author: Scott, J.

text:
    Emmitt v. Penisten.
    Suit was brought by L. on a land contract, made in 1857, to recover a balance of purchase-money due thereon from P., which, by the terms of the written contract, was bearing interest at the rate of five per cent. The land was incumbered by a mortgage, which had been executed by L. to one B., to secure payment of a debt bearing ten per cent, interest. Eor the security of P., the contract in suit provided that the deferred installments of purchase-money, when paid by him, should be applied, so far as necessary, in satisfaction and discharge of this mortgage. At the April term, 1861, of the District Court of Pike county, a judgment or decree was entered in the case, as follows: “ The balance due and payable from the said P., being agreed upon by the parties, by consent of parties, it is found by the court that there is • now due to the plaintiff, from the said P., on account of the matters set forth in the petition, the sum of $3,600, together with interest on $3,000, from the 25th day of February, 1860, at the rate of ten per cent. It is therefore, by consent of parties, considered that the plaintiff recover of the said P. the said sum of $3,600, together with ten per cent, interest, since February 25, 1860, on $3,000, to be paid into court for the use and benefit of M., executor of the said B., deceased, to be paid within ten days from the rising of the court at the present term.”

      On this decree $600 were afterward paid directly to L., and he and the executor of J3. united in assigning the residue of the judgment to B. Afterward, in a suit brought by P. against E., a question arose as to the rate at which interest should he computed on said judgment. On this question: Held, That neither by the terms of said decree, nor by the statutes in force at the date of its rendition, was E. entitled to have interest computed on the sum assigned to him at a rate greater than six per cent, per annum.
    Error to the District Court of Pike county.

      O. F. Moore and M. A. Daugherty, for plaintiff in error.

      W. A. Hutchins and George D. Cole, for defendant in error.
   Scott, J.

In an action brought in the Common Pleas Court of Pike county, Ohio, by Jesse Lucas against William Penisten, to which, afterward, Minor Muntz, as executor of the last will and testament of Henry Barnett, deceased, was made a party defendant, on appeal to the district court of that couuty, at the April term, 1861, of the last-named court, the following decree was taken, to wit: “ This cause came on for hearing upon the amended petition of the plaintiff, the answer of the defendant, William Penisten, and the reply to the same, and the evidence; and it appearing that since the appeal of the cause, by arrangement between the parties, partial payments have been made by the defendant, William Penisten, to the plaintiff, on account of the matters set forth in the petition, and the balance still due and payable from the said Penisten being agreed upon by the parties, by consent of parties, it is therefore found by the court that there is now due to the plaintiff from the said William Penisten, on account of the matters set forth in the petition, the sum of $3,600, together with interest on $3,000, from the 25th day of February, 1860, at the rate of ten per cent. It is therefore, by consent of parties, considered that the plaintiff recover of tl e said William Penisten the said sum of $3,600, together with ten per cent, interest, since February 25,1860, on $3,000, to be paid into court, for the usé and benefit of Minor Muntz, executor of the said Henry Barnett, deceased, to be paid within ten days from the rising of the court at the present term. And it is further ordered that the said Penisten pay the costs of this .suit, except those hereinbefore taxed to the plaintiff, to-- dollars.”

After the rendition of this decree, the $600 of the $3,600 was paid by Penisten, leaving the $3,000, with the interest thereon unpaid. And subsequently, this portion of the judgment remaining unpaid, was assigned to the plaintiff In error, James Emmitt, both Lucas and the executor of Barnett joining in the assignment. ,

After Emmitt became the owner by an assignment of the judgment, Penisten and he had sundry dealings, and certain payments were made on the judgments, and finally a controversy arose as to the amount of these payments and credits, and Penisten commenced an action against Emmitt, alleging that he had fully paid the judgment, and asking an injunction against him from proceeding to sell property to satisfy the amount claimed by Emmitt to be still due him upon the decree.

In this action the question arose as to the rate of interest that Emmitt was entitled to collect on the portion of this judgment so assigned to him. The $3,000 mentioned in the decree, with interest thereon at the rate of ten per cent, per annum, from February 25, 1860, till the term at which the decree was entered, amounted to $3,350, and Penisten claimed that he was liable only for the payment of this sum with interest thereon from the first day of the term at which the judgment was entered, at the rate of six per cent, per annum. Emmitt claimed that the $3,000 was to bear interest at the rate of ten per cent, from February 25, 1860, until it was paid. Upon the hearing of the case in the district court, the only evidence submitted was the record of the case in which the decree in question was rendered; and the court, on consideration thereof, in ascertaining the amount due to Emmitt on the unpaid portion of said decree, held that he was entitled to recover the said sum of $3,350, with interest thereon from ■the rendition of the decree, at the rate of six per cent.- per ■annum, and no more. Exception was taken by Emmitt to this ruling of the court, and its refusal to allow more than six per cent, interest on the unpaid portion of the decree, or judgment, after the date of its rendition, is the sole error of which he here complains.

The facts shown by the record offered in evidence ai’e, in brief, these': Suit was brought by Lucas on a land contract made in 1857, to recover a balance of purchase-money . due thereon front Penisten, and which, by the terms of the written contract, was bearing interest at the rate of live per cent. The laud was incumbered by a mortgage which had been executed by Lucas to one Barnett to secure a debt bearing ten per cent, interest. For the security of Penisten, the contract in suit provided that the deferred installments of purchase-money, when paid by him, should be applied, so far as necessary, in satisfaction and discharge of this mortgage. But there was no privity of contract between Penisten aud Barnett. The debt of Penisten was -owing to Lucas, and bore but five per cent, interest. But Penisten had a right to have his payments applied on the Barnett mortgage, which bore interest at the rate of ten per cent., and this may perhaps account for the somewhat peculiar language of the decree. The mortgage debt due to the estate of Barnett was perhaps found to be $3,000, with interest thereon at ten per cent, from February 25, 1860, and that the sum due from Penisten on the contract in suit, was $600 in excess of this amount. This is highly probable, for it is admitted by the pleadings in the case before us, that the $600 mentioned in the decree, were afterward paid directly to Lucas, and that he and Barnett’s executor united in assigning the residue of the judgment to the plaintiff in error. The parties settled their controversy by agreeing, as we understand the record, that a decree should be entered aguiust Penisten and in favor of Lucas for a sum sufficient to cover the amount then due on the mortgage, and to leave an overplus of $600. At any rate, we think the terms of the decree fix no special rate of interest which it should draw after rendition. The statute which then permitted parties to contract for a rate of interest not exceeding ten per cent., and which directed that upon all judgments rendered upon any of the aforesaid contracts, interest shall be computed till payment at the rale specified therein, not exceeding ten per cent, per annum,” could clearly give no right to compute interest on this decree at the rate of ten per cent., for, as we have said, it was rendered on a written contract, calling only for five per cent.

We think the district court gave a proper construction to the terms of the decree, and allowed the proper rate of interest thereon.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Pittsburgh, Cincinnati and St. Louis Railway Company v. Moore.
    1. A demurrer to a pleading admits only what is well pleaded therein. It does not admit a conclusion of law unwarranted by the facts on which it is predicated.
    2. Courts can not take judicial notice of a private or special statute, unless it be specially pleaded. And in pleading such a statute, or a right derived therefrom, it must, at least, be referred to by its title, and the day of its passage.
    3. Special privileges conferred on a railroad company by a private charter, granted under the constitution of 1802, do not so inhere in the road constructed under such charter as necessarily to pass to any corporation which may have acquired, under subsequent legislation, the right to operate the same.

      4. The act of April 25, 1873, amendatory of the 13th section of the act of May 1, 1852 (70 Ohio L. 161), which prohibits any corporation operating a railroad in this state from demanding and receiving for the transportation of passengers more than three cents per mile, for a distance of more than eight miles, gives the party aggrieved a right to recover from such corporation a forfeiture of not less than twenty-five dollars for each case of overcharge.
    Error to the Court of Common Pleas of Union county. Reserved, in the district court.

