author: Dickman, C. J.

text:
    Pride v. Andrew.

      Fraudulent conveyance — Section 4196, Revised Statutes — Suit by grantor to compel reconveyance.

    Where an owner, during the pendency of a suit against him, and in view of a possible judgment being rendered therein adversely to him, conveys his property to another with intent to defeat the satisfaction of suchjudgment as may be recovered against him in the suit, he cannot, after judgment in such suit in his favor, have the aid of a court of equity to compel the grantee to reconvey to him the property.
    (Decided May 22, 1894.)
    Error to the Circuit- Court of Washington county.
    The original action was commenced in the court of common pleas of Washington county, by James B. F. Pride and others, the plaintiffs in error, against George Andrew and Margaret Andrew, his wife, formerly Margaret Pride. The third amended petition alleges as follows:
    “Said plaintiffs say that they, James B. F. Pride, Jesse Pride, Mary Pride and Bertha Pride, the last three named being the sole and only heirs of William Pride, deceased, Baruch Pride, Alvira Heaclly, formerly Alvira Pride, wife of Thomas Headly, and the said defendant, Margaret Andrew, wife of said Georg-e Andrew, were heirs at law of one Jesse Pride, late of said county and state, deceased, who died testate, and whose will was duly admitted to probate in said county and probated by the probate court of said county, and is as such now by due and proper proof, and the record thereof the valid will of said Jesse Pride, deceased. That among Other things, the said last will of said Jesse Pride, devised as follows, to wit: First, “I give and devise to my beloved wife (in view of her dowery) the farm on which we now reside, situate in Belpre township, Washington county, Ohio, containing twenty-five acres, more or less, with all the stock, household goods, furniture, provisions and other goods and chattels, which may be thereon at the time of my decease, during her natural life. At the death of my said wife the real estate aforesaid, I give and bequeath or devise to my sons William Pride and Baruch Pride and James B. Finley Pride and Margaret Andrew and Alvira Headly, my daughters, and their heirs. If, however, either of my aforesaid sons or daughters should die before the decease of my said wife, leaving no children living at the decease of my said wife, then the shares of said property, above devised to such deceased son or daughter, shall be equally divided among or between, the remaining sons and daughters aforenamed by me. If my said wife should not survive me, then I devise and bequeath the property aforesaid to my sons and daughters aforesaid.
    “Plaintiffs say that on or about the — day of --, 188-, the wife of said J esse Pride departed this life; that the said William Pride, named in said will, has also departed this life, and left as his sole and only heirs at law said Jesse Pride, Mary Pride and Bertha Pride, named above; that the plaintiffs and defendants, except George Andrew, are the persons named in said will, to whom the estate of said real estate, mentioned in said will, as twenty-five acres, more or less, in Belpre township in remainder, was devised, and plaintiffs say that after execution of said will, to wit: About June 2, 1881, said Jesse Pride was seized in fee and in the possession of the following real estate, situate in said county of Washington and state of Ohio, and being the same real estate described in said will as devised to the parties named as devisees, and described as follows, to wit: (Here follows a description of said real estate, containing28 and 99.100 acres, more or less.)
    ‘ ‘ Plaintiffs say that at said date last aforesaid, there was pending in the circuit court of Pleas-ants county, W. Va., a certain action wherein Manderville Coe and Margaret Coe, his wife, were plaintiffs, and one Sarah A. Rawson, Elizabeth Rawson and said Jesse Pride, deceased, were defendants ; that said action was upon a guardian’s bond, executed by said Sarah Elizabeth Rawson, as principal, and said Jesse Pride was her surety therein, in which said bond said Elizabeth Rawson was named as the guardian of Jesse Rawson, Elizabeth Rawson, Nancy Rawson and Isaac Raw-sons, heirs and children of said Elizabeth and her said husband, Eliot Rawson, said action being on said bond by said Manderville Coe and Margaret Coe against said Elizabeth Rawson and Jesse Pride, to recover of said defendants the share of said Margaret Coe in the estate of her deceased father, Eliot Rawson, amounting’ to $1,200 or $1,500.
    “Plaintiffs say that said claim set up in said action was wholly illegal and unfounded, and that there was no legal or equitable liability as against said Jesse Pride arising out of his suretyship on said bond or otherwise in said action as the said Margaret, at the time of said execution of said bond by said Jesse Pride, was not born.
    “And plaintiffs further say that said Jesse Pride, in order to prevent the collection and payment of said pretended demand and claim or any part thereof, and for no other purpose whatever, and with no intent or purpose whatever of defrauding any of his lawful creditors who had just and legal claims against him, said Jesse Pride entered into an agreement with the said defendant Georg-e . Andrew, by which it was agreed by and between said Andrew and said Jesse Pride that said Jesse Pride should convey by good and sufficient deed in law, the land and premises above described, and when and if said Jesse Pride should be relieved and discharged from said unfounded claim made in said suit the said George Andrew agreed and was to reconvey said land and premises to said Jesse Pride by a good and sufficient deed in law.
    “That under and by virtue of said agreement said Jesse Pride did then and there convey to said George Andrew by a good and sufficient deed in law on its face at a nominal consideration of $2,000, but in fact without any consideration thereof whatever. That after said conveyance, said Jesse Pride remained in the possession of said premises, paid the taxes on the same, made improvement on said farm, cultivated the same, and thereupon exercised entire control over the same, paid no rents to said Andrew for the use of said land, nor did said Andrew claim any ownership over said land, nor ask, claim or demand any rent for the same of said Jesse Pride.
    ‘ ‘ Said plaintiffs say that at the time of said conveyance and prior thereto, said Jesse Pride being-very aged, to wit: about eighty-two years old and being feeble in health and by reason of the said litigation in West Virginia, as aforesaid, he became and was very weak in mind; and the effects of this feebleness from ag-e in both body and mind connected with the trouble arising from said litigation, was such that at the date of said conveyance he had not capacity or mind sufficient in law to comprehend and enter into and make such a disposition of his said property as to dispose of the same by deed as aforesaid or in any other manner; and by reason of the state of mind of said Jesse Pride and the promises of said defendants, George Andrew and Margaret Andrew, wife of said George, that they would take and hold said real estate for him, and reconvey the same to him when he should be relieved from said litigation and trouble by reason thereof, and at the urgent solicitations of and' the undue and improper influence of said George and Margaret Andrew over him at said time, said conveyance was made.
    “Said plaintiffs say that said defendants had full knowledge of all the facts above stated in regard to said litigation, and also of the weak condition of the mind of said Jesse, and the sole purpose for which said conveyance was made as above stated, and also the effect of their influence as aforesaid over him.
    “Said plaintiffs say that said Jesse Pride, by the consideration of said circuit court of Pleasants county, West Virginia, was adjudged never to have been subject to any liability in said case, nor upon the cause' of action therein set forth, and was wholly discharged and relieved therefrom and from all liability whatever by reason thereof, and that after said discharge of said Jesse Pride from said litigation and the determination of said litigation in his favor, he called upon said defendants and requestéd them to reconvey said premises to him according to said agreement, but said defendants then and there wholly refused so to do, and' still refuse, and immediately upon the death of said Jesse Pride, said plaintiffs requested said defendants to convey said premises to them in such proportions as they, by virtue of the devises in said will were entitled, but said defendants then and still wholly neglect and refuse so to do or allow said property to be disposed of as provided in said will.
    “Plaintiffs say they had no knowledge of said conveyance, nor did they counsel or advise or take any part in said transaction whatever.
    “Wherefore they pray that said conveyance may be set aside, and that said real estate described above may be divided and disposed of as provided in the said last will and testament as herein set out, and for all other relief as in equity, plaintiffs are entitled to have received.”
    To this petition there was a demurrer, which was overruled. An answer was then filed to said petition, which is as follows:
    “And now come the said defendants and for their answer to the third amended petition of plaintiffs say they admit that said Jesse, Mary and Bertha Pride, plaintiffs, are the. sole and only heirs of William Pride, deceased; that said Jesse Pride, late of said Washing'ton county, in said petition mentioned, died testate, and that his will was admitted for probate as in said petition alleged, and that by said last will he made the devises as in said petition set forth, and said defendants admit that about June 2, 1881, said Jesse Pride, deceased, was seized in fee of the said premises in said petition described, being’ the same premises as devised by his said last will, and that at said date a certain action was pending against said Jesse Pride in the circuit court of Pleasants county, West Virginia, but said defendants deny each and every other allegation except those specifically admitted as aforesaid in said petition contained. ’ ’
    The cause was heard upon the third amended petition, the answer of the defendants thereto, and the evidence and judgment was rendered for the defendants.
    The plaintiffs appealed to the circuit court. The cause was heard in the circuit court upon the third amended petition, the answer of the defendants thereto, and the evidence, and the court found, upon the issues joined, for the defendants.
    At the request of parties, the court made the following special finding of facts, viz.:
    “That the said Jesse Pride, deceased, at the time when he executed and delivered the deed of conveyance to the defendant, George Andrew, mentioned in said petition, to wit: On the 2d day of June, A. D. 1881, was of sound mind and of sufficient mental capacity to make said conveyance; that said conveyance was not intended by him as a gift, but was made without consideration moving to the said Jesse Pride, and without any agreement of the said defendants or either of them to reconvey the property mentioned in said deed, to the said Jesse Pride or any other person; that said conveyance was made by Jesse Pride with the intent, and for the purpose on his part to hinder and delay and defeat the seizure or application of said property to the satisfaction of the claim of Manderville Coe and Margaret Coe, then pending against him, the said Jesse Pride in the circuit court of Pleasants county, West Virginia, mentioned in said petition, in case judgment should afterwards be recovered against him thereon; that judgment was afterwards rendered in favor of said Pride and against the validity and justness' of the claim of said Manderville and Margaret Coe, in said proceeding in said Pleasants county, and before any demand was made for a reconveyance of said property, and that said conveyance was made without any fraud or undue influence on the part of said defendants or either of them. ’ ’
    It was adjudged and decreed by the circuit court that the plaintiff’s petition be dismissed, and that •the defendants go hence without day, and recover of the plaintiffs their costs in and about the action expended, and that the cause be remanded to the court of common pleas to carry said judgment into execution.
    To reverse the judgment of the circuit court this proceeding in error is prosecuted.

