text:
    Insurance Company v. Leslie.

      Fire insurance — Sections 3643 and 3644, Bevised Statutes, construed.

    1. The act of March 5, 1879, “to regulate contracts of insurance of buildings and structures,” (now sections 3643 and 3644 of the Revised Statutes,) applies to all policies issued since it went into effect, insuring any building or structure in this state, against loss or damage by fire. The neglect or omission of the company’s agent to make the examination of the property and fix its insurable value, as the statute requires, cannot prevent its application to a policy issued by the company, or defeat or affect the operation of the statute.
    2. The statute is founded upon considerations of public policy; its purpose being, to exact diligence and care on the part of insurance companies to avoid improper risks and over insurance, .by requiring them to cause their agents to make personal examination of the property, a full description thereof, and fix its insurable value, as well as to protect the insured against unreasonable forfeitures and defenses. The more effectually to accomplish these results, the statute holds the company liable on its policy, unless after its issue, a change occurs increasing the risk, without its consent, or the insured has been guilty of intentional fraud; and in c'ase of the total loss of the property by fire, the] ; measure of the liability is fixed at the amount mentioned in the policy, upon which the insurer received a premium. The statute cannot-be regarded as conferring upon the assured a mere personal privilege which may be waived by agreement. It moulds the obligation of the contract into conformity with its provisions, and establishes the rule and measure of the insurer’s liability.
    3. Conditions of the policy providing for a different rule, or measure of liability, being in conflict with the statute, are without any binding force. Of this character are stipulations to the effect that the amount of the loss or damage shall be estimated according to the actual value of the property at the time of the fire, and not more than it would cost the insurer or insured to restore the same; and, that no action on the policy shall be commenced until an award of arbitrators, chosen for that purpose, shall be obtained.
    4. Where there has been no intentional fraud on the part of the insured, a condition or situation of the property at the time of the insurance, which the examination the agent is required by the statute to make, should have reasonably discovered, cannot avail to defeat a recovery on the policy; nor, in such case, if the loss be total, is it competent for the insurer to prove that the value of the property is less than the amount mentioned in the policy. And statements in the application concerning such condition or value, are immaterial, and cannot be fraudulent.
    (Decided June 17, 1890.)

      Ebror to the Circuit Court of Ashtabula county.
    On the 1st day of June, 1883, the plaintiff in error, a foreign insurance company doing business in this state, issued and delivered to the defendant in error, a resident of the county of Ashtabula, its policy of insurance, whereby, in consideration of the payment of the premium therein mentioned, it agreed and undertook to insure him to the amount of seven hundred dollars on his frame building situated in that county, against loss or damage by fire for the term of one year. The building is described in the policy as a “ frame building belonging to insured and occupied as private dwelling and store building; ” and the policy contains among others the following conditions:
    “ The amount of lqss or damage to be estimated according to the actual cash value of the property at the time of the fire, and not more than it would cost the insurer or insured to replace or restore the same. This policy shall be and become void.....in case the assured shall have made any false or fraudulent representation, or conceÉfed any fact material to the risk; ” or if the premises “ shall be or become vacant.” It-further provides that in case of loss, the value, and damage to the property, shall at the written request of either party be submitted to arbitration, and that no suit against the company “ shall be sustainable in any court of law or chancery for the recovery of • any claim by virtue of this policy until after an award shall have been obtained.”
    On the 4th day of June, 1883, the building so insured was totally destroyed by fire, and on the 4th day of April, 1884, the assured brought his action against the company in the Court of Common Pleas of Ashtabula county, to recover the amount of the insurance specified in the policy.
    The petition contains all the necessary allegations to entitle the plaintiff to recover. The answer of the company denies that the assured rendered a particular account of the loss or made proof thereof in accordance with the policy, and alleges that in his application for the policy the assured “ falsely and fraudulently stated, represented and warranted that the building mentioned in the policy was of the value of one thousand dollars, whereas the same did not exceed in value the sum of two hundred and fifty dollars, as he well knew;” and further, that in the application “the plaintiff falsely and fraudulently stated, represented and warranted that the building was then occupied as a private dwelling and store-room, whereas the building was then unoccupied as he well knew; ” and also, that the agent of the company did not examine the property, and such examination was waived by the plaintiff. The answer also avers that the plaintiff ought not to maintain his action, because no arbitration was had concerning the loss, or award made, fixing the amount. The reply denies each of the allegations of the answer except those averring that there had been no arbitration and award. The case was tried to a jury, and a verdict rendered for the plaintiff, for the amount claimed. A bill of exceptions was taken, from which it appears, that on the trial, the plaintiff gave evidence tending to prove the issues on his part, and the defendant gave evidence tending to prove that the actual value of property was less than the amount named in the policy, and also, that at the time the policy was issued, the property was unoccupied, and had been for a considerable time before. Upon the close of the testimony the plaintiff moved the court “ to take from the jury all evidence of the value of the property insured.” The bill of exception states that “ the defendant objected,” but the court sustained the motion.
    To which defendant excepted.
    Thereupon defendant requested the court to charge the jury as follows :
    1. “ That as it is admitted by the pleadings that the building insured was not examined by an agent of the insurer, (the defendant) the plaintiff can recover no more than the actual loss or damage sustained by him by the destruction of his building by fire as shown by the evidence.”
    Which the court refused to give, and did not give, and defendant excepted.
    2. “ That as it is admitted by the pleadings that no award was had or obtained fixing the amount of plaintiff’s loss and damage, the plaintiff cannot recover.”
    Which the court refused to give, and did not give, and the defendant excepted.
    3. “If the jury find from the evidence that the plaintiff stated in his written application that the building insured was occupied as a dwelling and store-room at the time it was insured, when in truth, and in fact, the building was then vacant, and plaintiff then knew that it was vacant, plaintiff cannot recover.”
    Which the court refused to give, and did not give, and defendant excepted.
    In the general charge, the court, among other things, instructed the jury, that if they found for the plaintiff upon the issues, their verdict should be “ for seven hundred dollars, and interest thereon from the time when the same became due and payable, according to the terms of the policy.”
    To which the defendant excepted.
    A motion for a new trial having been overruled, and judgment entered on the verdict, the case was taken on error to the circuit court, where the judgment was affirmed, and the reversal of both judgments is now sought in this court.

      Henry Means and Theodore Hall, for plaintiff in error.

      Northway £ Hitch, for defendant in error. (Filed no brief.)
   Williams, J.

The plaintiff in error contends for the reversal of the judgments below, on the grounds; (1). That, as the pleadings admit no award was made by arbitrators fixing the amount of the loss, as provided by the policy, the plaintiff could not maintain the action; (2). That the false statement of the plaintiff, in the application for the insurance, that the building was occupied as a dwelling and store-room, when in fact it was unoccupied, vitiated the policy; and (3). That the plaintiff, in the application, falsely represented and warranted the property to be of a value grossly in excess of its actual value, which avoided the policy, and if not, by its terms, the plaintiff could recover no more than the actual value of the property at the time of the loss. The questions raised are so intimately connected, they may be considered and disposed of together.

The policy expressly provides, that the amount of the loss, or damage, is to be estimated according to the actual cash value of the property at the time of the fire, and that no suit shall be commenced therefor until after an award of arbitrators chosen for that purpose, shall have been obtained, fixing the amount; and, that the policy shall be void if the property should be or become vacant.

It is not doubted, that when not controlled by statutory regulation, the conditions contained in a policy of insurance are as obligatory upon the assured as any other part of the contract; and it has been held, that when the policy provides, that it is issued upon the condition that if the statements made in the application are false, it shall be void, statements therein contained known to be untrue, will avoid the policy, whether material to the risk or not. Jeffries v. Life Ins. Co., 22 Wall. 47. It therefore becomes necessary, in the decision of this case, to determine the effect of the legislation of this state on the policy in question.