      The original action was brought in the Court of Common Pleas of Union county, by defendant in error, to recover of the plaintiff in error the forfeitures. provided by the act of April 25, 1873, entitled “ an act to amend section 13 of an act entitled ‘ an act to provide for the creation and regulation of incorporated companies in the State of Ohio/ passed May 1,1852 ” (70 Ohio L. 161). The statute under which the suit was brought reads as follows : “ Any corporation operating a railroad in whole or in part in this state, may demand and receive for the transportation of passengers on said road, not exceeding three cents per mile for a distance of more than eight miles; . . . and every such corporation . . . who shall violate, or permit to be violated, the provisions of this act, or any other corporation, company, person or persons who shall demand or re■ceive a greater sum of money for the transportation of passengers ... on or over their railroad than the sum allowed by law, shall forfeit and pay to the party aggrieved a sum equal to double the amount of the overcharge, but in no case shall the amount of the forfeiture be less than twenty five dollars.”
    In the petition of the plaintiff below, in as many paragraphs, separately stated and numbered, nineteen distinct violations of this statute were charged, in each of which the distance traveled over the road of defendant below is stated, and also the fare demanded and received by said defendant for such travel, which in each case exceeds the rate of three cents per mile. In no one of the cases alleged, however, did such excess amount to twelve dollars and a half, nor did the aggregate of such excess, in all the eases, amount to that sum. Plaintiff below demanded a judgment for twenty-five dollars for each of the alleged violations of the, statute.
    As to eight of these paragraphs, or causes of action, defendant below, who is here plaintiff in error, demurred, and' its demurrer was sustained. As to the remaining eleven» causes of action, three defenses were set up by answer:. The first was a general denial of the facts stated in the petition. By the second, it was claimed “ that the several causes of action, in the petition set forth, constitute, if true, but one cause of action for the penalty claimed therein.” The third defense was as follows: “As to the respective causes of action set forth in the third, sixth, seventh, eighth, ninth, tenth, eleventh, fourteenth, fifteenth, sixteenth, and seventeenth paragraphs, and to each of them, as if separately answered, the defendant, to each severally answer’s, and says: The defendant was, at the times mentioned in said respective paragraphs, operating the railroad in the petition described, leading from Columbus to Bradford Junction; that said railroad was constructed by the Columbus, Piqua and Indiana Bailroad Company, a corporation duly incorporated under the laws of the State of Ohio; and under, and by virtue of the franchises of said corporation, and the vested rights of property in respect to rates and tolls inhering and incident to said railroad, constructed by said corporation under its charter and the contract of the state with said-corporation, the defendant, operating said railroad as bailiffs, as in the plaintiff’s petition alleged, had, at the times respectively therein stated, good right and lawful authority to demand and receive of the plaintiff, and others, transported on said railroad as passengers, the rates and tolls respectively provided in said charter, and the act to which the same refers, between the several stations named respectively in each of said paragraphs, as provided in said charter; and the defendant denies that the distance between Milford Center and Piqua is only forty-four miles; and the defendant denies that the distance between Milford Center and Eletcher is only thirty-eight miles; and says that the distance between the said stations first named is forty-four miles, and four thousand seven hundred and thirty-six feet; and the distance between the stations herein last named is thirty-eight miles, and one hundred and eleven feet. And the defendant, therefore, insists that he had good right and lawful authority, and for the causes herein-before stated, to charge the said rates and fares in the said respective paragraphs mentioned, for the transportation of the plaintiff’ between the said several stations.”
    To this third defense the plaintiff' below demurred, and his demurrer was sustained; and thereupon, neither party demanding a jury, the cause was submitted to the court upon the remaining issues joined between the parties; whereupon the court found for the plaintiff, and that the defendant, by reason of the premises, had forfeited to the plaintiff the sum of two hundred and seventy-five dollars, to wit: twenty-five dollars for each of said overcharges; for which sum of two hundred and seventy-five dollars, judgment, was accordingly entered in favor of plaintiff below, and defendant below excepted to the ruling on such demurrer, and to said judgment.
    Plaintiff in error thereupon filed its petition in error in the district court, seeking a reversal of said judgment, on the ground of error in sustaining the demurrer to its third defense, and in holding it liable to a forfeiture of twenty-five dollars on each and every cause of action, in regard to which the court found for the plaintiff below. The questions arising, on this petition in error', were reserved by the district court, for the decision of the Supreme Court.

      J. S. Swan, for the plaintiff iir error:
    1. The penalty against railroad companies, under the above recited act of .April, 1873, for charging more for transportation than the law allows, is double the overcharges, and not the twenty-five dollars mentioned in the proviso. When, therefore, an action is brought to recover double the overcharges at different times, we claim, if the aggregate amount of the overcharges, when doubled, is less than twenty-five dollars, the plaintiff is entitled to a judgment for twenty-five dollars, to cover such double overcharges, and to cover the expenses of prosecuting the action; and, on the other hand, if the overcharges, doubled, amount to more than twenty-five dollars, the plaintiff is entitled, under the section, to a judgment for double the overcharges.
    As a peual statute will be construed strictly, and penalties not be implied or multiplied beyond its express terms, we refer the court to the peculiar language of the statute. It will be observed that it does not provide that the twenty-five dollars shall be recovered for each and every overcharge, where double the amount of each overcharge is less than twenty-five dollars. It would have so provided, if it had adopted the usual and customary language of penal statutes, had such been the intention. To find that intention the court must, after the word “ forfeiture,” in the proviso, interpolate the words “for each and every overcharge.” So, too, if double the overcharges sued for, amounts to twenty-five dollars or over, it is clear the plaintiff can recover no more than double the overcharges; and, in such case, the twenty-five dollars mentioned in the proviso has nothing to do with the amount of the recovery or forfeiture.
    Frequently, in the enormous number of separate packages and charges, overcharges may be so small in amount that, if double the overcharges only could be recovered in these small cases, the party suing before a justice, would not be compensated for his time and trouble. Hence the proviso in this act allowing a recovery in such case of twenty-five dollars, to compensate the party injured for his expenses in the prosecution, and not as a penalty inflicted upon the defendant.
    Again, if the twenty-five dollars had been intended as a penalty or punishment, it would not have been altogether remitted or dispensed with by the statute, in cases where the extortion was so great that double the overcharges amounted to more than twenty-five dollars ; and at the same time, when the overcharges were slight or nominal, and less than twelve dollars and fifty cents, punish it by a penalty of not less than twenty-five dollars. If, therefore, the twenty-five dollars is construed as a penalty or punishment, instead of an equitable compensation to the plaintiff for time ancl trouble, it has this absurd characteristic: that is, the twenty-five dollars, construed as a punishment-, comes in play when the extortion is a few cents; but if the extortion is exorbitant, the twenty-five dollar punishment is not inflicted at all, but the company refund double the overcharges only; thus, in fact, mitigating the punishment for the violation of a law, in proportion to the flagraney of the extortion which it was intended to discourage and punish by penalties. Fisher v. N. Y. C. R. R., 46 N. Y. 644.
    We claim, in this case, that the overcharges, when aggregated and doubled, being less than twenty-five dollars, the plaintiff below could claim a verdict and judgment for twenty-five dollars only; and that he should have prosecuted this action before a justice of the peace.
    II. The second defense is, that the defendants below were operating the line of road of the Columbus, Piqua and Indiana Railroad Company, as bailiffs, or mere agents, and under the charter of that company, were authorized to charge the rates complained of.
    The Columbus, Piqua and Indiana Railroad was, by special act, incorporated February 23, 1848 (47 Ohio L. 155). It was, by its charter, vested with all the rights prescribed in the act of February 1, 1848 (S. & C. 271, note), which grants the right of charging for transportation of passengers (S. & C. 273, note, § 12).
    The rates being “ allowed by law,” the act under which this action is brought does not affect or impair the charter of the Columbus, Piqua and Indiana Railroad.
    Since this case was reserved, the Supreme Court have held that the old charters, granted prior to 1851, are not impaired by subsequent legislation. It is therefore unnecessary to argue this question.
    The general demurrer to the answer should, we claim^ have been overruled.

      J. B. Cole, for defendant in error:
    In support of the judgment below, we cite Shields v. The State, 26 Ohio St. 86; State v. Sherman, 22 Ohio St. 411, as to the points that plaintiff in error being a new and distinct corporation, created under the new constitution, is governed by the laws under which the action is brought, and is not entitled to charge the rates allowed to the corporation which constructed the road, the said original corporation having ceased to exist before this one was created.
    As to the theory contended for by plaintiff in error, that all the offenses set forth in the petition, constitute but one cause or action for the penalty. That is equivalent to saying that the right of action that accrued immediately upon each offense, was barred as soon as the offense was repeated, therefore the theory is absurd. The aggregation of the penalties gives jurisdiction to a competent court, and makes the possible recovery commensurate with the expense and risk of the suit.
    The Ohio statute provides, that “ in no case shall the amount of the forfeiture be less than twenty-five dollars.” This language supplies the defect in the statute of New York, upon which the court mainly based its decision in the case cited by plaintiff in error, from the reports of that state.
    The penalty by the New York statute appears to be affixed to the practice of overcharging, while that of Ohio is affixed specifically to each offense. Though the ultimate object is the same in both.
    Every offense is a “ case ” within the meaning of the Ohio statute.
    The object of the law being to stop overcharging, such a construction thereof as will, in no case of its violation, allow an escape from the full penalty of twenty-five dollars, laid down thereby should prevail, and any other will defeat the purpose of the legislature in making it.
    The right to recover double the overcharge set forth, upon each cause of action, is admitted. And the law is, that in no case of recovery shall the amount be less than twenty-five dollars. Therefore the whole recovery must be twenty-five upon each paragraph.
    The answer does not set forth that the corporation defendant was operating the railway as bailiffs of the Columbus, Piqua and Indiana Railroad Company, nor under any authority whatever derived from that company, nor does the petition allege any thing of the kind.
    The argument based upon that supposed allegation is therefore unfounded, and the answer, on that account alone, insufficient on demurrer.
    No such allegation could be truthfully made, and, therefore, none such was attempted.
   Scott, J.

