author: By the Court.

text:
    State ex rel. v. Handy.

      Common pleas judges — -Term of ojfi.ce--Legislative control.

    The term of office of the judge of the court of common pleas, elected in the third subdivision of the third judicial district, at the Nove'mber election,1893, as authorized by act of March 1, 1869, 66 Ohio Laws, 16, and act .of June 7,1879, 76 Ohio Laws, 133, does not begin until the tenth day of May, 1894.
    (Decided March 13, 1894.)
    In Quo Warranto.

    The act of March 1, 1869, Ohio Laws, 66, page 16, provides that an additional judge of the Court of Common Pleas for the second subdivision of the third judicial district, composed of the counties of Allen, Auglaize, Putnam, Mercer and Van Wert, should be elected at the following April election, the term bo begin on the second Monday of May, being the tenth day of the month; and which additional judge should again be elected at the annual election in October, 1873, and every five years thereafter, in the same manner, and for the same term of office, as is prescribed by the constitution and laws of the state of Ohio for the election of other judges of said court.
    By the act of June 7, 1879, vol. 76, Ohio Laws, 133, the subdivisions of the third judicial district were so changed that the additional judge provided for in the act of 1869, became the judge of the third subdivision of the third judicial district, composed of the counties of Putnam, Henry and Fulton.
    At the November election for the year Ü888, William H. Handy, respondent, was elected judge of said subdivision, and was duly commissioned and entered upon his office, and claims to hold the office to the tenth day of May, 1894.
    At the November election for the year 1893, John M. Sheets was elected judge of said subdivision, and has been duly commissioned and qualified, and on the ninth day of February, 1894, demanded said office of Judge Handy, who refused to surrender the same.
    Thereupon the attorney-general filed a petition in quo wa/rranto in this court against Judge Handy, averring substantially the foregoing facts. To this petition Judge Handy demurred. And the case was submitted on the demurrer to determine whether the term of office of the judge in that subdivision begins on February 9 or May 10, 1894.

      J. K. Richards, Attorney-General, for the relator.

      A. V. Watts, for respondent.
   By the Court.

By section 12 of article 4 of the constitution of Ohio, the term of office of a judge of the court of common pleas is fixed at five years. It is not in the power of the general assembly to either lengthen or shorten the term.

The terms of the judges elected at the fall election for the year 1851 began on the second Monday of February, 1852, being the ninth day of the month. And the term of office of their successors necessarily begun and will hereafter begin on the ninth day of February, in the proper year. But the legislature has full power, where it creates an additional judgeship, to fix the date at which his office shall begin; and by virtue of the constitution he will hold his office for five years from the date so fixed, and the term of all of his successors will begin on the same day of the same month, in the proper year.

It follows, therefore, that the term of office of Judg’e Handy will continue to the tenth day of May, 1894, and that the term of office of John M. Sheets will begin on that day. The demurrer is therefore sustained and the petition dismissed.

Judgment accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    McKean v. Ferguson.

      Dower — When not allowed.

    A woman who was divorced from her husband, and to whom his lands were allowed as alimony, by decree of the court, is not after his death entitled to dower in such lands.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Trumbull county.

      Washington Hyde, for plaintiff in error.

      Izant & Stewart, for defendant in error.
   By the Court.

Prior to the eleventh day of April, 1871, L., then a married man, gave a mortgage on lands to M., the wife of L. not joining, and on that day the wife of L. filed her petition against her husband for divorce and alimony, and described in her petition the lands and the mortgage thereon. At the June term, 1871, a divorce was granted to her by reason of the aggressions of the husband, and the mortgaged lands were decreed to her as alimony, subject to the payment of the mortgage.

In 1873, M. obtained a decree of foreclosure of his mortgage against L. and his divorced wife, and in 1878 the lands were sold under said decree and bid in by M., sale confirmed, deed made, and M. put into possession of the lands. In May, 1887, L. died, and thereupon his widow, who had married a Mr. Ferguson in the meantime, began suit against M. lor dower in the land. Held: That she is not entitled to such dower. It is urged in behalf of the widow that she never relinquished her right of dower in the lands ; that the condition of the mortgage being then broken, L. had no title to the lands, but only an equity of redemption; that this equity of redemption only was allowed to her, and not the full title to the lands.

Section 5699, Revised Statutes provides that where the wife procures a divorce from her husband, by reason of his aggression, she shall, among other things, if she survive him, “be entitled to her right of dower in the real estate of her husband, not alloioed. to her as alimony, of which he was seized at any time during coverture, and to which she had not relinquished her right of dower.”

This section of the statute deals with the land, rather than with the title. The decree in the divorce case ordered that she have and hold in her own rig’ht the lands in question, and ordered L. to convey the same to her, and in default that the decree stand and operate as such conveyance. She prayed to have the land allowed to her as alimony, and when so allowed she accepted it, resided thereon, and paid a small part of the mortgage debt. By the express provisions of the statute she is not entitled to dower in the same lands allowed to her as alimony.

The judgment of the circuit court, allowing her dower, is reversed, and the judgment of the court of common pleas is affirmed.

Judgment reversed.


text:
    Roth v. State.

      Game and fish law — Section 6964, Revised Statutes, construed— Constitutional law.

    It is an. offense, under section 6964, of the Revised Statutes, to sell quail in this state, except between the tenth day of November and the fifteenth day of December, though such quail were killed outside of the state, and where it was lawful to kill the same. The section is constitutional.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Hamilton county.
    The plaintiff in error was prosecuted before a justice of the peace of Cincinnati township, upon the charge that, on or about the 21st day of October, 1891, at the county of Hamilton, he did unlawfully, knowingly and willfully sell a certain quail, contrary to the statute in such eases made and provided. The case was submitted to the justice upon the following agreed statement of facts:
    .“The defendant is the proprietor of the St. Nicholas Hotel, in the city of Cincinnati, and a citizen of the said .city. On the 21st' day of October, 1891, he had in his possession for the purpose of sale, not in the original package, to his guests in the said hotel, in the city of Cincinnati, in the state of Ohio, six quail, which quail were by him purchased in the state of New York, and shipped to him for the purpose aforesaid; that he did. sell one of the quail, not in the original package, to Ora Minor, for the sum of seventy cents, to be eaten by her as a guest in said hotel, on the said 21st day of October, 1891, in the city of Cincinnati, state of Ohio. Said quail were killed in the state of New York, at a time when the killing and selling thereof was not prohibited by law. ”
    The justice found the accused guilty, and adjudged that he pay a fine of twenty-five dollars and costs; which judgment was affirmed by the court of common pleas, and its judgment was affirmed by the circuit court; and the case is here on error to the last named court.