The conditions contained in policies of insurance, both life and fire, and the exceptions to the risk, and the contingencies ' upon which the company should be relieved from liability, became so numerous and complicated, usually printed in small type on the back of the policy, in terms which persons unlearned in the law or business of insurance would not readily understand, that it became a matter of no little difficulty for the assured to tell whether the policy afforded him any indemnity or not; and when the event insured against happened, the uncertainty of his claim against the company, constrained him to abandon, compromise, or litigate it. The legislatures of several of the states, enacted statutes designed to give greater certainty to the contract of insurance, and protect the assured against unreasonable forfeitures and defenses; which statutes, it is generally held, apply to and control all policies issued subsequent to their enactment. Of this character is the act of the legislature of this state, passed March 5, 1879, entitled “an act to regulate contracts of insurance of buildings and structures.” This act with some unimportant verbal changes, was carried into the revision of 1880, and is now sections 8643 and 3644 of the Revised Statutes, which read as follows:

See. 3643. “ Any person, company, or association, hereafter insuring any building or structure against loss or damage by fire or lightning, by a renewal of a policy heretofore issued, or otherwise, shall cause such building or structure to be examined by an agent of the insurer, and a full description thereof to be made, and the insurable value thereof to be fixed by such agent; in the absence of any change increasing the risk without the consent of the insurers, and also of intentional fraud on the part of the insured, in case of total loss, the whole amount mentioned in the policy or renewal upon which the insurers receive a premium shall be paid, and in case of a partial loss the full amount of the partial loss shall be paid; and in case there are two or more policies upon the property, each policy shall contribute to the payment of the whole or the partial loss in proportion to the amount of insurance mentioned in each policy; but in no case shall the insurer be required to pay more than the amount mentioned in its policy.” Sec. 3644. “A person who solicits insurance and procures the application therefor, shall be held to be the agent of the party hereafter issuing a policy upon such application or a renewal thereof, anything in the application or policy to the contrary notwithstanding.”

The contract of insurance is evidenced by the policy, and like all other contracts is governed by the laws in force when made. The policy in suit having been delivered in this state, to a citizen thereof, insuring real property there situate, is an Ohio contract, and the foregoing sections of the statute being in force when it was issued, they entered into, and became part of the contract of insurance, fixing the measure of the obligation created by it, and controlling its construction and operation. The purpose and scope of the statute are not doubtful. It was designed, as its title declares, “ to regulate contracts of insurance of buildings and structures.” Its terms are plain and unambiguous, and the evil’it was intended to remedy is apparent. It makes the person soliciting the insurance, the agent of the company issuing the policy, and puts it out of the power of the company to change that relation or avoid the consequences growing out of it, by stipulating in the policy, as was sometimes done, that he shall be considered the agent of the assured. The duty is expressly enjoined upon the company taking the risk, to cause the building to be examined by its agent, and full description thereof to be made by him, and the insurable value of the building to be fixed by such agent. The performance of this duty will enable the company to ascertain for itself, the condition of the building, the nature of the risk, and determine the amount for which it is willing to write the policy. The responsibility is thus cast upon the insurance company, of determining by such examination, whether it will insure the building, and if so, for what sum; and when it so chooses to take the risk, issue its policy, and receive premiums upon it, there is no reason why it should not be bound by its own examination, and valuation. Hence the statute, we think, very wisely provides, that “in the abscence of any change increasing the risk without the consent of the insurer, and of intentional fraud oil the part of the insured,” the company shall be liable; if the loss be total, then for the whole amount named in the policy; if partial only, then for the full amount of the partial loss; and in case there is more than one policy upon the property, each shall contribute to the payment of the whole or partial loss in proportion to the amount of insurance mentioned in each policy.

If, after the policy is issued, there be any change in the condition or surroundings of the property which increases the risk without the consent of the insurer, or if there be intentional fraud on the part of'the insured, these are regarded by the statute as matters of substance, and may defeat a recovery on the policy; but where there has been no intentional fraud on the part of the insured, a condition or situation of the property at the time of the insurance, which the examination, that the agent is required by the statute to make, should have reasonably discovered, cannot, we think, be made available for that purpose; nor can the insurer, in case the property is entirely destroyed, be allowed to show that the value of the property is less than the amount mentioned in the policy.

It is contended by counsel for the plaintiff in error, that the statute does not apply to this policy, because: 1. The policy contains an agreement essentially different from the terms of the statute, which, it is claimed, it was competent for the parties to’ make, and by which they are mutually bound; and 2. No examination of the property was made by the agent of the company. And they further contend, that if the statute governs the policy, the statements in the application, of the value, and condition of the property, constituted an intentional fraud.

The statute rests upon considerations of public policy; one of its purposes being, to exact of insurance companies doing business in this state, reasonable diligence and care to avoid improper risks, and over-insurance, by requiring their agents to make personal examination of the property, and fix its insurable value, before writing the insurance. Well regulated companies, after such examination, would not take ' the risk if not a proper one, nor write a policy for an amount greater than the actual value of the property. The more effectually to accomplish this purpose, the statute has provided, that the company shall be liable on its policy, unless a change subsequently occurs increasing the risk, without its consent, or the assured has been guilty of intentional fraud; and, that in case of total loss, the company shall abide by the valuation it has placed upon the property. Under the rule of liability thus established by the statute, responsible companies are less likely to take risks recklessly, or for a sum greater than the value of the property; and persons whose buildings are insured, receive protection against the injustice resulting from merely technical defenses, founded upon the many conditions inserted in the policy, formerly resorted to. The statute cannot, we think, be treated as conferring upon the assured a mere personal privilege which may be waived or qualified by agreement. It has a broader scope. It moulds the obligation of the contract into conformity with its provisions, and establishes the rule and measure of the insurer’s liability. Terms and conditions embraced in the policy inconsistent with the provisions of the statute, are subordinate to it, and must give way. Of this character are the stipulations that the loss or damage shall be estimated according to the true value of the property at the time of the fire, and that no suit shall be maintained until the amount shall be fixed by an award. These being in conflict with the statute, and therefore inoperative, the averments of the answer with respect to them were ineffectual as a defense, and evidence in support of them, was inadmissible. And the statements in the application, of the value of the property, and its condition, in regard to which the company should have been informed by the examination the statute required it to make, were immaterial, upon which the insurer had no right to rely, and could not be fraudulent.

Nor do we think the operation of the statute can be defeated, by the neglect of the agent to make the examination, or fix the insurable value of the property, as it requires. The duty of the company is to obey the law, and its disregard of that duty can give it no greater rights than the observance of it would. It is obvious, that if insurance companies were exempted from the operation of the statute by the omission of their agents to comply with its provisions, the statute would be practically annulled and its object defeated.

Authorities are not wanting, in which statutes of a similar nature have been given construction, which sustain, in principle, the views here expressed. A statute of Missouri enacted that “no misrepresentation made in obtaining or securing a policy of insurance on the life or lives of any person or persons shall be deemed material, or render the policy void, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due; and whether it so contributed in any case sjiall be a question for the jury.” In answer to a suit upon a policy issued by a foreign company to a citizen of that state, after the statute went into effect, it was alleged that the policy contained a provision that the answers of the assured to the questions contained in the application, should constitute warranties and that if the policy should be obtained through fraud, misrepresentation or concealment, it should be absolutely void. It was further alleged that the answers in several particulars were false, but not that the matters in regard to which they were false contributed to the death of the assured. The plaintiff demurred, and the demurrer was sustained; the court holding that the statute applied to all policies delivered in that state after it went into effect, and, where the provisions of the policy conflict with the act, the latter controlled. In the opinion of the court, after referring to the case of Jeffries v. Life Ins. Co., supra, and other cases, in which it was held that where a policy contained the provision that if the statements in the application were not true, the policy should be void, the false statement of a fact avoided the policy, although it was not material to the risk, it was said by Dillon, C. J., “ the legislature of Missouri conceived, and we think wisely, that the promises held forth to the assured in the policies in general use were but too often a delusion and a snare, and as the courts were powerless to correct the evil, it ought to be corrected by statute.” The learned judge further says: “We are of' opinion that policies issued and delivered in Missouri after the act took effect fall within its protective operation ; and as to such policies, the act is to be treated as if incorporated therein. The general rule is that laws in existence are necessarily referred to in all contracts made under such laws, and that no contract can change the law.” White v. Conn. Mut. Life Ins. Co., 4 Dillon Circuit Court Rep. 177.