The first question arising upon the assignments of error in this case is: Did the court of common pleas err in sustaining the demurrer of plaintiff below to the third defense of defendant below, who is here plaintiff in error? A demurrer to a pleading admits the truth of the allegations therein made, only so far as they are well pleaded. Now,-this third defense, as we understand it, alleges that the railroad upon which the fare was charged was constructed by the Columbus, Piqua and Indiana Railroad Company, a corporation duly incorporated under the laws of the state, which by its charter had a right to charge for the transportation of passengers the rates stated in the petition of plaintiff below, and that the defendant below was operating said railroad as a bailiff, and had therefore a right inhering in said railroad to charge the rates for transportation of passengers stated in the petition of plaintiff' below.

The general law of the state, as embodied in the statute under which this action was brought, allows corporations operating a railroad within this state to charge three cents per mile, and no more; for the transportation of passengers for a distance exceeding eight miles. Of such public and general statutes courts are bound to take judicial notice. But if a right to charge a higher rate of fare be conferred by special statute on a particular corporation by the terms of its charter, such right being founded on a statute of a private character, must, in order to be available, be specially pleaded. Section 123 of the code of civil procedure provides that “in pleading a private statute, or a right del’ived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof.”

Rut in the ease before us, the alleged statute conferring special franchises on the Columbus, Piqua and Indiana Railroad Company is, in the defense under consideration, referred to neither by its title, by the date of its passage, nor in any other way whatever. The court below could not, therefore, properly take judicial notice of any special franchises alleged to have been conferred by its charter on the Columbus, Piqua and Indiana Railroad Company. Besides, the defense under consideration does not allege that the defendant below was operating the road as bailiffs of the Columbus, Piqua and Iudiana Railroad Company, but seems to be based on the theory that the right to demand and receive special rates of fare was, by the charter of said company, made inherent in the road, and so passed with the road to any person or corporation lawfully authorized to operate it. The untenable character, of this theory is clearly shown by the cases of The State v. Sherman, 22 Ohio St. 411, and Shields v. The State, 26 Ohio St. 86. We think, therefore, that the facts stated in this defense do not justify the legal conclusion drawn therefrom by the pleader that the defendant had a lawful right, for the causes stated, to charge the rates of fare in the petition alleged, and the demurrer thereto was for this reason well taken and properly sustained.

Plaintiff below, in his petition, averred that defendant below had unlawfully demanded and received from him for transporting him as a passenger from Milford Center to Piqua, Ohio, a distance of forty-four miles, the sum of $1.55; and, in another paragraph, that the defendant below had demanded and received from him as fare for his transportation as a passenger from Milford Ceuter to Eletcher, Ohio, a distance of thirty-eight miles, the sum of $1.35. The defense under consideration avers that the distance from Milford Center to Piqua is a fraction of a mile over forty-four miles, and that the distance from Milford Center to Fletcher is a fraction of a mile greater than thirty-eight miles. But these allegations, which the demurrer admits to be true, are no defense to any of the causes of action, inasmuch as the fare demanded and received was iu each case more than three cents per mile for the alleged distance, as stated iu the answer. We think, therefore, that the court below properly sustained the demun’er to this defense.

The only remaining question is, whether the court below erred in rendering judgment for a forfeiture of twenty-five dollars in each case of overcharge.

We do not understand that the plaintiff in error denies that the several paragraphs in plaintiff’s petition each state a distinct cause of action. Plaintiff iu error demurred to eight of them as distinct causes of action, and we think this was properly done. Nor did plaintiff in error, by demurrer or otherwise, question the right of plaintiff below to unite in one petition several distinct canses of action arising under the same statute. But the claim, as we uuderstand it from the answer below, and from the argument of counsel for plaintiff iu error, is that the statute gives to the party aggrieved a right to recover double the amount of the overcharges by way of penalty or forfeiture, and that the sum of twenty-five dollars is awarded only as a conditional compensation in cases where the aggregate amount of double the overcharges complained of in any action shall be found to be less than twenty-five dollars, and can not, therefore, be recovered for each overcharge, inasmuch as the statute does not, in terms, provide that such sum shall be recovered for each and every overcharge.

In support of this position, we are referred to the case of Fisher v. N. Y. C. R. R. Co., decided by the Coart of Appeals of New York, and reported in 46 N. Y. 644. There the plaintiff sued for numerous overcharges, as in this case, and claimed to recover the penalty of fifty dollars on each overcharge, together with the amount of the overcharges. The law of New York provided “that any railroad company which, shall ask and receive a greater rate of fare than that allowed hy law, shall forfeit fifty dollars, which sum may be recovered, together with the excess so received, by the party paying the same.” The court held that “ the forfeiture of fifty dollai-s was not given as a satisfaction of the injury received — that is fully satisfied by a return of the sum extorted, with interest; but the fifty dollars is given to compensate the party injured for his expenses in the prosecution, and to compel the company to pay such a sum as would stop the practice.”

This New York statute, it will be perceived, gave the party aggrieved a right to recover two sums of money, to wit, fifty dollars, as a forfeiture, together with the excess received by the railroad company. The court held that the recovery of such excess was not intended by the statute as a satisfaction for the injury sustained, and that the penalty of fifty dollars was given to the party injured by way of compensation for expenses of prosecution, and to compel the company to desist from extortion. But the Ohio statute, under which this action was brought, allows a recovery of but one sum, and that by way of penalty or forfeiture for each case of its violation. It gives nothing but a forfeiture “ equal to double the 'amount of the overcharge, but in no case less than twenty-five dollars.” The cases referred to in the clause which provides that “ in no case shall the amount of the forfeiture be less than twenty-five dollars,” clearly appear, from the preceding context, to be cases of overcharges. The New York statute, to which reference has been made, contained no such clause. And a majority of the court are unable to perceive a substantial difference between the meaning of this language, and that of a provision declaring that in each and ecery case of overcharge the forfeiture should be not less than twenty-five dollars.

If the amount of the forfeiture can, in no cctse, be less than twenty-five dollars, then it must, in each and every ease, bo as great as twenty-five dollars.

We think the judgment of the court of common pleas must be affirmed.


author: Johnson, Chief Judge.

