author: Williams, J.

text:
    Webster et al. v. Bible Society.
    Executors—Legacies— When not a continuing and subsisting trust—■ Action for recovery of— When accrues—Statute of limitations—• When bar complete.

    1. An action to recover the amount of a general pecuniary legacy, with respect to which the executor is not charged with any duty except to pay it out of the assets when due, is not founded on a continuing and subsisting trust, nor exempt from the operation of the statute of limitations, although the will creates some special trusts in the management and disposition of particular property by the executor.
    2. Before the adoption of the code of civil procedure, cases for the recovery of such legacies were within the concurrent jurisdiction of courts of law and equity, and in either tribunal were subject to the statute of limitations.

      3. The cause of action upon such a legacy accrues, when, by the terms of‘the will or rules of law it becomes due and payable, and the executor has sufficient assets applicable thereto. Where the right of action accrued before the code, but the action has been commenced since, it is governed by the statute in force when the right accrued.
    4. In order ,to set the statute running in favor of the executor, it is not necessary that he resign, or renounce administration of the estate, nor, that the legatee have actual notice of the legacy or will. Nor will the bar of the statute be defeated, after it once becomes complete, by an order of the probate court directing final settlement and distribution of the estate, or by the payment of other legacies by the executor.
    (Decided January 24, 1893.)
    Error to the Circuit Court of Cuyahoga county.
    The original action was commenced in the court of common pleas of Cuyahoga county, on the 16th day of January, 1886, by the American Bible Societjq against Horace P. Weddell, administrator with the will annexed, of the estate of Peter M. Weddell, deceased, and John H. Webster, assignee for the benefit of the creditors of Horace P. Weddell, to compel the assignee to allow, and pay out of the assets in his hands, in preference to other creditors, a legacj'-- of one thousand dollars, bequeathed to the plaintiff b3r the will of Peter M. Weddell, with interest on the same from the 17th day of May, 1848. B3^ the will, which was executed on the 27th day of April, 1847, after making certain provisions for his widow, the testator gives a number of pecuniary legacies to various persons and societies, among them, one thousand dollars to the plaintiff, directing that they all be paid as fast as the executors are able to realize money from the personal assets, or sale of real estate; and bequeaths and devises all •the residue of his estate to Horace P. Weddell, his only child, and heir-at-law/
    On the 17th day of May, 1847, the will was admitted to probate and record, in the county of Cuyahoga, where the testator resided at the time of his death; and, there being no executor named in the will, Horace P. Weddell and Dudley Baldwin were appointed, and qualified, as administrators with the will annexed. They gave due notice thereof by publication in the newspapers, as required by law, and entered upon their duties as such administrators, and so continued until the 6th day of November, 1854, when Baldwin resigned, and his resignation was duly accepted by the court. On the 10th day of July, 1884, Horace P. Weddell made an assignment for the benefit of his creditors, to his co-defendant Webster, who qualified at once, published notice thereof, and proceeded to administer the assignment. On the 15th day of January, 1886, the plaintiff presented its claim for the legacjr to the assignee, who refused to allow it, and thereupon the action below was commenced. One of the defenses set up, was, that the action was barred bj' the statute of limitations; or, if not so barred, the demand had become stale, by reason of the great length of time which had elapsed after the plaintiff’s right of action accrued before the commencement of the suit, being a period, as is averred, of more than thirtjr-eight years. The cause, having proceeded to judgment in the court of common pleas, was taken on appeal to the circuit court, where a finding of the facts was made, which, as far as they are deemed material to the questions considered in the report of the case, are, in addition to those already stated, in substance as follows: Upon the resignation of Baldwin, as one of the administrators, Horace P. Weddell took possession of all the real estate and personal property then remaining, a part of which, exceeding in value the amount of the legacy bequeathed to the plaintiff, was embraced in the assignment he subsequently made for the benefit of his creditors. On, or before, the 17th day of May, 1848, the administrators had realized from the assets of the estate, money, applicable thereto, sufficient to pay the plaintiffs’ legacjr in full, but it has not in fact been paid. Horace P. Weddell did not disclaim the trusts imposed upon him by the will, and settled a legacy in 1871, and another in 1875; and on the 10th day of March, 1884, the probate court required him to file his final account, and made a general order of distribution. The plaintiff had not actual knowledge of the legacy until October, 1885, but has had a general agent in Ohio since 1854, who was instructed to notify all judges of probate, and other officers having like jurisdiction, to forward to it, copies of all wills in which any legacy was given to it.
    Upon these facts the circuit court held the plaintiff’s action was not bajred, or its demand stale, and gave judgment requiring the assignee to allow the plaintiff’s claim in the sum of $8438.66, being the amount of the legacy with interest from the 17th day of May, 1848, to March 29, 1889, and h> pay that amount, with interest, from the first day of that term of the court, in preference to the claims of general creditors.
    The defendants prosecute error to this court to reverse that judgment.

      Webster & Angelí, for plaintiff in error.
    I. a. We understand that it is unquestionably the law that the statute of limitations does not run against an express trust, or against a continuing or subsisting trust, as the rule is phrased in our statute of limitations. It becomes necessary to determine, for the purposes of this action, what is an express trust; what is a continuing and subsisting trust. We understand that within the meaning of this rule an express trust is one which is peculiarly within the cognizance of a court of equity. It is such a trust as is created only by will or by deed. It is a trust which involves the supposition that a personal confidence was placed in the trustee by the creator of the trust. The court will ascertain by an examination of the will, that the testator named no executors. He left certain legacies; he stated that he wished certain lands sold, if necessary, to pay these legacies. He did not impose upon any one the personal obligation to see that his wishes in this respect were carried out. He evinced no determination to impose any special confidence, or any special trust, upon an3>" one. He made the bequests; he left the legacies. By the fact of his omission to name executors in his confidence in the statutory scheme of administration law, he trusted the carrying out of his wishes to the provisions of the existing law upon the subject. He created no trust. The express trusts which are outside of the statute of limitations are those which are technically cognizable only in a court of equity. Wood on limitations, §200, 201; Pomeroy’s Equhy Jurisprudence, sec. 152, 156; McDonald v. Aten, et al., 1 Ohio St., 293; Cadbery v. Smith, Law Report, 9 Equity, 37; Carr Adm'rx. Chapman, 5 Leigh, (Virginia) 174; Berman v. Brooks, 9 Pick., 242.

      b. We submit that the finding of the court that there were funds in the administrator’s hands in money, in 1847, sufficient to pajr this legacy, brings it within the rule announced in §169, of Angell on Limitations. Scott v. Jones, 4 Clark & Fin., 383; Freak v. Cranfeldt, 3 Myl. & Gr. Ch. 409; Souzer x. DeMeyer, 2 Paige N. Y., Ch., 577; Angell on Limitations, §170.
    The distinction which we seek to draw between the case of so-called legal trust, or a statutory trust, where all the duties imposed upon a man are those imposed by statute, and the technically express trust, which is cognizable only in a court of equity, is well illustrated in the case of Paschall v. Hinderer, 28 Ohio St., 568. See also Yearly v. Long, 40 Ohio St., 27; Douglas v. Corry, 46 Ohio St., 349; Robinson's Committee v. Elam’s Ex'rx, 14 Southwestern, 84; Beers v. Myers, 28 Ill. Appeals, 648; The Matter of Underhill, 1 Connolly, 541, N. Y. Sur. Rep.; Kane v. Bloodgood, 7 Johns. Ch., 110; Loder v. Hatfield, 71 N. Y., 92; Butler v. Johnson 111 N. Y., 204; American Bible Society v. Hebard, 51 Barber, 570; 41 N. Y., 619; Matter of Neilley, 95 N. Y., 383.
    II. The correctness of our position, that the trusts created bjr the appointment of Mr. Weddell as administrator with the will annexed, are legal in their character, and not such as are within the exclusive jurisdiction of a court of equity, is further illustrated by the powers, which, it has been adjudged by our courts, belong to the administrator. -The administrator with the will annexed has no power under our; law, except as it is conferred upon him by statute, to sell land. The powers given to the executor do not pass to the administrator with the will annexed, except by force of statute. Wills v. Cowper, 2 Ohio, 124; Leiby v. Parks, 4 Ohio, 469; Ludlow v. Johnson, 3 Ohio, 559; Elstner v. Fife, 32 Ohio St., 358.
    III. It may be urged, as it was in the court below, that the statute did not begin to run until the time when the plaintiff knew of the existence of this will. It was urged that the statute does not begin to run until the discovery of the fraud, and we are referred to Carlisle v. Foster, 10 Ohio St., 198. This is, however, no case of the discovery of any fraud. The rule in equity in this state is laid down in Douglas v. Corry, Executor, 46 Ohio St., 354; Wood v. Carpenter, 101 U. S., 135; Howkv. Minnick, 19 Ohio St., 462; Hemphill v. Moody, 62 Ala., 510.
    IV. Independently, however, of the statute of limitations, we submit that this case comes under the rule, that courts of equity do not entertain stale demands. This is a well known rule of courts of equity independent of the statute of limitations. It has been very frequently applied in cases of legacies. We have all the circumstances in this case which brings it under the rule of the third exception stated’ by Chancelor Kent, in Kane v. Bloodgood, 7 Johns. Ch. Matter of Neiliey, 95 N. Y., 383; Jones v. Tuberville, 2 Ves. Jr., 11; Campbell v. Grayham, 2 Clark & Fin., 429; Anderson v. Burwell, 6 Gratten, 405; Carr’s Adm’r v. Chapman, 5 Leigh, 174; Stampner's, Adm’r v. Garrett, 31 Gratten, 550; Broderick’s Will, 21 Wallace, 519.