Wall v. Equitable Life Assurance Society, 32 Federal Reporter 273, involved the construction of a Missouri statute which provides, that no policy on life hereafter issued by a company authorized to do business in this state, shall, after payment of two full annual premiums be forfeited or become void by reason of non-payment of premiums; and also provides for temporary insurance, and that upon the death, of the insured during the term of temporary insurance, and where no condition of the policy is violated except nonpayment of premiums, the company shall be liable for the full amount insured, as if there had been no default in payment. It was there held, that a provision in a policy, which required the payment of three full annual premiums before the insured was entitled to temporary insurance, was void. The opinion of the court is by Beewee, J., in the course of which, he says, it is insisted by the defendant that the statute “ merely gives a right or privilege to the insured which, like any other personal right or privilege, he may for sufficient consideration waive, and that such a waiver, not being forbidden by the statute, is not contrary to public policy in any such sense as that the courts should refuse to enforce it.” But the learned .judge in answer to the claim of the defense said: “ It is notorious that many insurance companies were rigorous in insisting upon forfeitures, sometimes under very inequitable circumstances, and there was no little public clamor by reason thereof. Such clamor prompted many legislatures to interfere, and to seek by legislation to protect what they supposed the rights of the insured. Such seems to have been the thought of the Missouri legislature, and it evidently intended by its legislation to provide a fixed and absolute rule applicable to all cases, — absolute and universal, because if it applied only in cases in which the policies were silent, or if it could be waived or changed, a child can see that it would protect only so far as the insurance companies were willing.”

Chamberlain v. N. H. Fire Ins. Co., 55 N. H. 249, was a case where the plaintiff, a mortgagee, insured the buildings on the mortgaged premises, against loss by fire, in the defendant company. The policy provided that in case of loss, the insurance should be paid to the mortgagee, to the amount of the mortgage, and contained a condition that the policy should be void if the premises should become vacant without immediate notice to the company, and its consent endorsed thereon. The mortgagor afterward removed from the premises, and they remained vacant for several months, when they were destroyed by fire. A statute of New Hampshire then in force provided that “ no policy should be avoided by reason of any mistake or misrepresentation, unless it appears to have been intentionally and fraudulently made; but the party insuring, in any action brought against them on such policy, may show the facts, and the jury shall reduce the amount for which such party would otherwise be liable as much in proportion as the premium ought to have been increased if no mistake or misrepresentation had occurred.” In commenting upon this statute, Foster, C. J., in the opinion of the court says : “ The policy and purpose of the law were, to promote honest and open fair dealing, to do equal justice, to protect the confidence reposed by the insured in those with whom he may contract, and (especially disclaiming any reference to this defendant company), to spring the traps ‘concealed in the mass of rubbish,’ before the unwary traveler shall have put his foot in them; to prevent and prohibit, in short, the farce and fraud by which it has too often been found that the party apparently insured by the stipulations written upon one side of a piece of paper, was uninsured, by the conditions involved in the ‘insurance typography ’ indorsed upon the other side of the same piece of paper.” And again he says, “ the legislature of 1855 enacted the substance of the law which is now expressed in sec. 2, ch. 157, Gen. Stats., and every subsequent contract of insurance made in this state has been made in view of and in subordination to this law, which has thus been practically incorporated into the contract.”

A statute of Wisconsin provided, that where real property in that state, insured against loss by fire, should be destroyed by fire without criminal fault of the assured, the amount of insurance written in the policy should “ be taken and deemed to be the true value of the property at the time of such loss, and the amount of the loss sustained.” This statute was construed in the case of Reilly v. The Franklin Ins. Co., 43 Wis. 449, where the plaintiff had policies on his property, issued by different companies, aggregating ten thousand dollars. The policy issued by the defendant company was for $1,000. The property was destroyed by fire, and suit brought on the policy. The answer alleged, as in this case, that it was provided in the policy, that the loss or damage should be established “ according to the true and actual marketable value ” of the property at the time of the loss, which, it was alleged in that case, did not exceed seven thousand dollars ; and the defendant claimed, that it was only liable for its proportion of that sum, being one tenth of that amount. The plaintiff demurred to the .answer, and the demurrer was sustained. It was insisted by the defendant, that if the statute ■ applied, it should be construed to mean, that the amount of . insurance written in the policy should be taken as prima facie the value of the property, so as, in case of total loss, to place the onus of proving the real value, upon the insurer instead of the insured; and, that the statute did not prevent the parties from agreeing in the policy, that the true value of the property should be the measure of the loss, and the stipulation to that effect in the policy, should control. But the court held otherwise. In the course of an able opinion by Cole, C. J., it is said, “ The words of this statute are neither obscure, doubtful nor ambiguous as to their meaning, and they therefore afford but little room for interpretation. In clear and precise terms they make, in case of total loss of real property without criminal fault of the assured, the amount of insurance written in the policy, the value of the property at the time of the loss; and that amount is fixed as the measure of damages. It is analogous to a valued policy; only here the statute peremptorily declares what shall be deemed to be the real value of the property at the time of loss, and what sum shall be paid as indemnity. And as the intention of the legislature is obvious, the statute clearly prescribing that the amount of insurance written in the policy shall be deemed the true value of the property at the time of loss, it results that the above allegation (of the answer) is bad and shows no defense. For if the statute is to have effect as enacted, nothing is left open in the case to proof; ‘ the true and actual cash and marketable value of the property ’ at the time it was destroyed, is not a matter to be inquired into, as the amount of insurance written in the policy determines the amount of the loss and fixes the extent of the recovery.” Again he says, “We have no doubt. that the statute applies to the policy; and, so far as there is any conflict or inconsistency between it and the provisions of the policy, the statute must control. The law must be regarded as though written in the policy itself; and the stipulation that the loss shall be established according to the actual cash marketable value of the property when destroyed, being in conflict with the rule of damages prescribed by the statute, must fall.”

In Thompson v. The St. Louis Ins. Co., 43 Wis. 459, the construction given the statute in the preceding case of Reilly v. Ins. Co. was approved, and it is there held, that a stipulation in the policy, that the amount of the loss, in case of difference between the parties, should be settled by arbitration, and that no suit should be brought until an award was obtained “ fixing the amount,” has no effect, and that neither an arbitration nor award need be had or averred.

To the same effect is Thompson v. Ins. Co., 45 Wis. 388. In Bammessel v. The Brewers' Ins. Co., 43 Wis. 463, the answer alleged that the policy contained the condition that “ all fraud or attempt at fraud by false swearing or otherwise,” should cause a forfeiture of all claim under the policy, and that after the loss, the plaintiff made and delivered to the defendant, a false and fraudulent account of the alleged loss and damages, duly sworn to by him, in which he falsely and fraudulently stated the actual cash value of the property, immediately before the fire, to be materially greater than it was. This was-held to be no defense; for, as the statute fixed the amount of recovery at the sum written in the policy, false statements of its value could not be material or constitute a fraud. And Cayon v. The Ins. Co., 68 Wis. 510, holds the same way. In the Oskosh Gaslight Company v. The Germania Fire Insurance Co., 71 Wis. 454, the court say: “ The statute must be regarded as a part of the contract of insurance, and the amount written in the policy as liquidated damages agreed upon by the parties; and this is so notwithstanding other clauses in the policies inconsistent therewith: ” And the Supreme Court of Maine, speaking of a similar statute of that state, and its effect on policies issued, after its adoption, says: “ The act is to be regarded as included in, and a part of the policies, issued since its passage. Nor is this any hardship upon the parties, for all are deemed to have contracted with a knowledge of its existence and subject to its provisions.” Emery v. Piscataqua F. & M. Ins. Co., 52 Me. 822, 326.

The law; as we conceive it to be, was administered in the trial court, and the circuit court committed no error in affirming its judgment.

Judgment affirmed.


source: Caselaw Access Project

author: Speak, J.

license: Public Domain

text:
    Society of Friends v. Haines.

      Contract to pay debt of another — Assumption of mortgage debt by vendee —When need not be in writing — Same by married woman — Charge of separate estate.