text:
    Humphries et al. v. Huffman et al.
    1. In an action against several defendants, to- recover possession of land, where they defend jointly, verdict and judgment may, on final trial, be rendered for or against one or more of them.
    2. In such case, those against whom judgment is rendered are entitled to a second trial; hut whether, on such trial, the issues as to all the defendants, or only as to those against whom the judgment is rendered, are opened for retrial, is a question that can not he raised after the second trial is taken, hy a motion to rescind or vacate the order allowing the same.
    3. One who enters upon unimproved land, under color of title which describes by metes and hounds the extent of the claim, and actually occupies and improves part thereof adversely to the real owner, claiming the whole, is presumed to hold by constructive possession to the extent of the boundaries called for in his paper title, in the absence of any adverse possession, though there be no inclosure or improvement of the residue of the tract.
    4. To lay the foundation for this presumed or constructive possession, the entry must be under claim or color of title, which describes the land entered upon, and to which the defendant claims title.
    5. Where the entry is without color of title, or upon a paper title, which is void for want of a description of any land, this presumption does not attach, and the adverse possession only extends to that part of the land actually occupied and improved.
    6. A survey of GOO acres of unimproved land was patented to A., B., C., and D., in the proportions of 200, 100, 100, and 200 acres, respectively, tobe held by them as tenants in common. Subsequently, B.’s share was sold at tax sale, described as 100 acres, part of said survey, taxed in the name of B., but without any further description: Held, That such tax sale was void for want of a description.
    7. One who holds such a tax title can not survey off to himself the quantity called for in his certificate, out of the large tract, and, by an entry thereon, and actual possession and improvement of part only, claim to hold, by constructive possession, to the boundaries of his survey.
    Error to the District Court of Union county.
    Susan Humphries and others, plaintiffs, brought this action against Joab Huffman and nineteen others, defendants, to recover the possession of 470 acres of land, part of survey No. 3,749, of the Virginia Military District, which contained 600 acres.
    The patent for this survey was dated April 11, a. d. 1800, and was issued to Joseph Coleman, Joseph Flippo, Rowland Estis, and Lucas Sullivant, in the following proportions: To Joseph Coleman, 200 acres; to Joseph Flippo, 100 acres; to Rowland Estis, 100 acres; and to Lucas Sullivant, 200 acres, “ to have and to hold the said tract of land, with the appurtenances, unto the said James Coleman, Joseph Flippo, Rowland Estis, and Lucas Sullivant, and their heirs and assigns forever, as tenants in common, and not as joint tenants.”
    The defendants jointly answer : 1. That they deny each and every allegation of the petition, except that they are in possession of the premises ; 2. They rely on twenty-one year’s adverse possession. The reply joins issue upon these defenses.
    The case was twice tried. On the first trial the jury found for the plaintiffs as to one hundred and ninety acres, desmibed in the verdict, part of the four hundred and seventy acres, against Jacob Huffman aud seven other defendants, but in favor of all the defendants as to the balance of the tract, consisting of two hundred aud eighty' acres. After judgment upon the verdict in favor of plaintiffs as to the one hundred and ninety acres against eight of the defendants, and in favor of all defendants, as to the residue of the land, the eight, against whom this judgment was rendered, demanded a second trial as to this one hundred aud ninety acres, aud the court finding “ that this action was one to which said parties are entitled to a trial by a jury, do allow said second trial, and fix the bond of said parties so demanding the second trial at $200.” The bond was given, and the case placed on the second trial docket.
    At a subsequent term the plaintiffs moved to set aside the order allowing the second trial, which was overruled, aud exception noted.
    Upon the second trial, the plaintiffs offered evidence tending to support the issue on their part, and said defendants, to maintain their second defense, offered in evidence a record of the auditor of the county of a sale of one hundred acres of said survey for taxes on the second Monday of December, 1827, as follows :
    “ And at the same time and place, sold to David Burn-ham, he being the highest bidder, for the saíne, one hundred acres of land, on the waters of Darby creek, survey No. 3,749, Joseph Flippo, original -proprietor, entered for taxation in the name of said Joseph Flippo, for the sum of one dollar and twenty-five cents, whereupon a certificate of purchase was given to said David Burnham for the same.
    To the introduction of this record, plaintiffs objected, on the ground that it was indefinite and uncertain and did not give title to the land in controversy, but it was admitted and plaintiffs noted their exception.
    Again : the defendants offered evidence tending to show that David Burnham, under whom they claim title to the one hundred and ninety acres, entered upon the land more than twenty-one years before the commencement of this action, without any deed or other paper title describing the land or giving the boundary thereof, that at the time the premises were all woodland except five or six acres that had been cleared or fenced, more than twenty-one years, and that it so continued to be woodland until within sixteen years. After the evidence was closed, the plaintiffs requested the court to charge as follows: “ That where a party enters upon land, without a deed or other paper title, containing specific descriptions of the land by metes and bounds, or without color of title to the premises, claiming to hold them adversely, his possession only extended to that part of the tract actually improved and occupied by him, aud that his entry in such case, upon a part of the premises, did not give him adverse possession to the uninclosed and unimproved woodland.
    “ Which instruction the court refused to give to the jury.
    “ But the court did instruct the jury that the possession to constitute a defense under the statute of limitation, must be actual, exclusive, and notorious, with a claim of the title.

      “ But that it was not necessary that the party should live upon the land, or farm it, or inclose it, or fell or deaden the timber. But the possession and claim of title must be actual, exclusive, and notorious, in the neighborhood of the land.”
    To the refusal to charge as requested, and to the charge as given, plaintiffs excepted.
    The bill of exceptions shows that the defendants to maintain their title by twenty-one years’ possession, produced Joab Huffman, a witness on their behalf, who testified that his father also bought one hundred acres of this survey, at tax sale, and had it run off'; that afterward, in 1848, said Burnham, and one "Wasson, who owned the balance of the tract, by like tax titles, were dissatisfied with the division made by Huffman, and they and his father, got the county surveyor to divide it correctly, and he changed the line, cutting off fifteen or twenty acres from Huffman, and gave it to Burnham, and the lines were satisfactorily adjusted between the three claimants, giving Burnham, unde^’ whom defendants claim, the middle tract. Thereafter, the parties claimed, as among themselves, up to the new division lines.
    Evidence was also given tending to show that Burnham took possession under this subdivision, fenced the four or five acres, cleared up, and opened up a sugar camp, and made sugar there yearly, and that Huffman used the cleared ground and sugar camp on Burnham’s part, in payment for keeping off trespassers and preserving the timber.1 Except pasturing the land and making sugar on it, it remained in the woods and uninclosed during the time Burnham owned it. After Huffman’s term expired, others held a like possession. Burnham never lived on ■ the land, nor was there any actual possession, except as above stated.

      Jeremiah Hall, for plaintiffs in error.

      Pobinson § Piper, for defendants in error.
    [No briefs for either plaintiffs or defendants in error were found on file by the reporter.]
   Johnson, Chief Judge.

The action was to recover of nineteen defendants, jointly sued, a tract of four hundred and seventy acres of land, part of survey No. 3,749, in the Virginia Military District. The defense was joint °niy.

Upon the first trial, a verdict was rendered in favor of plaintiffs and against seven of defendants for one hundred and ninety acres, part of the four hundred and seventy acres, and in favor of all the defendants as to the residue of the premises. Judgment was rendered against the seven in plaintiffs’ favor, that they recover the one hundred and ninety acres, and in favor of all defendants as to the residue. The plaintiffs made no objection to the verdict, either as to form or substance, nor to the judgment thereon, in the court of common pleas. Error thereto was first assigned in the district court. The seven defendants, against whom judgment was rendered, demanded and were allowed a second trial. It was perfected, and at a subsequent term plaintiffs moved to set aside the order allowing the second trial, which motion was overruled, and exceptions noted.

It is claimed that as the defense was joint only, the first verdict and judgment should have been against all, and that plaintiffs were entitled to such judgment, non obstante.

Under section 371 of the civil code, where several defendants are jointly sued, even on a contract, judgment may, on final trial, be rendered for or against one or more of them. Lampkin v. Chisom, 10 Ohio St. 450 ; Roby v. Ramsberger, 27 Ohio St. 676; Aucker v. Adams et al., 23 Ohio St. 543; Hempy v. Ransom, ante, 312.

Again, as no exception was taken to this verdict and judgmeut, and as a second trial was taken, it was too late to assign, in the district court, this action of the lower court as error.

It is further claimed, that the court erred in overruling the motion to set aside the order allowing a second trial. That one or more defendants, jointly sued with others, where judgment is rendered against them, and in favor of the others, may take a second trial, although they have all joined in the defense, is a logical deduction from the preceding proposition; that though all defend jointly, yet, upon final trial, judgment may be rendered against some and in favor of others, as the proof requires.

Where all defend jointly, and the verdict and judgment are, as in this case, in favor of some defendants and against others, it is claimed that the effect of a second trial, taken by those defendants against whom j udgment is rendered, is to open up the whole case for a second trial upon the original issues; and, therefore, it is said, the court should have granted this motion. If we admit the premises, the conclusion does not follow.

No ruling of the cóurt was had on this question. It was not asked to try the case the second time, as if the whole case was opened up, by taking the second trial, by offering evidence as to other defendants, or otherwise. For aught that appears, the court did try the case de novo. At any rate, the motion to set aside the order for a new trial, was not the proper one to test the effect of such order. That these seven defendants were entitled to a second trial is to us clear. What the effect of taking a second trial was upon the verdict and judgment in favor of the other defendants, is a different question. As no step was taken in the court below to have this question raised and decided, the motion made not being such, the court committed no error that can now be reached.

Did the court err in admitting, in behalf of defendants, in support of their title by possession, the tax-sale record, and in refusing to charge, and in charging, as set forth in the statement of facts ? That the description of the land sold was too vague and uncertain to convey a title, and that such tax sale was void, admits of no dispute. Lafferty v. Byers, 5 Ohio, 458; Lessee v. Emerick, 6 Ohio, 391; Massie's Heirs v. Long, 2 Ohio, 287; Douglass v. Dangerfield, 10 Ohio, 152; Burchard v. Hubbard, 11 Ohio ; 816; Winkler v. Higgins, 9 Ohio St. 599.

The charge requested was, that where a party enters upon laud, without a deed, or other paper title, containing a specific description of the premises, by metes and bounds,, or without color of title, claiming to hold them adversely,, his possession only extends to that part of the tract actually' improved and occupied by Mm ; and that his entry, in such case, upon a part of the premises, did not give him adverse-possession to the uninclosed and unimproved woodland.