      G. M. & A. W. Barber, for defendant in error.
    As to the first two grounds of error complained of, that the claim is barred by the statute of limitations, and that it is stale in equity, a statement of the case and the finding of the court is a sufficient answer. It cannot be claimed that any statute of limitations commenced to run before the appointment of the administrator with the will annexed. There is therefore no statute of limitation applicable to the case except such as apply between an executor or administrator with the will annexed and a legatee.

      Here is a will which expressly mentions executors and expressly invests them with a trust to effectuate the intentions of the testator. It cannot be claimed that such a trust, once accepted and entered upon by executors named in the will, would not be a continuing and subsisting trust until it was executed or the trust denied.
    But the testator failed to nominate executors, and administrators with the will annexed were appointed by the proper court to carry out the provisions of the will. The plaintiff in error claims that the persons so appointed were not invested with anjr personal trust such as might become continuing and subsisting trusts—that because they were not named as executors in the will the trusts assumed by them were not express trusts and not exempt from the running of the statute, and cites Wood on Rimitations, sec. 200 and 201. We cite section 199 of the same author. Also Wood on Rimitations 72, 73, and 199; Angell on Rimitations, secs. 90, 16 and 169; Parker v. Ache, 1 Vern Cases in Ch., 256; 2 Williams on Executors, 2029; Thompson v. McGaw, 2 Watts, Pa. 161; 5 Watts, Pa. 225; Higbee v. Bacon, 8 Pick. 484; Schouler, §123; Underhill, Raw of Trusts and Trustees, page 9, Art. 7; Underhill, page 41; Dodkin v. Bunt, Raw Reports, 6 Equity, 580.
    The trust was created by the words of the will and was as complete an express trust as was ever created by a testator, and was such a direct and technical trust as under the common law fell within the peculiar, proper and exclusive jurisdiction of a court of chancery. See Angell on Limitations, sec. 168, 169; Story’s Equity, secs. 980, 981 and 1194É1; Smiths. Colloway, 7 Blackf., Ind., 86; Decautche v. Savatier, 3 Johns. Ch., 89; Leak v. Leak, 75 Va., 800, 802; 8 Pick. 484 (488); 3 Sneed (Tenn.) 157.
    What constitutes a stale equity depends upon the facts and circumstances of each particular case and not on the lapse of time alone. Paschall v. Hinderer, 28 Ohio St., 568. The trust in that case arose before the code and in that as well as other respects is similar to our case.
    Before the code courts of equity had exclusive jurisdiction of continuing and subsisting trusts. By the code all actions became civil actions, and by sec. 6200, Revised Statutes, a civil action by legatees, among other claimants for distributive shares of an estate against executors or administrators, upon order of distribution, might be brought, to be governed in all respects as other civil actions, therefore the exception to the general statute of limitations became necessary to protect continuing and subsisting trusts.
    Time does not begin to run against a cestui que trust until he has knowledge or may fairly be presumed to have knowledge of the existence of the trust. Carlisle, et al. v. Henry D. Foster, et al., 10 Ohio St., 198; Hill on Trustees, 168-523.
    No title to the property, devised to H. P. Weddell as residuary legatee, vested in J. H. Webster except as subject to the trusts on which said Weddell held it. H. P. Weddell did not avail himself of the provisions of sec. 5997, Revised Statutes, by giving bond as residuary legatee, but gave bond as administrator -with the will annexed under sec. 5996. Therefore his title to the property was by his own act left subject to the provisions of the will, and therefore the creditors of Everett, Weddell & Co. or himself can share nothing in the estate of H. P. Weddell until these trusts are paid in full. Rogers, Assignee v. Miranda, 7 Ohio St., 179; Brock v. Bateman, 25 Ohio St., 609.
    The exclusive jurisdiction of the probate court in the settlement of the estates of deceased persons does not extend to claims under an order of distribution, which includes legacies.
    A final account; so as to relieve his bond, cannot be filed until all the distributees have been paid. Revised Statutes, 6175.
    The fact that he never filed such account and continued to pay legacies as late as 1884, shows conclusively that he did not claim the estate was settled and did not disclaim or repudiate any obligation that might rest upon him under his father’s will. And when the order of distribution was made in 1884, he paid the legac}^ to Richard Weddell to the administrator of his heirs, but filed no final account. Schouler on Executors, sec. 527; Dufour v. Dufour, 28 Ind., 421.
    After 30 days from the order of distribution any person interested in the order of distribution as creditor, legatee, etc., may file a petition in the probate court to collect the claim to which he may be entitled. Sec. 6195 and sec. 6200 gives the court of common pleas concurrent jurisdiction with the probate court.
    This action is brought in the court of common pleas under sec. 6200. The probate court had found that all claims against the estate other than legacies had been settled, but some of the legacies given by the will had not been paid. A general order of distribution was made and he was ordered to pay all unpaid legacies and file his final account.
   Williams, J.

In the disposition of the case, the relation of an administrator -with the will annexed, to the estate he represents, and his duties and obligations to legatees, may be regarded as not different from those of an executor of the will. The question is therefore presented, whether the obligation of an executor to paj' a general pecuniary legacy, after it becomes due and payable, and there is sufficient money in his hands applicable thereto, constitutes such a trust as will prevent the lapse of time from operating as a bar to an action for its recovery. In the determination of the question, it is not important whether the right of action accrued before the adoption of the civil code, or afterward; since, that provision now contained in section 4974 of the Revised Statutes, which excepts cases of continuing and subsisting trusts from the limitations upon the time within which actions may be commenced, is but the legislative enactment of the rule which had theretofore existed. It is well settled since the code, and was so before, that only those cases of technical, continuing, and subsisting trusts which are within the proper, peculiar, and exclusive jurisdiction of courts of equity, are exempt from the operation of statutes of limitation. Paschall v. Hinderer, 28 Ohio St., 568; Yearly v. Long, 40 Ohio St. 27; Douglas v. Corry, 46 Ohio St., 349. Other trusts, which might be the ground of an action at law, have always been subject to such statutes. Okey, J., in Carpenter v. Canal Co., 35 Ohio St., 317, and cases above cited.

Courts of equity originally took jurisdiction of suits tO' administer and distribute the estates of deceased persons, only, where discovery of assets was necessary, special trusts were involved, or the rights of married women, infants, and others under disability, were affected; but eventually came to exercise jurisdiction generally, though not exclusively, in -the administration of estates. Suits to recover legacies were embraced in that jurisdiction. With respect to them, some courts held, that the executor could not be sued at law unless he assented to the legacy; his assent being considered equivalent to an admission of assets. If he did not assent, a court of equity was regarded as the appropriate jurisdiction, because it could take control of the whole subject matter of the distribution, and so mould its orders and decrees as to protect the executor and parties in interest, by requiring the legatee, when necessary, to give bond wdth sureties to refund any part of the amount paid him. The power of protecting the executor in that mode, was conferred on courts of law in this state, by the act of March 23, 1840, Swan’s Statutes, (1841) 360, when payment of a legacy was required within the time allowed creditors to prosecute actions on their claims; and that provision, has ever since continued to be a part of the statute law of the state. The act also enjoined upon executors and administrators, the duty of converting the assets into money, paying the creditors, and making distribution to the legatees and other distributees, according to their respective rights; and since that act, the assent of the executor to the legacy has no longer been, if it were before, requisite to an action at law by the legatee; nor, has resort to equity for the recovery of the legacy been necessary, except, it may be, in special cases involving grounds for other relief. In Pomeroy’s Equity, sec. 187, that author says: “In the same general class of pecuniary reliefs belonging to th'e concurrent jurisdiction, and united together by a tie of close analogy, are suits for the recovery of legacies, suits for the recovery or enforcement of donations causa mortis, and the various suits, involving some equitable feature or incident, brought in connection with or in aid of the administration of the estates of deceased persons. Although the administration of decedents’ estates has, in this country, been committed to courts of probate, and the former jurisdiction of equity to entertain ‘administration bills’ for the complete and final settlement of such estates does not practically even if nominally exist, still there are many special cases belonging to the concurrent jurisdiction in which suits may be brought to obtain pecuniary recoveries against executors and administrators, in the process of and connected with their work of administering and settlement.”

Actions for the recovery of pecuniary legacies being within the concurrent jurisdiction of courts of law and equity, statutes of limitation have been held to be applicable to them in either tribunal. As said by Johnson, J., in Paschall v. Hinderer, 28 Ohio St., 577: “In all cases where there was a concurrent jurisdiction of the courts of law and equity for breaches of trust, the rule was well settled that the equitable action was barred in the same length of time as the action at law.” In speaking of the defense of the statute of limitations in such cases, Story, J., in Pratt v. Northman, 5 Mason, 95, says: “In cases of concurrent jurisdiction it is clear, that courts of equity are bound by the statute of limitations equally with courts of law. That was the doctrine of Rord Redesdale, in Havenden v. Lord Annesley, 2 Sch. & Lefroy R., 607-630, and of Mr. Chancellor Kent, in Kane v. Bloodgood, 7 John’s Ch. R. 90. There are other cases, not of concurrent jurisdiction in which the statute of limitations is applied by courts of equity by way of analogy to the law, in which courts of equity follow the law, and give effect to its regulations upon equitable titles. In this last class of cases equitable exceptions may well be admitted and justified, because the bar is furnished by the court itself, and stands upon no positive legislation.”