      Loomis & Knowles, for plaintiff in error.
    The grantor had a legal right to make the conveyance to shield his property from an unjust claim. In all unlawful claims and demands, if he is successful in his resistance to the demand, the transfer cannot be considered fraudulent. See Dearman v. Dearman, 4 Ala., 521; Brady v. Ellison, 2 Hayw., 348; Smith v. Bowen, 2 Hayw., 296; Bump Fraudulent Conveyance, 2d Ed. 444, 445; Barker v. Gillman, 52 Barber, N. Y., 26.

      Nye & Oldham, for defendants in error.
    The wrong, on account of which equity refuses its relief, consists in the intention to hinder, delay or defraud the creditor. The grantor who conveys, while a suit is pending against him, in order to defeat a judgment if one shall be obtained, has all the guilty intention of him who seeks to avoid a judgment already rendered.
    The following authorities hold that where a vendor, in contemplation of a possible judgment being rendered against him, conveys his property with intent to defeat such judgment, he cannot, after judgment in his favor, recover his property even where the vendee has promised to re-convey. Tantum v. Miller, 11 N. J., Eq., 551; Harris v. Harris, 23 Gratt., 737; Brady v. Briscoe, 2 J. J. Marsh, 212; Cameron v. Romille, 53 Tex., 238; Fletcher v. Fletcher, 2 McArthur, 38. And in Hack v. Moore, 17 Iowa, 195, where the debtor supposed himself justifiable in attempting by a conveyance to defeat “an old claim,” the court say, on page 198, “the law imperatively pronounces and inexorably stamps all transfers made with this motive as fraudulent.”
    The same doctrine is maintained in Wait’s Fraudulent Conveyances, sections 429, 430; Dunaway v. Robertson, 95 Ill., 419.
   Dickman, C. J.

The finding of facts by the circuit court discloses, that the conveyance by Jesse Pride to George Andrew was not intended by him as a gift; that it was made without consideration to the g’rantor, and without any agreement entered into by the grantee to reconvey the property described in the deed; that the conveyance was made without any fraud or undue influence on the part of the grantee; and was made by the grantor with the intent and for the purpose of hindering, delaying and defeating the seizure or application of the property to the satisfaction of the claim then pending against him in the circuit court of Pleasants county, West Virginia.

Section 4196, of the Revised Statutes of Ohio, provides as follows: “Every gift, grant, or conveyance of lands, tenements, hereditaments, rents, goods or chattels, and every bond, judgment' or execution, made or obtained with intent to defraud creditors of their just and lawful debts or damages, or to defraud or to deceive the person or persons purchasing such lands, tenements, hereditaments, rents, goods or chattels, shall be deemed utterly void and of no effect. ’ ’

While such a conveyance with intent to defraud creditors is, as ag'ainst creditors, thus made absolutely void, the principle is well settled that such a conveyance is good between the parties, and no remedy is afforded the fraudulent grantor or his ’heirs to reclaim the property. While the fraudulent grantee, from a sense of his moral duty, ought to give back the property to him from whom he received it, yet, the law, to discourage frauds, will not compel him to restore it to the fraudulent ' grantor. Swift v. Holdridge, 10 Ohio, 230. The doctrine has been adjudicated by a great weight of authorities, that neither party to a fraudulent conveyance can be aided in a court of- justice, but that they will be left in exactly that position in which they have placed themselves by their covinous and fraudulent transactions, and that the fraudulent grantor will not be permitted to impeach his deed, or to revoke or rescind such executed contract.

There are cases, however, seemingly at variance with this rule, in which aid was extended to grantors who were in delicto, but not in pari delicto with the grantees. But these cases are exceptions to the well-defined and almost universal rule, and rest upon facts not existing in the case before us. Where there are different degrees of guilt as between the parties to the fraudulent or illegal transaction, it was said in Roman v. Mali, 42 Md., 513, that as an exception to the g'eneral rule,, if one party act under circumstances of oppression, imposition, undue influence, or at great disadvantage with the other party concerned, so that it appears that his guilt is subordinate to that of the defendant, the court in such case will relieve.

In Fletcher v. Fletcher, 2 McArthur (D. C.), 38, an action of slander had been commenced against the grantor and his wife, and the conveyance was executed to the defendant to protect the real estate therein described from the result of the action at law, upon an agreement with the defendant that as soon as the action was dismissed, or decided in favor of the grantor and his wife, he would reconvey the property to the grantor, his heirs or assigns. It was held that such an averment was fatal to the bill of complaint, and that a court of equity would not interpose to set the conveyance aside, but would leave the parties to the consequences of their own act. It was conceded, however, that a court of equity might assist the grantor where circumstances were shown to exist which recognized its interposition on other grounds of settled equity jurisdiction, “such as fraud in procuring the deed, imposition by the grantee, a violation of some fiduciary relation, an abuse of confidence, delusion or the like on the part of the grantor at the time of executing the deed.” See also Pinckston v. Brown, adm’r, 3 Jones’ Eq. (N. C.), 496; Boyd v. De La Montagnie, 73 N. Y., 498; Freelove v. Cole, 41 Barb., 318; Ford v. Harrington, 16 N. Y., 285; Holliway v. Holliway, 77 Mo., 396; Nichols v. McCarthy, 53 Conn., 299; Barnes v. Brown, 32 Mich., 146.

In commenting’ upon the foregoing and other cases of like tenor, Mr. Wait, in his work on Fraudulent Conveyances, § 401, very forcibly says : “While it is possible to deduce from them a general principle that degrees of guilt will be recognized in such transactions, and that grantors may, in certain cases, reclaim the property fraudulently alienated, where the transaction was superinduced by the unfair action of a vendee who occupied some relation of confidence which enabled him to unduly influence the vendor, yet a very clear ease with well defined reasons for excepting it from the general rule must be presented. Debtors contemplating fraudulent alienations should draw little encouragement from these exceptional eases, for, as a general rule, after passing through the troubled waters of insolvency they will find themselves stripped of the power to reach or recover the secreted property in the hands of their fraudulent grantees. The ancient rule, in pa/ri delicto melior est conditio possidentis, is not to be easily uprooted, and must not be considered as overthrown or abrogated bjr these cases.”

It is contended that the deed from Pride to Andrew was not made with intent to defraud creditors, because, the result of the litigation in West Virginia showed that the claim against Pride was without any merit, and that consequently the claimants were not and never had been his creditors. The question therefore arises, whether a conveyance of property by the owner, during the pendency of an action, for the purpose of defeating a judgment that may be rendered therein against him, can be set aside at the instance of the grantor or his heirs after judgment has been rendered in his favor in the pending action, the conveyance having been made without the practice of any fraud or undue influence by the grantee, and without any promise by him to‘reconvey the property.

One of the common incentives of a grantor to transfer his property in fraud of his creditors, is. the commencement of legal proceedings against him to subject his property to the payment of his debts. When such transfer is made of the grantor’s whole estate whilst a suit is pending against him, it becomes a badge of fraud calling for explanation and justification by proof. And when it is avowed, that the secret' intent and purpose of the conveyance was to hinder and defeat the seizure or application of the grantor’s property to the satisfaction of a judgment, if recovered against him, he confesses to a willingness and design to thwart the judgment of the court if contrary to his opinion and wishes. If the plaintiff; in the suit does not succeed, the grantor, on the ground that the plaintiff has turned out not to be a creditor, then invokes the aid of the very court, it may be, whose judgment he has endeavored to make valueless, to restore to him the property which he had deeded to another under a secret trust. If the plaintiff does succeed in his action, and thereby places himself on the footing of a creditor, he may then be forced to assume the burden of overthrowing the fraudulent conveyance made by the grantor.

Courts of law are the effective agencies by which creditors secure their rights, and it is to be presumed that their judgments and decrees will be founded on justice. If the grantor of property, therefore, not being certain whether his apprehensions as to the recovery of a judgment against him in a pending’ suit are well or ill-founded, acts as if the judgment would be against him, and by conveyance puts his property in the name of another under a secret trust, he cannot complain if a court of equity leaves the parties in the position in which it finds them, and declines to set aside the conveyance.

The statute contemplates a grant or conveyance with intent to defraud creditors. It recognizes the moral quality of the act as residing in the intention. The finding of facts discloses, that the conveyance was made by Pride to Andrew with the intent, on the part of the grantor, to hinder, delay and defeat the application of the property to the satisfaction of the claim in litigation in West Virginia, in case judgment should afterward be recovered against him thereon. In other words, his design was,' that if a court of justice should find the claim against him to be good and valid, his conveyance would serve to render nugatory the judgment recovered in the suit by his creditors. The claimants, it is true, did not succeed in establishing their claim, but in view of the avowed intention of the grantor, in the event of the claimants’ success, a court of equity cannot so far regard with favor the conduct of the grantor, as to aid in putting him and the grantee back in the condition in which they were before entering into the transaction.

The fact that the suit resulted in favor of Pride can have but little bearing on the question of his fraudulent intent in conveying all his property to Andrew at the nominal consideration of two thousand dollars, but in reality without any consideration whatever. In many cases, such favorable résult might well have been brought about by the Conveyance itself, 'in causing the creditor to abandon his suit rather than enter upon the task of pursuing the property.

If, before the suit in West Virginia had terminated, Pride had instituted proceedings to set aside his deed to Andrew, a court of equity would not, we think, have waited, to abide the result of the suit, but would have refused to cancel the deed, if convinced that it had been executed to defraud the claimants in the event of their recovering judgment.- It would have been enough to know, that the deed had been prompted by the fraudulent motive of placing the grantor’s prop-' erty beyond the reach of one then seeking to establish the validity of a claim against him in a court of justice, in case the claimant succeeded in his suit.