We think this charge was pertinent to the case made by the evidence, and should have been given. Defendants-were in possession, claiming title by twenty-one years occupancy, open, notorious, and adverse.

It is conceded, in argument, that defendants had no paper title with boundaries such as to give them the benefits of the doctrine of constructive possession; but it is insisted that this record, from the auditor’s books, was admissible,, under the second defense, to show that the purchase of the land at tax sale, and the payment of taxes for forty years, were acts in connection with actual possession, to show the character of that possession, and the claim of right to the land.

It is admitted that the description is too vague and indefinite to show the extent of the possession ; but it is said the paper was properly admitted as an act of the claimant, done in connection with the survey,” subsequently made by the holder of the tax certificate, “ and possession, under these acts,” and as tending to prove possession, and the extent of the possession, as well as the character of the possession.”

Counsel, in argument, stated the case thus: “ That in 1827, this tax sale was made to Burnham, and that he paid the taxes right along, and that prior to 1848 all of the tract had been sold for taxes, and that Burnham, and Huffman, and Wasson were the holders of it; that in 1848 they caused General Irwin, as county surveyer, to run the lands off into lots, and mark the lines and corners carefully on the trees, and make a map of tbe land, which he gave to Burnham; that, in pursuance of this division, each took possession of hi? lot, and Burnham took possesson of this lot, and claims to have held it ever since. At the trial, among other acts of Burnham to establish his claims, and show the character of his possession, the defendants offered, in evidence, their record of tax sale. It was done,, pot to show title in defendants, but under the defense of statute of limitation (the second defense), as the record shows, and if it was admissible for any purpose, its admission was erroneous.”

In brief, the claim is, that although this paper title was void, and ineffectual by itself, to give character to the possession, or show the extent of the possession, yet it was' ■competent, in connection with the survey and subdivision of the whole tract, made by the holder and other holders of ■similar tax titles, to show the extent and character of possession. That is, although Burnham, under whom defendants claim, had never lived on the land, which was all wild .and uninclosed, and only had cleared and improved a small portion, yet he was constructively in possession, to the boundaries of an agreed division, subsequently made, of the survey, between himself and other holders of similar -tax title. It seems to us that the mere statement of this proposition carries with it its own refutation. The plaintiffs owned the fee. The second defense is the adverse possession for twenty-one years. Plaintiffs were entitled to recover, unless defendants could show adverse possession, open, notorious, and continuous for the required time. If they ■could show this, it was wholly immaterial whether they entered under color of title or not. Lessee of Paine v. Skinner, 8 Ohio, 167; Yetzer v. Thoman, 17 Ohio St. 130; McNeeley v. Langan, 22 Ohio St. 37.

It is the visible and adverse possession with an intent to possess that constitutes its adverse character, and not the remote motives or purposes of the occupant. French v. Pearce, 8 Conn. 439.

As to the extent and character of an occupancy of unimproved land, there is a well-marked difference between an entry and possession by one with and one without color of title. The rule as to the former is thus stated:

“An entry into possession of a tract of land under a deed ■containing specific metes and bounds gives a constructive possession of the whole tract, if not in any adverse possession, although there may be no fence or inclosure round the ambit of the tract, and an actual residence only on a part of it.” Ellicott v. Pearl, 10 Peters, 412; Sanchez v. Gonzalez, 11 Martin (La.), 207; Jackson v. Smith, 13 Johns. 406; Jackson v. Warford, 7 Wend. 62 ; Proprietors v. Springer, 4 Mass. 416; Lee v. Polk Co., 21 How. (S. C.) 493; Clark v. Potter, 32 Ohio St. 49, 62.

The party who enters without color of title, and who relies on adverse possession only as a defense against a legal title, must show a substantial inclosure, an actual occupancy, a pedis possessio, which is definite, positive, and notorious, to countervail such legal title. Jackson v. Woodruff, 1 Cowen, 285 ; Jackson v. Shoemaker, 2 Johns. 234; Doe v. Campbell, 10 Johns. 477.

Conceding; for the purposes of this case, that this tax sale record of the auditor was of the same force as a deed or other instrument of conveyance, if it contained a description of any land, it remains to be determined what its effect was without such description as a foundation for the doctrine of constructive possession. It specifies no particular one hundred acres of the survey of six hundred acres. It purports to sell for non-payment of taxes one hundred acres of said survey as the property of Joseph Elippo, but as it appears by the patent that Flippo owned an undivided one-sixth of the whole survey as a ten ant "in common with the other patentees, no specific lands were sold. At most it was like a deed, without boundaries, or any landmark to enable a surveyor to find the land. Such ■a deed cau not lay the foundation for an available adverse possession beyond the actual improvement. It can not be relied on as giving color of title to land by metes and. bounds. Angell on Lim., § 408; Jackson v. Woodruff, 1 Cowen, 276; Little v. Downing, 37 N. H. 355; Gudyer v. Barnes, 4 Heiskell (Term.), 570.

The ground upon which the doctrine of constructive possession is based is, that one in possession, claiming by metes and bounds under a paper title, and openly and notoriously exercising control and dominion on the land, is-presumed to be doing so to the extent of his claim. Where, however, his paper claim is void for want of any description of the land, or any thing to define its extent; his acts and dominion can create no such presumption. The occupancy must be such as to give notice to the real owner of the extent of the adverse claim. Hence it is that occupancy without a deed defining the land is only notice to the boundaries actually inclosed or improved. It is said, however, that while this is true, yet the court substantially so charged.

After refusing to charge as requested, that the entry under this tax record of part only of the land did not give defendants adverse possession of the uninclosed and unimproved woodland, the court did charge: “ That the possession, to constitute a defense under the statute of limitations, must be actual, exclusive, and notorious, with claim of title. Hut that it was not necessary that the party should live upon the land, or farm it, or inclose it, or fell or deaden the timber.”

The charge given was clearly erroneous when applied to' occupancy without color of title, and correct if defendants were to be regarded as in possession under a deed with metes and bounds.

The paper title in this case described no lands by metes and bounds, nor did it indicate in what part of the survey of six hundred acres, this particular one hundred acres was to be located. No presumption could therefore arise that the actual occupancy of part was adverse to the extent of any boundaries whatever. Nor could the holder of such void tax title himself survey off the quantity called for,. and then claim that the occupancy of and inclosure of a part carried his adverse possession to the boundaries of his .own survey. As well might a mere intruder upon wild laud make a survey of the amount he wanted to appropriate to his own use, and then by an improvement and occupancy of a small part thereof, claim that his possession extended by construction to the boundaries of his ■own survey, and thus evade the well-established rule of pedis possessio in such cases.

Judgment reversed.


author: Wright, J.

text:
    Workman v. Wright.
    1. A mere promise by the supposed maker to pay a forged note, without any new consideration, and without circumstances creating an estoppel against the promissor, does not become a binding contract creating a liability to pay such note.

      % The principle of agency, by which a principal may ratify the unauthorized act of his agent, does not apply to the alleged ratification of a forged note; the act of the agent being voidable, may be ratified; the act of the forger is void, and can not he ratified.
    Error to the District Court of Perry county.
    The original action was brought before a justice of the peace upon a promissory note for $800, dated July 6, 1869, due November 15,1869, payable to the plaintiff in error, or ■order’, and signed P. A. Edington, Calvin Wright. Edington, one of the makers of the note, made no defense, and judgment was entered against him by default. But Wright .denied the execution of the note on his part, and the justice, a jury being waived, rendered judgment in his favor. From this judgment Workman appealed to the common pleas, ■where he filed a petition upon the note in the ordinary •form, under section 122 of the code. To this petition Wright filed an answer, denying “ that he ever issued or •executed the promissory note in the petition described.”
    To Wright’s answer, plaintiff replied: “ 1. That before the promissory note in the petition described was delivered to plaintiff, the said Calvin Wright authorized his name to-be signed thereto. 2. That said Calvin Wright recognized and affirmed his liability on said promissory note to the plaintiff, prior to the commencement of this action, and promised to pay the plaintiff the same.”
    The case was submitted to the court, a jury being waived by the paijties, and the court found in favor of the defendant, Wright, and gave judgment accordingly. The plaintiff moved for a new trial, on the ground that the finding and judgment iu favor of Wright was against the evidence- and the law of the case. The motion was overruled, and plaintiff excepted. A bill of exceptions was taken, embodying all the testimony. The district court, on error, affirmed the judgment. The plaintiff in error asks to reverse the judgments of both the district and common pleas courts.