      W. K. Maxwell, for plaintiff in error.

      J. K. Richards, Attorney-General, and John P. Murphy, for defendant in error.
   By the Court.

The prosecution was based on section 6964, of the Revised Statutes, as amended April 6, 1882 (79 Ohio Laws, 74), which reads as follows:

“Whoever purchases, sells, exposes for sale, or has in his possession any of the birds, game, or animals mentioned in sections sixty-nine hundred and sixty, sixty-nine hundred and sixty-one, and sixty-nine hundred and sixty-three, during the time when the killing thereof is made penal, shall be fined not- exceeding twenty-five dollars nor less than two dollars, or imprisoned not more than thirty days, or both;' provided, that the provisions of this act shall not be construed as applicable to any common carrier into whose possession any of the birds, game or animals herein mentioned shall come in the regular course of their business for transportation, whilst they are in transit through this state from any place without this state, where the killing of said birds, game or animals shall be lawful. ’ ’

Section 6961 provides that: “No person shall, on any place, catch, kill or injure, or pursue with such intent, any quail, except between the tenth day of November and the fifteenth day of December, inclusive.” This section also prohibits the catching, killing, or injuring of other kinds of birds, game or animals, within certain designated periods, and prescribes penalties for the infraction of any of its provisions.

The claim of the plaintiff in error is, that it is not a violation of section 6964 to sell, or expose Cor sale, quail, or other game, which was not caught or killed in this state, during the prohibited season; and; as it is shown by the agreed statements of facts, that the quail sold by him was killed in the state of New York when it was there lawful to do so, he was guilty of no offense, and should have been discharged. We do not adopt that interpretation of the section. Its terms do not restrict the offenses defined by it to the purchase, sale, exposure for sale, or having possession of birds, game, or animals which were caught or killed in this state, or such as were caught or killed in violation of the sections therein specified. By its language it is made unlawful to purchase, sell or expose for sale, or have the possession 'of, “during the time when the killing thereof is made penal,” any of the birds, game, or animals mentioned in those sections, without regard to where or when the same were caught or killed; the essential fact being their possession, sale, or exposure for sale, during the season when it is unlawful to kill them. And that such was the legislative intention is manifest from the proviso contained in the section, which exempts from its penalty common carriers who have received such game outside of the state where it was lawfully killed, and have it in their possession in the state in the course of transportation through it, in the regular course of their business. If such possession was lawful without the proviso, its provisions were unnecessary, and are inoperative. But, the possession of such game in this state, though received from another state where it was lawfully killed, having been made an offense by the preceding clause of the section, the proviso became necessary for the protection of common carriers under the circumstances therein stated, and accomplishes that result. As none but such carriers are entitled to that protection, the possession by others here during the prohibited season, of game lawfully killed outside of the state, is a violation of section 6964, and its sale, or exposure for sale, within that period, is likewise an offense under it. We cannot say that a statute of that kind will not be more effectual in preserving birds and game in this state than one preventing the sale of such only as should be killed here. Nor do we think the' statute is unconstitutional. Every one is presumed to know the law, and persons who acquire such property when the statute is in force, take it subject to its provisions. Phelps v. Racey, 60 N. Y., 10; Magner v. The People, 97 Ill., 320; State v. Randolph, 1 Mo. App., 15.

Judgment affirmed.


author: Minshall, J.

text:
    Townsend v. Eichelberger.

      Continuing and subsisting trust — Sheriff"—Receipt of money by— Statute of hmitatioiis — Ignorance of plaintiff.

    1. The receipt of money by a sheriff in his capacity as sheriff, on a sale made upon an order in partition, and his duty on demand to pay it to the parties entitled, does not constitute him a trustee of a continuing and subsisting trust, within the meaning of section 4974, Revised Statutes.
    2. In such case, where there are no circumstances of fraud or concealment on his part, the statute of limitations begins to run from the time it was his duty on demand to pay it to the parties entitled to it.
    3. Ignorance of the plaintiff as to his rights, arising from his residence abroad, or in remote and secluded parts, does not affect the running of the statute against him.
    (Decided March 13, 1894.)
    Error to the Circuit Court of Darke county.

      Anderson & Bowman, for plaintiff in error.

      J. E. Breaden, Jr., and M. B. Trainor, for defendant in error.
   Minshall, J.

The suit below was commenced April 24, 1889, by the plaintiff, Martin Eichelberger, to recover of the defendant, Joshua Townsend, the sum of $189.50 collected by him in his capacity as sheriff of Darke county, in the years 1857, 1858 and 1859, on the sale of certain lands in partition, the plaintiff being one of the tenants in common and entitled to that sum from the proceeds. He avers that the entire sum had been collected, and was due him in July, 1859, the date of the last payment. He further avers that at the time of the partition proceeding’s he was a minor of the age of ten years, and did not reside in the state and never did; and had no information in regard to the matter or of his rights, until informed by his uncle in the year 1888; and could not have had, by reason of separation from his relatives and residence in other states. That in April, 1889, he made a demand on the defendant for payment, which was refused. The defendant demurred on the ground that the claim is barred by the statute of limitations; the demurrer was sustained, and the plaintiff not desiring to plead further, judgment was rendered for the defendant, which, on error, was reversed by the circuit court. The defendant below, Townsend, claims that the court erred in reversing the judgment, and asks that the judgment of the circuit court be reversed and that of the common pleas affirmed.

There is, as we think, no ground for the claim that the receipt of the money by the sheriff and his duty to pay it to the parties entitled, constitute him a trustee of a continuing and subsisting trust, within the meaning of the rule in equity, incorporated in our statute, section 4974, Revised Statutes, taking such trusts out of the operation of the statute of limitations. It is settled by the decisions of this court. Carpenter v. Canal Co., 35 Ohio St., 317; Douglas v. Corry, 46 Id., 349. And see the recent case of Webster v. Bible Society, 50 Ohio St., 1, where the question is again fully examined, and it is held that the duty of an executor to pay a legacy is not such a trust. The action to enforce the liability is at law, either upon the bond, or, as adopted in this case, against the sheriff individually, for money had and received to the use of the plaintiff; and its commencement is therefore limited, as are all similar actions.

But it is claimed on the authority of Keithler v. Foster, 22 Ohio St., 27, that the statute did not begin to run until the demand was made, which, as averred, was shortly before the commencement of the action. There is no averment in the petition, of any fraud or concealment on the part of the defendant, adopted for the purpose of preventing knowledge on the part of the plaintiff. The sale on partition was necessarily a public act, and the plaintiff had the same means of knowledge in regard to it and the receipt of the money by the sheriff, possessed by persons in general. Webster v. Bible Society, surpra.