    1. An agreement of a vendee of land, receiving title by a quit claim deed, made with, the grantor, as part of the consideration of the conveyance, to assume and pay the debt of the grantor secured by mortgage on the land, may be enforced by the mortgagee, though such contract is not embodied in the deed; and such contract is not necessarily invalid because the same is not in writing.
    2. Such contract, executed by a married woman in the year 1883, may be enforced by the mortgagee against her, when it is shown that she has separate estate; that the transaction out of which the contract grew, had' reference to, or was for the benefit of, such separate estate, and that she intended to charge the separate estate with its payment; and it is not error, in such case, to render a personal judgment against her.
    (Decided June 17, 1890.)
    Error to the Circuit Court of Clinton county.
    On the 7th of February, 1885, the plaintiff in error commenced its action in the Court of Common Pleas of Clinton county against Wm. N. Haines upon two promissory notes, secured by mortgage on lands in the petition described. Mary J. Haines, wife of William N., was made party and duly served with summons. The notes and mortgage were executed by the husband only. They were dated August 1, 1883, one note to become due in one year and one in two years from date, with interest. to be paid annually. The notes were given for a part of the purchase-money of the land. It was averred in the petition that on the • 13th day of November, 1883, the said William, through the intervention of a trustee, conveyed the mortgaged premises, by deed of quit claim, to his wife Mary J., who was then in possession. The petition prayed judgment against Wm. N. Haines for principal and interest due on the note then past due, and for accrued interest on the note not yet due ; that Mary J. may set out what right to or claim in the premises she has; that the lands may be ordered sold, and for full equitable relief.
    Issue was made by answer and reply, on the part of Wm. N, and on trial, in July, 1885, judgment was rendered against him for the amount claimed and decree of foreclosure and sale entered, and order to the sheriff to bring the proceeds into court. The premises were duly sold to Mrs. Haines, but for a sum less than sufficient to satisfy the entire indebtedness.
    On August 12, the plaintiff filed what was denominated a supplemental petition against the defendants, upon the note secondly described in the original petition, the same having become due. In this pleading the plaintiff repeated the averment of the original petition as to the transfer of the premises to Mrs. Haines, and added: “ And this plaintiff avers that as a part of the consideration for said conveyance, she, the said Mary J. Haines, did then and there assume the payment and discharge of the promissory notes and the money evidenced thereby, which are set out in the original petition and made the indebtedness -evidenced thereby her own debt, and agreed to pay off and discharge the same.”
    Upon the precipe of the plaintiff a summons was forthwith issued and duly served on each of the defendants August 15. October 19, following, upon a finding of all the allegations of the petition to be true, judgment was rendered for the plaintiff for the amount due; ordering distribution of the moneys arising from the sale, and awarding execution for the balance remaining due. Error was prosecuted by Mary J. Haines to the circuit court, which court reversed the judgment of the common pleas “ for error in rendering judgment or decree against Mary J. Haines for the balance found to be due on the last promissory note.” To obtain a reversal of this judgment the present proceeding in error is prosecuted.

      Mills & Van Pelt, for plaintiff in error.
    As a part of the contract of purchase, the defendant in error agreed to pay the notes. It was a contract in reference to her separate estate. She had capacity to make it. By i't she became, as between her and her husband, the principal debtor, upon the indebtedness evidenced by the notes, and bound for the payment thereof. She made the debt her own. The contract was not required to be in writing. It was not a contract to answer for the debt of another, but to pay for her own separate estate in a particular manner. Had she paid the notes, she would have thereby discharged her own obligation to pay for her own property. She acquired the fee in the land, with an agreement to pay the purchase money, in part, by the payment of the mortgage debt. It was a valid contract, upon a sufficient consideration, with the mortgagor and grantor, for the benefit of the plaintiff, the holder of the notes and mortgage, and enforceable by action in the name of the plaintiff. Trimble v. Strother, 25 Ohio St. 378; Burr v. Beers, 24 N. Y. 178; Lawrence v. Fox, 20 N. Y. 268; Sec. 3108, Rev. Stats.; Sec. 4996, Rev. Stats.; Levi v. Earl, 30 Ohio St. 147; Avery v. Vansickle, 35 Ohio St. 270; Williams v. Urmstone, 35 Ohio St. 296; Patrick v. Little, 39 Ohio St. 79; Genz v. Grugle, 26 Ohio St. 527; Allison v. Porter, 29 Ohio St. 136.

      Smith Savage and Hayes Swaim, for defendant in error.

      "W'e claim that by the quit claim deed, Mary J. Haines acquired only the equity of redemption of William N. Haines, in the property, and that, unless she assumed the payment of the mortgage, in her deed, she cannot be held liable to a personal judgment for any deficit after the sale of the land. Dingeldein v. Railway, 37 N. Y. 577; Belmont v. Coman, 22 N. Y. 438; Brewer v. Maurer, 38 Ohio St. 548; Fisk v. Tolman, 124 Mass. 254; Pardee v. Treat, 82 N. Y. 385.
    If she could be held at all, it must be by a suit in equity to charge her separate estate. Elliott v. Lawhead, 37 Ohio St. 175; Gamsey v. Rogers, 47 N. Y. 236; Pardee v. Treat, 82 N. Y. 387.
   Speak, J.

Upon the power of the court of common pleas to render judgment against Mrs. Haines, three questions arise:

Can the agreement of a grantee of land, receiving title by quit claim deed, made with the grantor, as part of the consideration of the conveyance, to assume and pay a debt of the grantor, secured by mortgage on the land, which is not contained in the conveyance, be enforced by the mortgagee ? 2. Can such an agreement be enforced by the mortgagee against a married woman, under the statutes in force in the year 1883? 3. Do the statutes in force at the date named authorize the rendition of a personal judgment against a married woman upon a contract of the character described ?

As to the first question: It is settled in this state that where the purchaser of an incumbered estate agrees to take it subject to the incumbrance, and an abatement is made in the price on that account, such purchaser is bound to indemnify his grantor against the, incumbrance, whether he expressly promises to do so or not. Thompson v. Thompson, 4 Ohio St. 333. It is equally well settled that “ an agreement made on a valid consideration, by one person with another, to pay money to a third, can be enforced by the latter in his own name.” Emmitt v. Brophy, 42 Ohio St. 82. It would seem to follow from this, that, unless the inquiry we have is affected by the character of the deed, or by the fact that the contract is not embodied in the deed, the answer will necessarily be in the affirmative. That the conveyance is a quit claim rather than a warranty deed, cannot be of importance, because the liability does not depend upon the form of the conveyance, or upon the character of the estate which the purchaser acquires, but upon the agreement which he makes in consideration of it.

Can it be affected by the fact that the agreement is dehors the deed ? The agreement, when made, becomes a personal obligation. It in no way affects the lien of the mortgage, or is of interest to the future purchaser, or to the public. No rule of evidence requires that it be proven by a paper under seal, nor that it be embodied in the deed. Why, then, is it not sufficient if legally established independent of the terms of the deed? Not being affected by either of these considerations, the question is not different from the one presented in Emmitt v. Brophy, supra.

Such contract is made upon a consideration moving to the promisor. The true import of it is not to pay the debt of another, but to discharge the promisor’s own obligation. Instead of paying the whole of the stipulated purchase price to his grantor he agrees to pay it to the one who holds the incumbrance, thus making the sum due his own debt, and when he pays it he is but paying what he agreed to pay for the land, and in the manner agreed upon. And no reason can be given why such a contract may not be enforced in favor of the mortgagee which would not be equally effective against its enforcement by the vendor. Lawrence v. Fox, 20 N. Y. 268; Merriman v. Moore, 90 Pa. St. 78.

As to the second question: To maintain an action against a married woman under the statutes in force in 1883, (act of March 30, 1874, as amended January 21, 1879, and section 3108 Revised Statutes) it must be made to appear that she has separate estate; that the transaction out of which the obligation grew, had reference to, or was for the benefit of, her separate estate, and that she intended to charge the separate estate with its payment. Where these facts conjoin, no reason exists why the engagement should not be enforced against a married woman which would not be equally good against its enforcement if she were single. The fact of coverture does not necessarily invalidate the engagement.

It is insisted that the contract in this case, if made at all, was a verbal .contract, and for that reason is not enforceable against a married woman. Such is not the effect of the allegations of the supplemental petition. A contract is alleged. Whether it is to be established by a paper writing, or by oral testimony, is a matter of evidence, not a matter of pleading. Had the defendant desired to attack it as invalid under the statute of frauds, because not to be performed within a year, such question should have been made by answer. The allegation that a contract was made is an allegation that a valid contract was made, and in the absence of an answer, the court will presume that, if necessary to be in writing, it was in writing.