In some of the states it is held, that independent of statutory permission, an action at law may be maintained to recover a legacy, when the executor has assets applicable thereto. Weeks v. Sowles, 58 Vt. 696; Prescott v. Morse, 62 Me. 447; Colt v. Colt, 32 Conn. 422. In other states, statutes have been enacted, providing for such action. In this state, as early as 1816, a statute was passed giving an action of debt on the bond of an executor or administrator, to any person injured, and authorizing the executor or administrator or his sureties to plead any matter which might be pertinent in their defense. Swan’s Statutes (1841) p. 162. And the act of March 23, 1840, Swan’s Statutes (1841) p. 373, provides, that suit may be brought on the executor’s bond, by a legatee, when he is entitled to the payment of his legacy; and that provision has been retained in the statutes of the state. The legacy is payable by forcé of the will. The amount payable is definitely fixed by it. And it needs no assent to, or allowance by, the executor to establish the legatee’s right, nor any order or judgment to ascertain the sum due on the legacy.

It was found, as a fact, by the circuit court, that in May, 1848, the administrators of the Weddell estate, had in their hands, “money applicable thereto, sufficient to pay” the legacy given by the will to the plaintiff. “Money applicable” to the payment of the legacy, means money which the plaintiff was entitled to have applied in payment, and imports that there were no debts or other obligations having preference over the legacy, to prevent the proper appropriation of the money in the hands of the administrators to its payment, or delay its recover}’- by the legatee. It was unimportant to the plaintiff’s right of action to recover the legacy, that the will imposed special trusts upon the administrators in the management and disposition of the real estate, or other particular property. They were charged with no trust with respect to the legacy, either in its custody, management, or control, and none existed, except in the broad sense, that a trust may be said to arise -whenever one man has in his possession money belonging to another which he is under a present obligation to pay over. The duty of paying the legacy belonged to the administrators, as such, and not as trustees of a continuing trust. In the case of the American Bible Society v. Hebard, 51 Barb. 552, which was affirmed by the Court of Appeals, 41 N. Y. 619, a bequest was made of $1,200, which the executor was directed to invest in the purchase of a dwelling for the testator’s widow, to be held by her during her life in lieu of dower, if she elected to take under the will; and at her death, the dwelling was to be sold, one-half the amount paid to the plaintiff, and the other half to a missionary society. The widow died before the money was invested, without electing to take under the will. The court held, that the right of the plaintiff and the missionary society to the $1,200 vested at once on the death of the widow, and an action accrued to them within one year thereafter; and no suit having been brought within six years thereafter by the plaintiff, the action was barred. The court said: “Where there is a strict technical and continuing trust which is cognizable only in a court of equity, no lapse of time will bar the claim of the cetui que trust. But this rule is confined strictly to cases of that character. That this is no such case seems to me extremely clear. There can, I think, be no reasonable doubt that this claim was cognizable in a legal action. Indeed such is clearly the character of the action brought. It is to recover a specific sum of money, bequeathed, and not to enforce a trust as such.”

We are of opinion that the plaintiff’s case is not one of a continuing and subsisting trust, against which statutes of limitation do not run; and the bar of the statute, if complete, was a valid defense to the action below. And, we think the fact that the plaintiff had not actual notice of the legacy, or the will, did not prevent the running of the statute. The will was a matter of public record, and the administrators gave the notice, by publication, of their appointment and qualification, required by law. The plaintiff had the same means of knowledge as other persons interested in the estate, and like all other persons was bound to take notice, unless there was some contrivance to prevent inquiry, and that is not claimed. Douglas v. Corry, 46 Ohio St., 354. Nor, did the order for the final settlement and distribution of the estate, made by the probate court on the 10th day of March, 1884, operate to revive the'plaintiff’s right of action, if theretofore barred, or otherwise establish its validity, or deprive the administrator of any legal defense then existing to it. That court was without jurisdiction to determine the state of accounts between the administrator and legatees or distributees, and did not undertake to do so. It could only make a general order for distribution according to law, of any balance in the hands of the administrator, leaving the rights of the parties with respect to it, to be inquired into when the distribution was sought to be enforced. Cox v. John, 82 Ohio St., 532. As said by Scott, J., in that case, the settlement in the probate court “had relation only to the accounts between the administrator and the estate; and not to the state of accounts between him and the several distributees.” Distribution according to law, is distribution only to such parties as have lawful claims; and hence, the order of distribution referred to, did not have the effect of precluding the administrator from setting up the statute of limitations, or any other legal defense, to the plaintiff’s action. Nor, was it necessary he should resign, or renounce administration, in order to set the statute running, or make its bar available as a defense. Neither did the fact that other legacies had been settled before, or after they were barred, prevent him from interposing that defense to the plaintiff’s claim.

We are aware that it has been held by the courts of New Jersey, and, it may be of some of the other states, that notwithstanding courts of law have concurrent jurisdiction with courts of equity in suits to recover legacies, the statute of limitations is no defense in either court. And some courts and authors have declared that the plea of the statute lias never been known in suits against executors. But we think the better rule, the one sustained by the better reason and authority, is that airead}1' stated as having obtained in this state. Our law favors the prompt and speedy settlement and distribution of estates, and has provided adequate remedies and procedure for the accomplishment of that result. Eimitations upon the commencement of actions against executors and administrators, are not more for their, protection, than for the security of the estates of deceased persons, and the repose of rights and titles derived from and through them.

The statute of limitations being available as a defense to the plaintiff’s action, the inquiry arises, when did the right of action accrue, and what lapse of time is necessary to bar it? The general rule adopted by the English courts of chancery, and in many of the American states, is, that pecuniary legacies become due and pajmble one j^ear from the death of the testator, and they accordingly bear interest from that time, unless a different time of payment is to be derived from the will. Wood v. Penoyre, 13 Vesey, 333; Rotch v. Emerson, 105 Mass. 431; Kent v. Dunham, 106 Mass. 586; Wheeler v. Hathaway, 54 Mich. 547; In re Spencer, 16 R. I. 25; Chambers v. Chambers, 87 Ky. 144. This rule, it is said by Eord Chancellor Redesdare, in Pearson v. Pearson, 1 Sch. & E- 10, was taken from the practice in the ecclesiastical courts, where a year was given the executor to collect the effects, and he could not be called upon before that time, because he could not know what fund there was, with which to pay. And in Wheeler v. Hathaway, supra, it is said, that “for convenience, the law, in the absence of statutory regulation, has prescribed the general rule that where no time of payment is named by the testator, and in the absence of any intention to be inferred from the will itself, such general legacies shall be raised and satisfied out of the testator’s personal estate at the expiration of one jmar next after his death. * * * This rule was founded on the principle that the assent of the executor to the legacy was essential before the title of the legatee to the legacy became complete. * * * The civil law fixed for the purpose a }^ear from the testator’s death as the time when the executor’s assent is presumed and when the legacy is payable. This rule has quite generally been adopted by the English courts. In the American courts, in the absence of statutes regulating the subject, legacies are regarded as due and payable at the end of the j-ear from the death of the testator. But in those states where statute or the judge of probate allows a year in which to pay debts and legacies, such legacies are not due until the end of a j-ear from granting letters testamentary, and the interest should be computed from that time.” The legacy being due and payable at the end of the year, like other overdue pecuniary obligations, bears interest from that time. This rule is stated by the supreme court of Michigan in Wheeler v. Hathaway, in the following language: “As a general rule, interest is payable on money on the ground of delay in paying the principal; and with respect to legacies it is payable on them from the time they are actually due.” There are many cases to the same effect.

It is not necessary now to determine how far, if at all, the rule is affected by our legislation, which makes it the duty of the executor or administrator to collect the assets of the estate within one year after the date of his bond, but authorizes the court of probate to extend the time for that purpose from year to year, not exceeding, in all, five years from the date of the bond. It was held by the Supreme Court of Rhode Island, in the Spencer case, supra, that where the will gave the executors five years in which to settle the estate, they could not be sued for the payment of legacies until the expiration of five years from the time of their appointment. Whether onr statute should have a like operation, need not now be decided; for if given that effect, it would not postpone the maturity of the legacy beyond the period to which the time for the collection of the assets should be extended.. By other provisions of the statute in force when the administrators of Weddell’s estate were appointed, they were required to “proceed with all diligence to pa}r the debts of the deceased,” and to that end, it became important that creditors should present their claims within a 3rear after the notice given by publication of the appointment of the administrators; for, having given such notice, no suit could be commenced against them by an3>- creditor, after four years from the date of the administration bond, unless new assets came to their hands, or the creditor’s claim matured after that time. The statute contained the further provision already referred to, that if the executor or administrator should be required by anyr legatee to make payment of his legacy within the period last above mentioned, the court might require the legatee to give bond, ■ with sureties, to refund so much of the amount paid as might be necessary to indemnify the executor or administrator against loss or damage on account of such payment. It may be fairly inferred from the statute, that a legatee can sue for the payment of his legacy before the expiration of the four years; but when he does, he may be compelled to give the bond and security therein provided for. The reason for fixing that period within which such a bond may be required, evidently was, that, as creditors might at any time within the four years sue the executor for debts dpe them, the amount paid the legatee might be needed to satisfy such creditors; and the bond was therefore necessary, or at least proper, for the protection of the executor. But not being liable to the suit of creditors after that period, the right to the payment of the legacy is then absolute, without such bond, or other qualification, if the executor have sufficient assets applicable thereto. And such, as we understand it, is the effect of the decision in Dawson v. Dawson, 25 Ohio St., 443.

The circuit court appears to have held, in accordance with the generally recognized rule, that the legacy bequeathed to the plaintiff became due at the end of the year from the appointment of the administrators; they then having, as that court found, assets applicable to the legacy sufficient for its payment; and, interest was accordingly allowed from that time. If that be.accepted as correct, the plaintiffs’ right of action for the non-payment of the legacy was then complete. And in any view that may be taken of our statutes, the cause of action accrued, not later than four years from the date of the administration bond. That would be the 17th day of May, 1851, before the adoption of the civil code, and the limitations prescribed by it, upon the time of commencing actions, would not apply. The case must be governed by the statute in force when the cause of action accrued. Revised Statutes, sec. 4974. It does not become important to determine by what particular provision of the statute the case is governed, for it is obvious the action was barred, if given the benefit of the provision allowing the longest period which could be extended to it. The action was not commenced until the 16th day of January, 1886.