Our attention has been called to several cases in support of the contentions of the defendants in error. We need refer to only two of them.

Harris v. Harris' Ex'r, 23 Gratt., 737, as stated in the syllabus, was an action of debt brought by the' executor of Gabriel Harris against George Harris, to recover the amount of three bonds executed by George Harris to his father, Gabriel Harris. George tendered a special plea: That at the timé of the execution of the bonds he owed nothing to Gabriel, and that the consideration of the bonds was as follows: In 1866 four suits at law were pending’ against him in the county, naming the plaintiffs, to recover damages for trespass during the rebellion in impressing horses, etc., by him under orders of the Confederate government, hq" being an officer of the army under that government. He did not regard these claims as debts or. just liabilities on his part, but owing to the constitution of the courts and juries at that time, he feared they might be enforced against his property. He was informed by his counsel that the result was uncertain. He conferred with his father, who advised him to secure his property against these claims. The plan adopted was for him to execute to his father the bonds sued on, antedated, with the distinct understanding that they were only to be used and treated as obligations to claim priority over the plaintiff in case of necessity, and if unnecessary, yvere to be handed back to the defendant. The bonds were executed under this understanding, and upon no other consideration. Wherefore Gabriel Harris and his executor were bound to redeliver the bonds to the defendant, because the suits hcod been dismissed in 1867, before the death of Gabriel, and the bonds were therefore null and void, and to be surrendered. On motion of the plaintiff the plea was rejected. The court held that the averment by the defendant of his fears that the courts and juries would not do him justice, could not avail him, as the court must presume that no injustice would be perpetrated in regular legal proceedings had in the forum where such proceedings were pending. * * . * it was held further, that the plea was not good on the ground that the facts stated would entitle him to relief in equity, because his ground of relief was his own fraud.

In Tantum v. Miller, 11 N. J., Eq., 551 (3 Stock. Ch.), the complainant, who was threatened with a prosecution for larceny, conveyed to her niece several tracts of land. Although entirely innocent of the charge, yet, being ignorant of the law and the effect of such prosecution, and being informed by persons with whom she was well acquainted and in whom she confided, that if such criminal prosecution was urged against her she might be deprived of her property, and that the same might be taken from her by process of law, she was induced by such advice, and through the influence of her fears to make the convejmnce, her niece, the grantee, intending in due time to reconvey, the property to her. The chancellor said: “If this bill can be maintained, the court must take the broad ground, that if a person charged with a crime conveys away his property for' the avowed purpose of protecting it against the consequences of his conviction, if he escapes such conviction, a court of equity will aid him in recovering back his property. * * * The complainant made the conveyance for the unlawful purpose of placing it beyond the reach of the law, if the threatened prosecution should prove successful. * * * This was against public policy. This court cannot-aid a person under such circumstances.”

The two cases last cited go to sustain the position, that where an owner, in view of a possible judgment being rendered against- him, conveys his property with intent to defeat such judgment, he cannot, after judgment in his favor, recover back his property, even where the grantee has promised to reconvey.

In our opinion the judgment of the circuit court should be affirmed. ,

Judgment accordingly.


source: Caselaw Access Project

author: Bradbury, J.

license: Public Domain

text:
    Winemiller v. Laughlin et al.

      Constructive service — When conclusive in collateral attack — Foreclosure of mortgage — Sufficiency of petition, to support decree against other lienholders.

    1. Where, in an action brought to foreclose a mortgage, an affidavit in due form to obtain service, by publication, is filed and publication had, a finding by the court of common pleas that the publication “ is in all respects regular and according to law,” and that the defendant has been “duly served with notice of the pendency of said cause of action,” is conclusive against such defendant in a collateral attack upon the judgment even if he had no actual notice of the proceedings, resided within the state and might have been personally served with a summons, and although it does not appear of record that after the-publication was made and before the hearing an affidavit was filed stating that the residence of such defendant was “unknown and cannot with reasonable diligence be ascertained,” as is prescribed by section 5048, Revised Statutes.
    2. The plaintiff in an action to foreclose a mortgage, is not required to set forth either the nature of, or the facts constituting, the claim of another lienholder, in order to bar the latter by a decree against his claim if he should fail to answer. If for that purpose anything more is required than to make him a party and serve him with legal process, it will be-sufficient for the petition to state that such defendant claims some interest in the mortgaged premises, and advises him that his claim or lien will be barred if he fails to appear and disclose it.
    (Decided June 19, 1894.)
    Error to the Circuit Court of Paulding county.
    On October 8, 1883, The Collins Manufacturing-Company, a body corporate, then owning the land which is the subject of controversy in this action, executed a mortgage thereon to Clara A. Hoover, to secure the payment of a promissory note for $1,000, due the 5th of the ensuing October. The Collins Manufacturing Company, before September 5, 1885, conveyed the premises to one J. W. Vogelsong, the foregoing mortgage still subsisting; afterwards, on September 5, 1885, said Vogelsong executed and delivered to Mary B. Laughlin, defendant in error, a mortgag-e on said premises to secure the payment of $1,350.00, due in five years from date, and on November 2, A. D. 1885, he executed and delivered to her another mortgage thereon to secure the payment of $1,000.00 due, also, in five years.
    On November 29, 1890, Clara A. Hoover, the mortgagee of The Collins Manufacturing Company, as aforesaid, began a ■ suit in Paulding county, where the land lay, to foreclose her mortgage, making among others, J. W. Vogelsong, the purchaser of the premises, and said Mary B. Laughlin, his mortgagee, parties to the action. Mary B. Laughlin being served by publication only, and having no notice, in fact, that the action was pend; ing, did not appear and set up her claim, whereupon a decree was entered ordering a sale of the premises to satisfy the mortgage of Clara A. Hoover. She, becoming the purchaser thereof at the sale made under the decree, had the sale confirmed and her title quieted against any claim, among others, of said Mary B. Laughlin.
    Afterwards, Clara A. Hoover, the purchaser, sold and conveyed, by a deed in fee simple, the premises to said J. W. Vogelsong, and by similar conveyances the title became lodged in the plaintiff in error, Eiger F. Winemiller. Thereupon Mary B. Laughlin, defendant in error, commenced an action in the court of common pleas of Paulding county to foreclose the mortgages made to her, which have been mentioned before, making, among others, J. ■ W. Vogelsong, her mortgagor, and Winemiller, to whom the premises had been conveyed, parties defendant.
    Winemiller answered setting up the record of the action before mentioned, brought by Clara A. Hoover, showing the decree for the sale of the premises, the sale to Clara A. Hoover, its confirmation and the decree quieting the title of the purchaser, against the claim of Mary B. Laughlin, and the several mesne conveyances to himself, by virtue of which he contends he has succeeded, and becomes subrogated to all the rights, which by virtue of said decree and sale became vested, in said Clara A. Hoover.
    To this answer Mary B. Laughlin interposed the following reply:

      “Plaintiff, for her reply to the amended answer of Eiger P. Winemiller, says that she denies that said Clara A. Hoover, in said cause, No. 3,482, in her petition prayed that said Mary B. Laug’hlin be required to answer and set up her interest in or lien upon said premises, if any she had, or be forever barred.
    “Said Mary B. Laug’hlin denies that she had due and legal or any notice of the pendency of said action or that any day was named in said notice on which she was required to answer, as will appear from the certified copy of the record attached to said amended answer.
    “Plaintiff admits that Clara A. Hoover was the purchaser at said sheriff’s sale and that she conveyed the land in question to John W. Voglesong and avers that the consideration named in said deed was twenty-five hundred dollars.
    ■ “She further admits that said John W.. Vogelsong conveyed said premises to Edwin B. Hale, who conveyed to Henry E. Spring, who conveyed to said defendant, Eiger P. Winemiller, as in his said amended answers contained.
    “Plaintiff denies that the defendant, Eiger P. Winemiller succeeded and.become-subrogated to the rights of Clara A. Hoover in said premises.
    “Plaintiff further avers that the pleadings, record and proceedings in said cause, No. 3,482, were not sufficient to warrant any judgment or order as to her, and that the court was without jurisdiction of her person.
    “Plaintiff avers that she had no actual notice whatever of the pendency and prayer of said petition in said cause, No. 3,482, until informed by her attorneys about the time of the filing of the petition herein.

      “That for more than seven years last past, she has been a resident of the county of Erie, in the state of Ohio.
    “That the affidavit set forth in said proceedings was wholly false.
    “Plaintiff further avers that at the time of the execution and delivery of the mortgage set forth in her petition, the defendants, John W. Vogelsong and Emma O. Vogelsong, by their said mortgages duty executed and acknowledged, covenanted with said plaintiff as follows:
    “And we, the said grantors, do for ourselves and our heirs, executors and administrators covenant with the said grantee, her heirs and assigns, that at and until the ensealing of these presents, we were well seized of the above described premises as a good and indefeasible estate in fee simple, and have good right to bargain and sell the same in manner and form as above written, that the same are free and clear from all incumbrances whatsoever, and that we will warrant and defend said premises with the appurtenances thereunto belonging to the said grantee, her heirs and assigns forever, against all lawful claims and demands whatsoever.
    “The said Clara A. Hoover, the purchaser at said sheriff’s sale, for the consideration of the sum of twenty-five hundred dollars, conveyed said premises to John W. Voglesong on the 25th day of April, 1887, through whom the said defendant, Eiger F. Winemiller, claims title and the said Collins Manufacturing Company, subsequent to the date of its mortgage to said Clara A. Hoover, but prior to the date of plaintiff’s mortgage and the begining of said cause, No. 3,482, by its deed of general warranty, duty executed, acknowledged and delivered, conveyed said premises in the petition described to John W. Vogiesong. ”
    In the court of common pleas a demurrer was interposed to this reply and sustained. The cause was then taken by appeal to the circuit court, where, upon a demurrer being again interposed to the reply, the latter court held the. answer to be insufficient, and rendered judgment for the plaintiff below, now defendant in error. Thereupon the plaintiff in error began the present proceedings to obtain a reversal of the judgment of the circuit court.