But though the contract were verbal (save for the possible effect of the statute of frauds, which is out of the consideration), we see no reason why that fact would affect its validity as against this defendant in case it were shown that the obligation had reference to, or was for the benefit of, separate estate, which she intended to charge with its payment.

The power to charge is an incident to the ownership of property. The intent to charge may be inferred from circumstances. The act of March 23, 1866, (section 3108 Revised Statutes) recognizes the right of a married woman to purchase real estate, and real property conveyed to her during coverture, becomes, by force of - that act, her separate estate.. By the act of March 30, 1874, amending section 28 of the code, her power to engage in mercantile, or other business, is recognized. It has been many times held, and is believed to be accepted practice throughout the state, that where a married woman is conducting a mercantile business, her engagements based upon verbal agreements in the purchase of goods, may be enforced against her separate estate. This upon the ground that the purchase concerns, or is for the benefit of, her separate estate, in that she bought the goods for her separate use in the business she was conducting. If this be a correct view of the law, (and we believe that it is,) why-may not verbal engagements, made in the purchase of real estate to pay for it be equally enforceable against her separate estate ? The same enactment, (act of March 30,1874, supra,) provides for the enforcement of both classes of obligations. By its express terms, where an action against a married woman concerns her separate property, or grows out of or concerns a mercantile or other business in which she is or has been engaged, she may be sued alone, and her separate property and estate shall be liable for any judgment rendered thereon against her.

Such an engagement could, we think, have been enforced against a married woman by the vendor, and we see no reason to doubt that it might be enforced by the mortgagee.

The third question is answered by referring to the same statute. In express words it provides that “in all cases where she may sue or be sued alone the like proceedings shall be had, and the like judgment rendered and enforced in all respects as if she were an unmarried.woman.” If this does not warrant a personal judgment, language cannot be framed that will do so.

No particular form of words is required to constitute a good pleading. It is sufficient if the necessary facts are stated. In this case the allegations of the petition show that Mrs. Haines purchased and received a deed of the property described, and entered into possession of it. This showed that, under section 3108, the land was her separate estate, and, with the further allegation that the indebtedness referred to was a part of - the consideration for the conveyance which she agreed to pay, showed such circumstances as justified the inference that she intended to charge her separate estate with its payment; otherwise the transaction on her part was meaningless. No rule of good pleading was violated by omitting to aver, in direct language,' that she intended to charge her separate estate. The supplemental petition made a case against her.

It is objected that the court of common pleas could not take jurisdiction of the case against Mrs. Haines made in the supplemental petition, because no leave was obtained to file, and because of some defect in the indorsement on the summons issued upon it. The defendant had been duly brought into court by the first summons. The cause was still pending. It was of a class known as equitable actions, in which cases a supplemental bill is not improper. She had actual notice, by personal service, of the filing of the supplemental petition. If no leave to file was in fact allowed, or if the indorsement upon the summons was irregular, (of both which facts the printed record is silent,) a motion to strike off, or to quash the summons, or both, would have been in order. She had from August 15 to October 19, to interpose a motion, or make defense, but she did neither. If two causes had been improperly joined, it was a fault to be reached by demurrer. She cannot now complain of want of jurisdiction over her.

It is also insisted that the judgment was taken without evidence, and was, therefore, erroneous. All legal presumptions are in favor of the judgment:

To the objection that the court erred in rendering judgment without a jury, it is enough to say that, if a jury had been proper, the plaintiff had a right to waive it. But such cases have not been regarded as triable to a jury.

Nor is there substance in the objection that the plaintiff had waived its claim against Mrs. Haines because it had from the beginning regarded and treated the husband as the principal debtor. It does not appear that the plaintiff was aware, or had the means of learning, of the agreement of Mrs. Haines prior to the filing of its supplemental petition. A party does not, ordinarily, lose rights by waiver, in the absence of knowledge of their existence.

There appears no error in the judgment of the court of common pleas.

The judgment of reversal by the circuit court is reversed, and that of the former court affirmed.


author: Minshall, O. J.

text:
    Railway Co. v. Wood.

      Railroads — Duty to fence track — Injury to stock — Section 3329, Revised Statutes, construed.

    The first clause of § 3329, Revised Statutes, provides, that, “ The provisions of the five preceding sections relating to fences and private crossings shall not apply to any case in which compensation for building a fence or private crossing has been or may hereafter be taken into consideration, and estimated as a part of the consideration to be paid for the right-of-way, so far as the fence, or right to private crossing, has been or may be settled or paid for.” Held: that where stock of a third person gets upon the track of a railroad company by reason of such fences not being built by the landowner, the company is not, in the absence of negligence in running its trains, liable to the owner for injury to them. The duty of the company is, in such case, to use ordinary care and prudence to avoid injuring the animals.
    (Decided June 17, 1890.)
    Error to the Circuit Court of Knox county.

      J. S. Collins, for plaintiff in error.
    The court erred in sustaining the demurrer to the third answer.
    The case was clearly within the provisions of the first clause of Sec. 3329, R. S. The court below, in deciding this question, was endeavoring to follow Grill v. Railway Co., 27 Ohio St. 240, and Railway Co. v. Smith, 26 Ohio St. 124; but it should be noted that these cases were both under the fencing law of 1859 (S. & C., 331-332), and not under the act of 1874, as found in the Revised Statutes. The latter clause of Sec. 3329 is the same as it was in the act of 1859, but the first clause was added in the law of 1874, and carried into the revision. So that we have the question here made, what is the proper construction of the expression, “The provisions of the five preceding sections relating to fences and private crossings shall not apply to any case in which compensation for building a fence or private crossing has been or may hereafter be taken into consideration, and estimated as a part of the consideration to be paid for the right of way, so far as the fence or right to private crossing has been or may be settled or paid for.”
    The court below held that this Applied only to a case between the owner of the land who had agreed to fence, and the railroad company; but that had already been the construction of the law of 1859, and it was held in the case of Railway Co. v. Smith, supra, that such landowner could not recover. So that the act of 1874 was intended to extend this rule and relieve the railway company from all liability in any case in which the landowner had agreed to fence. And I submit that if these cattle got on the track at a place where it was the duty of the landowner to fence, that this is a case in which the provisions of the statutes as to fences do not apply.

      J. B. Waight, for defendant in error.
    There was no error in sustaining the demurrer. 24 Ohio St. 48; 26 Id. 124; 27 Id. 240; 40 Id. 173-206. The two cases in 40 Ohio St. are under the fencing law of 1874.
   Minshall, O. J.

The plaintiff below brought suit against the railroad company to recover damages for killing two, and injuring another, of her cows whilst on its track. . She averred that the injury occurred without fault on her part, by reason of the negligence of the defendant in not fencing its track, as required by law, where the cows got on the road, and that they were killed by the negligence of the defendant in running and operating one of its trains. The defendant interposed three defenses. The first was a general denial. In the second it averred that at the time named in the petition when the cattle were injured, they were running at large in the public highways, and on uninclosed land along and adjoining the track of the railroad, and had been so running at large for several days, and that they were not upon the land of the plaintiff, or in any field or inclosure owned or occupied by her, and while so at large strayed upon the railroad track and were injured. In the third it averred that in the grant of the right-of-way through the lands at the place where the cattle wandered upon the railroad track at the time named in the petition, the owner and grantor of the right-of-way agreed to build and keep in repair fences on both sides of the railroad track, and such agreement of the owner and grantor was taken into account, and compensation therefor .allowed and estimated as a part of the consideration paid by the company for the right-of-way ; and denied any negligence in running the train by which the animals were killed.

The plaintiff demurred to the third defense, and replied to the second, denying its averments. The demurrer having been sustained and excepted to by the defendant, the case was tried to a jury upon the issues of fact. They found for the plaintiff, and a motion for a new trial having been made and overruled, judgment was entered upon the verdict, which was affirmed by the circuit court.

There are a number of assignments of error, but the prin cipal one to be considered is presented by the ruling upon the demurrer to the third defense.