We are also of the opinion, that if the plaintiffs action was not strictly within any provision of the statute of limitations, or if the statute was not applicable to it at all, the claim was a stale one when presented to the assignee. It has long been established that equity will refuse 'its aid, independent of the act of limitations, after great lapse of time. Reasonable diligence must be exercised in asserting their claims by those who seek the active aid of a court of equity. Tuttle v. Wilson, 10 Ohio 24.

In Tatam v. Williams, 3 Hare, 347, a bill by a surviving partner, against the executor of a partner who had died thirteen years before the institution of a suit for an account of the partnership dealings and transactions, charging that the deceased partner was indebted to the firm at the time of his death, was dismissed with costs, on the ground of the lapse of time; no new liabilities of the former partnership appearing to have arisen or become known, after the death of the deceased partner. In Baker v. Read, 18 Beavan, 398, a bill, after seventeen years, to set aside a purchase of the testator’s estate by his executor, at an undervalue, was dismissed on the ground of delay, although the court was clear that the sale, if recent, should be set aside. In Tuttle v. Wilson, supra, the claim of a widow for dower was held stale after the lapse of twenty-one years. Arid see Campbell v. Graham, 2 Clark & Fin. 429; Car's Administrator v. Chapman, 5 Leigh. 174; Stamper's Administrator v. Garnett, 31 Gratt. 550.

In the case before us, Horace P. Weddell was the residuary legatee under his father’s will, as well as one of the administrators of his estate; and after the resignation of Baldwin, was the sole administrator. He continued in the possession and control of the property, for upwards of thirty-seven years, contracting debts and liabilities, and finally made an assignment for the benefit of his creditors. During all that time, no demand was asserted by the plaintiff against him, or the property. If those who dealt with him, and gave him credit, were bound to take notice of the will, or actually knew of the bequest to the plaintiff, they might well presume, after the lapse of so long a time, that the estate was settled, and the property in his possession was his own; and deal with him upon the faith of it. Having done so, and the property assigned being insufficient to meet the indebtedness due them, contracted probably upon the credit of that property, the demand of the plaintiff, then for the first time asserted, after the expiration of nearly forty years, does not make a persuasive appeal to equity.

Judgmetit reversed, and jtidgmentfor defendant.


source: Caselaw Access Project

author: Minshall, J.

license: Public Domain

text:
    Voss et al. v. Murray et al.

      Attaching creditors—May maintain suit to remove clotid from attached property, in hands of sheriff—Appeal lies from jtidgment in— When such action is premature—How deject waived—• Chattel mortgages— Where made to two or more as joint creditors, either, as agent may make verification—Evidence.

    1. A suit may be maintained by an attaching creditor of personal property that is in possession of the sheriff under the attachment, for the purpose of removing clouds upon it created by mortgage or otherwise, that would affect its sale, and either party may appeal from a judgment in the proceeding affecting his rights.
    2. Where such proceeding is commenced before the liability of the defendant to the plaintiff in attachment has been determined by judgment, and such liability is denied by answer, the proceeding is premature; but, where no objection is made and the legal issue between the plaintiff and the defendant is, for convenience, made up and tried in the proceeding to quiet title, such arbitrary union of the issues cannot affect the right of either party to appeal from a judgment affecting his claim to the property attached.
    3. Where a firm has executed a mortgage to secure a creditor, a declaration by one of the members in the absence of the mortgagee, affecting the firm’s title to the property, and its indebtedness to the creditor, is not competent against the mortgagee.
    4. Where a note is made payable to two or more persons as joint creditors, either has an implied authority as agent of the others to take a mortgage and make the affidavit thereon required by section 4154, Revised Statutes, for the purpose of securing its payment.
    (Decided Jan. 24, 1893.)

      Error, to the Circuit Court of Butler county.
    January 25, 1888, the plaintiffs, partners under the firm-name of John S. Voss & Son, commenced an action in the court of common pleas of Butler county against Dan I. Murray, upon thirteen several causes of action—one upon an account stated, for the sum of $227.89, the other twelve' being upon promissory notes, a part of which were due and a part not, each being for the sum of $75.00, and dated January 5, 1888; and at the same time obtained an order ot attachment on the ground that the defendant was disposing of his property with the intent to defraud his creditors, under which a stock of jewelry and other chattels were, on the following day, attached as the property of Dan I. Murray. Subsequently the property was, by consent of parties, placed in the hands of a receiver, appointed by the court, who sold and converted the same into money, and holds the same subject to the order of the court.
    On February 10, 1888, the plaintiff, by leave of the court, filed what is termed a supplemental petition, making as additional parties, Charles A. Cooch, assignee of Dan. I. Murray & Co., Dan. I. Murray and Charles E. Barnett, partners as Dan. I. Murray & Co., Sarah H. Barnett, Frank H. Barnett, Kate F. Barnett, Mary J. Barnett and Roscoe Barnett, Bena Murray and D. M. Murray, in which supplemental petition they affirmed and adopted all the matters stated in the original petition—recited the issuing of summons against Dan. I. Murray, the proceedings in attachment, the seizure of the stock of goods under the order of attachment, and .the service of the order of attachment—recited a detailed statement of the goods that were seized in attachment, and that the same were duly appraised in pursuance of the statute and return made to the court, and that said proceedings were regular, and the property was in the custody of the sheriff.
    The supplemental petition then stated “ that plaintiffs’ claim on the 5th of January, 1888, was against Dan. I. Murray and Charles E. Barnett, as partners by the name of Dan. I. Murray & Co., doing business as jewelers and having a jewelry store—that a great portion of the goods seized were purchased by said Dan. I. Murray & Co. from the plaintiffs and formed a part of the basis of their said claim amounting to fifteen hundred and twenty-seven dollars and eighty-nine cents ($1,527.89). That on said 5th of January, 1888, said Dan. I. Murray was so owner of said stock and property in said jewelry store, including the goods attached, he having before that time purchased the interest of his partner, Charles E. Barnett—that on said day said Dan. I. Murray came to plaintiffs’ place of business in Cincinnati, represented that he had purchased his partner’s interest, and in consideration thereof had assumed to pay plaintiffs’ claim; and actually paid him four hundred dollars ($400.00) thereon, and then agreed to pay1- plaintiff two hundred and two dollars and eighty'-nine cents ($202.89) on the 15th of January-, 1888, and for the residue he gave the twelve promissory notes of that date—each seventy-five dollars ($75.00), being the same claim set out in the petition—that no part of either of the claims was paid.”
    The petition avers that they made said arrangements with Dan. I. Murray upon the faith of his statements, and of the fact that he had purchased the interest of his partner, Charles E. Barnett. The petition alleged that on the 16th of January, 1888, Dan. I. Murray arid Charles E. Barnett fraudulently' combined and confederated together for the purpose of cheating plaintiffs out of their said claims, and for that purpose on said day falsely' and fraudulently pretended to restore the partnership of Dan. I. Murray & Co., and' then as said partners, executed a chattel mortgage on said property attached as the property' of the firm, when it was in the truth the firm’s property'. One of said mortgages was to D. M. Murray for two hundred and seveuty'-five dollars ($275.00), dated January 16, 1888—the other of said mortgages was to Mary' J. Barnett, Sarah H. Barnett, Frank H. Barnett, Kate F. Barnett, and Roscoe Barnett to secure a pretended note to them of fifteen hundred dollars ($1,500), pretended to have been given April 1, 1884, bearing eight per cent, interest—signed Dan. I. Murray' & Co., by Charles E. Ba-rnett, Ban. I. Murray; and also to secure one note to Bena Murray, wife of Dan I. Murray, for three hundred dollars ($300.00), dated April 1, 1887, due at sixty days—said note signed Dan. I. Murray & Co. Said mortgage also dated January 16, 1888.
    That no affidavit was filed to the last named mortgage, except by Bena Murray and Frank H. Barnett. And the petition alleges that as to the other parties secured thereby their mortgages are void; and it further avers that all said pretended mortgages are void as being without consideration— given to near relatives of Dan. I. Murray' and Charles E. Barnett, and for the purpose of cheating and delaying the plaintiffs.
    The petition further alleges that on January 5,1888, when Dan. I. Murray adjusted their claims, as above stated, he represented to them that the firm debts of Dan. I. Murray & Co. did not exceed three hundred dollars ($300.00), besides plaintiffs’ claim, and that he had bought out his partner’s interest for fifteen hundred dollars ($1,500.00), and given him his note for that sum, upon which statements plaintiffs relied.
    The petition alleged that Dan. I. Murray, individually, on the 5th of January, 1888, owned said property—that if there was any reorganization of said partnership it was not done for any business other than to make said mortgages and to make the assignment to Cooch, hereinafter stated, and to hinder and defraud plaintiffs out of their claim. That on the 16th of January, 1888, and as a part of the same scheme, a deed of assignment was prepared and executed by which said Dan. I. Murray & Co. assigned all their partnership property to Charles A. Cooch, as assignee in trust for their creditors;—same dated January 17, and filed on said day in the probate court, and that said Cooch was duly qualified as such assignee.
    The petition alleged that the deed of assignment was likewise made for the fraudulent purpose on the part of the assignors to hinder and delay the plaintiffs and other creditors, and that the mortgagees had knowledge of such fraudulent purpose, and fraudulently combined with said Dan. I. Murray and Charles E. Barnett to hinder and defráfcid the plaintiffs out of their claim; that Cooch, as assignee, was in possession of the goods when the attachment was levied, but surrendered the same to the sheriff at the time the levy was made.
    The petition claims that all said property is first liable under the attachment and to pay plaintiffs’ claim and costs, but that the claim of the assignee and the claims of the mortgagees are a cloud upon the title to said property so attached, which prevents plaintiffs from selling the same under their attachment levy.
    The petition further alleges that the mortgage to D. M. Murray was not sworn to by him, but by Cooch, who in fact had no authority to make the affidavit. The prayer of the petition was that each of said mortgages and said deed of assignment as to said property may be set aside; and that plaintiffs may be allowed under said attachment proceedings to sell said property freed from any lien of either of the defendants; and that if necessary a receiver be appointed to take charge of the same, and by order of the court convert the same into money.
    Dan. I. Murray answered, averring that* the amount claimed in the petition was the partnership, and not his individual indebtedness; and that this was known to the plaintiff when the action was brought. He admits that his partner, Charles E. Barnett, had proposed to sell to him his interest, but says, being unable to comply with the terms, the sale was not perfected, and that the partnership continued to the time of the assignment, which he avers was made in good faith, with no intention to defraud his creditors. He further denies that he stated to the plaintiff that he had purchased the interest of his partner. Cooch, the assignee, also answered, averring that the property belonged to the firm at the time of the assignment, and that it was made and taken in good faith. The other defendants also answered, setting up their respective mortgages, averring that they were taken and executed'to them in good faith to secure a valid indebtedness of the firm to each at the time of their execution.