      Sylvester Price and Snook & Snook, for plaintiff in error.
    Where a record of a proceeding’ or action shows that the court passed upon the question of service and found that the defendants therein were notified according to law, a defendant on whom no service was had, other than by publication, will not be permitted in a collateral proceeding to draw in question the jurisdiction of the court by proving that at the commencement and during the pendency of the proceeding he was a resident of the state. Hammond v. Davenport, 16 Ohio St., 178; C. S. & C. R. R. Co. v. Village of Belle Center, 48 Ohio St., 273.
    If the application for publication is untrue, if defendant at the time was a resident of the state and service of summons could have been made upon her within the state, the judgment would not hsve been void, although it might be voidable. If the latter, it could not be attacked in a collateral proceeding, but must be vacated in a regular proceeding under the code instituted for that purpose. Wherle v. Wherle, 39 Ohio St., 365.

      Where the record shows that a court had. jurisdiction to render judgment, and having rendered it, the law, when the judgment is collaterally attacked, will make all presumptions necessary to sustain it. Geignon v. Astor, 2 How., 319; Herman Es. & Res. Jud. Sec., 60.
    The plaintiff was not required to set out fully the nature of Mrs. Laughlin’s lien. She is not supposed to know the nature of every person’s claim. It is enough if the plaintiff set up the existence of the claim. It is then the defendant’s business, when thus called upon, to disclose its nature. Anthony v. Nye, 30 Cal., 401.
    The purchaser is bound to look no further back than the order of the court made in a proceeding which the law has empowered it to entertain, and with the proper parties, or subject matter before it.

      W. H. Phipps, for defendants in error.
    Enough must appear either in the application or the order or at least somewhere on the face of the pleadings, to call upon the court to proceed to act; and all agree that when that does appear then the court has acquired jurisdiction, or in other words, is properly set to work. Young v. Lorain, 11 Ill., 624; Fitzgibbon v. Lake, 29 Ill., 165.
    If enough appears to call upon the court to proceed to act (Mulford v. Stalzenback, 46 Ill., 303, 307) or if the allegations are sufficient to cause the judge to act (Galena & Chicago Union R. R. Co. v. Pound, 22 Ill., 399, 414) in a special proceeding, or if there was something stated to amend by, the proceedings are not void collaterally, but in the cases where the allegations showed affirmatively that no cause of action existed, the attention of the court was not challenged, nor was it called upon-to act by any material allegation, nor was there such allegation to amend by. Van Fleet’s Collateral Attack, 81.
   Bradbury, J.

The onty question for consideration presented by the record is whether Mai-y B. Laughlin, defendant in error, is bound by the proceedings in the action brought by Clara A. Hoover to foreclose the mortgag-e of the latter. Her counsel contend that she is not bound, for two reasons: First, because she was not legally notified of the pendency of the action; second, if she was legally notified, the averments of the petition were not sufficient to require her to answer and set forth a claim under her mortgage, and that, therefore, a clause in the order of- confirmation quieting’ the title of the purchaser against her mortgage was void.

That the defendant in error was a resident of this state and might have been notified, by a summons served upon her personally, of the pendency of the action, the decree in which is now set up to estop her, and that she had no actual knowledge of its pendency is admitted. She had, however, constructive notice by publication, unless the published notice was too defective in its context or in the steps taken to authorize and perfect it to charge her constructively.

The notice was in these words:

“Henry L. Custer, J. M. Custer and Mary B. Laughlin, whose place of residence are to the undersigned unknown, will take notice that Clara A. Hooker, on the 20th day of May, A. D. 1886, filed her petition in the court of common pleas, of the county of Paulding’ and state of Ohio, alleging, among other things, that J. W. Vogelsong executed and delivered to her his certain promissory note calling for $1,000.00, and to secure the payment thereof he had executed and delivered to said Clara A. Hoover a mortgage upon certain real estate therein described and that said claim is unpaid, and praying for a judgment and foreclosure of said mortgage, and alleging that the aforesaid Henry L. Custer, J. M. Custer and Mary B. Laughlin claim a lien upon the premises in said mortgage described.
“Said cause will be for hearing on the 3d of January, A. D. 1887, and unless the above named, and each of them, come into court and set forth their said respective claims they will be barred therefrom.”

The notice states that the mortgage sought tobe foreclosed, and the note secured by it, were executed by J. W. Vogelsong, whereas, the fact was, and the petition so averred, that they were executed by The Collins Manufacturing Company, which was the grantor of Vogelsong, and Vogelsong was the mortgagor of defendant in error. This publication was an attempt to notify her of the pendency of the action; it fairly disclosed that the plaintiff in that action sought to foreclose a mortgage on premises upon which she claimed a lien and advised her that her claim would be barred unless she appeared and set it forth. An affidavit was fled, regular in form, as prescribed by the statute, as preliminary to service by publication. Section 5048, Revised Statutes, provides that where the residence of the party served by publication is unknown, an affidavit stating that fact shall be made before the hearing. Whether or not such an affidavit was made does not appear from the record; nor do we find it necessary to determine whether where the preliminary, affidavit, as in this case, shows that the residence of the party to be served by publication is unknown, a second affidavit, to that effect, made after the publication and before the cause is heard, is necessary to give jurisdiction to the court, for the court of common pleas is one of general jurisdiction competent .to determine questions relating’ to that jurisdiction, and' it expressly found that the defendant here had .been ‘ ‘duly served with notice of the pendency of said cause of action and the prayer of the plaintiff’s petition;” and if such an affidavit was necessary to authorize the finding, we should presume in a collateral proceeding like this that it was made. Richards v. Skiff, 8 Ohio St., 586.

We need not pause to consider the sufficieny of this notice, or whether the finding above quoted would have bound her, had she instituted proceedings in error directly on the judgment to test their soundness; or if she had brought an independent proceeding to attack the judgment directly; for she did neither, but instead chose to assail it in a collateral proceeding as having, against her, no binding force whatever. The policy of the law is to maintain the stability of judicial determinations against this mode of attack, and, that universal principles of natural justice may not make this mode necessary, the rules of law provide the methods above mentioned for the correction of irregularities that are not sufficient to render a judgment, upon its face, a nullity. Of course a judgment that is void may be disregarded whenever and wherever it may be met. .The irregularities in the service by publication, however, disclosed by the record under consideration, do not, we think, render the judgment void against the defendant in eri’or, and open to collateral attack by her in the face of a finding by the court of common pleas, a court having capacity to determine, in the first instance, its own jurisdiction, that she had been legally served by publication. If an additional affidavit, as prescribed by section 5048 of the Revised Statutes, was necessary to support such finding, and complete the jurisdiction, we, as before stated, should presume that it was made, Lessee of Fowler v. Whiteman, 2 Ohio St., 271; Buchanan v. Roy's Lessee, 2 Ohio St., 251; Richards v. Skiff, 8 Ohio St., 586.

The petition of Clara A. Hoover set forth a claim upon a mortgage, and without attempting to disclose the nature of the claim held by the defendant in error, or to state facts which would constitute any claim whatever, proceeded to state that she, defendant in error, and certain other defendants, naming them, “have or claim to have some .interest in or lien upon said premises, the amount and nature of the same is not fully known to said plaintiff, and she avers that they should be served in this action with summons and come in and set up their interest in said premises, or be forever barred of the same. ’ ’

Certainly, under séction 5006, Revised Statutes, Mary B. Laughlin was a proper party to the action brought by Clara A. Hoover on her mortgage, for the former held a mortgage on the premises against which the latter was proceeding; and if the purchaser, at a sale made under such proceedings was to secure title free from her lien, then Mary B. Laughlin was a necessary party.

Being at any rate a proper party to the action, she ought, upon principles of well nigh universal application in such cases, to be bound by the judgment rendered in it unless the petition imposed no duty upon her to answer and set forth her claim.

Unless the plaintiff, in an action brought to foreclose a mortgage, in order to bar the lien or claim of. another in the mortgaged premises by a decree taken pro confesso upon a failure to answer, is bound either to state the facts that constitute such lien or claim, or disclose its nature so that the claimant could identify and recognize it, we do not perceive what inore should have been required of Clara A. Hoover in the action, the record of which we are now considering. The petition contained a pertinent description of the premises, and as the portions of it quoted before show, informed Mary B. Laughlin that if she had any lien thereon she was required to set it forth on pain of having it barred if she failed to comply. This we hold to be sufficient to require her to appear and set forth her claim, and if she fails to comply, will authorize a decree against her in respect to its validity. Our Code of Civil Procedure simply requires of a plaintiff that he set forth his own cause of action (section5060, Revised Statutes); while section 5006, before referred to, authorizes him to make any person a defendant to an action “who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein.” Whether, in view of the simplicity of procedure which it is the object of the code to secure, anything more should be required of a plaintiff in an action to foreclose a mortgage, to ®ompel lienholders to come in and set forth their respective claims, upon the property in controversy, than to merely make them parties and serve them with process, is a question that may admit of considerable doubt, but its determination here is not necessary.

Judgment reversed.


author: Spear, J.

text:
    Duncan v. Willis.