The circumstances which will excuse making a demand in a reasonable time and arrest the running of the statute, are such as arise out of the acts and conduct of the defendant, and not out of the circumstances and condition of the plaintiff, when laboring under no disability, such as coverture or infancy. To make a case excusing demand within the period for commencing the action, he should have averred fraud or concealment by the defendant, preventing knowledge on his part of the receipt of the money; which is not done. Demand is required as a protection to the defendant against needless litigation, and when there is no fraud or concealment of the ground of action, the failure to make it does not affect the running of the statute. Douglas v. Corry, supra. The money was received by the sheriff in 1859, the plaintiff became of age in 1868, and the action was commenced in 1889, or twenty-one- years after he became of age. So that under the rule in Keithler v. Foster, the action was barred before its commencement, as twenty-one years had elapsed since the plaintiff became of age, and the presumption as to a demand arose some fifteen years before the suit was commenced.

Much stress is placed on the ignorance of the plaintiff as to his rights and his absence from the state. But it is well settled that absence of the plaintiff from where the facts arose, or his residence in remote and secluded parts, making it difficult or impossible to obtain information, in no case affects the running- of the statute against him. The reason is thus stated by Justice Bradley, in the case of Broderick’’s Will, 21 Wall., 503, 519. ‘‘Parties cannot, by their seclusion from the means of information, claim exemption from the laws that control human affairs, and set up a right to open up all the transactions of the past. The world must move on, and those who claim an interest in persons or things must be charged with the knowledge of their status and condition and of the vicissitudes to which they are subject.” Extreme cases may be put and arise in practice. But such cases cannot be adopted as the test of any general rule. We must assume that such possibilities engaged the attention of the legislature, and if it did not see fit, in the enactment of the law, to provide for them, we must assume that it was for a reason sufficient in the minds of the members not to do so. It is not the province of the courts to make exceptions to meet cases not provided for by the legislature. It is no longer the habit of courts to view with disfavor the plea of the statute of limitations. Being statutes of repose, designed to secure the peace of society and protect the individual from being prosecuted upon stale claims, they are to be construed in the spirit of their en-ac.tment. The plea does not necessarily admit the existence of the demand. It is entirely consistent with the claim that the demand -has been satisfied, and the evidence lost by lapse of time.

Judgment of the circuit court reversed and that of the common fleas affirmed.


author: Dickman, C. J.

text:
    Baker v. Baker et al.

      Testamentary instruments — Position of signature.

    Where a testator, in what purports to be his last will and testament, appoints his sister-in-law executrix thereof, and before he signs the instrument, writes thereon after the attestation clause the words: “ My sister-in-law is not required to give bond when probated;” and thereafter, in the presence of the subscribing witnesses, signs the instrument above those words, it will be a signing by the testator at the end thereof, as required by section 5916 of the Revised Statutes.
    (Decided March 20, 1894.)
    Error to the Circuit Court of Fairfield county.
    On June 19, 1883, Elias T. Baker, of Amanda township, in the county of Fairfield, Ohio, executed his last will and testament. The tenth and last item, and the attestation clause of the paper writing purporting to be such last will and testament, with certain words written thereon under the names of the attesting witnesses, read as follows:
    “Tenth Item. In testimony whereof, I, the above named Elias T. Baker, have hereunto set my hand and seal this 19th day of June, A. D. 1883, one thousand eight hundred and eighty three.
    Elias Thomas Baker, [seal.]

      ‘ ‘Signed, sealed and acknowledged by the aforesaid E. T. Baker, as his last will and testament, in our hearing’ and presence, and at his request by us signed in his presence as subscribing witnesses thereto.
    “Andrew Hutci-iins,
    “Amos Hutchins.
    “My sister-in-law is not required to give bond when probated. ”
    In December, 1886, this will was, by the probate court of Fairfield county, admitted to probate.
    In December, 1887, William C. Baker, the plaintiff in error, commenced his action in the 'Court of common pleas, in said county, against Philip Baker and others, the defendants in error, for the purpose of setting’ the will aside.
    Evidence was introduced on the trial before the jury tending to prove that at the time the will was executed, it had written thereon, and below the place where the testator and witnesses signed, the above mentioned words: “My sister-in-law is not required to give bond when probated. ’ ’
    When the evidence was concluded, the plaintiff, William C. Baker, asked the court to give to the jury, as separate instructions, each of the following’ eharg’es, to-wit:
    “No. 1. Every last will and testament shall be in writing and signed at the end thereof, and unless you find that the paper writing purporting to be the last will and testament of Elias Thomas Baker, deceased, was signed by him at the end thereof, your verdict will be against the will.
    “No. 2. If you find that said Elias Thomas Baker, after he had written his will, and before the same was executed, wrote on said paper the words: ‘‘My sister-in-law is not required to give bond when probated,” as a part of said will, and thereafter, in the presence of the witnesses to said will, produced said paper on which said words, viz.: “My sister-in-law is not required to give bond when probated” remained, and declared that the same was his last will and testament, and signed the said paper above said words: “My sister-in-law is not required to give bond when probated,” then the same is not signed at the end thereof, and your verdict should be for the plaintiff, and that the said paper writing is not the last will and testament of said Elias Thomas Baker.
    “No. 3. If you find that the words: “My sister-in-law is not required to give bond when probated” were written by said Elias Thomas Baker upon the paper purporting to be his last will and testament before the same was signed by him, and remained thereon when the same was signed, and that the said Elias Thomas Baker signed said paper above said words, then the said will is not signed at the end thereof and is not executed according to law and your verdict should be that the said paper writing is not the last will and testament of said Elias Thomas Baker.
    “And the court refused to give said second and third requests, and separate charges marked No. 2 and No. 3, to the jury, to which said refusals and each and every one of them the plaintiff, at the time, excepted, and thereupon the court charged the jury as follows:
    “No. 1. Every last will and testament shall be in writing and signed ■ at the end thereof, and unless you find that the paper writing purporting to be the last will and testament of Elias Thomas Baker, deceased, was signed by him at the end thereof, your verdict will be against the will.
    “No. 2. Upon the question of the due execution of this paper writing, in so far as the law requires that in order to constitute it a valid will it must be signed at the end thereof by the party making the same, or by some other person, in his presence, and by his express direction,
    I charge you that the law is that before you can find this paper to have been duly executed, you must, find that the testator signed the same himself, or that it was signed in his presence, by his express direction, at the end thereof; that is to say, after and in reasonable proximity to the last clause.
    “If, however, you shall find that the testator, after he had written this paper, and before he signed and the same was executed, wrote at the end thereof the words: “My sister-in-law is not required to give bond when probated,” and thereafter in the presence of the witnesses signed said paper above the words: “My sister-in-law is not required to give bond when probated,” it is a signing by said testator of said paper writing at the end thereof and a compliance with the statute in that respect.
    “To the second of which said charges and instructions of the court to the jury, said plaintiffs at the time excepted. ’ ’
    The trial of the cause resulted in a verdict sustaining the will.
    The plaintiff thereupon filed his motion for a new trial, which was overruled, to which the plaintiff excepted. The court rendered judgment in accordance with the verdict, to which the plaintiff excepted and tendered a bill of exceptions, embodying all the evidence adduced at the trial by the parties, which was allowed, signed and sealed, and made part of the record.
    On petition in error by the plaintiff, the circuit court affirmed the judgment of the court of common pleas, and this proceeding in error is prosecuted to reverse the judgment of the circuit court.