      Sarah, Frank, Kate, Mary and Roscoe Barnett, (the only mortgagees that appealed) answered, setting up a note payable to their order for the sum of $1,500.00, bearing 8 per cent, interest, made and delivered to them by the firm of Dan. I. Murray & Co., April 1, 1884, secured by a chattel mortgage on the attached property, made and delivered January 16, 1888, by the firm, and duly filed with the clerk of the proper township on the same day. The affidavit was made by Frank Barnett, one of the. mortgagees, who, as averred, was duly authorized to act for the others. That the note was given for money loaned the firm at the time of its execution, and, except interest to April 1, 1887, was unpaid. That at the time the mortgage was given the firm of Dan. I. Murray & Co. was the owner of the property and in possession of the same; and asked that the amount due them thereon should be ascertained and declared a lien on the property prior to all others.
    A reply was filed by which issues of fact were made upon the averments of the several answers.
    The case was tried to the court without a jury, which found for the plaintiffs, and rendered judgment in their favor against Dan. Murray for the amount claimed; and, also, found the matters stated in the supplemental petition true, and held the lien of the plaintiffs under their proceeding in attachment superior to that of any of the other defendants, and ordered it paid accordingly. Cooch, the assignee, and Sarah, Frank, Kate, Mary and Roscoe Barnett appealed to the circuit court, where a motion was made to dismiss the appeal on the ground that several of the issues of fact made upon the petition were such that either party might have demanded a trial by jury.
    The court overruled the motion, and thereupon the cause was submitted to the court, and judgment rendered in favor of the appellants; and that the amount, $1,760.00, found due Sarah, Frank, Kate, Mary and Roscoe Barnett upon their mortgage, was a first lien on the goods, and ordered the receiver to paj"- the same, after pa3Úng a portion of the cost and expenses.

      The plaintiff filed a motion for a new trial which was overruled and a hill of exceptions taken.
    The errors assigned are, (1), the action of the court overruling the motion to dismiss the appeal; (2), in rejecting ■certain evidence offered by the plaintiffs; and (3), in allowing Frank Barnett to state that he was the agent of his •co-payees in securing the mortgage to them, and was authorized by them to make the affidavit.

      Thomas Millikin and F. I. Moorman, for plaintiffs in ■error.
    I. We claim that as to the issues made between the plaintiffs and the defendant, Cooch, assignee of Dan. I. Murray & Co., the issue was one which involved the right to specific personal chattels, and, therefore, either party had a right to have the issues tried by a jury. Section 5130, Revised Statutes; section 5226 Revised Statutes; Ladd v. James, 10 Ohio St., 437; Skeeful v. Murty, 30 Ohio St., 50; Taylor v. Leith, 22 Ohio St., 427; Massie v. Stratford, 17 Ohio St., 596; Buckner v. Mear, 26 Ohio St., 515; Smith v. Anderson, 20 Ohio St., 77; Chapman v. Lee, 45 Ohio St., 357; Pomeroy’s Equity Jurisprudence, sec. 178; Gunsaullus v. Pettit, Adm’r, 46 Ohio St., 28; Keller v. Wensall, 23 Ohio St., 519.
    II. The next error relied upon is the rejection of the testimony of Joseph S. Voss.
    First. Because these declarations were made in relation to the business of the firm by one of its members at the time he was purchasing goods of the plaintiffs for Dan. I. Murray & Co. Wetmore v. Mell, 1 Ohio St., 27.
    Second. It was unquestionably competent as against Charles B. Barnett, for each partner is an agent of the other partner in the transaction of the firm’s business. First Wharton Ev. sections 1156, 1162, 1163, 1163a; Larimore v. Wells, Adm’r, 29 Ohio St., 14; Coal Co. v. Davenport, 37 Ohio St., 195; In Hollister v. Reznor, 9 Ohio St., 1.
    III. The third error relied upon is that the court erred in allowing Frank Barnett to state that he was the agent of Sarah, Kate, Mary and Roscoe Barnett, in securing the mortgage, and that they authorized him to make said affidavit in their behalf.
    In this case Frank H. Barnett alone made the affidavit. He makes it as “one of the within named mortgagees.” On the face of the affidavit it does not appear that he acted for the others. He only makes it on his own behalf, and we claim, therefore, that as to the other mortgagees there was no affidavit at all.
    Upon objection being made by the plaintiffs to the introduction of this mortgage for the reason above stated the court allowed the defect in the written affidavit to be supplied by parol evidence.

      Alex. F. Hume and Doty & Todhunter, for defendant in error.
    1. In no sense whatever, can it be said that either the issue joined and tried between plaintiffs in error and the Barnetts, or between plaintiffs in error and Cooch, assignee, is “an issue of fact arising in an action for the recovery of money only, or specific real or personal property”; but said issues are issues of fact such as are mentioned in section 5131, and could only be tried by the court. Rowland v. Entrekin et al., 27 Ohio St., 47; Ellsworth v. Holcomb et al., 28 Ohio St., 66; Fleming v. Kerkendall et al., 31 Ohio St., 568; Keller v. Wenzell, 28 Ohio St., 579.
    The case of Smith v. Anderson, cited in brief of plaintiffs in error, 20 Ohio St., 77, is explained and modified in the case of Buckner v. Mear, 26 Ohio St., 514. No comment upon it is necessary.
    Neither is it necessary to comment upon the cases of Ladd v. James, 10 Ohio St., 437; Taylor v. Leith, 26 Ohio St., 426; Massie v. Stratford, 17 Ohio St., 596; Sheeful v. Murty, 30 Ohio St., 50, cited in brief of plaintiffs in error. They are well understood.
    The case of Chapman v. Lee, 45 Ohio St., page 356, cited by plaintiffs in error, instead of supporting their claim in this case, strongly supports our claim that the Barnetts, mortgagees, and Cooch, assignee, had a right to appeal. The case of Alsdorf v. Reed, 45 Ohio St., 653, also strongly supports our claim in this case
    II. It will be observed that the circuit court held that the question propounded to the witness, Joseph H. Voss, and the expected answer thereto were incompetent only as against the mortgagees (the Barnetts), as they were the only mortgagees then before the court. The court permitted the plaintiffs to ask that question and as many others as they saw proper, touching that subject, against the other narties before the court.
    The statements that plaintiffs sought to show that Dan. I. Murray made to Joseph H. Voss as against the mortgagees (Barnetts) were merely heresay. They were made in the absence of the Barnetts, and were made long before the execution of the Barnetts’ mortgage. And besides there was no issue joined between plaintiffs and the Barnetts that those statements tended to prove. Gambrinus Stock Company v. Webber et al., 41 Ohio St., 689.
    The court in the case just cited held that a substantial compliance with the statute is sufficient. An absolute and literal compliance is not required. An affidavit by one of several mortgagees is a substantial compliance with the statute.
    The debt secured by the mortgage was the joint debt of all the mortgagees. Each one owned an undivided share of every dollar thereof. Ashley v. Wright, 19 Ohio St., 291; Gardner v. Parmlee, 31 Ohio St., 551.
    The court did not err in permitting the mortgagees to call Frank F. Barnett, the mortgagee who made the affidavit to the mortgage, and permit him to testify that he was the agent of the others in the transaction of their business, and that they authorized him to make the affidavit in their behalf.
    The statute does not require that the affidavit shall show on its face that, when it is made by an agent of the mortgagee, the person making the affidavit is the agent of the mortgagee. All that the statute requires is that it be made by the agent of the mortgagee. The fact that it was made by tbe agent of the mortgagee can be proven or disproven by testimony outside of the affidavit.
   Minshall, J.