      Parties to actions — Practice in civil cases — Damages.
    W., having knowledge that D. O. D. and R. W. D. were desirous of purchasing thirty to forty head of hogs, each for separate use, represented to them that he had one hundred head of the kind and quality they wanted; he would not sell in separate lots, but would sell in one lot and the purchasers could divide them to suit themselves. He further represented that his hogs were sound, healthy, and free from disease, and that he had purchased them a few days before at $5.00 per 100 pounds. In fact, the hogs had been exposed to hog cholera, and were then infected with it, and had been purchased by W. as diseased hogs, and for a sum much less than $5.00 per 100 pounds, all which was well known to W., but unknown to the purchasers. Relying on the foregoing representations, the entire lot was purchased for $5,12} per 100 pounds, the two purchasers each to have fifty head as his separate and individual property, and to feed the same separately on their respective farms. The hogs were so divided immediately upon completion of the purchase. On the same day a number of them owned by D. O. D. died from cholera, and the disease was communicated to his other hogs, some of which also died. Held: That D. O. D. might maintain an action for damages against W. for the deceit and fraud without joining R. W. D., or making him a party defendant.
    (Decided June 19, 1894.)
    Error to the Circuit Court of Fayette county.
    Plaintiff’s action was commenced by the filing in the court of common pleas of Fayette county, of a petition of which the following is a copy:
    “The above named plaintiff says that on or about the 28th day of November, 1888, this plaintiff and his brother, R. W. Duncan, being desirous of each purchasing from thirty to forty head light feeding hogs, the defendant represented to them that he had one hundred head of the kind and quality they wanted, but would not sell them in separate lots or parcels, but would sell them the entire lot, and they could divide them separately to suit themselves. The defendant represented to them that said hogs were sound, healthy and free from disease, and that he had purchased the same a few days before for the price of five dollars per 100 pounds. That plaintiff and his said brother, relying wholly upon the said statements and representations of defendant, and with no other knowledge of said hogs, then agreed with defendant to purchase, and then did purchase said 100 hogs of defendant at the price of $5.12i per 100 pounds, and then paid him therefor the amount they came to, to wit: $564.30. This plaintiff and his said brother each to have fifty head of said hogs as his separate and individual property, and to feed separately on • their respective farms.
    “That they took said hogs, each of them fifty, and put them on their respective' farms the same day, which is about ten miles from defendant’s.
    “This plaintiff put his fifty hogs on his said place, and believing from the statements of defendant that they were sound, healthy and free from disease, put them in a lot adjoining a lot in which he had thirty other hogs.
    “The plaintiff says that said hogs so purchased of defendant by plaintiff and his said brother, were not then sound and healthy nor free from disease, nor had defendant paid therefor $5.00 per 100 pounds, but on the contrary said hogs were then, and had been for a long time before, sick and diseased, and infected with the disease known as hog cholera. That said 100 head of hogs had all been exposed to and infected with said disease. when said defendant purchased them, which was a few days before he sold them to plaintiff and his brother. And the defendant well knew at the time he so purchased them that they had been exposed to said disease, and were infected therewith and diseased, and he purchased them as and for diseased hogs, at much less than $5.00. per 100 pounds.
    “And he well knew that they were not sound nor healthy nor free from disease when he so represented them to plaintiff and his brother, but fraudulently and purposely withheld from them the facts concerning said hogs and said disease, and purposely sold the same to them as free from disease, when he well knew they were not.
    “The plaintiff says that of the said hogs this plaintiff got, some of said fifty hogs died from said disease the same day they took them home, and all of them, to wit: said fifty head taken by this plaintiff were and became sick of said disease, and before the 10th day of December several had died.
    “This plaintiff expended in time and medicine in and about trying to cure and prevent said disease $12.00, and on the 10th of December, to save what he could, he sold the balance of said fifty hog’s as and for diseased hogs, for the sum of $78.27, which was all they were worth for any purpose.
    “That his said thirty other hogs became and were infected with said disease from said hogs, and some have died, and all made much less valuable.
    “One sow, worth $7.50, became sick, and he disposed of her, realizing only $3.00, which was all she was worth for any purpose, and the damage and injury to- his other hogs was and is at least $25.00, besides infecting his said farm and making it dangerous to put any hogs thereon.
    “The plaintiff says by reason of the premises aforesaid, he has been damaged in the sum of $500, for which he asks judgment against the said defendant. ”
    To this pleading a demurrer was interposed on the grounds: 1. That-the petition does not state facts sufficient to constitute a cause of action; and 2. There is a defect of parties plaintiff.
    The demurrer being overruled, issue was taken and a trial had, which resulted in a verdict and judgment for the plaintiff. This judgment was reversed by the circuit court on the ground that the common pleas erred in overruling the demurrer to the petition,

      Mills Gardner, for plaintiff in error.
    The real party in interest must sue. If his individual rights are affected by breach of a joint contract, the seller is responsible to the full measure of damages, either jointly or individually.
    This is the rule as settled by this court in Alexander et al. v. Jacoby et al., 23 Ohio St., 358, 383.
    The breach of a contract may be a wrong, in re•spect to which a party injured may sue in case, instead of suing on the contract. The action is for the fraud — the deceit practiced.
    An action founded upon deceit, the declaration must be in tort, is the rule of pleading. 1 Hilliard on Torts, 3, 4.
    The rule is, that if a man tells an untruth, knowing it to be such, in order to induce another to alter his condition, who does accordingly alter it, and thereby sustains damages, the former is liable in an action for deceit. 1 Hillard on Tort, 3, 4 and note a; Watson v. Roulson, 7 Eng. L. and Eq., 585; 1 Barb., 599.
    The petition in the court of common pleas was and is, “an action on the case in the nature of deceit,” as Hilliard expresses it, for the wrong’ perpetrated on the plaintiff in error — damages which he individually sustained by reason of the deceit, and was properly brought by him alone.
    Fraud or deceit, accompanied with damage, is a good cause of action.
    Where one party designedly produces a false impression in order to mislead, entrap or obtain undue advantage over another, there is fraud— an evil act with an evil intent. 2 Hilliard on Torts, 282; Barney v. Dewey, 13 John., 224.
    The petition clearly charges and alleges the fraud and deceit upon which the plaintiff in error was injured and damaged by the infection of his hogs, owned by him individually.

      D. I. Worthington for defendant in error.
    By what we learn from the facts stated in the petition this was clearly a joint contract; the defendant in error being the one party thereto and the two Duncans the other parties — the interest of the Duncans being united, which clearly brings the case to be governed under and by the provisions of section 5007, Revised Statutes of Ohio, which is in the following language: “Parties who are united in interest must be joined as plaintiffs or defendants,” etc.
    A contract by one person with two or more jointly, does not comprehend or involve a contract with either of them separately.

      The defendant in an action, who has made but one •< contract or incurred a single liability, obviously has the right to require the whole case to be disposed of in one action. Estee’s Pleadings and Forms, vol. 1, page 53.
   Spear, J.

The ground of reversal was that there was a defect of parties plaintiff, and hence the common pleas erred in not sustaining the second g-round of demurrer.

In support of this holding it is argued that the case is controlled by section 5007, Revised Statutes, which requires that “Parties who are united in interest must be joined, as plaintiffs or defendants.” That a contract by one person with two or more jointly does not comprehend or involve a contract with either separately, and a defendant, who has made but one contract, or incurred a single liability, obviously has the right to require the whole case to be disposed of in one action. And, applying these considerations to the case at bar, inasmuch as R. W. Duncan was a party to the contract of purchase he was united in interest with the plaintiff, and was a necessary party to the action, because Willis, having made a single contract, incurred only a single liability, and hence had the right to have R. W. Duncan broug-ht in so that the whole question of liability might be disposed of in one action.

The general rule undoubtedly is that in a suit for the breach of a joint contract all the parties to the contract must be joined as parties in the action, and if any refuse to become plaintiffs they may be made defendants. This rule rests not only upon the ground that the defendant may well ask that his entire liability be determined in one action, but upon what seems to us a reason equally good, viz.: That if several were permitted to bring several actions for one and the same cause, the court would be in doubt for which of them to give judgment. But there are exceptions to the rule.

The allegations of the petition in this case present a condition differing from the ordinary cause of action for breach of a joint contract, and this leads to the inquiry whether the case comes within the ordinary rule or falls within some recognized exception. A defendant may, with great propriety insist, where he has made a sale to a number of purchasers who, for anything appearing to the contrary, are to use the property jointly, or dispose of it on joint account, that he should not be subjected to damages by two or more actions, for, in such case, it may fairly be said that he did not contemplate, and ought not to have contemplated, liability to each separately. He may, also, insist that the right of action be confined to the exact persons for whose benefit his contract was made. So it was held in Edwards v. Owen, 15 Ohio, 500, that while an action on the case might be maintained against a debtor for representing’ himself insolvent and thereby inducing his creditor to discharge a note for less than its value, yet it was error to instruct a jury that proof of false and fraudulent declarations thus made to other creditors would sustain a declaration counting upon representations made directly to the plaintiff. And in McCracken v. West, 17 Ohio, 16, it was held that “if a person write a letter to another, desiring him to introduce the bearer to such merchants as he may desire, and describing him as a man of property, and the person having such letter do not deliver it to the person to whom it is directed, but use it to obtain credit elsewhere, the person so giving the credit cannot maintain an action for deceit, though the representations in the letter are untrue.” Also, in Wells v. Cook, 16 Ohio St., 67, it was held that where the owner- of a flock of sheep, apparently sound and healthy, but known to him tobe diseased with a contagious malady, falsely and fraudulently represents them as sound and healthy to one known to be acting as the agent of a third person, and the agent confiding in such representations, buys them for his principal with the avowed purpose of mingling them with a large flock then belonging to the principal, whereby the united flock was infected, and, the agent and principal being-still unaware of the existence of the disease, the agent buys the united flock from the principal and suffers damage from the continued spread of the disease, he could not maintain an action against the seller for the deceit, the representations not having been made to him to induce him to act upon them in any manner affecting his own interests.

In these cases it is manifest that there was an entire lack of privity between the several complaining parties and those accused of deceit, • and hence there could be no right of action. Whatever liability would naturally attach to the deceit complained of, one thing- was plain, and that was that the right to be compensated did not inure to the complaining parties. It could not be said in either ease that the person guilty of fraud ought to have contemplated injury to the person complaining.

Not so, however, in the case at bar. The plaintiff, being a party to the contract, was one of those necessarily within the contemplation of the defendant as likely to be injured by the fraud. Was he so related to the transaction as that the defendant should be held to have contemplated injury to him separate and distinct from any possible injury to the other purchaser? To determine this let us look at the contract.