      C. W. McCleery and William Davidson, for plaintiff in error.

      C. D. Martin and Samuel W. Courtright, for defendants in error.
   Dickman, C. J.

Upon exception to a portion of the charge of the court as given to the jury and the refusal of the court to give certain instructions to the jury as requested, the question arises, was the last will and testament of Elias T. Baker executed in accordance with statutory requirement? It is provided by section 5916 of the Revised Statutes of Ohio that: -“Every last will and testament (except nuncupative wills hereafter provided for), shall be in writing, and sig'ned at the end thereof by the party making the same, or by some other person in his presence and by his express direction. ” A similar requirement that the signature of the testator should be at the end of the will is found in the statutes of several other American states. Under the English statute of frauds, the testator’s signature might be made in any part of the will. But the statute, 1 Viet., c. 26, as amended, introduced the condition that the signature of the testator must be somewhere near the end of the will, and so as not to be immediately over or preceding any of the dispositive parts of the instrument; and further provided that no signature should be operative to give effect to any disposition or direction which might be underneath or following it. It is the obvious and generally recognized object of the legislature, in requiring a testamentary paper to be signed at the foot or end thereof, to prevent the possibility of fraudulent interpolation between the will and the signature of the testator after execution.

In Turner v. Scott, 51 Penn. St., 126, it is said that the essence of the definition of a will is that it is a disposition of property to take effect after death. A law, therefore, that requires the testator to sign his last will and testament at the end thereof would preclude the idea of making a valid testamentary disposition of property below the executing signatures, without the formality of an additional signing- by the testator and a proper attestation thereof. While, however, the dispositive part of a testamentary instrument should be above or precede the signature of the testator, words or clauses written before the will is executed and below the place where the testator and witnesses signed may be excluded from probate, and yet not invalidate the entire instrument.

It would be difficult, if not impossible, to lay down a general rule which would embrace the suggestions and requests of the testator' that may, before the execution of the will, be written beneath the place where the names of the testator and of the attesting witnesses are afterwards subscribed, without affecting the validity of the instrument. Each case as it arises will present its own controlling circumstances. But such suggestions or requests so written should not be of a dispositive nature, nor contain anything likely to affect the construction of the will or the rights of the beneficiaries.

In Brady v. McCrosson, 5 Redf., 431, the appointment of an executor not being deemed an essential of a will, a subsequent clause appended for the appointment of an executrix was held not to invalidate the will, and probate was allowed to all except the appointing clause. The will offered for probate was written upon a sheet of foolscap paper. All of the disposing parts were written upon a single page, by which the decedent made his wife sole devisee and legatee. In it he named no one as executor. The will was signed by the testator and two witnesses at the foot of the page. After the scrivener had drawn the will under decedent’s direction, it was read over to him in the presence of the witnesses; he pronounced it to be as he wished it, whereupon it was executed and witnessed. After this had been done, and the will was completed, the deceased wished the name of his wife inserted, as executrix. The scrivener drew at the top of the second page an appointment of the wife as executrix, which was signed by the decedent, but not by the witnesses. All this occurred while the witnesses were still present. It is said in the opinion of the court: “It was the ancient rule that no paper in the nature of a will would be valid as such unless it contained the appointment of an executor, but such long since ceased to be the law. The statute makes provision for the appointment of an administrator with the will annexed, where no executor is named in the will. I think the will properly executed as such, and that it should be admitted to probate.” It was therefore held that the first page was decedent’s will, and the same was admitted to probate. It was considered an operative instrument, independent of the appointment of the executrix.

In the case under consideration it is not claimed that the testator, Baker, was laboring under any mistake, misapprehension or misdirection, as to where he should place his signature. The signing and attestation had reference to the same preceding parts of the instrument and to ho other. It waá not a case in which the signature was attached to one disposition of the testator’s property and the attestation to another. Glancy v. Glancy, 17 Ohio St., 134. The will was understandingly completed, and no obstacle stood in the way of fully carrying out all its dispositive provisions. The intimation of the testator’s wish beneath the signatures, namely: ‘ ‘ My sister-in-law is not required to give bond when probated,” while it is not to be treated as part of the will, we do not regard it as of so essential a nature that the will must be avoided because it was not inserted above the testator’s signature.

In the light of the evidence disclosed in the record, we cannot from those words of the testator say, as was said in Hays v. Harden, 6 Penn. St., 409, 414: “We have no reason to believe he would have wished any part of it to stand if the whole did not.” The testator by his will had appointed his sister-in-law executrix. If nothing had been said as to bond, the omission would not have rendered the will inoperative. And a request in the body of the will that an executor be not required to give bond would be subject to the discretion of the court admitting the will to probate, which might grant letters testamentary with or without bond, as it might seem expedient. And when granted without bond, the court might, at any subsequent period, upon the application of any party interested, require bond to be given. Reviséd Statutes, § 5996.

The clause dispensing with the givihg of bond by the sister-in-law, being inserted below the signatures of the testator and subscribing witnesses, while not admitted to probate as part of the will, is not of a character to affect the validity of the instrument. Nor do we think it was the intention of the testator that if the probate court could not be permitted to exercise its discretion in relieving the executrix from the necessity of giving bond, his last will and testament should consequently be declared void. The fact that the testator expressed no wish that bond should, be dispensed with, before he added the words after the attestation clause, would indicate that the subject was an afterthought which had not before especially engaged his attention.

In our opinion, the testator, within the meaning of the statute, signed his last will and testament at the end thereof, and the judgment of the circuit court, should therefore be affirmed.