      Harrison, Olds ‡ Marsh, for plaintiff in error:
    As to ratification : Story on Agency (Bennett’s ed.), §§ 253, 242, 250; Bank v. Warren, 15 N. Y. 577; Grout v. De Wolf, 1 R. I. 393; Harper v. Devene, 10 La. An. 724;. Thomson on Bills, 218; Bank v. Grafts, 4 Allen, 447; Forsythe v. Day, 46 Me. 176; Bank v. Middlebrook, 33 Conn. 95; Howard v. Duncan, 3 Lansing, 174; 32 Ill. 387; 7 Humph. 223.

      Butler $ Huffman, for defendants in error, cited :

      McHugh v. Schuylkill County, 67 Penn. St. 421; Story on Agency, § 251, A; Brook v. Hook, Exch. 24, L. T. R. 34 (3 Albany Law Jour. 255) ; Howard v. Duncan, 3 Albany Law Jour. 331; Negley v. Lindsay, 67 Penn. St. 217; 2 Daniels on Neg. Inst. 319, § 1352; Woodruff v. Monroe, 33 Md. 158;. Morse on Banking, 310.
   Wright, J.

Under the pleadings and finding of the-court below, it may be assumed that the name of Calvin Wright was a forgery, as there was evidence tending to-show the fact, and we can not say that the conclusion reached, in this respect, was clearly against the testimony. It is claimed, however, that his admissions, and promises to pay the note, ratified the unauthorized signature.

Had Workman, the owner of the note, taken it upon the faith of these admissions, or had he at all changed his status by reason thereof, such facts would create an estoppel, which would preclude Wright now from his defense. This appears, from most of the authorities cited in the case. But no foundation for an estoppel exists. All these statements of Wright, whatever they were, were made after Workman became the owner of the paper. Workman did not act upon them at all; he was, in no way, prejudiced by them, nor did they induce him to clo, or omit to do, any thing whatever to his disadvantage. But it is maintained that, without regard to the principle of estoppel, these admissions and promises are a ratification of the previously unauthorized act, upon the well-known maxim, Omnis ratihabitio retrotrahitur et mandato priori cequiparatur.

It is said, that a distinction exists between the classes of cases to which this principle applies. Where the original act was one merely voidable in its nature, the principal may ratify the act of his agent, although it was unauthorized. But where that act was void, as in case of a forgery, it is said no ratification can be made, independent of the principle of estoppel, to which we have alluded. Most of the authorities, cited by counsel for plaintiff in error, are of the first class, where the act was only voidable.

Bank v. Warren, 15 N. Y. 577, was where one partner, without authority, and for his own exclusive benefit, indorsed his own note in the firm name, his copartner was held bound by a subsequent promise to pay it, without any independent consideration.

In Crout v. Be Wolf, 1 R. I. 393, the third clause of the head note is, “ Where the person, whose signature is forged, promises the forger to pay the note, this amounts to ratification of the signature, and binds him.” But an examintion of the case shows, that evidence was offered to prove that plaintiff had bought the paper in consequence of what defendant said to him, and the court charged that, if before purchasing the note, plaintiff asked defendant if he should buy, and was told he might, defendant could not excuse himself on the ground of forgery. So that the case may be put upon the ground of estoppel, without relying upon the ground stated in the head note quoted.

Harper v. Decene, 10 La. An. 724, was where a clerk of a house signed the name of the house by himself as agent. Defendant, a member of the house, afterward took the note, corrected its date, and promised to pay it; and this was held a ratification to make him liable. In this case, and many like it, it may be remarked that the agent assumed to have authority, and does the act under that belief; but, in case of a forgery, there is no such authority and no such belief.

The case of Forsythe v. Day, 46 Me. 177, involves the principle of estoppel.

The cases of Bank v. Crafts, 4 Allen, 447, and Howard v. Duncan, 3 Lansing, 175, sustain the views of plaintiff in error, holding that a forgery may be ratified, independently of the principle of estoppel, and in the absence of any new consideration for the ratifying promise — a conclusion, however, to which we can not agree.

The case, in 3 Lansing, is criticised in 3 Albany Law Journal, 331.

Upon the other hand, there are authorities holding that a forgery can not be ratified. There is a fully considered case in the English Exchequer: Brook v. Hook, 3 Albany Law Jour. 255, 24 Law Times, 34. This was a case where defendant’s name was forged, and he had given a written memorandum, that he would be responsible for the bill. Chief Baron Kelly places his opinion upon the grounds: 1. That defendant’s agreement, to treat the note as his own, was in consideration that plaintiff' would not prosecute the forger; and 2. that there was no ratification, as to the act done — the signature to the note was illegal and void. And though a voidable act may be ratified, it is otherwise when the act is originally, and in its inception, void. The opinion fully recognizes the proposition, that where acts or admissions alter the condition of the holder of the paper the party is estopped, but it is necessary that such a case should be made. It is further held, that cases of ratification are those where the act was pretended to have been done for, or under the authority of, the party sought to be charged, which can not be in •case of a forgery. A distinction is also made between civil acts, which may be made good by subsequent recognition, and a criminal offense, which is not capable of ratification. Baron Martin did not concur. In Woodruff & Robinson v. Monroe, 33 Md. 147, this is held: “If, in an action against an indorser of a promissory note by the bona fide holders thereof, it be shown that the indorsement was not genuine, and the defendant did not ratify or sanction it prior to the maturity of the note and its transfer to plaintiff', he is not liable. But if he adopted the note prior to its maturity, and by such adoption assisted in its negotiation, he would be estoped from setting up the forgery in a .suit by a bona fide holder. But any admissions, by the defendant, made subsequently to the maturity of the note, would not be evidence that he had authorized the indorsement of his name thereon.” See also Williams v. Bayley, L. R., 1 Appeals, H. L. 200.

In McHugh v. County of Schuylkill, 67 Penn. St. 391, the defense to a bond was forgery. The court below charged that if the obligor subsequently approved and acquiesced in the forgery or ratified it, the bond was binding on him. 'It was held that, there being no new consideration, the instruction was error; also, that a contract infected with fraud was void, not merely voidable, and confirmation without a new consideration was nudum pactum. See also Negley v. Lindsay, 67 Penn. St. 427. Daniels recognizes ■this proposition. 2 Daniels Neg. Inst., § 1352.

Upon principle we can not see how a mere promise to pay a forged note can lay the foundation for liability of the maker so promising, when the promise was made, as it was, under the circumstances set forth in the record. In addition to the fact that there are no circumstances to-create an estoppel, there was no consideration for the promise. Wright received nóthing, and it is a simple nudum pactum. The consideration for a promise may be either an advantage to the promisor or a detriment to thepromisee, but here neither exists. Wright had signed a note, and when the one in suit was shown him, said he-would pay it, supposing it to be the one he had signed, lie was an ignorant man who could not read writing, though he could sign his name, and when he saw the paper, seeing that the signature spelt his name, and being unable to read the body of the instrument, he said it was all right, and he would pay it. But the promise was without that consideration which would make it a binding, contract.

Judgment affirmed.


author: Ashburn, J.

