to her daughter, B. The land was levied on as the property of A., and the court instructed the jury that if A. bought the land, and placed the title in B. , for the purpose of defeating her creditors in the collection of their debts, the conveyance was within the statute of frauds, and void, and the levy therefore valid.

The reviewing court held the instruction to be erroneous, saying: “ Where the estate was once in the debtor, and has been conveyed by him in trust for himself, the redress of the creditor is plain at law. lie may treat the conveyance as fraudulent, and null ab initio, under the act of 13 Eliz. (Rev. Stat., ch. 50, § 1), and therefore as leaving the legal title in the debtor. But this is invoking a statute which is not applicable to a case like that before us; which is not of a conveyance, by a debtor, of land before owned by her, but that of a purchase by the debtor and a conveyance to a trustee for her. That the statute of Elizabeth does not apply to the case of a purchase by the debtor is clear from the consideration that it operates entirely by making void the assurances within its purview. In this case, that would leave the title in the vendor, which would not serve the plaintiff’s purpose. As has been already mentioned, however, before the statute 29 Charles II, purchases were daily made in England in the name of trustees ; and, though equity found means of paying out of the estate the debts of the person, who, in the view of that court, was the owner, yet the purchase and conveyance to the trustee were never deemed within the statute of Elizabeth, so as to subject the land to a legal judgment and execution.”

The same construction was adopted in Gray v. Faris, 1 Yerg. 155, the court holding, that “ the act declaring every conveyance void, if made with intent to hinder and delay creditors, means creditors of the grantor.”

To test the question of the application of the statute to a case like the present, let it be supposed that Clark, after Sargent was entitled to a conveyance, had retained the legal title at the latter’s request. In' such case, there would have been no'conveyance or transfer of the title for the statute to affect or operate upon. Yet the same relation would have existed between Clark and Sargent that existed between Drake and Sargent, after Drake succeeded to the legal title. Nor were the relation of the creditors of Sargent to the property, and their right in equity to subject it to the payment of their claims against him, in the least affected by a change in the person holding the legal title. Whoever received it by voluntary conveyance, held it subject to the undoubted right of Sargent’s creditors to subject the property to the payment of their debts by the ordinary process afforded by courts of equity, where the remedy at law proves inadequate.

It follows, that the court erred in holding the conveyance from Drake to Mrs. Sargent to be within section 17 of the act regulating the mode of administering assignments in trust for the benefit of creditors, and that McMillan and wife and Shorten obtained no lien upon the premises over the general creditors, and that neither obtaiued any priority over the other.

The conclusion reached by the court below, rendered it unnecessary to determine the priority of liens, and for that reason the findiug of facts may not be as full as it otherwise would have been.

There is no finding respecting Shorten’s knowledge of the attachment lien of McMillan and wife, or of Thomas A. Sargent’s interest in the premises conveyed, at the time he took his mortgage. And, while it is found that the consideration of Shorten’s mortgage was a pre-existing debt, and that no money or other valuable consideration was paid, we are left in doubt whether an extension of time for the payment of such debt formed any part of the-consideration of the mortgage deed. And without any intimation as to the effect of such facts, or the want of them,, we think the question involved between the parties claiming the fund to be distributed, can be better determined: when the same are ascertained.

Judgment reversed and cause remanded.