Judgment aceordvngl/y.


author: Bradbury, J.

text:
    Corrigan et al. v. Foster, Adm’x.

      Executors and administrators — Liability of different sets of sureties of

    Where successive bonds, with different sets of sureties, have been given by an executor, and a devastavit has occurred before the execution and approval of any of the bonds, the liability of the sureties in the subsequent bonds is secondary to that of the sureties on the bonds subsisting and in force at the time the estate was wasted, and if the former have made good the loss, they may recover against the latter the full amount paid by them on account thereof.
    (Decided March 20, 1894.)
    Error to the Circuit Court of Stark county.
    Henry Pomerine, as executor of the estate of Angeline A. Brobst, was required to give, and did give, three successive bonds, with three separate sets of sureties. Pomerine was removed from his trust and an administrator de bonis non appointed to succeed him. The administrator de bonis non, in an action brought on the last bond given, recovered against the sureties on that bond an amount found to be remaining in the hands of the removed executor. The defendant in error, as administratrix of the estate of one of the sureties against whom recovery was had, paid the judgment, and thereupon brought an action against the plaintiffs in error, the sureties on the second bond, to recover of them the sum she had paid, alleging that the devastavit occurred after the second bond was given, before the execution of the third bond.

      Edward S. Meyer, for plaintiff.

      Mong & McCarty, for defendant.
   Bradbury, J.

In Foster, adm'x, v. Wise, Adm’r, 46 Ohio St., 20, which was the action above mentioned, brought to recover upon the third bond, for the devastavit involved in the case under consideration, this court held that the sureties in the third bond were liable, although the estate was wasted before that bond was given. The question, however, in.that ease related to the obligation imposed by the third bond upon the sureties thereon to make good the loss to the administrator de bonis non, no question then' arising between the different sets of sureties respecting the ultimate resting of this obligation between themselves.

Sections 6205 and 6206, Revised Statutes, provide that:

See. 6205: “Whenever the sureties in any bond of an executor or administrator shall be insufficient, the court, on the petition of any person interested, and after notice to the principal in the bond, may require a new bond to be given, with two or more sufficient sureties. ”

Sec. 6206. “When a new bond shall be required, as above provided, the sureties in the prior bond shall, nevertheless, be liable for all breaches of the conditions; committed beforé the new bond shall be approved by the court.”

This last section expressly provides that the sureties in the prior bond shall be liable for all breaches of its conditions which occurred before the approval of the new bond. The new bond is not given for the benefit of the sureties in the old one but for the benefit of the estate. Contribution among co-sureties is not founded upon contract, but upon the equitable principle that where a burden common to several is discharged by one of them, the others necessarily sharing in the benefits of the discharge should share in the burden also. Russell v. Failor, 1 Ohio St., 327; Camp v. Bostwick, 20 Ohio St., 337; 28 Ohio St., 41; 4 Am. & Eng. Ency. of Law, 1.

And if the burden is common the equitable principle is equally operative, whether the burden is created by the same or by different instruments, executed at different times. Dering v. Earl of Winchelsea, 1 Cox, 318; Butler v. Birkey, 13 Ohio St., 514; 1 Am. & Eng. Ency. of Law, 4.

In the case under consideration the liability of the sureties on the second bond had accrued before the third bond was given, the entire burden had already been created and rested upon the sureties who had executed the prior bonds, and no equitable principle is apparent by which this liability should be shifted in whole or in part to the sureties in the new bond. As between these two sets of sureties, the liability of the former should be regarded as primary and that of the latter secondary, rather than a liability resting equally on both.

Judgment affi/rmed.


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    Kimbleawecz v. State.

      Workhouse — When convict should be sentenced to — Constitutional taw.

    1. A defendant convicted in Cuyahoga county under section 8092-18) of the Revised Statutes, of keeping open a saloon on Sunday coutrary to law, should be sentenced to the Cleveland workhouse, and not to the county jail.
    2. The provision of section 2099, directing such sentence to the workhouse, is not in conflict with section 26, of article II, of the constitution.
    (Decided March 20, 1894.)
    Error to the Circuit Court of Cuyahoga county.
    On February 6, 1889, the plaintiff in error was convicted, in the police court of the city of Cleveland, of violating the statute known as the Sunday closing law, and sentenced to be committed to the jail of Cuyahoga county for ten days, and pay a fine of $25, and costs. On error, by defendant, to the court of common pleas, 'this judgement was affirmed. On error by the same party to the circuit court, the judgment of both courts was reversed for error in sentencing the prisoner to jail instead of to the Cleveland workhouse, and the cause remanded to the police court for a new sentence. To reverse this latter judgment, this proceeding in error is prosecuted.

      John C. Hutchins, for plaintiff in error.

      W. B. Neff, Prosecuting Attorney, for defendant in error.
   By the Court.

Held: 1. Section 8092-18, of the Revised Statutes (2 S. & B. 2730), which provides that a person convicted of keeping a saloon open on Sunday, contrary to law, ‘ ‘ shall be fined in any sum not exceecling one hundred dollars, and not less than twenty-five dollars, and be imprisoned in the county jail or city prison not less than ten days and not exceeding thirty days, ’ ’ should be construed with section 2099, which provides that where, upon conviction under a law of the state, or an ordinance, the court is directed by law to commit the- offender . to the county jail or corporation prison, the sentence shall be to the workhouse, if there be such in the county. Taken together, these sections authorize sentence of a defendant convicted in Cuyahoga county, under the first named section, to the Cleveland workhouse.

2. The provision of section 2099, above cited, is not in conflict with section 26 of article II of the constitution which requires that “all laws of a general nature shall have a uniform operation throughout the state.”

Judgment affirmed.


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    Wuest et al. v. James et al.

      Assignment of Homestead — Dormant judgment.