The petition discloses that Willis, having knowledge that the plaintiff and his brother were desirous of purchasing, each for his own separate use, a number of head of light feeding hogs, represented to them that he had one hundred hogs to sell of the kind and quality desired which were sound, healthy, and free from disease, and for which he had paid $5.00 per 100 pounds, but declined to sell in separate lots; he would sell the Duncans the entire lot and they could divide them to suit themselves. Relying upon these representations the brothers purchased the one ■ hundred hogs, paying $5.12^ per 100 pounds, the plaintiff and his brother each to have fifty head of the hogs as his separate and individual property, and to feed separately on their respective farms. On the same day the hog's were divided in accordance with the agreement, and plaintiff took his fifty at once to his own farm, where some of them died on the same day by reason of hog cholera. They had been exposed to this disease and were infected with it at the time of the sale, all of which was known to the defendant, who had in fact purchased them as diseased hogs, and for a much less sum than $5.00 per 100 pounds. Not only did plaintiff lose the diseased hogs which died, but the disease was communicated to his other hogs, and he was greatly injured thereby.

It would seem that this contract of purchase, though joint in form, and based upon a consideration moving jointly from the two, was in spirit and essence, so far as it is involved in the present controversy, a separate contract as to each,, and that the rights acquired under it by the purchasers were separate and distinct. That is to say, so far as the agreement of the sale, payment of purchase price, and delivery were concerned, it was a joint contract, but the representations, and the agreement of warranty entailed obligations for the performance of several duties to each. The contract belong’s to that class which, although the ag'reement, in its inception, be entire, the performance is several, and, therefore, the contract in its nature divisible. This depends, as said by Lord Ellenbo rough, in Ritchie v. Atkinson, 10 East, 295, “not on any formal arrangement of the words, but on the reason and sense of the thing, as it is collected from the whole contract.”

To arrive at a just conclusion we need but apply the ordinary rule that the damages to which the plaintiff is entitled are such.as might have been supposed by the parties to be the natural result of a breach of the contract; such as might have been in their contemplation when the contract was made, having in mind the circumstances, and all the circumstances, known to them when they dealt. To urge,,in the face of this well established rule, that the obligation incurred by the representations and warranty was a joint obligation, and not a several one, is to contend against the plain import of the acts of the parties; it is,indeed, to say that no obligation at all was contemplated, and none incurred. This follows from the very nature of the circumstances. The parties could not have contemplated consequences involving joint damage to both purchasers because there could be no joint interest as to damages which might accrue from the deceit, for the property purchased, was, by the terms of the contract, and from circumstances as well known to the defendant as to the plaintiff, to be divided at once, and thence used separately, and neither brother could have an interest in the damages sustained by the other. In such case it seems reasonable to hold that the contract is to be moulded according to the several interests of the parties, and each recover only for a breach so far as his own interest extends, the rule being that where the legal interest and cause of action is several, each may and should sue separately for the particular damage resulting to him individually, although the contract be in its terms joint. The rule is stated by Parke, B., in Sorsbie v. Park, 12 M. & W., 157, in this way: “Suppose there were a covenant with A. and B. jointly, that a certain thing should be done by the covenantor; both of those persons must sue. But where it appears upon the face of the deed that A. and B. have several interests, they must sue separately; for though the words be prima facie joint, they will be construed to be several, if the interest of either party appearing upon the face of the deed shall require that construction.” In Serg. Williams’ note to Eccleston v. Clipsham, 1 Saund., 154, it is said: “So though a man covenant with two or more jointly, yet if the interest and cause of action of the covenantees be several and not joint, the covenant shall be taken to be several, and each of the covenantees may bring an action for his particular damage, notwithstanding the words of the covenant are joint.” See also, Thomas v. _, Styles, 461; Haddon v. Ayres, 28 N. S., 105; Keightley v. Watson, 3 Ex., 716; Withers v. Bircham, 3 B. & C., 254; Servante v. James, 10 B. & C., 410; James v. Emery, 8 Taunton, 245; Carthrae v. Brown, 3 Leigh, 98; Ernst v. Bartle, 1 Johnson’s Cases, 319; Trustees v. Letcher, 1 Monroe, 11; Ludlow v. McCrea, 1 Wend., 228; Jewett v. Cunard, 3 Wood & M., 277. And that it is improper, as well at common law as under our code practice, for a party to be joined in a suit who has neither legal nor beneficial interest in its subject matter, ought not to require authorities in its support. At least the letter as well as spirit of our code leaves no doubt. The language of the section of Revised Statutes (5007), heretofore quoted, implies that where there is no unity of the interest there can be no joinder, and the positive provision of section 4993 is that an action must be prosecuted in the name of the real party in interest.

Unless, therefore, it be made to appear that R. W. Duncan had an interest in the subject of the plaintiff’s action, or in obtaining the relief demanded, or unless his presence was necessary .to a final disposition of the controversy between plaintiff and defendant, it is not easy to perceive how he could be a necessarjq or even a proper, party. This is not seriously claimed; nor can it be said that his presence was necessary in order to exclude him from an interest in the damages claimed because he had no interest to be excluded. To the contention that the defendant had the right to have him brought in so that the defendant’s entire liability might be determined in one action, it would seem enough to say that no practical result could have been obtained by bringing him in. If he were a party and no claim had been set up by him, his presence would have been at the best an idle ceremony; while if he had set up a cause of action for like damages with that of plaintiff, it would have made a distinct issue, introducing confusion into the proceeding, and calling for a determination by the jury of separate claims for damage by one verdict. In no aspect of the case, as it seems to us, would substantial justice be advanced by the joinder of such separate actions. And if it should result that the defendant is compelled to answer a claim for damage to the stock of R. W. Duncan in another suit, his bad fortune may well be laid at his own door.

Perhaps an application to this case of ancient rules, in their strictness, might lead to a different conclusion, and probably cases may be found which sustain the judgment of reversal. The law, however, in this class of cases has been much modified by modern decisions. Our search has not disclosed any case which can be said to be on all fours with the one under consideration. But we think the principle of Langridge v. Levy, 2 M. & W., 518, affirmed in 4 M. & W., 336, is applicable. The father of the plaintiff bought of the defendant a gun for the use of himself and his sons, the defendant then falsely and fraudulently warranting the gun to have been made by N, and to be a good, safe, and secure gun, while in fact, as the defendant then well knew, the gun was not made by N, nor was it a good, safe or secure gun, but was made by an inferior maker, was bad, unsafe, dangerous and wholly unsound. The gun was purchased on the faith of the representations and warranty. The plaintiff, knowing of and confiding in the warranty, used the gun, which, owing to its bad construction, burst, thus greatly injuring the plaintiff. Held that the plaintiff (the son) could maintain the action, the defendant being-held responsible “for the consequences of his fraud whilst the instrument was in the possession of a person to whom his representation was either directly or indirectly communicated, and for whose use he knew it was purchased. ”

, We think the demurrer to the petition was properly overruled by the common pleas. The judgment of the circuit court will, therefore, be reversed and that of the common pleas affirmed.

Judgment reversed.


author: Burket, J,

text:
    Johnson et al. v. Johnson.

      Wills — Construction of — Remaindermen—When devisee holds as trustee— When third parties hold as trustees.

    1. A testator, after providing for the payment of his debts, used the following language in his will • “Second — I give and devise unto my beloved wife, and her assigns, all of the remainder of my property, both real and personal, however the some may be known, or wheresoever the same may be situate, with full power to bargain, sell, convey, exchange or dispose of the same as she may think proper; but, if at the time of her decease, any of my said property shall remain unconsumed, my will is that the same be equally divided between my brothers and sisters, and their children, if deceased, the children to have the same amount the parent would be entitled to if living.” Held: That under this will the widow took only a life estate in the property, both real and personal, with power to bargain, sell, convey, exchange or dispose of the same as she might think proper for consumption in her life support, and that what remained at the time of her death, unconsumed in supporting her, belongs to the remainder-men designated in the will.
    2, The widow under this will was, by implication, a quasi trustee for those in remainder, and the interest of the brothers and sisters of the testator, in the unconsumed property, was a vested right which could not be destroyed by the act of the widow in disposing of the property by gift to a third party, or otherwise than for her support or the benefit of the estate.