The principal ground upon which the liability of the defendant is placed by the petition is, its omission to fence its track as required by section 3324, Revised Statutes, at the point where the cows got upon the track of the company. Under this statute, if applicable to the case, the company would have been liable to the plaintiff for the injury to her cows, irrespective of any care used by the company in running and operating the train that caused the injury. But it is provided in the first clause of section 3329, Revised Statutes, that “The provisions of the five preceding sections relating to fences and private crossings shall not apply to any case in which compensation for building a fence or private crossing has been or may hereafter be taken into consideration, and estimated as a part of the consideration to be paid for the right-of-way, so far as the fence, or right to private crossings, has been or may be settled or paid for.” By the averments of the third defense, the company brought itself within the language of this clause, and having denied any negligence in running and operating the train that caused the injury, we fail to perceive why it does not constitute a har to the action of the plaintiff. Prior to this statute, a railroad company was not bound to fence its track, it was only required to use ordinary care and prudence to avoid injury to stock that might get upon it. Kerwhacker v. Railroad Company, 3 Ohio St. 172. Therefore, as the statute requiring railroad companies to fence their tracks did not apply to this company at the point where, as alleged, the cows got on the track, it was not, in the absence of negligence in running the train, liable to her for the injury to them.

The demurrer seems to have been- sustained upon the decisions in Gill v. Railway Company, 27 Ohio St. 240, and Railway Company v. Allen, 40 Ohio St. 206. The first decision was made before the act of 1874 was adopted, by which the clause above referred to was first introduced. The statute of 1859 which first imposed the duty upon railroad companies to fence their tracks, and made them liable for injuries resulting from a failure to do so, simply provided, as does the second clause in section 3329 Revised Statutes, that its provisions should not “ be held to affect, in any manner, any contract or agreement between a railroad company.....and the proprietors or occupants of lands adjoining, for the construction and maintenance of fences,” etc. It will be observed that this clause does not provide that when the company has a contract with an adjoining landowner by which he is bound to fence for the company, that the statute shall not apply, as does the first clause of the section — its effect is simply to preserve the obligation of the contract as between the parties, without in any way relieving the company from the consequences of a failure to build and maintain the fences» When a company contracts with a landowner to build fences, that it is required by law to build itself, such contractor is regarded as its agent and the company is liable for its omissions, as it is for the neglect of any other employee or agent of its own. This is the principle upon which the above cases were decided. Thus, in Gill v. Railroad Company, Graham, an adjoining landowner, had agreed with the company to fence the track through his own land; the fence was hot sufficient, by reason of which Gill’s stock, through no fault of his own,, got upon the company’s ti;ack and were killed. The company was held liable for the fault of Graham, for as the court say, “it is not otherwise than if the company had employed any other person upon contract to fence, or if the fence were built by their regular employees.” The case of Railway Company v. Allen arose after the amendment of 1874. But it will be found on examination that the case came within the second, and not within the first, clause of the section in which the amendment is incorporated. The Dayton & South-Eastern Railroad Company in acquiring a part of its right-of-way oyer that of the defendant company, had agreed to keep a fence between its road and that of the defendant; and the stock of the plaintiff, without his fault, got upon the track of the defendant through this fence, which was out of repair. The court held that it was the statutory duty of the company to fence at the point where the stock got on its track, and that it could not avoid its duty in this regard by devolving it upon another. It was not a case where the defendant did, or could, aver that compensation for building the fence had been taken into account and estimated as a part of the consideration to be paid the landowner for its right-of-way at the point where the stock got on the track. At the time the agreement was made it was not acquiring but parting with a part of its own right-of-way.

Sustaining the demurrer necessarily worked substantial prejudice to the company; for if the cattle got upon the track at a point where the road was. unfenced, the jury could, and may, under the charge of the court, have found for the plaintiff, however careful the agents of the company may have been to avoid injuring them. It may be that the above construction is contrary to what was the intention of the legislature in adopting the amendment of 1874. If this be so, it cannot, in this case, be helped by construction. We fully recognize the duty of courts to give effect to the intention of the legislature in all cases where it can be done by giving effect to the language employed. Most words have many and varied meanings; and, in which, of its many senses a word is used, in a particular instance, may be determined from a consideration of the context, the general purpose of the act and the circumstances that may have called for legislation. But it is contrary to all rules of construction to give an affirmative sense to a negative expression, because no word or phrase can be said to have both an affirmative and a negative meaning. Hence the language of the above clause, that the provisions of the statute requiring railroad companies to fence their tracks, “ shall not apply ” to a given class of cases, cannot be construed into. “ shall apply.”

The legislature may have been surprised into the adoption of this clause in the form of a universal negative: It may have intended to do no more than to bring such cases within the provisions of the second clause, and to say that in the cases provided for in the first clause, the previous sections should not affect the obligation of the parties — the grantor of the right-of-way and the company — as between themselves, without relieving the company of the duty, as between it and third persons, of seeing that the fences were built according to the terms of the agreement. If this be so, then the legislature should supply the remedy by amending the law.

It is also claimed by the plaintiff in error that the proof showed that the cows were running at large by the sufferance of the plaintiff below, at the time they got upon the track and were injured, and that, for this reason, the judgment should be reversed. It is well settled by the decisions of this court, that when the owner suffers his stock to run at large contrary to the statutes of the state, he cannot recover if they stray upon the track of a railroad company and are killed, although they may have done so by reason of the track not being fenced as required by law; for the reason that in such case both parties are regarded as wrong-doers, and neither can recover for injury resulting from the unlawful act of the other. Railroad v. Methven, 21 Ohio St. 586. It was admitted that the cows were at large; and, whilst this is prima fade evidence that they were at large by the sufferance or fault of the owner, it is not conclusive. The owner may still show that it was without fault on his part. This the plaintiff undertook to do, and whilst the evidence offered was not of the most satisfactory character, still the court would hardly be warranted in saying that there was no evidence tending to overcome the presumption arising from their being at large. Judgment reversed and cause remanded for further proceedings.


author: Dickmaít, J.

text:
    Clark v. Lindsey.

      Purchase by Tenant in common at Tax-sale.