    Where an officer executing a writ of execution founded on a judgment or order, causes a homestead to be set off to the debtor on such debtor’s application, the assignment of the homestead will not prevent the judgment from becoming dormant, upon a failure of the judgment creditor to comply with the provisions of section 5380, of the Revised Statutes.
    (Decided March 27, 1894.)
    Error to the Circuit Court of Muskingum county.
    Andrew Wuest and Adam Wuest, partners as A. Wuest & Son, the plaintiffs in error, on the 13th day of March, 1875, recovered a judgment in the court of common pleas of Muskingum county against John J. James, for the sum of $403.64. On December 25, 1875, execution was issued on the judgment, and levied upon a lot of land in Zanesville, Muskingum county, the same being the property of John J. James, who had no personal property liable to execution. On August 28, 1877, an order of sale was issued which was duly returned by the sheriff, indorsed, that the appraisers summoned had set off to John J. James, as a homestead, the north half of said lot, valued at $1,000, and appraised the south half thereof at $500. Proceeding’s being stayed, James occupied said homestead as such until his death. On July 18, 1881, an order of sale was issued which was returned indorsed “not sold for want of bidders.” On August 26, 1881, another order of sale was issued, which was returned October 18, 1881, indorsed, “not sold for want of bidders.” In June,' 1889, John J. James died. On July 13, 1889, the plaintiffs in error commenced the original action in the court of common pleas of Muskingum county, against Mary James and others, the defendants in error, and prayed that the homestead right of John J. James in the north half of said lot — the same having ceased by reason of his death — might be sold, and the proceeds .of sale applied on said judgment, and for other and further proper relief.
    A demurrer to the petition was sustained, and the plaintiffs not desiring to further plead, the action was dismissed, and the plaintiffs excepted.
    The circuit court affirmed the judgment of the court of common pleas, and this proceeding is prosecuted to reverse the judgments of the circuit and common pleas courts.

      T. J. Taylor and Charles A. Beard, for plaintiffs in error.

      John W. King, for defendants in error.
   By the Court.

By virtue of section 5380 of the Revised Statutes, if execution on a judgment rendered in any court of record in this state, be not sued out within five years from the date of the judgment, or if five years intervene between the date of the last execution issued on such judgment and the time of suing out another execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor. There were two orders of sale issued in 1881, but for want of bidders there was no sale. From the return of the order of sale on October 18, 1881, to the filing of the petition in this case, on July 13, 1889' — a period of over seven years— nothing was done by the plaintiffs to keep alive their judgment. By failure to sue out execution for a period of over five intervening years, the judgment became dormant before the commencement of this action, and under section 5380 ceased to operate as a lien on the estate of the judgment debtor; and the levy of 1875 ceased to be a lien on the north half of the Zanesville lot, at the expiration of five years from the issuing of the last execution on the judgment.

The homestead was set off to the debtor, John J.. James, in 1877, under the provisions of section 5438 of the Revised Statutes. While that section secures to the debtor a homestead, it contains no language, we think, that prolongs the life of the judgment, or permits any laches on the part of the creditor in protecting his judgment. The lien arises from or is incident to the judgment, and can be preserved only by keeping the judgment alive. Between sections 5438 and 5380 of the Revised Statutes, we discover no conflict that should prevent the debtor from enjoying a homestead, at the same time that the creditor is required to comply with the statute, if he would preserve his judgment from becoming dormant.

Judgment Affi/rmed.


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    Dennis v. Simon.

      Labor on public highways — Constitutional law.

    Section 4717 of the Revised Statutes, which provides for two days’ labor on the public highways of this state, is not in conflict with the constitution, and is a valid law,
    (Decided March 27, 1894.)
    Error to the Circuit Court of Wood county.
    Alfred Simon, as supervisor of road district No. 5, Bloom township, Wood county, Ohio, the defendant in error, commenced suit against William H. Dennis, the plaintiff in error, before a justice of the peace, to recover from him the sum of four dollars, for refusing- to perform two days’ labor upon the public roads, as provided in section 4717 of the Revised Statutes. Judgment was rendered for the plaintiff on his bill of particulars. On appeal by the defendant, the court of common pleas of Wood county gave judgment for the plaintiff for the amount claimed, with costs; and the circuit court affirmed the judgment of the common pleas. A petition in error is filed in this court by William H. Dennis, the defendant below, to reverse the judgment of the circuit court.

      Dodge & Canary, for plaintiff in error.

      Parker & Moore, for defendant in error.
   By the Court.

Section 4717 of the Revised Statutes, which provides that certain persons, therein named, shall be liable, annually, to perform two days’ labor on tbe highways, under the direction of the road supervisor of the road district in which any such person resides, is not in conflict with the constitution of Ohio, and is a valid enactment. That section does not, in our opinion, infringe the article and section of the constitution by which the general assembly is forbidden to levy a poll tax for county or state purposes ; nor is it in violation of the section of the bill of rights which provides that there shall be no involuntary servitude in this state.

Judgment affirmed.


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    La Dow v. Bank.

      National banks — Rate of interest may reserve.

    A national bank located in this state may, since the repeal of the statutes fixing the rate of interest for banks of issue, reserve and charge interest at the rate of eight per cent.
    (Decided April 10, 1894.
    Error to the Circuit Court of Lucas county.

      Gideon T. Stewart and F. D. Gunsaullus for plaintiff in error.

      Andrews & Andrews, for defendant in error.
   By the Court.

The original action was commenced in the common pleas to set aside a judgment that had been rendered in favor of the Bank against the plaintiff, La Dow, which included as averred, usurious interest, and for permission to file his answer under the provisions of section 7591, Revised Statutes, setting up such usury. The judgment had been rendered February 11, 1888, for the sum of $3,374.36, on a note with a power of attorney attached, dated November 7, 1887, for the sum of $3,445.83, on which interest at the rate of eight per cent had been discounted in advance, and stipulated for from its maturity. It was also the last note of a series, commencing July 26, 1885, on which interest at the same rate had been taken in advance, and stipulated for from maturity. The judgment had been taken on the warrant of attorney without any actual notice to the defendant. The Bank demurred to the petition, - the demurrer was sustained and the petition dismissed, which on error was affirmed by the circuit court.

The question presented is, whether under section 3181, Revised Statutes, a national bank may stipulate for and reserve interest at the rate of eight per cent ? It is claimed on the decision of this court in Shunk v. National Bank, 22 Ohio St., 508, that it cannot. It will be observed, however, that the decision in that case was placed on the ground that, by the statutes of the state then in force, banks of issue were in this state limited to the reservation of six per cent and no more; and hence, under the provisions of the act of congress, known as the national currency act, a national bank located in this state could not reserve a greater rate. But subsequently to this decision these statutes were repealed by an act of the legislature passed April 28, 1873 (70 O. L., 178). So that by the laws of this state banks of issue may now reserve' and charge interest at the rate allowed to natural persons, that is to say eight per cent; and it therefore follows, that a national bank located in this state may, by the national currency act, section 30, reserve and charge interest at the same rate. The argument that the ease of Shunk v. National Bank fixed the rate of interest which a national bank, located in this state, may take, has never been overruled and is therefore the law, is unsound for the reason that the decision is not placed upon any general principle of the common law, but upon the existence of certain statutes. By the repeal of these statutes the decision' became inapplicable, under existing law, to national banks located in this state.

Judgment affirmed.


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    Boice v. Hodge et al.

      Corporations — Stockholder's liability.