      3. A third party acquiring said estate from her by gift or fraud, or by collusion with her, to the injury of the vested rights of those in remainder, and with knowledge of the will, holds the same, and the fruits thereof, as a trustee for the remaindermen, and liable as-such trustee, to account to them in equity.
    (Decided June 19, 1894.)
    Error to the Circuit Court of Cuyahoga county.
    The plaintiffs in error, also plaintiffs below, filed the following petition in the court of common pleas, against defendant in error, that is to say:
    “The plaintiffs say that William C. Johnson, deceased, was for many years a resident of Cleveland, Ohio, where he died on or about the -day of April, 1885, leaving no family save his widow, Mary Ann A. Johnson. That said decedent had brothers and sisters, all of whom died before his decease, as follows: Edward Johnson, who died many years ago, leaving the plaintiff, Wilford D. Johnson, his only child; Nancy Johnson Abbott, who died in November, 1866, leaving as her only children, the plaintiffs, JohnH. Abbott and Dudley H. Abbott and Lydia Lawrence, who died in March, 1884, leaving no children. That the said William C. Johnson duly executed and left his will as follows:
    “In the name of the benevolent Father of all, I, William C. Johnson, of Cleveland, Ohio, being of sound and disposing mind and memory, do make and publish this, my last will and testament: First — I direct that all my just debts, expenses of my last sickness and funeral expenses be first paid out of my estate. Second — I give and devise unto my beloved wife, Mary Ann A. Johnson, and her assigns all the remainder of my property, both real and personal, however the same may be known or wheresoever the same may be situate, with full power to bargain, sell, convey, exchange or dispose of the same as she may think proper, but, if at the time of her decease, any of my said property shall remain unconsumed, my will is that the same be equally divided between my brothers and sisters and their children, if deceased, the children to have the same amount the parent would be entitled to if living. Third — I hereby appoint my said wife Mary Ann A., executrix of this, my last will and testament, and desire that no inventory or appraisal of my estate may be made and that my said executrix may not be required to give bond.
    “In witness whereof I have hereunto set my hand and seal this 14th day of July, A. D. 1852.
    [seal.] William C. Johnson.
    “Signed and sealed in our presence and acknowledged to be his last will and testament, and signed by us in the presence of each other.
    “Samuel Williamson.
    “George B. Tibbits.
    “That said will was duly probated in the probate court of Cuyahoga county, Ohio, April 8, 1885.
    “The widow of said William C. Johnson, the said Mary Ann A. Johnson, duly elected to take under the said will of her late husband, and accepted the trusts created thereby, paid the debts of the estate, and in that behalf filed her settlement in the probate court, which settlement was duly approved. The said William C. Johnson, left an estate wholly unencumbered and free from, all claims except the expenses of his last sickness and burial, as near as plaintiffs can ascertain and describe as follows: A house and lot on Wood street in the city of Cleveland, Ohio, worth $10,000; two lots on Wilson avenue in said city, purchased from R. Arnold and known as lots 128 and 129, worth $3,250; a farm in Indiana; cash on deposit in The People’s Savings and Loan Association of Cleveland, Ohio, $660; cash on hand and on deposit, stocks, bonds, credits and chattel property, in all, in real and personal property, in amount and value not less than $50,000. All of which property and estate the said Mary Ann A. Johnson received, took possession of and had.and held, under and by virtue of the said will of her said husband and not otherwise.
    “That the said Mary Ann A. Johnson was of humble origin, of simple and plain habits, and moved in society of moderate demands,'was frugal and economical, and her manner of living, her personal tastes, wants and desires were fully gratified by the expenditure of a moderate sum of money; her expenditures in that behalf not exceeding the sum expended by her husband for the support of his family, to wit: The sum of fifty to seventy-five dollars per month for all proper purposes of her living and comfort for the period subsequent to her husband’s death up to the time of her decease.
    “That early in the year 1885 defendant, Henry H. Johnson, then known and giving his name as Henry H. Harbazal, was a stranger to William C. and Mary Ann A. Johnson, he had been in Cleveland but a short time, having come from a distant state, was engaged as a clerk in a store at a salary barely sufficient to afford him a support, and possessed of no means. Desiring a room and board he applied to Mrs. Johnson, and a few weeks before the death of William C. Johnson began boarding with the family. For a short time immediately succeeding the death of her husband, Mary Ann A. Johnson managed her own affairs, or was aided therein by neighbors and friends with whom she had been acquainted many years; but very soon after his first knowledge of the family, defendant began working himself into an intimate friendship with Mary Ann A. Johnson, and evincing an interest in her welfare, assiduously cultivated her confidence and trust, and having succeeded in thus gaining her confidence, in order to further gain and hold her confidence, for the purpose hereinafter set forth, he dropped the name of Harbazal, and assumed the name of Johnson, and having obtained full knowledge of the terms and provisions of the will of William C. Johnson, and the nature, extent and value of the estate left by him as aforesaid, and well knowing the frugal habits and limited requirements and desires of the said Mary Ann A. Johnson, he was fully possessed of the knowledge that at her death (which was liable to occur at any time, she being somewhat aged, infirm and sick) a large estate would be left unconsumed by her, he exerted his influence over her and induced her to transfer to him the full control and management of said estate, and with the intent and purpose of gaining possession of said estate and of keeping and holding’ the same as his own, and depriving plaintiffs thereof, fraudulently, unduly and designedly exerted his influence over the said Mary Ann A. Johnson, and by said means and for said purpose and without any consideration therefor, induced her to convey to him the said Wilson avenue lots, to transfer to him the balances of cash. on deposit in banks, to sell said Wood street property, which she did for the sum of $10,000, paid to her, in cash, and turn the entire proceeds over to him, and to assign, transfer and convey to him all other property and assets of the estate of the said William C. Johnson. That with funds thus obtained or with funds which were the proceeds of property sold by him, defendant erected a house on the Wilson avenue lots at an expense of not less than $7,000, to which house when it was completed he took thé said Mary Ann A, Johnson, then, and ever since the death of her husband, an aged, infirm and sick woman, and there kept her with him and fully under his control and influence until her death, which occurred on or about the - day of October, 1889. And by the same and like undue influences and in furtherance of his purpose aforesaid, he fraudulently and unduly influenced and induced the said Mary Ann A. Johnson to enter into agreements and contracts, the precise, nature of which is unknown to plaintiffs, and to make her will, bequeathing and devising to him every interest in property possessed by her or to which she was in any manner entitled, and to make him her executor, without bond or requirement to inventory or in any manner account for any of the estate received by him: All to the end and for the fraudulent purpose of placing all of the estate of William C. Johnson beyond the reach of plaintiffs, and making it appear as if the whole of said estate of William C. Johnson had been consumed and used by. the said Mary Ann A. Johnson, when in fact there had not been any diminution thereof, but on the contrary far less than the income, interests and profits thereof had been used or consumed by her, the said Mary Ann A. Johnson.

      “Plaintiffs further say that all liabilities of every kind and nature incurred by the said Mary Ann A. Johnson and the expenses of her last sickness and burial have been fully paid, and there are no debts against the estate of William C. Johnson or against the estate of Mary Ann A. Johnson, and there is nothing unsettled or undetermined but the payment or delivery to plaintiffs, who own and are entitled to the residue of the estate of William C. Johnson. That since defendant thus, as aforesaid, obtained title to and possession of the said estate of William C. Johnson, he has been engaged in numerous and extensive dealings in real estate and other financial transactions (the said estate composing and affording his sole capital); has traded and disposed of the Wilson avenue property, has used and speculated with, converted and invested, sold, transferred and reinvested all of said estate, and now has and holds title to the following property, as near as plaintiffs can ascertain or describe, as follows, to wit:”
    (Here follows a long .list of property, which for the sake of brevity is omitted.)
    “The plaintiffs aver and charge that all of the said described and designated properties, and all other property, money, credits, stocks, bonds and chattels now owned and held by said defendant are the property, the proceeds of property, interest, profits, accumulations, g-rowth and increase and results of the property of the said William C. Johnson, so as aforesaid received and held in trust by the said Mary Ann A. Johnson, and so as aforesaid fraudulently obtained and converted by the said Henry H. Johnson, defendant, and compose and are the properties, money, assets and estate left unconsumecl by the said Mary Ann A. Johnson at her death.
    “That said defendant has evaded accounting for said estate by the false statement that said Mary Ann A. Johnson died penniless — not leaving or having enough to pay her debts and the expenses of her funeral, and that she was cared for by and through the charity of said defendant, and said defendant has refused and still refuses to account for said estate and trust property, or any portion thereof, in any manner whatsoever.
    “The plaintiffs pray the court to take cognizance of said trust and trust property; that defendant be compelled to make full disclosure of any and all property, money and assets in any manner acquired or received by him from the estate of William C. Johnson or from Mary Ann A. Johnson, either by deed, gift, conveyance, transfer, will, or in whatsoever manner the same maj" have been acquired by him from said Mary Ann A. Johnson; that a full accounting thereof and all increase, profits, rents, interest and accumulation he had, and any and all proceeds, assets, estate and property, in whatsoever form' it may exist, in any manner growing out of the estate of William C. Johnson, be declared the property of plaintiffs, and defendant be compelled to convey the same to them, and in default of property now held by him as the proceeds and accumulations of said estate, judgment be rendered against him herein, and any and all estate he may possess, from whatsoever source acquired or received, be held and subjected to the payment thereof, and for all other relief, remedies, orders, decrees, proceedings and judgments justice may demand in the premises.”

      To this petition, defendant filed a general demurrer, which was sustained by the court of common pleas, and judg’ment rendered in his favor.
    On petition in error the circuit court affirmed the judgment of the common pleas, and, therefore, plaintiffs in error filed their petition in this court for the purpose of reversing the judgments of the, courts below.

      E. P. Hatfield, for plaintiffs in error.
    Every portion of the will must be made to have its just operation, unless there arises some invincible repugnance. Red. on Wills, 1 Ed., vol. 1, page 431; 13 N. Y., 273; 25 Ohio St., 477; 33 Ohio St., 213; 14 Ohio St., 251. And if possible some effect shall be given to each distinct provision of the will, rather than it should be annihilated. Red., vol. 1, page 432; 25 Ohio St., 477; 19 N. Y., 344: 35 Pa. St., 393; 4 Ohio St., 333-351. And the general intent overrides all technical construction. Red., vol. 1, page 433; 36 Miss., 564; 4 Ohio St., 333, 351; 15 Ohio St., 103-108; 32 Ohio St., 1. The old rule was that without words of inheritance, a life estate only passed. 20 Wheat. (U. S.), 204; 97 Mass., 415. Our statute changes the old rule and expressly provides that the intention of the testator is to be followed. Section 5970, Revised Statutes.
    In wills containing words, which beyond dispute would convey a fee simple estate, effect is given to subsequent clauses in the will, or limitations ascertained by a construction of the whole scheme of the will, to get at the intention of the testator, limiting the devise to one for life only, and that real and personal property pass alike. 15 Ohio, 559; 19 Ohio, 51; 14 Ohio St., 251; 19 Ohio St., 419; 21 Ohio St., 527; 19 Cin. Bull., 198; 90 Mo., 411; 116 Pa. St., 490; 104 U. S., 291; 80 Ky., 91; 93 U. S., 326; 100 Mass., 470; 6 Peters, 81; 68 Texas, 227; 43 N. J. Eq., 434; 47 N. Y., 512; 96 N. Y., 173; 64 N. Y., 278; 13 N. Y., 275.
    The will took effect the moment of his death. The widow took her interest in the estate at the same time, and by the same token plaintiff’s obtained theirs; the plaintiff’s interest was a vested remainder. 52 N. H., 267; 10 Ohio St., 101; 33 Ohio St., 128.
    No degree of uncertainty as to the remainder-man’s ever enjoying the estate will render the estate a contingent one, provided he has a present absolute right to have the estate the instant the prior estate shall determine. Washburn on Real Property, vol. 2, page 222.