The first and principal question in the case is, as to whether the appeal should have been dismissed by the circuit court on the motion of the plaintiffs. The action as commenced was for the recovery of money only,— no equitable relief was sought; but, before any judgment was taken or issue joined, the so called supplemental petition was filed, making new parties, the object of which was to have the claims of these parties against the attached property—that of Cooch, as assignee, and of the others as mortgagees—declared invalid as against the plaintiffs; in other words to facilitate a sale of the attached property by removing what is claimed to be a cloud upon the title of the plaintiffs under their attachment. That one who, as an attaching creditor, has acquired a lien upon personal property, may maintain a suit for the purpose of ascertaining the extent or existence of adverse claims to the same property, or removing clouds upon it that would affect its sale in the proceeding, is supported by principle as well as authority. The property being in the custody of the sheriff under the attachment, the creditor has no possessory action against other claimants or lien holders by which the validity of their claims can be determined; and, as they may not choose to institute such an action, he is without any remedy at law, other than to sell the property subject to the clouds upon it, which is not an adequate remedy. For these reasons similar suits have been sustained. Sherman v. Fitch, 98 Mass. 59; Jones on Chattel Mortgages, §848.

That an appeal would generally lie from a judgment in a suit brought to ascertain liens upon property and for an order of sale is not questioned. But it is claimed that in this case it will not, for the reason, that in the supplemental petition was embraced, the determination of the individual liability of Dan. I. Murray upon the notes and account, or, in other words, that the suit against Dan. I. Murray was for the recovery of money only, and the only judgment rendered against him was for money; and so it is claimed that, upon the authority of Ladd v. James, 10 Ohio St. 437, no appeal could be taken from the judgment of the common pleas, notwithstanding other relief was sought and obtained.

The confusion at this point arises, as we think, out of an irregularity in £he proceedings in the common pleas—the commencement of a proceeding to determine liens and adverse claims upon the attached property before the liability of Dan. I. Murray upon the notes and account had been determined by a judgment against him; until that had been done the plaintiff had acquired no perfected lien upon the attached property, and the suit to remove clouds upon it for the purpose of making a sale was premature—should not, and, if objection had been made, could not, have been united with the action at law, against Dan. I. Murray, for the recovery of a judgment on his indebtedness to the plaintiffs. But no objection was taken, and none can now be taken, to this irregularity. The method adopted doubtless suited the convenience of all parties in conducting the litigation, and did not necessarily affect the substantial rights of any; but the action against Dan. I. Murray and the suit on the supplemental petition, were none the less separate and independent actions; and their arbitrary union in the pleadings and trial cannot affect the right of either party tó' appeal from a judgment rendered against him in the suit for equitable relief. This distinguishes the case from Ladd v. James, in which a legal cause of action on a promissory note, and an equitable cause of action for the foreclosure of a mortgage given to secure it, were united; and the only issue, as observed by White, J., in Buckner v. Mear, 26 Ohio St. 519, was on the note, and the case was held not to be appealable.

It is also argued that the issue between the plaintiffs and dooch, assignee, involved the right to specific personal property, and therefore either party had the right to have it tried by a jury. The sheriff took the property into his possession under the attachment of the plaintiffs, where it remained until, by order of the court, it was placed in the hands of a receiver. Cooch might have brought replevin to determine the right to the propert3r and its possession, as between himself and the plaintiffs, but he did not. And for such reason the plaintiffs made him a party, not to recover specific personal property', but to remove, if they could, the cloud of the assignment from the property they had taken in attachment. The relief sought was equitable* not legal.

The other errors assigned are presented by a bill 'of exceptions. The first is, that the court erred in rejecting the testimony of Joseph S. Voss as to what Dan. I. Murray said to him when purchasing goods for the firm. The bill of exceptions shows that the rejected testimony was to the effect, that Dan. I. Murray said to the witness, one of the plaintiffs, that Charles E. Barnett, not one of the mortgagees, was to put in the capital, and said Dan. I. Murray was to furnish the skill and services in carrying on the business, he being a practical jeweler; and plaintiffs’ counsel further stated, that he proposed thereafter to prove by other witnesses that the note and mortgage given by the firm to Frank Barnett and others, was for the capital which Charles E. Barnett had alone borrowed and was to furnish.

We fail to perceive any error of the court in rejecting this evidence. None of the parties sought to be affected by it were present, and it was therefore not competent as to them. ®But had the evidence been admitted, we fail to see what effect it could have had upon the voluntary engagement of each member of the firm, evidenced byr the note and mortgage, to Q&y a debt contracted by one of the members for money borrowed to the use of the firm.

The other error assigned is, that the court erred in admitting in evidence the mortgage made by the firm to Frank Barnett and four others, for $ 1,500.00, together -with evidence that the affidavit which was made and signed only by Frank, was made on behalf of himself and the others, joint payees with himself, who had authorized him to act as their agent in the matter. The claim is, that it should have been made and signed by all of them, or that the fact"of his agency should appear in the affidavit. The statute, section 4154, Revised Statutes, requires that, “The mortgagee, his agent or attorne3r, shall, before the instrument is filed, state thereon, under oath, the amount of the claim, and that it is just and unpaid, if given to secure the payment of a sum of money only.” The affidavit complied with this requirfement. The language is: “The undersigned makes solemn oath and says he is one of the within named mortgagees, Sarah H., Frank H., Rate F., Mary J., and Roscoe Barnett; that said mortgagees have a valid claim against the within named mortgagors, C. F. Barnett and Dan. I. Murray, partners as Dan. I. Murray & Co., amounting to fifteen hundred dollars and-cents; that said claim is just and unpaid, and that the foregoing mortgage is given to secure the same, and bears eight per cent, interest from April 4th, 1887.” Signed, Frank H. Barnett.

It must be observed that, in this case, the interest of the mortgagees was joint, the mortgage having been executed to secure the payment of a note in which they were, joint payees; so that each had in law an implied agency to act for the others, 1 Par. Cont. 21; and hence the right of Frank to take the mortgage and make the affidavit existed independently of any express authority to do so. The affidavit fully complied with the law, and made the mortgage a valid lien upon the property for each and all of them. The fact that the others had conferred on the one making the affidavit an express authority to do, what he had an implied authority to do, in no way affects the validity of the act done.

Judgme7it affirmed.


author: Dickman, J.

text:
    Bartol v. Eckert.

      Constitutional law—Revivor of dormant jiidgment—Statute oj limitations.

    1. The act of March 31, 1876 (73 Ohio Laws, 148), which provided, “ That in any case in which a judgment has been or may hereafter be rendered in any court, whether a court of record or not, and such judgment is or shall hereafter become dormant, action can only be brought to revive the same within twenty-one years after it became dormant,” is not in conflict with, section 28 of article 2 of the constitution, inhibiting the passage of retroactive ^iws.
    2. The right to revive a dormant judgment by motion and conditional order, was, under the act of March 31, 1876, barred in twenty-one years after the judgment became dormant.
    3. Non-residence of the defendant in the county and state, or his absence therefrom, and coverture of the plaintiff, are not, under the above-named act, disabilities that will prevent the running of the statute of limitations against the revivor of a judgment by motion and conditional order.'
    (Decided Jan. 24, 1893.)
    Error to the Circuit Court of Wayne county.
    The facts are stated in the opinion.

      Alfred J. Thomas, Frank Taggart, J. W. Mooney, and O. W. Aldrich, for plaintiff in error.
    I. Does the statute, which bars an action to revive a dormant judgment, bar a revivor in the manner actions are revived before judgments? If not, there being no other defense, the judgment of the court below should be reversed, and the conditional order of revivor should be made absolute. In the code of civil procedure, sec. 417, as amended March 10,1860, S. & C. 1061, there was but one method of reviving a judgment, which was the same as prescribed for reviving actions before judgment, and by the act of April 16, 1867, S. & S. 562, this section was amended.
    It was held in the case of Misner v. Misner, 41 Ohio St., 678, that in a proceeding under this act of 1867, such a petition and summons did not constitute a new action, but were additional proceedings in the original action.
    In the Revised Statutes, sec. 5367", the foregoing words, quoted from the act of 1867 were omitted and the words “or by action” substituted; but this it seems to us was only a shorter phrase to express the same thing.
    Since 1867, therefore, a person wishing to revive a dormant judgment has an election of two remedies, one by conditional order, and the other by action.