    A holder of stock in an Ohio corporation, who transfers his stock after a corporate debt has been created, is not relieved from his statutory liability for such debt, by an agreement for an extension of the time for its payment; although such agreement be made by the corporation and creditor after such transfer, and without the knowledge or consent of the transferrer.
    (Decided April 24, 1894.)
    Error to the Circuit Court of Lucas county.
    This action was brought in the Lucas county court of common pleas by William R. Hodge, on behalf of himself and other creditors of The Toledo Mower and Reaper Company, a body corporate under the laws of Ohio, against said corporation and its stockholders, to enforce the statutory liability of the latter.
    The' cause was taken to the circuit court by appeal, and upon the trial there the plaintiff in error established the fact that all of the debts of the company had either been contracted after he had ceased to be a stockholder, -or (if contracted before), had been renewed afterwards, and the time for their payment extended without his consent. The circuit court held that the renewal, after he had sold and transferred his stock, of a debt of the corporation created while he was a stockholder, did not discharge him from liability, although the debt was renewed and the time for its payment extended without his consent.
    To reverse this holding the present proceedings were instituted.

      Swayne, Swayne & Hayes, for plaintiff in error.

      Baker, Smith & Baker and E. W. Tolerton, for defendants in error.
   Bradbury, J.

The only question arising upon the voluminous record in this cause, which we deem of sufficient general interest to consider, is that growing out of the refusal of the circuit court to relieve the plaintiff in error from liability on account of debts of the company created while he was a stockholder, the time for the payment of which had been extended, by renewals, after he had disposed of his stock. If a holder of the stock of a corporation is a surety, merely, in his relation to the corporate debts, and his liability is to be measured by the rules of law which g’overn that relation, then an extension by a creditor, of the time for .the payment of a corporate debt, by its renewal after a stockholder had ceased to be such, and without his consent, would relieve him from liability for its payment. Slagle v. Pow, 41 Ohio St., 603; Bank v. Leavitt, et al., Adm’rs, 5 Ohio, 207.

That the liability of a stockholder for the corporate debts in this state is secondary — that is, cannot be resorted to by the corporation creditors until the corporate assets are exhausted, or cannot be reached by the ordinary processes of law— was established by the case of Wright v. McCormack, 17 Ohio St., 86.

This, however, is not a test of the question, for in many cases — in fact usually — the creditor may pursue the principal debtor and his surety, contemporaneously, or even pursue the surety in the first instance, under some circumstances. Wilkins v. Bank, 31 Ohio St., 565; Brandt on Suretyship, section 97.

The liability of the stockholders is founded upon section 3 of article XIII, of the constitution of 1851, and‘section 3258 of the Revised Statutes. The subject was of'sufficient importance to have thus secured the attention of the convention that framed our present constitution, and, we think that in view of this constitutional provision, and the legislation founded upon it, the principle of holding stockholders of corporations liable for corporate debts is within the public policy of the state, and that the statute should be construed so as to constitute it a substantial provision for the benefit of the corporate creditors.

One who contracts with a corporation may be presumed to have kept these beneficial provisions in mind at the time. It was his privilege to inquire and ascertain who then constituted the 'corporate body, and investigate their pecuniary responsibility. To require him, however, at his peril, to examine its books every time he may be invoked to renew an existing debt, and ascertain if changes in the corporate membership have occurred since the debt was created, and if so, investigate the comparative pecuniary ability of the new, as compared with that of the old stockholder, would seem to us a long stride in the direction of - nullifying by construction, these constitutional and statutory provisions which, at best, involve much difficulty and delay in their application. The question has received the attention of the courts of a number of the states, Harger v. McCullough, 2 Denio, 119; Hanson v. Donkersley, 37 Mich., 184; Jackson v. Meek, 9 S. W. Rep., 225 (Tenn.); and incidentally touched in some other cases. The decisions have been conflicting.

In Wheeler v. Faurot, 37 Ohio St., 28, and Harpold v. Stobart, 46 Ohio St., 397, this court recognized the conflict among’ the authorities upon the question, but did not And it necessary to determine it. In Taylor v. Wheel Co., 9 Am. Law Rec., 28, the court of common pleas of Logan county held that the extension of a corporate debt by a renewal did not discharge a stockholder who was liable as such for the original debt, but who had transferred his stock before the time for payment had been extended, by a renewal of the note. This rule, we think, is in harmony with the spirit of the constitutional and statutory provisions of this state prescribing the liability.

Judgment affirmed.


author: Burket, J.

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    Kerr et al. v. Lydecker, Adm’r.

      Statute of limitation — Foreclosure of mortgage — Mortgage a specialty.