    1. Where a person seized of lands as tenant in dower, neglects to pay the taxes thereon so long that they are sold for the payment of taxes, if one of several tenants in common of the remainder in fee of such lands, purchase the lands at the tax sale, the purchase will be held to inure to the benefit of all the co-tenants in remainder.
    2. The tenant in common so purchasing, will be entitled to contribution from his co-tenants, toward the cost and expense incurred in the purchase of the tax title.
    (Decided June 27, 1890.)
    Error to the Circuit Court of Marion county.
    Joseph P. Lindsey, the defendant in error, commenced the original action in the Court of Common Pleas of Marion county, against J. W. Clark, Arthur L. Clark, C. F. Seffner and Susan E. Seffner, his wife, alleging that on the 20th day of June, 1884, he caused a transcript of judgment which he had recovered against said J. W. Clark before a justice of the peace, to be filed in "the office of the clerk of the Court of Common Pleas of Marion county, and thereafter caused an execution to be issued upon such judgment, and a levy to be made on the undivided interest of the defendant, J. W. Clark, in the following described real estate, situate in the county of Marion, and state of Ohio, to wit: Lots numbers ,89 and 100 in the village of Marion. That said judgment became a lien upon the real estate above described, from the 20th day of June, 1884, the day of the filing of the transcript; that there was due the plaintiff, at the filing of the petition, on said judgment, from J. W. Clark, the sum of 1514.52, with interest and costs; that Arthur L. Clark, C. F. Seffner and Susan E. Seffner claimed some interest in said premises, and the plaintiff therefore prayed that they be required to set forth what claim, if any, they had in and to the premises; that such claim be declared subsequent to that of the plaintiff ; that the interest of J. W. Clark in the premises be sold, and out of the proceeds the plaintiff be paid the amount of his judgment, with interest and costs, and all proper relief.
    J. W. Clark was in default for answer and demurrer. Arthur L. Clark, C. F. Seffner and Susan E. Seffner filed a joint answer, in which it was averred that, before said levy, lot number 89 was duly sold for non-payment of taxes, to Arthur L. Clark and C. F. Seffner. The plaintiff replied, alleging that when lot number 89 became delinquent for taxes, and was purchased by Arthur L. Clark and C. F. Seffner, the interest therein of J. W. Clark was held by the purchasers in trust for J. W. Clark, and subject to his debts. The death of C. F. Seffner was thereafter suggested, and it was ordered that Susan E. Seffner, as the executrix of his last will and testament, be made a party defendant. The cause afterwards came on to be heard; the court found for the defendants, and the plaintiff’s petition was dismissed at his costs. The cause was appealed by the plaintiff to the circuit court, and on the 13bh day of September, at the September term, 1887, the following entry was made on the journal of the circuit court, to wit:
    “ This day this cause came on to be heard upon the petition of the plaintiff, the joint answer of Arthur L. Clark, C. F. Seffner and Susan E. Seffner, defendants, and the reply of plaintiff thereto, and the evidence, and was argued by counsel; on consideration whereof, and the court being duly advised in the premises, and on request of the defendants, Arthur L. Clark, Susan E. Seffner, executrix of the last will of C. F. Seffner, deceased, and Susan E. Seffner, that its conclusions of fact be separately stated from its conelusions of law, find and state as its conclusions of fact: That said J. -W. Clark, being in default for answer and demurrer, the petition as to him is taken as confessed to be true; that the plaintiff obtained a judgment against the defendant J. W. Clark, as alleged in his petition, on^June 11, 1873, and that the same remains in full force, unreyersed and unsatisfied; that on the 12th day of February, 1885, the plaintiff obtained a levy of an execution under said judgment on the following described real estate, in Marion county, Ohio, to wit: Lots numbers eighty-nine (89) and one hundred (100), in the village of Marion; that the defendant J. W. Clark, did not then, nor at any time since the rendition of said judgment, have any interest in said lot number one hundred (TOO); that said lot number eighty-nine (89) was set off and assigned in partition to Isabel Clark, as and for her dower in the lands of John G. Clark, deceased, the father of said J. W. Clark, Arthur L. Clark and Susan E. Seffner, and was the property of said J. W. Clark, Arthur L. Clark anc[ Susan E. Seffner, subject to the dower estate of said Isabel Clark; that said Isabel Clark so held and occupied the same until she suffered the same to go delinquent for taxes for the years 1875 and 1876 ; that said lot eighty-nine (89) was duly sold for the taxes for the years 1875- and 1876, by the auditor of Marion county, Ohio, to the defendants Arthur L. Clark and C. F. Seffner, the husband of Susan E. Seffner; that on the 24th day of April, 1882, the said auditor executed and delivered to said Arthur L. Clark and C. F. Seffner a deed in fee simple of said lot, which was left for record April 26, 1882, and recorded in volume 24, page 28, of the records of deeds of Marion county, Ohio; that said J. W. Clark and Isabel Clark knew of said sale for taxes and the execution of said deed, and have not redeemed or offered to redeem said premises, nor has the said Arthur L. Clark, nor said C. F. Seffner, demanded such redemption; that said widow Isabel Clark died June 18, 1884; that said defendant C. F. Seffner was the husband of said Susan E. Seffner, and said J. W. Clark, Arthur L. Clark and Susan E. Seffner, were the only heirs-at-law of said John Gr. Clark, deceased. And as conclusions of law upon the abové facts the court-find that said ‘Arthur L. Clark, and C. F. Seffner, hold said auditor’s deed in trust for said J. W. Clark, Arthur L. Clark and Susan E. Seffner, and that said J. W. Clark is the owner of one third part of said lot number eighty-nine-(89), subject to an account for taxes paid by said Arthur L. Clark, and C. F. Seffner, and for repairs, if any were made by them, and also entitled to an account of the rents thereof; that said plaintiff has a lien on the interest of said J. W. Clark, by virtue of the judgment aforesaid; that there is now due thereon, on the 20th day of January, 1887, for principal and interest, the sum of five hundred and forty dollars and ninety-nine cents. (1540.99). It is therefore ordered, that unless said defendant J. W. Clark pay, or cause to be paid the said sum, with interest thereon from this date, and the costs herein, that the interest of the said J. W. Clark in said premises, viz.: the one undivided third part of said lot number eighty-nine (89), in the village of Marion, Marion county, Ohio, be appraised, advertised and sold as upon execution, and that an order issue from this court to the sheriff of Marion county, Ohio, commanding him to so appraise, advertise and sell the same, and to bring the proceeds into this court for further order. And it is further ordered that the defendants Arthur L. Clark, Susan E. Seffner, executrix of the last will of C. F. Seffner, deceased, and Susan E. Seffner, have leave to amend their answer so as to plead their account for taxes, repairs, etc., on said premises, and that the plaintiff have leave to reply thereto.”
    To reverse the decree of the circuit court, this proceeding in error is prosecuted by Arthur L. Clark and Susan E. Seffner, for herself and as executrix of the last will and testament of C. F. Seffner, deceased.

      W. Z. Davis, for plaintiffs in error.

      McNeal & Wolford, for defendant in error.
   Dickmaít, J.

It is provided by section 2852 of the Revised Statutes that, if any person who shall be seized of lands as tenant in dower, shall neglect to pay the taxe& thereon, so long that such lands shall be sold for the payment of taxes, and shall not, within one year after such sale, redeem the same, according to law, such person shall forfeit to the person or persons next entitled to such lands in remainder or reversion, all the estate which he or she, so neglecting, may have in said lands; and the remainderman or reversioner may redeem such lands in the same manner that other lands may be redeemed after having been sold for taxes.

Lot number 89 was set off and assigned, in partition, to Isabel Clark for her dower in the lands of her deceased husband, John G. Clark, and subject to her dower estate, J. W. Clark, Arthur L. Clark and Susan E. Seffner, children and only heirs-at-law of John G. Clark, had a vested remainder in fee in the land, as tenants in common. When the dowress suffered the land to become delinquent for taxes, and to be sold, and failed to redeem the same within one year after sale, she forfeited her estate to those entitled in remainder. From such forfeiture no benefit could have accrued to the remaindermen, if the land had been purchased by strangers, and the remaindermen had neglected to redeem within the statutory period of two years. But, the purchasers at the tax sale were Arthur L. Clark, one of the tenants in common, and C. F. Seffner, the husband of one of the tenants in common, and under the deed of conveyance from the .auditor, the purchasers held the premises disencumbered from the dower interest.

The auditor’s deed, under the statute, vests in the grantee, his heirs and assigns, “ a good and valid title, both in law and equity;” but the question arises, whether by virtue of the tax sale and auditor’s deed, J. W. Clark was divested of all interest in the land, upon his failure to redeem his separate interest from his co-tenants, within two years. In our view, the relations existing between tenants in common— whether in possession of the property or entitled to an estate in remainder — is of a nature to preclude such a result. Just dealing and the confidence necessarily reposed in each other would suggest, that owners in common of real estate should consult for the mutual benefit. While one should do no act intentionally to the detriment of the other, good faith should withhold him from all action, in reference to the common property, that would work exclusively to his own advantage. The Supreme Court of Tennessee, in Tisdale v. Tisdale, 2 Sneed 599, in representing the fiduciary obligations between tenants in common, correctly say: “ Tenants in common by descent, aró placed in a confidential relation to each other, by operation of law, as to the joint property, and the same duties are imposed as if a joint trust were created by contract between them, or the act of a third party. Being associated in interest as tenants in common by descent, an implied obligation exists to sustain the common interest. This reciprocal obligation will be vindicated and enforced in a court of equity, as a trust. These relations of trust and confidence bind all to put forth their best exertions, and to embrace every opportunity to protect and secure the common interest, and forbid the assumption of a hostile attitude by either.” Nor is that trust and confidence that should exist between owners in common to be diminished, because they happen not to be in present possession of the estate in common, but are tenants in remainder, awaiting the termination of the precedent particular estate.

From the facts as disclosed by the record, we think that Arthur L. Clark and C. F. Seffner, in making the purchase at the tax sale, stood in a fiduciary capacity, and held the auditor’s deed in trust for J. W. Clark, Arthur L. Clark and Susan E. Seffner. It is said however, that so far as C. F. Seffner was concerned, it was a purchase by a stranger and not by a tenant in common. But though there may be a purchase at a tax sale by one not then a co-tenant, yet, if he be the agent of one of the co-tenants, or otherwise occupies a confidential relation to one of them, his purchase will generally be allowed no further effect than if made by his principal. This rule, it is. said by Mr. Freeman, in his treatise on Co-tenancy, § 158, has probably been enforced, to prevent co-tenants from eluding the force of the prohibition against their acquisition of and enforcement of a hostile title, by colluding with their agents and others occupying confidential relations with them. And in Lee v. Fox, 6 Dana 171, it was decided that, the husband of a co-heiress, who had purchased an outstanding incumbrance on the lands of the heirs, should be held to have purchased for the benefit of all the tenants, upon condition only that they should contribute their respective proportion of the consideration actually paid for the incumbrance. Recognizing the rule that prohibits one tenant in common from buying in an outstanding adverse title for his exclusive benefit, and which holds it to inure to the benefit of his co-tenants, at their option, the Supreme Court of the United States, in Rothwell v. Dewees, 2 Black. 613, applied the rule to the case of a purchase of an outstanding interest by a husband of one of the tenants in common, who held the property as heirs of a common ancestor; and it was there recognized and considered, that the rule was based on a community of interest in a common title, which created such a relation of trust and confidence between the parties, that it would be inequitable to permit one of them to do anything to the prejudice of the other, in reference to the property so situated.