text:
    Kilgore v. Emmitt.
    1. On appeal, the case will be heard in the appellate court on the pleadings-- and issues made in the court below, unless, upon leave granted in- such appellate court, the pleadings are changed.
    2. Where there are several issues, one of which is made by a demurrer to a reply, and the case is submitted to the court generally, with a request by defendant for special findings on one of the issues of fact, and the-record shows a special finding and judgment on that issue with an exception thereto; also, a general finding and judgment thereon without exception, but it nowhere affirmatively appears what disposition was made of the demurrer: Sold, in such ease, in the absence of all showing to the contrary, the general finding and judgment will be presumed to include all issues made in the case not specially passed on.
    8. Where the payee of a note lawfully carrying interest at the rate of ten per cent., having money in his hands belonging to the payor, and the same is credited on the note hy an agent of the payee without the knowledge of either party, though he might properly do so, they may, hy agreement, after the repeal of the ten per cent, law, substitute a new note in the exact terms of the old note, leaving off the credits so put upon the old note, without affecting the rate of interest, if it clearly appears there was no intention or device used to evade the provisions-of the statute regulating the then present rate of interest.
    Error to tbe District Court of Pike county.
    James Emmitt, defendant in error, plaintiff below, brought an action in the Court of Common Pleas of Pike county agaiust Andrew Kilgore, plaintiff in error, defendant below, for the foreclosure of two mortgages, executed by Kilgore and wife, on the same premises. The mortgages were given — one to secure tbe payment of a note-given by Kilgore to Emmitt for $6,000 at one year, with interest at ten per cent., payable semi-annually, aud dated September 23, 1858; the other by the same to the same, to-secure a note for $10,000 at one year, with interest payable semi-annually, dated May 2, 1865. The mortgages bore even dates with the notes they were made to secure. Kilgore’s wife, and one R. Dempsey, a lienholder, were also-made defendants. The prayer of the petition is for an-account and order for the sale of the mortgaged premises.
    Several defenses were interposed. The fourth was a set-off under a written contract for tbe sale of corn by Kilgore to the firm of James Emmitt- & Co., composed of James, David, and George D. Emmitt, dated March 31,. 1858, charging, for the purpose of making it a matter of set-off against James Emmitt individually, that in 1864 the-firm was dissolved, and that by the terms of the dissolution, James Emmitt did assume, agree, and bind himself to his partners that he would pa}?, discharge, and fulfill all and singular the obligations, liabilities, and contracts of the-firm, including the corn contract with Kilgore.
    To this defense of set-off, Emmitt replied: First. That the dissolution took place in 1862 and not in 1864, as charged; that he did not assume, etc. Second. That the-dissolution of partnership was in 1862; was not in writing, and was made more than six years prior to the commencement of this action. And, Third. That the contract between Kilgore and the firm was changed, and as changed,. ■fully performed by the firm on its part by payment for the corn delivered, and denying generally all the allegations of th& fourth defense not replied to.
    To the second reply to the fourth defense Kilgore demurred. This demurrer was, at the April term, 1873, of the court of common pleas, overruled. At the same term ,a decree was made on the merits, finding the amount due Emmett, and ordering a sale of the mortgaged premises.
    Defendant, Kilgore, appealed the case to the district 'Court, and, in April, 1874, a final judgment was rendered, in which plaintiff in error complains there was error to his prejudice.
    On the hearing in the district court, on the request of Kilgore, on the issues of fact made by the first and second ■defense, the court stated its conclusions of fact found, and conclusions of law on the facts so found, separately. This related exclusively to the question of interest. As to no other issue or matter was the court requested to make a ■special finding. The general finding of the court appears on the record, in this form: “ This cause was submitted to the court upon the issues joined by the plaintiff and the ■.said Andrew Kilgore,” etc. The record shows no affirmative disposition of the demurrer in the district court. No exception by plaintiff in error to any proceeding of the ■court appeal's on the record, save the exceptions that are taken to the special findings.
    There is no bill of exceptions in the record, so that the judgment here must rest upon the pleadings and special ¡and general findings, and judgment in the district court.
    The error of which Kilgore complains, by exception, he .avers, is in the special findings of facts, and the conclusions of law as to the rate of interest allowed by the court on part of the $6,000 debt.
    The record, in this regard, is as follows :
    “As to the issues made by the first and second answers of Kilgore to the first cause of action stated in plaintiff’s petition, the defendant, Kilgore, by his counsel, requested the court to state in writing the conclusions of -fact found, separately from the conclusions of law, and accordingly, pursuant to said request, the court stated in writing the conclusions of fact found by it in respect to said issues, as-follows, to-wit:
    “ First. That said original note for $6,000, drawing ten per cent, interest, payable semi-annually, was executed September 23,1858, as stated in said petion, and was secured by mortgage as therein stated.
    “ Second. That semi-annual payments of interest, at the-rate of ten per cent., were made, and credits therefor indorsed on said note, down to September 23, 1861. *
    “ Third. That on the 7th of January, 1862, the following-credit was indorsed on said original note, to-wit: ‘ Received on the within, eleven hundred and forty-one 39-100 dollars, $1,141.39, Jan’y 7, ’62.’
    “ Fourth. That on the 5th day of March, 1862, a further-credit was indorsed on said original note, as follows, to-wit: ‘ Received on the within, one thousand dollars, March 5th,. $1,000.’
    “ Fifth. That neither of said credits was indorsed upon said original note under the direction of the defendant, nor with his knowledge; nor with the actual knowledge, or under the direction of the plaintiff; but that such credits were indorsed upon said note by the duly authorized agent of the plaintiff, and were made out of moneys of the defendant that came into the hands of the plaintiff, which he-had the right to apply in making such credits.
    “ Sixth. That on the 6th day of May, 1862, the defendant, Kilgore, learning that the said amounts had been credited:, on said note, and desiring to use the said moneys for other-purposes, applied to the plaintiff for permission to so use the same, who expressed a willingness to accommodate him, provided the debt could be put in its original shape, to bear-interest at ten per cent., and remain secured by the said original mortgage; and accordingly, after taking the advice of an attorney, it was arranged aud agreed between the plaintiff and defendant, that a new note should be substituted for the original six thousand dollar note, and ■corresponding in every respect therewith, as to the date, amount, time of payment and rate of interest, and when payable, and all the credits indorsed thereon, except said credit of $1,141.39, and said credit of $1,000, which said new note was to be accepted in the place of said original note, and the latter was to be surrendered to defendant, ..and the said two amounts, to-wit: $1,141.39 and $1,000, so credited on said original note (but omitted on said new note), was to be again placed to the credit of defendant on the books of the plaintiff) to be used by the defendant for ■other purposes, all of which was done accordingly; that both the plaintiff and defendant, at the time, and in the .■substitution of-said new note for the original, acted in perfect good faith in regard to the transaction, without any actual usurious intent, and supposing and intending that the transaction, both in regard to the note and mortgage, would leave them stand j ust as originally made, and thereupon, from the said conclusions of facts so found by the court, and stated in writing, the court found the conclusions •of law as follows, to-wit:
    “ That said $6,000 note bears interest at the rate of ten per ■cent., payable semi-annually on the whole amount thereof, until January 7, 1862, and after that, until March 5, 1862; •$4,855.61 thereof bears interest at the rate of ten per cent., payable semi-annually, and $1,141.39, the residue of said $6,000, from January 7, 1862, until paid, bears interest at the rate of six per cent., payable semi-annually, and no more; and after March 5, 1862, $3,858.61, part of said $4,858.61, bears interest at the rate of ten per cent., payable, semi-annually, until paid; and $1,000 (the residue of said $4,858.61), bears interest until paid at the rate of six per cent., payable semi-annually, and no more; and that there is now due to the plaintiff, and he is entitled to recover said six thousand dollars, with interest computed thereon as aforesaid, and not otherwise, to wit: Interest .at the rate of ten per cent., payable semi-annually, on $6,000, from •September 23, 1858, to January 7, 1862, on $4,858.61, at the same rate, from January 7,1862, to March 5,1862; and ■on $3,858.61, at the samo rate, from March 5, 1862, until paid ; and on $1,141.39, at the rate of six per cent., payable semi-annually, from January 7, 1861, until paid; and on $1,000, at the same rate of six per cent., payable semiannually, from March 5, 1862, until paid; and that after deducting the credits indorsed upon said note, and computing iuterest on said sum of $6,000 upon-the basis afore’said, there is due upon said note of principal $5,307.86, and of interest, $2,440.19, making in all of principal and interest so due upon said note, the sum of $7,748.05, to which finding and ruling of the court, in respect to said conclusions ■of law, so found by it, from and upon said conclusions of fact so found as to said $6,000 note, and the said Andrew Kilgore, by his counsel, excepted, and asked that his said exceptions thereunto be noted, which is done accordingly.”
    After the final decree had been entered, and as part of the final entry, it appears that, “ thereupon came the said Kilgore, and moved the court to set aside said finding of the court in respect to the amount due upon said six thousand dollar note, and the rate of interest which $3,858.61, part ■of said note was entitled to draw, because said conclusions of law so found by the court upon said conclusions of fact so found by the court were erroneous, and were uusustained by the facts so found, which said motion was overruled by the court, and to which said ruling the said Kilgore, by his counsel, excepted, and asked that his said -exceptions be noted, which is done accordingly.”
    Emmitt made a like motion, which was overruled and exception taken on the record. He, however, does not, here, complain of any error in the judgment of the court.
    Plaintiff' in error avers there is error in the record and proceedings of the district court in this, to wit:

      First. There was error in sustaining the holding of the court of common pleas in overruling the demurrer of the defendant below to the second reply of the plaintiff below to the fourth ground of defense, or answer filed in said original cause.

      Second. If it does not appear from said record and proceedings that said holding of the court of common pleas was sustained in the particular above specified, then said district court erred in proceeding to a finding and judgment upon the other issues in said cause, without passing upon said demurrer.

      Third. As to the issues made by the first and second grounds of defense to thq first cause of action in the petition of the said James Emmitt, the court, in its conclusions of law deduced from the conclusions of fact, as found by the court, erred as to the rate of interest to be computed on said six thousand dollar note, allowing ten per cent, upon a part of said note, when but six per cent, should have been allowed on the whole amount of the same.

      Fourth. The court erred in refusing to set aside its finding and grant a new trial, or a rehearing, for the reasons set forth in the motion.