      The last clause of the sec. 5367, recognizes the distinction by providing that the lien “shall operate from the time of the entry of the conditional order, or the filing of the petition.” Section 5368, which was the statute in force when this conditional order was taken, did not bar anything but an action to revive a judgment, and this was the case with the original act limiting the action to revive judgments, passed March 3,1876, 73 Ohio Raw, 148. Therefore, unless a proceeding to revive a judgment by a conditional order is an “action” as defined in the code, the act of 1876, or the act of May 14, 1878, now sec. 5368, does not create a bar. This is expressly provided in Chinn v. Trustees, 32 Ohio St., 236.
    Is this method of reviving a judgment an action? There is but one form of action under the code which is known as a civil action, (Rev. Stat. sec. 4971,) which must be commenced by filing in the office of the clerk, a petition causing a summons to be issued thereon. Rev. Stat. sec. 5035. As no petition -is required and no summons is issued in the proceeding to revive a conditional order, it lacks these two essentials of an action. In the case of Chinn v. Trustees, it was held that the civil action is a substitute for such judicial proceedings as were previously known, either as actions at law, or suits in equity, and that it did not embrace proceedings in mandamus.
    If this is a proceeding, it is not an action under the code. The distinction is clearly made in the case of Coates v. Chillicothe Bank, 23 Ohio St., 431; Taylor v. Fitch, 12 Ohio St., 169.
    Can this section considered alone be construed as retroactive? The section reads, “No action shall be brought to revive a judgment after twenty-one years after it becomes dormant, unless” etc. This is not retrospective in its terms, and there can be no doubt that while the verb is in the present tense, it is used in a future sense, “shall become,” rather than in the pastor perfect tense, “has become,” as this last signification would embrace judgments which had been dormant more than twenty-one years, as well as those which had some time to run before the expiration of the twenty-one years.
    The consiruction would render' the act unconstitutional, under sec. 28 of article 2 of the Constitution, and it certainly would not be a remedial statute, unless more carefully worded than such a construction would necessarily imply. But in case of doubt, no statute will be construed as retroactive in its operation. Finney v. Ackerman, 21 Wis., 268; Kelly v. Kelso, 5 Ohio St., 199; Bernier v. Becker, 37 Ohio St., 72; State v. Rabbitts, 46 Ohio St., 178.
    If this section embodied the language of the original act upon this subject, further argument would be useless; but as the original act which was passed in 1876 and repealed by the act of May 12, 1878, codifjdng this title, was in its terms retroactive, the effect of its repeal and the enactment in this revision of this section, with the change in form, necessitátes an examination into two questions.
    There was no statute of limitations against the revivor of a judgment when the judgment now sought to be revived became dormant, and the action was not barred by the limitations against causes of action against specialties. Tyler v. Winslow, 15 Ohio St., 364.
    That in its terms this act is retrospective there is no doubt, and that this not only applies to judgments rendered, before its passage, but to those that were dormant when it was passed, as in this case, there can be no doubt, and the only doubt which can arise grows out of the use of the words “becomes dormant;” and this doubt is, whether the statute is intended to bar the revival of judgments which had at that time been dormant the full twenty-one years, or only those which had been dormant a less time.
    If it is a retroactive law, it is not constitutional, because the power to pass such acts is taken from the legislature by section 28 of art. 2 of the Constitution of 1851, and it clearly is not within the exceptions of the proviso of that section. Rairden v. Holden, 15 Ohio St., 207.
    As under this statute of 1876, if a judgment had been dormant twenty years and three hundred and sixty-four days when the statute went into effect, an action upon it would be barred the next day, and no exceptions were made, giving a reasonable length of time to bring the action in cases where there was but a short time before the expiration of the twenty-one years, it certainly “imposes a new disability,” and therefore is within the inhibition of the constitution against passing retroactive laws.
    There seems to be but one method of escaping the conclusion that this act is unconstitutional, and that is by holding as claimed in the first part of this brief, that there being two methods of reviving a judgment, and that this statute only affecting one, an adequate remedy still remained.
    In either case this act had no effect in barring this proceeding. If this act was unconstitutional, and upon its repeal the revisers left out the provisions which rendered it so, and used language which rendered the new act valid, it will' undoubtedly be presumed that it was the intention of the legislature adopting the revised- act, to free it from the unconstitutional features of the original act, rather than that it was the intention to convey the same ideas under different language. We go farther, and maintain that if an act is passed which contains provisions which render the act of doubtful constitutionality, and before this matter has been judicially determined this act is repealed by a revision, in which the doubtful language is removed and language substituted, which in its ordinary acceptation will be of unquestionable validity, it must be presumed that this change was made purposely, and in order to free the act from the charge of doubtful constitutionality, and that the court will not give it a strained construction which will render the act of doubtful validity. So if the act of 1876 was of doubtful constitutionality, and the section of the Revised Statutes substituted, hy a fair construction of its language, is free from that doubt, there can be no question, it seems to us, that these retroactive portions of the former act are removed by its repeal, even though it is repealed by a revision of the whole chapter or subject.
    As the act remained in force but two years, and no change had taken place in the status of the judgment during that time, and the act was then repealed, the effect of this statute is terminated by its repeal unless its provisions are considered as embodied in the new act. Ogden v. Blockledge,. 2 Cranch, 272; Osborne v. Jaines, 17 Wis., 578.

      Dillon & Swayne, Rush Taggart, and John McSweeney, for defendant in error.
    I. The act of March 31, 1876 (73 O. E. 148), provided the limitation of time within which any proceeding might be brought to revive this judgment.
    It will be remembered that, after the revivor of this judgment in 1858, it became dormant again on the 22nd of February, 1863. No express statute of limitations, limiting the time within which this dormant judgment might be revived, then existed in the state of Ohio. This condition of affairs continued unchanged until the passage of this act of 1876. Of course it cannot be claimed that it was not competent for the legislature to enact such a statutory limitation as it did enact in 1876, applying to all judgments then in existence or thereafter to be rendered. Such a contention seems to be conceded in the brief of the plaintiff’s counsel, the only contention being that, if this act applied to judgments then dormant and which had been dormant so long that no opportunity would be given to revivel-'after the act of 1876 took effect, such legislation would be unconstitutional. It is-not necessary for us here to discuss the question which is mooted by this suggestion in the plaintiff’s brief, because at the time this act took effect this judgment had only been dormant thirteen years, .and .there was left to the plaintiff opportunity to prosecute an action to revive this judgment, for eight years after the act took effect, or nearly one-half of the period fixed by the statute within which proceedings to revive might be commenced. In this connection also it may be suggested that almost coincident with the act of the legislature affixing this limitation of twenty-one years to proceedings to revive judgments, was the relief of the plaintiff from the disability of coverture, set up in her reply. We have, therefore, the clear, undisputed fact that from‘1876 to 1884, under this legislation of the state of Ohio, the plaintiff sat still and witnessed the statute running, without a single disability imposed upon her in any form, and allowed the twenty-one years fixed by the statute of 1876 to run out without taking a step towards the revivor of this judgment. It is also to be noticed that the plaintiff, although a married woman, is not within any of the exceptions of the statute, nor does the absence of the defendant from the state prevent the limitation of the statute from applying with full force and effect. As we understand the contention of the plaintiff, it is that, in some remote way, the statute of April 16, 1867, enables this party to proceed and relieves her from the operation of the limitation of the statute of 1876. One conclusive answer to this argument is that the statute of 1867 had been entirely repealed and superseded by section 5367 of the Revised Statutes, long before any steps were taken by the plaintiff to revive this judgment, and that she can get no benefits from the claimed distinction between the different methods of proceeding recognized by the act of 1867 for the revivor of judgments; whatever rights she lias in this matter are to be determined by section 5367 of the Revised Statutes. But the statute of 1867 does not warrant any such conclusion as the plaintiff’s counsel seeks to draw from it. From the case of Mistier v. Misner, 41 Ohio St., 678, cited by them in their brief, it is evident that this statute in providing the two methods of revivor, bjr conditional order < or by petition and summons, provides in each case only for additional proceedings in the old action. The two methods are alike then in character and results, but different in the means employed. This is of vital importance when we come to construe the language employed in the statute of 1876.
    II. Even if section 5368 be construed as differing in meaning from the act of 1876, it does not avail the plaintiff in error, for the reason that the act of 1876 applies, and governs the right of the plaintiff to revive this judgment.

      Under the construction of this act given in the case of Lafferty v. Shinn, 38 Ohio St., 46, it is very clear that, when the act of 1876 was passed and made applicable to the judgment sought to be revived in this case, the limitation therein provided affected the “cause of proceeding” thereunder, and that, under section 79, any subsequent changes of that legislation would not affect that statute of limitation as a rule of action governing that “cause of proceeding,” unless, in the amending or repealing statute, there was an express provision to that effect. In the revision of 1878 as carried forward into the Revised Statutes of 1880, by which this act of 1876 was molded into section 5368, there is no intention expressed to indicate that the provisions of the law of 1876 should not continue to furnish the rule of limitation as to ail judgments to which it applied at the time it was enacted, and to all to which it in terms applied up to the time of its amendment or repeal.
    III. The claim of unconstitutionality of the law of 1876 is without any foundation whatever.
    Even if the result contended for by the plaintiff in error followed from the law of 1876, it would by no means follow that it was an unconstitutional act as affecting vested rights acquired under existing laws. It is to be remembered that this proceeding to revive a judgment stands upon the same basis as the right to error proceedings or appeals, and is not protected bjr the constitutional provisions insuring to parties a right to “due process of law.” The plaintiff’s counsel forget that all such proceedings áre in no way matters of right, but are matters of favor granted by the legislature, and that they may be entirely taken away without regard to whether they affect pending proceedings or not, without affecting any constitutional right of the parties affected thereby. Sullivan v. Haugh, 82 Mich., 548; Railroad Co. v. Grant, 98 U. S., 398.
   Dickman, J.

The plaintiff in error, Mary E. Bartol, under the name of Mary E. Fleming, then a femme sole, recovered a judgment against the defendant in error, Thomas Thompson Eckert, on the 17th day of December, 1845, in the court of cpmmon pleas of Wayne county, Ohio, for the sum of $2,250.00, with costs. On the 24th day of May, 1850, execution was duly issued upon the judgment, and returned without being satisfied. Subsequently, on the 23d day or February, 1858, in a proceeding by motion to revive the same judgment, the judgment for damages and costs was revived in the name of Mary E. Bartol plaintiff, she then having become a married woman under that name.

After the revivor in the j^ear 1858, no action was taken upon the judgment until the present proceeding was begun in the court of common pleas of Wayne county, upon a motion filed September 24, 1885, setting forth that the judgment had become dormant, and asking that it might be again revived.

Upon affidavit that the defendant was a non-resident of the state of Ohio, an order was made in the action, that the dormant judgment be revived, unless sufficient cause be shown to the contrary; and the defendant was thereupon notified by publication, to appear and answer the motion for an order of revivor, and show cause why the judgment should not stand revived.

The defendant filed an answer to the conditional order of revivor, setting forth two defenses; first, that the motion to revive was not made within twenty-one years after the judgment became dormant; and second, that the motion was not made within one year after the judgment became dormant.

To the first defense in the answer the plaintiff replied: first, that on the 23d day of February, 1858, and ever since then, the defendant was and had been a non-resident of the county of Wayne, and state of Ohio, and absent therefrom during all that period, in parts unknown to the plaintiff until a short time prior to the commencement of this proceeding; and second, that before, and at the time the judg.ment had become dormant and was revived in the year 1858, and from thence until the year 1876, the plaintiff was and had been continuously a married woman, subject to the disabilities of coverture.