It is manifest that if a tenant in common, in whom a co-tenant and joint-heir reposes confidence, could, by allowing the common property to become delinquent for taxes, and then purchasing the same at tax sale, become the absolute owner as against his co-tenants, sound policy would sanction the rejection of such a rule. By holding the purchaser to be a trustee of the title for the. benefit of all the owners in common, the co-tenant might be protected in his rights. But that protection would be taken away, if the tenant in common, after suffering the property to be sold for the nonpayment of taxes, could, by buying it in at tax sale in the name of the husband, escape the obligations of a trustee, and absorb the interest of the co-tenant.

It is stated as a well settled principle, by the text writers, and. in numerous decisions, that a tenant in common will not be permitted to assert against his co-tenant a title acquired by him at a sale for taxes imposed on the joint property. The purchase in such case will be held to inure to the benefit of the joint owners. A tenant in common holds a several interest in the lands, which is, however, so far identical with his co-tenants’ interest that, in all matters affecting the estate, he will be regarded as acting for them as well as himself. He cannot, therefore, as the owner of an undivided portion of the realty, acquire a title at a tax sale to defeat the title of the owners of other portions, and whatever interest he acquires will be simply a trust for all the co-tenants. Weare v. VanMetter, 42 Iowa 128; Fallon v. Chidester, 46 id. 588; Page v. Webster, 8 Mich. 263; Venable v. Beauchamp, 8 Dana 321; Choteau v. Jones, 11 Ill. 300; Allen v. Poole, 54 Miss. 323; Davis v. King, 87 Pa. St. 261.

In VanHorn v. Funda, 5 Johns. Ch. 388, it was held that, if it is admitted that one tenant in common may, in a particular case, purchase in an outstanding title, for his own benefit ; yet, where two devisees are in possession of land, under an imperfect title, devised to them by their common ancestor, one of them cannot buy up an outstanding or an adverse title, to disseize or expel his co-tenant; but such purchase will inure to their common benefit, subject to an equal contribution to the expense. In the case at bar, it is said that the dowress, and not the tenants in common, was in actual possession of the land at the time of the purchase at tax sale. But, at common law, the tenant for life and remainderman in fee are deemed so closely connected in interest that, if in the first place an estate for life is created or carved out of the fee and given to one person, and the residue or remainder of it is given to another person, both these interests are in fact only one estate. 2 Bl. Com., ch. 11; 2 Cruise Dig. Tit. 16, ch. 1. The lien of the state for taxes attached to the entire estate, and all the proceedings under the statute for the sale of the land for non-payment of taxes, are in rem. They operate, if at all, upon the land itself, and not merely upon the title of the person in whose name it may have been listed for taxation. Jones v. Devore, 8 Ohio St. 430. Upon the sale of any land for delinquent taxes, the lien which the state has upon the land for taxes then due is transferred to the purchaser at'such sale. Revised Statutes, sec. 2880. But if the purchaser is one of several tenants in common by descent, he should not, we think, stand in any better position in relation to his co-tenants, than one of two devisees of a common ancestor, in possession under an imperfect title, who buys up an outstanding title to expel his co-tenant. The lien of the state for taxes is upon the common property; there is a community of interest in the preservation of the title; and the purchase should be considered as made for the common protection. Certainly the inequitable rule should not be applied, that, if the co-tenant does not redeem his separate estate within two years after the sale, all his interest in the estate shall pass to the purchasing tenant in common as absolute owner.

Where the tenant of the particular estate is in possession, and one tenant in common of the remainder in fee purchases the land when sold for taxes at delinquent sale, the deed of conveyance from the auditor, which the statute provides shall vest in the grantee “ a good and valid title,” will not, in our judgment, operate for his exclusive benefit, but for the benefit of all the owners in common. Indeed, it is laid down in authoritative decisions, as a general principle, that one who ought to pay the taxes on property, cannot, by omitting to do so, purchase at a sale of the property for the non-payment of taxes, and thereby strengthen his title; that the deed to him will convey no title; and that the payment of the money will be regarded as a payment of the .tax, and not as a purchase of the property. Middletown Savings Bank v. Bacharach, 46 Conn. 513; Blake v. Howe, 1 Aikens, 306, 15 Am. Dec. 684, note; Johnston v. Smith’s Adm’r, 70 Ala. 118. In Douglas v. Dangerfield, 10 Ohio 152, 158, it was held that, one in possession of lands claiming title, and in whose name it is listed for taxation, acquires no additional interest by suffering the land to be sold for taxes, and purchasing the same himself. Hitchcock, J., in delivering the opinion of the court, said: “ The sale was made to the individual in whose name the land was taxed, who had it in possession, and who claimed to be the owner — to the individual who, under the circumstances was bound to pay the tax, and who did in fact pay it.....In our view, the complainant acquired no additional right by this purchase, and must be held to be in the same situation that he would have been had he paid the taxes before the sale.” It is contended, however, for the plaintiffs in error, that, in the case at bar, the remaindermen were under no obligation to pay the tax; that the tax was not assessed against them; and that they did not therefore stand in the position of persons who being bound to pay the tax, neglect to do so, and buy in the property at delinquent tax sale. And yet, as said by the court, in Middletown Savings Bank v. Bacharach, supra: “ In those cases, in which there is a direct legal obligation, there can be no question about the duty to-pay the taxes. But other parties may acquire an interest in real estate who are not directly responsible to the public for the taxes, and who enter into no contract in respect to them, and yet may be so situated that it is their duty to pay -the taxes. For instance, a purchaser of the property or of the equity of redemption subject to a tax lien; he may be compelled to pay the taxes in order to protect his own title. In such cases it is for his interest to do so. Necessity and interest combine to make it, in a broad sense, his duty to do so. Such a party ordinarily cannot be a purchaser of a tax title.” It was accordingly held, that Bacharaeh was not capable of purchasing at a tax sale, and that the deeds to him conveyed no title. And in Christy v. Fisher, 58 Cal. 256, it was declared to be the well settled doctrine, that one who is under a moral or legal obligation to pay the taxes, is not in a position to become a purchaser at a sale made for such taxes; and that if such person permits the property to be sold for taxes, and buys it in, either in person or indirectly through the agency of another, he does not thereby acquire any right or title to the property, but his purchase will be deemed one mode of paying the taxes.

By virtue of section 2854 of the Revised Statutes, any part owner wbo shall pay the tax on the whole tract or tracts of which he is part owner, shall have a lien on the shares or parts of the other part owners for the tax paid in respect of their shares or parts. And. upon principles of equity, one tenant in common so making payment might compel a just contribution toward the payment of the amount expended. The circuit court, therefore, did not err in decreeing that J. W. Clark was the owner of the one third part of lot number 89, subject to an account for taxes paid by Arthur L. Clark and C. F. Seffner, and for repairs that may have been made by them, but was entitled to an account of the rents of the premises.

The original petition prays that priorities may be determined, and the property sold, and that the plaintiff may be paid the amount of his judgment out of the proceeds, with a prayer for, general relief. Whether the judgment debtor, J. W. Clark, had a legal interest in the land that could be sold on execution to satisfy the judgment, or only an equitable interest that was not the subject of seizure or levy under an execution at law, the exception taken in argument by the plaintiff in error, at this stage of the proceedings, to the. form of the original action, should not avail to prevent such interest from being applied in satisfaction of the claim of the judgment creditor, and the judgment of the circuit court should in our opinion be affirmed.

Judgment accordingly.