      Fifth. That the said judgment was given for the said James Emmitt, when, by the law of the land, it ought to have been given in favor of the said Andrew Kilgore.
    Proceedings here are to obtain a reversal of the findings and judgment of the district court.

      W. A. Hutchins and Geo. D. Cole, for plaintiff in error:.
    As to whether there was error as to the rate of interest allowed on the $6,000 note, see Reed v. Coale, 4 Ind. 283.
    As to the intention of the parties, see 1 Ohio St. 409 ; 12: Ohio, 544; 13 Ohio, 1; 5 Ohio St. 266 ; 10 Ohio, 378; 11 Ohio, 417; 2 Parsons on Notes and Bills, 412, note; 7 Ohio, 81.
    As to semi-annual interest: If there was no valid special contract, how does the question stand as to computation of interest semi-annually ?*
    The authority to compute semi-annually must be founded on the written contract, or it does not exist. As a debt, simply, it comes under the general act of 1824, and can-draw but six per cent. 1 S. & C. 742.
    Then, if the special contract is illegal, it is void, and avoid contract is no contract. It does not stand good as to the semi-aunual clause, but it is absolutely and wholly void.
    This is the rule laid down in Bunn v. Kinney, 15 Ohio St. 40; and see, 10 Ohio St. 440.

      O. F. Moore and M. A. Daugherty, for defendant in error :
    As to whether the rate of interest allowed on the $6,000 note was illegal, see 1 Am. L. C. 347 (283); Rundlett v. Small, 25 Me. 29.
    The doctrine of estoppel applies. See Hern on Estoppel, 340, § 328; Id. 337, § 323 ; Id. 348, § 338.
    As to semi-annual interest, see Mueller v. McGregor, 28 Ohio St. 265.
   Ashburn, J.

When an action is appealed to the district court, it will be there heard and disposed of upon the pleadings and issues made in the court below, unless by leave, in that court given, the pleadings and issues are changed. S. & S. 589; Warner v. Self, 30 Ohio St. 378; 14 Ohio, 437; Wright, 485. We are not, therefore, required in this case to review any portion of the proceedings had in the court of common pleas, on questions either of law or fact.

The record of proceedings in the district court, do not show what disposition was made of defendant’s demurrer to plaintiff’s second reply to the fourth defense. It is equally silent as to the court’s action on the issues of fact made on the fourth defense, by the first and third replies thereto. It does not follow, however, by reason of this silence, that these several issues remained undisposed of, to the prejudice of plaintiff in error. He does not complain of the action or non-action of the court upon these issues of fact; but claims to be prejudiced on the issue of law made by the demurrer in one of two ways :

1. If the district court overruled his demurrer to the second reply to the fourth defense, as did the court of common pleas, then he was prejudiced.

2. If the court failed to dispose of the demurrer, error intervened to his prejudice.

We do not think such to he the necessary or proper conclusion from the state of the record. In support of the judgment, the reviewing court will presume the court did pass upon the demurrer. It raised one of the issues in the case, and the record shows: “ This cause was submitted to the court upon the issues joined between the plaintiff, and said Andrew Kilgore; and the court having heard the .arguments of counsel, and being fully advised in the premises, do find,” etc. All the issues in the case, both of law :and fact, were submitted to the court, and the necessary presumption is, that they were each and all disposed of by the court, the contrary not appearing affirmatively.

The court made two findings, one special, at the request of plaintiff in error, and the other general on the submission of the issues to the consideration of the court.

To the special findings, plaintiff in error excepted ; but (did not except to the general finding. That finding stands as a general verdict, and final judgment thereon with all the presumptions in favor of its validity. The record showing no exception, as a general rule, the court will not go beyond the exceptions raised and assigned to find others, unless the latter be such as affect the jurisdiction of the ■court. 22 Ohio St. 88.

Treating this record as complete, we think one of the following conclusions would necessarily follow, viz., that the demurrer was disposed of in a manner satisfactorily to the plaintiff in error; or, that the issues of fact, made by the pleadings on the fourth defense, were disposed of in such a way that an exception to the determination of the court ■could avail plaintiff' in error nothing; or, that he abandoned his fourth defense. On either consideration, the ruling of the court need not, necessarily, appear in the record; and the court will be considered to have disposed of all the iive issues in the case. For facts presumed, are as effectu.ally established as facts proved, so long as the presumption remains unrebutted. 4 Ohio St. 113; 27 Ohio St. 311; 12 Ohio, 10.

ITad there been a contest in the district court on the issue of law made by the demurrer, determined adversely to plaintiff in error, with which he felt aggrieved, it can hardly be supposed that he would have failed to have saved his right for a review by causing the action of the court to appear on the record, supported by appropriate exception. As it is, no case is made for review on the de■murrer.

A second and principal alleged error is claimed on the special finding of facts and of law as to the rate of interest allowed on the $6,000 note.

It is objected, First, that ten per cent, interest, payable semi-annually, was allowed on the residue of the $6,000 note, after deducting the two credits, one of $1,141.39, and one of $1,000 ; and Second, in computing interest on the last above-named sums semi-annually from the dates when ■they were respectively placed as credits on the original note.

We think the court did not err, in either respect, to the prejudice of the plaintiff in error.

On the 6th of May, 1862, Emmitt and Kilgore, finding that Emmitt’s clerk had, without their knowledge, taken two sums, due Kilgore on the books of Emmitt, and placed them on the original $6,000 note, the parties agreed, upon advice, at the request, and for the benefit, of Kilgore, that a new note should be substituted for the old one, “ corresponding in every respect therewith, as to date, amount, time of payment, and rate of interest, and when payable, and all the credits indorsed thereon, except said credit of $1,141.39, and said credit of $1,000.” This substituted note Emmitt was to accept in place of the original note, and the old note was surrendered. The sums of $1,141.39 and $1,000 to be again placed on Emmitt’s books to the •credit of Kilgore.

This transaction took place after the repeal of the statute authorizing contracts for interest at the rate of ten per' cent. It is claimed the law in force at the time the new note was given must control'the rate of interest; that the-new transaction was a new note for the part of the old note unpaid, and a release of the amount that had been paid.

' The new note was not a renewal of the original note ;• but, in legal effect, a substitution of a new note for the old one, with the credits left off. This was not usurious. To constitute the transaction usurious, it is requisite that it should amount to either a loan direct, or to a device for the-purpose of concealing or evading the appearance of a loan* when, in fact, there was one. In the conduct of these parties we discover neither. These sums of money were not paid by Kilgore on the note, but, on the contrary, they were sums of money standing to his credit on the books of Emmitt, which Emmitt had the right to credit on the note,, but which had not been so credited with his knowledge. How these sums of money accrued in favor of Kilgore does not appear. It is clear, however, that they did not come to him with any purpose, on his part, to have them used as payments on the note. Under the findings of fact, these-credits, while not strictly a mistake in law or fact, should not be treated as absolute payments, until known and recognized by the parties as such.

Had the parties agreed that the credits should be erased, and they had been erased, the old note would have been restored to its original amount, and the rate of interest provided for therein not disturbed. The effect of destroying the old note and making a new one, in all respects like it, with the credits omitted, was not a loan of money, but a change of Kilgore’s money, thus misapplied, from the note-to book account. In view of the ascertained facts, it was competent for Emmitt and Kilgore to agree that the credits placed on the note, without their knowledge, should not be treated as payments on the note, and that they should be re-transferred to Emmitt’s books for the use of Kilgore. This was done under advice that the transaction was lawful, and without intention on the part of either party to ■evade the law.

The object and purpose of the parties was that the obligation of Kilgore, and the rights of Emmitt as to the $6,000, should remain the same as if the two credits in ■question had not been indorsed on the note, but remained on the books of Emmitt subject to Kilgore’s order. This is what the parties supposed they had accomplished. The surrender of the original note did not satisfy the original debt, nor any part of it, aud this for the reason the parties ■did not intend its destruction to have that effect as found by the court. The substituted note, in effect, took the place of the original one, and lawfully carries the same rate ■of interest as the old note.

"Where the new transaction is a loan of money, or is a devise for the purpose of concealing or evading the appearance of a loan, but is a loan in fact, made for the purposes of usury, the transaction will not be upheld. For the purpose of ascertaining the true nature of the transaction, the court will scan it carefully, to ascertain its real substance, for the purpose of determining whether it is a diguised loan or something else.

It was competent for the court to allow interest at the rate of ten per cent., with semi-annual rests on the amount ■■of the substituted note after the credits were removed. It follows that the court did not err, to the prejudice of plaintiff in error, in the rate of interest and rests found by the ■•court on either sum.

Judgment affirmed.