To the second defense in the answer a demurrer was sustained. The defendant filed a demurrer to the reply of the plaintiff, and the court sustained the demurrer, on the ground, that the statute of limitations of twenty-one years, as set up in the answer of the defendant, was a bar to the plaintiff’s right of revivor of the judgment, and refused to order that the same stand revived, as asked for by the plaintiff in her motion. To this action of the court the plaintiff excepted, and prosecuted a petition in error in the circuit court. The circuit court affirmed the judgment and proceedings of the court of common pleas; and to this action of the circuit court error is prosecuted in this court.

The only question, therefore, presented by the record for our determination, which we deem material, is, whether the right of the plaintiff to revive her judgment was barred in twenty-one years from the 23d day of February, 1863—the time when it became dormant. When it became dormant after its revivor in 1858, there was no statute of limitations in this state against the revivor of a judgment. But on March 31, 1876, (73 Ohio Raws, 148), an act was passed which provided: “That in any case in which a judgment has been or may hereafter be rendered in any court, whether a court of record or not, and such judgment is or shall hereafter become dormant, action can only be brought to revive the same within twenty-one years after it became dormant, except the person entitled to bring such action be at the same time such judgment become dormant, within the age of twenty-one, insane, or imprisoned, every such person shall be entitled to bring such action within fifteen years after such disability shall be removed.”

This act came under revision in May 1878, (75 Ohio Raws) 676), and was carried into the Revised Statutes of 1880, as sec. 5368, which reads as follows: “No action shall be brought to revive a judgment after twenty-one years after it becomes dormant, unless the party entitled to bring such action was, at the time the judgment became dormant, within the age of t-wenty-one years, insane, or imprisoned, in which cases the action may be brought within fifteen years after the disabilitj' has ceased.”

It is thus provided by the original act, that when “a judgment is or shall hereafter become dormant, action can only be brought to revive the same within twenty-one years after it became dormant”; while, by section 5368, “no action shall be brought to revive a judgment after twenty-one years after it becomes dormant." If it was intended by that section to apply the statutory limitation prospectively—only to judgments that might become dormant after its enactment, and not, as in the act of 1876, to judgments that were dormant at the time of its passage, the proceeding to revive the judgment under consideration would, nevertheless, be governed by the act of 1876. When a statute is repealed or amended, such repeal or. amendment cannot affect a cause of proceeding existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act. Section 79, Revised Statutes. The act of 1876, when it took effect, was obviously applicable to the judgment sought to be revived in this case, and which became dormant in the year 1863. The right to revive that judgment was barred bjr the act, in twenty-one years after thus becoming dormant, and the limitation imposed by the act regulated the cause of proceeding under the same. But there is nothing in section 5368, as it stood in 1880, that expressly indicates an intention to change the limitation for the revivor of any judgment to which the act of 1876 applied at the time of its enactment, or of its amendment or repeal.

It is contended, however, that conceding that the law of 1876 is applicable to, and controls the revivor of the judgment recovered by the plaintiff, it was retroactive, or retrospective in its provisions, and therefore, in conflict with section 28 of article 2 of the constitution of Ohio. Courts will not declare a statute void, unless the nullity and invalidity of the act are placed, in their opinion beyond all reasonable doubt; °and until so placed, it is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of. its validit}r. Ogden v. Saunders, 12 Wheat. 213.

In Rairden v. Holden, 15 Ohio St., 207, this court cited with approval Judge Story’s definition of a retrospective statute, as found in The Society v. Wheeler, 2 Gall. 139, viz:

“Upon principle, every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already passed, must be deemed retrospective.” In the present case, no vested right of the plaintiff has been taken away or impaired, nor has the plaintiff been subjected to any illegal disability by the statute. She had her day in court to prosecute the original action—her remedy by due course of law, as ordained in the constitution—and recovered judgment against the defendant. It is well settled, that a party to a suit has no vested right to an appeal, or writ of error from one court to another. In Lafferty v. Shinn, 38 Ohio St., 46, it is stated that in the right to appeal to the courts, there is not involved a further right to appeal from the judgment of the court to which such application for redress is made; on the contrary, that a right to appeal from such judgment exists only when given by statute; that such right to appeal, when so given, may be taken away by statute, even as to cases pending on appeal; and that the same thing is true with us as to proceedings in error. See Com. v. Messenger, 4 Mass. 469; Ex parte McCardle, 7 Wall. 506; The Marinda v. Dowlin, 4 Ohio St., 500; Railroad Company v. Grant, 98 U. S. 398. We see no satisfactory reason why a different rule should be applied to the revivor of a dormant judgment, the recovery of which implies that there has been a previous recourse to the courts, and that due process of law has been invoked.

In fact, after the act of 1876 took effect, the plaintiff had over seven j^ears within which to institute proceedings to revive the dormant judgment; and after the year 1876, she was no longer under the disability of coverture. And recognizing the principle that statutes of limitation should allow a reasonable time after thej>- take effect for the commencement of suits upon existing causes of action, the opportunity had by the plaintiff to begin proceedings after the act took effect, would have been manifestly reasonable and sufficient, even if the limitation had referred to the commencement of the original action. But, the limitation in the statute did not go to the merits of the action—to the establishment of a contested right—but to a remedy for the enforcement of a right already established. When an alleged conflict between a statute and the constitution is not clear, the implication must always exist that no violation was intended by the legislature. And so, as said by the court, in Newland v. Marsh, 19 Ill. 384, “acts of the legislature having elements of limitation, and capable of being so applied and administered,'although the words are broad enough to and do, literally read, strike at the right itself, will be construed to limit and control the remedy; for as such they are valid, but as weapons destructive of vested rights, they are void, and such force only will be given the acts as the legislature could impart to them.”

The argument advanced that the limitation of the statute does not operate to bar the right of revivor of the judgment, for the reason, that the defendant was a non-resident of and absent from the county and state as alleged, and that the plaintiff labored under the disability of being a married woman from the year 1858 until the year 1876, cannot, in our view, avail. The act of 1876 does not embrace absence from the county or state, or the disability of coverture, among the disabilities therein mentioned. Under section 4989 of the Revised Statutes, if, when the original cause of action accrued to the plaintiff against the defendant, the defendant was out of the state, the period limited for the commencement of her action would not have begun to run until he came into the state; and if, after the cause of action accrued, he had departed from the state, the time of his absence would not have been computed as any part of the period within which the action must have been brought. But, the statute contemplates two different objects—one the revivor of a dormant judgment, and the other the commencement of an action. To each object, distinct disabilities are attached, and we discover no grounds for interpolating into the law regulating the revivor of judgments, disabling provisions which have not been placed there by the legislature. Besides, such absence of the defendant has not prevented the plaintiff from effectively instituting proceedings of a revivor, for, it has been competent to her for that purpose, to make due and legal service upon the defendant by publication. Act of March 10, 1860, S. & C. 1061; Act of April 16, 1867, S. S. 562; sec. 5367, Revised Statutes, 1880.

It is urged, however, in behalf of the plaintiff, that under the statute, dormant judgments may be revived either by motion and conditional order, in the manner prescribed for reviving actions before judgment, or by action; that the twenty-one years limitation applies only to a revivor by action, and not by motion and conditional order, the mode adopted in the present case.

Original sec. 417 of the code of civil procedure provided: “If a judgment become dormant, it may be revived in the same manner, as is prescribed for reviving' actions before judgment.” By the act of April 16, 1867 (S. & S. 562), this section was amended by adding the words, “or by petition setting forth the judgment and the amount due thereon, and asking that the same be revived against the adverse party, on which petition a summons shall issue, and be served and returned as in other cases.”

For these amendatory words, the words, “or by action,” of substantially the same import, were substituted in sec. 5367 of the Revised Statutes (1880), which provided that, “when a judgment becomes dormant, it may be revived in the same manner as prescribed for reviving actions before judgment, or by action; * * * and the lien of the judgment shall operate from the time of the entry of the conditional order, or the filing of the petition.”

We have been unable to reach the conclusion that, in the revivor of judgments, because the act of 1876 provided that, “action can only be brought to revive the same within twenty-one years after it became dormant,” it was the intention of the legislature to impose no limitation upon the revivor of dormant judgments by motion and conditional order. We think the obvious design. was to fix upon twenty-one years, as the period within which dormant judgments could be revived, whether by motion and conditional order, or by action, so called.

In Misner v. Misner, 41 Ohio St., 678, where there was a revivor of a dormant judgment by petition, under the act of April 16, 1867, this court held, that the petition and summons did not make a new action, but were only additional proceedings in the original action. The two methods of revivor are analogous; the procedure in the two is similar; in neither is there a new inquiry into the merits of the suit. The word “action,” in the act of 1876, is not, we conceive, to be taken in a technical sense, as corresponding with “civil action,” under the code of civil procedure, but rather as signifying additional proceedings in the original action, authorized for the purpose of reviving a judgment. The application of the term “action” to a proceeding will not make it a “civil action” under the code of procedure, unless it has the same attributes and functions. Thus “the power given to courts of record to vacate or modify their own judgments or orders, after the term at which they were made, does not confer original jurisdiction. The power thus conferred is only that of further proceedings, for the causes enumerated, in an action after judgment; andaré, therefore, merely special proceedings in an action, and are not an original action, or the ‘civil action provided by the code.’” Coates v. Chillicothe, 23 Ohio St., 431. But to designate such proceedings by the word “action,” would not change their inherent character. Eor the aforegoing reasons, we are of opinion that the judgment of the circuit court and of the court of common pleas should be affirmed.

Judgment accordingly.