      Louis H. Winch, for defendant in error.
    An absolute power of disposition annexed to a primary devise in fee is deemed conclusive of the existence in the devisee of an absolute estate. Van Horne v. Campbell, 100 N. Y., 287; Rona v. Meier, 47 Iowa, 707; Anin v. Vandaren, 1 McCart., 135; Stuart v. Berry, 72 Me., 145; Clark v. Hartwick Sem., 3 Ohio C. C., 152; Armstrong v. Kent, 1 Zab., 509; Flinn v. Davis, 18 Ala., 157; King v. King, 12 Ohio, 390; Pruden v. Pruden, 12 Ohio St., 255; Pickering v. Langdon, 22 Me., 413; Lambe v. Eames, 10 Eq. Cas., 274; Speairs v. Ligen, 59 Tex., 233; Howard v. Carusi, 109 U. S., 725.
    After the gift of an absolute estate- the limitation over of what may remain unconsumed, etc., is void for repugnancy, inconsistency and uncertainty. 1 Jarman on Wills, Sec. 363; Jones v. Bacon, 68 Me., 34; Bull v. Kingston (Eng.), 1 Mer., 314; Temp. Sugd., Lloyd & G., 270; Riddick v. Cahoun (Va.), 4 Rand., 547.
    Such a gift over is not good as a remainder, for a remainder cannot be limited upon a fee or on an estate of inheritance; it is not good as an ex-ecutory devise, because the limitation is inconsistent with the absolute estate or power of disposition expressly given or necessarily implied. 2 Kent’s Com., 270; Van Horne v. Campbell, 100 N. Y., 287.
    A court of equity will not construe such a devise as a trust, because the property to which it is to attach is not certain or definite; because a clear discretion and power to act, or not to act, is given; because the disposition to the first taker imports an absolute and uncontrollable ownership. 2 Story’s Eq. Juris., sec. 1070; Jeremy’s Eq. Jurisdic., 100; 2 Pomeroy Eq., sec. 1016.
    The rule that where there are inconsistent clauses, the latter shall prevail, does not apply here. Rona v. Meier, 47 Iowa, 707; Smith v. Bell (Tenn.), M. & Y., 302; Collins v. Collins, 40 Ohio St., 364.
    It is the disposition of the courts to adopt such a .construction as will give an estate of inheritance to the first donee. Ramsdell v. Ramsdell, 21 Me., 288; Jones v. Bacon, 68 Me., 34; Stuart v. Berry, 72 Me., 145; Collins v. Collins, 40 Ohio St., 364.
    The limitation is void as well of personal as of real property. Pickering v. Langdon, 22 Me., 413; Cole v. Cole, 79 Va., 252; Holmes v. Gordon, 8 De. G. M. & G., 152.
   Burket, J,

The facts set out in the petition, other than the will itself, cannot have' the effect to either enlarge or narrow the provisions of the will, but must be regarded, upon demurrer, as furnishing to the court the surroundings of the testator at the time of the making of the will, and thereby to enable'the court to view the situation, his property, and the objects of his bounty, through his eyes.

On part of plaintiffs in error, it is claimed that by this will Mrs. Johnson, the widow of William C. Johnson, took only a life estate in his property, with full power to use the same for her support as she might see fit, with remainder over of so much thereof as should not be consumed by her, to plaintiffs in error. The defendant in error claims, that by this will, Mrs. Johnson took an absolute estate in fee-simple of all the testator’s property, and that the remaifider over to plaintiffs in error, is a limitation engrafted upon a fee, and therefore void.

If the claim of plaintiffs in error is right, the judgment of the courts below is wrong. But if the defendant in error-is right in his claim, then the demurrer to the petition was properly sustained, and the judgment of the courts below is .right.

After providing for the payment of his debts,' the testator uses this language: “I give and devise unto my beloved wife, Mary Ann A. Johnson, and her assigns, all of the remainder of my property, both real and personal, however the same may be known, or wheresoever the same may be situate, with full power to bargain, sell, convey, exchange or dispose of the same as she may think proper.” That this part of the will standing-alone, would give to the widow a fee simple, can not be doubted; and if , what follows could be fairly construed as merely superadded words attempting to impose a limitation upon the fee thus devised, such limitation would, of course, be void, and the fee would remain.

The fact that after using’ words which in themselves would give a fee, full power to bargain, sell, convey, exchange or dispose of the estate as she may think proper is expressly given to her by the testator, at once creates a slight inference that something less than a fee was intended; because a fee of its own force carries with it, and confers upon her the power, without express words from him to that effect, to bargain, sell, exchange, or dispose of the property as she may think proper.

While the express addition of these powers to words giving a fee, would not have the effect in themselves to detroy the fee, yet when these express powers are taken in connection with what follows the part of the will above quoted, the intention of the testator to give to his wife only a life estate in his property becomes clear and manifest. After the quotation above given, the will proceeds as follows: “But, if, at the time of her decease, any of my said property shall remain unconsumed, my will is that the same be equally divided between my brothers and sisters and their children,” etc.

The plain intention of the testator as shown by the whole will, is, that the property is given to the widow to be by her used and consumed, and that while so using and consuming the same she is empowered to bargain, sell, convey, exchange, or dispose of the same as she may think proper, limited, however, in the exercise of such power, to the purpose for which the property is given to her, that is for her consumption. ■

The devise over to his brothers and sisters and their children, is of itself enough to show that the testator intended that his widow should use and consume the property only during her lifetime, and that he did not intend to empower her to dispose of the fee by gift during her life, nor by will at her death.

This is clearly the intention of the testator, when effect is given to the whole will, and the intention should always govern. Unless the will conflicts with some provision of law, all other rules of construction must yield to the rule that the intention of the testator, as gathered from the whole will, must control.

The ease of Baxter v. Bowyer, 19 Ohio St., 490, is almost exactly like the case at bar. In that case the will gave all the testator ’ s proper ty to his widow, and gave her expressly unlimited power to sell on such terms as she might think best, or use in any manner as she might deem proper, and deeds to purchasers to execute, acknowledge and deliver in fee simple. In a subsequent item of the will, he devised at her death the property then remaining, to the Presbytery of Cincinnati. This court. held, that under that will, the widow took only a life estate, and life support, with power of sale for the benefit of the estate.

The second syllabus in that case is as follows: “Where, by one clause in a will, property is devised or bequeathed, by words prima facie importing an absolute estate, and by a subsequent clause is given in remainder to another person, the first devisee or legatee takes only a life estate, and the limitation over is valid.” This syllabus correctly states the law, and the present case can not be distinguished therefrom, and we regard it as conclusive of the question here involved.

It is, therefore, clear that the widow took only a life estate, with remainder over to the brothers and sisters of the testator and their children, in ease of the decease of any of the brothers or sisters. The case of Posegate v. South, 46 O. S., 391, and the following cases, among many others cited by counsel for plaintiff in error, throw more or less light upon the question here involved. Huston v. Craighead, 23 Ohio St., 198; Pruden v. Pruden, 14 Ohio St., 251; Giles v. Little, 104 U. S., 291; Howe v. Fuller, 19 Ohio, 51; Stableton v. Elliston, 21 Ohio St., 527; Smith v. Bell, 6 Peters, 68; Brant v. Virginia Coal & Iron Co., 93 U. S., 336.

Having construed this will as giving to the widow only an estate for life, it follows that the brothers and sisters of the testator had a vested remainder in so much of the estate as should remain unconsumed by her at her death. The amount of this vested remainder was uncertain so long as the widow continued to live, and the whole of it was liable to be divested in case she should consume the whole of the estate for her support during her lifetime. Jeffers v. Lampson, 10 Ohio St., 101; Linton v. Laycock, 33 Ohio St., 128.

Perry on Trusts, in section 540, says that those in possession of a life estate under a legal title are implied or quasi trustees for the remaindermen.

We regard this rule as applicable here, and that while the widow was given the. legel title with full possession, and power to use, dispose of and consume the estate, for her life support, the duty rested upon her, in the nature of a trust, to have clue regard for the rights of those in remainder, as to the part of the estate not consumed by her for her support. That while she could use and enjoy the estate to its fullest extent for her support, and consume the whole of it if necessary, she could not go beyond what would be regarded as good faith toward the remaindermen. The testator having so amply provided for the support of his wife, evidently contemplated good faith on her part towards his brothers and sisters. He therefore gave her the right to consume, but not to recklessly squander or give away, the estate.

The widow holding this estate under this will, only for life, and as to the uneonsumed part thereof in trust for the remaindermen, such trust would be enforced as against one coming into possession of the estate with knowledge of the trust. Shibla v. Ely, 2 Halstead N. J. Ch., 181.

If the facts stated in the petition are true, and upon demurrer they are regarded as true, the defendant received and holds the property in the petition described, as trustee for plaintiffs in error, and as such trustee he is liable to account to them as prayed for in the petition.

Defendant in error relies upon that clause of the will, in which the widow is empowered to dispose of the property as she may think proper; and he says that she did dispose of it as she thought proper when she gave it to him; and that giving the property to him was consuming it by her. We do not so construe the will. She had but a life estate, with power of disposition for the benefit of herself and the estate, and with a view of fairly preserving so much of the estate as was not necessary for her support, for the use of those who were to succeed her in the remainder.

Again, it is arg’ued, that it, does not olecwly cvppem" by the will, that the testator intended to give the widow an estate less than a fee, and section 5970, of the Revised Statutes,'is cited. The answer to this is, that the intention of the testator is sufficiently clear, to induce us to be clearly of opinion, that the testator did not intend that his widow should bestow all his property upon the defendant, or any one else, and thereby cut out his own brothers and sisters and their children, and that if that had been his intention, he would at least have given his property to his widow absolutely in fee, and said nothing about a remainder over.

The court of common pleas erred in sustaining the demurrer and rendering judgment in favor of the defendant; and the circuit court erred in affirming the judgment of the common pleas. Both judgments are therefore reversed, and cause remanded to the court of common pleas, with instructions to overrule the demurrer, and for further proceedings according to law.

Judgment reversed.