    A mortgage is a specialty, and an action for its foreclosure and sale of the premises conies within the provisions of section 4980, Revised Statutes, and the period of limitation is fifteen years, unless extended by virtue of section 4992, Revised Statutes.
    (Decided April 24, 1894.)
    Error to the Circuit Court of Gallia county.
    This action was originally commenced on the 28th of February, 1889, by Richard J. Morrison, then the administrator of the estate of Ellis H. Elias, deceased, and afterwards Charles E. Lydecker became the administrator, and was substituted in the place of Mr. Morrison.
    The petition in the court of common pleas is as follows:
    ‘ ‘ The plaintiff says that on the 28th day of January, A. D. 1885, he was, by the surrogate court of New York City, county of New York, and state of New York, duly appointed administrator of the estate of Ellis H. Elias, deceased; that he gave bond as such administrator and was duly qualified and entered upon the discharge of the duties of his said office, and is now the duly acting and sole administrator of said estate. That Ellis H. Elias died intestate, and was at the time of his death a resident of the city of New York, county of New York, and state of New York, and that said surrogate court of New York City, at the time of the appointment of said administrator, had jurisdiction both of the subject matter and the person. The plaintiff says further, that on or about the 2d day of March, A. D. 1868, in the county of Gallia, Ohio, one Thomas Hill then in full life, but since deceased, was then and there the owner in fee simple and in possession of certain real estate in the said Gallia county, Ohio, to wit: The southeast half of city lot in the city of Gallipolis, Gallia county, Ohio, numbered fifty-four (54) on the original plat of said town of Gallipolis;that the said Thomas Hill did on the 2d day of March, A. D. 1868, by his deed of that date, drily executed and delivered, convey in fee simple to the said Ellis H. Elias, plaintiff’s intestate, then in full life, but since deceased, his heirs and assigns forever, the lands and tenements aforesaid, to-wit: The southeast half of city lot numbered fifty-four (54] in the city of Gallipolis, Gallia county, Ohio, on the original plat thereof, which said deed of mortgage was on the 18th day of February, A. D. 1869, at the hour of 10 o’clock A. M. duly left for record in the recorder’s office of said county of Gallia, Ohio, and was duly recorded in book 5, at pages 509 and 510, record of mortgages of said county of Gallia. The plaintiff further says that the said deed of mortgage had a condition thereunder written providing that if the said Thomas Hill should pay or cause to be paid his certain promissory note of said date, to wit: March 2, 1868, for the sum of $1,000 (one thousand dollars), due one year after date, to wit: March 2, 1869, then that the said deed of conveyance should be of no effect, but otherwise it was to be and continue in full force and virtue in law; and the said plaintiff further says that the said Thomas Hill did not pay the said sum of one thousand dollars nor any part thereof at the time it became due nor at any time, nor has he or any one else since or at any time paid said sum or any part thereof to plaintiff’s intestate, the said Ellis H. Elias, nor to the plaintiff, nor to any one for him or said intestate; wherefore said deed has become absolute. The plaintiff further says that the said Thomas Hill departed this life on or about the-day of-, 1875; that prior to his death he conveyed said real estate, and that the defendant, Mary J. Martin, is now in possession of said real estate claiming title under the said Thomas Hill, deceased, but that said claim is subsequent to and inferior to the claim of this plaintiff. • That the defendants, James M. Kerr and August Ufferman, have some claim or interest in said premises by virtue of certain mortgage deeds from the defendant, Mary J. Martin, but this plaintiff says that all of said claims of said defendants are subsequent to and inferior to the claim of this plaintiff.
    “Wherefore plaintiff prays that an accounting may be had of the amount due him, to-wit: $1,000, with interest from the 2d day of March, A. D. 1869, that the court find and decree that plaintiff’s claim is prior to and superior to that of all of said defendants, and that in default of payment of the amount so found due within a short time to be named by the court that the said real estate herein described may be adjudged to be appraised, advertised and sold, and the money arising therefrom be first applied to the- payment of said sum of $1,000, with interest as found due this plaintiff. ”
    To this petition defendants below filed the following demurrer, omitting the caption, here:
    “Defendants demur to the petition of plaintiff for the following reasons:

      “First — That the plaintiff has not legal capacity to sue.

      “ Second — That there is a defect of parties defendant.

      “ Third — That the petition does not state facts sufficient to constitute a cause of action. ’ ’
    This demurrer was overruled, and an answer filed pleading the statute of limitations, and averring that the action was not brought within fifteen years after the cause of action accrued.
    A demurrer to this answer was filed by plaintiff below, and in the circuit court the demurrer to the petition was overruled, and the demurrer to the answer was sustained, to all of which proper exceptions were taken.
    The case was tried in the circuit court upon the issues tendered by other parts of the answer, and a finding of facts made separate from the conclusions of law, which finding of facts and conclusions of law are as follows :
    “First, that on March 2, 1868, Thomas Hill, then in full life, but since deceased, was the owner of the premises described in the petition in fee simple; that on said date, the said Thomas Hill executed and delivered to Ellis H. Elias, plaintiff’s intestate, the mortgage deed referred to in the petition, whereby he conveyed to Ellis H. Elias, his heirs and assigns forever, the premises so in the petition described; that said mortgage had a condition thereunder written, that said mortgage was executed and delivered to secure the payment of a certain promissory note made by said mortgagor at the date of said mortgage, payable to the order of said plaintiff’s intestate for the sum of $1,000, due and payable one year after date, to-wit: On the 5th day of March, 1869; that said mortgage was duly recorded in the records of mortgages of said Gallia county, where said premises were situate, on the 18th day of February, 1869, and became a lien on the said premises described therein and in said petition; that said note and mortgage were made and executed for the full and bona ficle indebtedness of $1,000, payable by sai'd Thomas Hill to plaintiff’s intestate, according to the tenor and effect of said promissory note referred to in the condition of said mortgage; that the said indebtedness so referred to in the condition of said mortgage, has never been paid or discharged, and said mortgage has never been released, but still stands as an existing and unsatisfied mortgage deed, and that the defendants now own and hold title in fee to said premises from said Thomas Hill, the mortgagor, subject to whatever rights the plaintiff, as the representative of the deceased mortgagee, has therein by reason of said unsatisfied mortgage; that the said Charles E. Lydecker is the duly appointed and acting administrator de bonis non of said estate, and has been duly made party plaintiff herein in place and stead of Richard J. Morrison. That the amount named in the condition of said mortgage as the sum to be secured thereby, including interest, the court finds to be on the first' day of this term of this court, to-wit: February 25, 1891, the sum of $2,319.00.
    “The court, upon the facts so as aforesaid found, finds as matters of law, that the plaintiff has the right to maintain his said action and is entitled to the relief prayed for, and in his petition demanded, to-wit: To a judgment ordering the sale of said premises in the petition described for the payment of the amount so found due on the sum named in the condition of said mortgage deed.
    “It is therefore ordered and adjudged that unless the said defendants pay the sum to be paid in ten days, an order of sale issue'to the sheriff of this county commanding him to cause the land and tenements in the petition described to be appraised, advertised and sold according to law, and that he bring the proceeds of such sale into court at the next term of this court to which this case is continued, to which finding and conclusions of law as herein found and set- forth, and to the judgment and order of the court in ordering a sale of said premises, the said defendants then and there ex- ■ eepted, and said exceptions were made a part of the record.”
    Judgment having been rendered in favor of the plaintiff below, the case is brought here by plaintiffs in error, defendants below, to reverse the judgment of the circuit court.

      A. J. Greene, for plaintiffs in error.
    In ail cases to recover the debt secured by mortgage a sale of the mortgaged premises shall be ordered. 3 Curwen, Stat. at L., § 1996.
    A mortgage is a mere security for the payment of and a mere incident to the debt. Swartz v. Leist, 13 Ohio St., 419; Neslin v. Wells, Fargo & Co., 104 U. S., 440, 26 L. ed. 807; Terrell v. Allison, 87 U. S., 21 Wall., 293, 22 L. ed. 635.
    Therefore, whether the mortgagor remains in possession of the mortgaged premises or not, he holds the legal title and not the mortgagee. Martin v. Alter, 42 Ohio St., 94.
    This action is the same in object as the action on the judgment of a lien holder, to sell the premises on which the lien rests to pay the judgment. Peck v. Jenness, 48 U. S. 7 How., 620, 12 L. ed., 844.
    The term “foreclosure” is still applied to the process but it is evidently a misnomer when used to describe the effect produced on the mortgagor’s interest. No equity of redemption is foreclosed or cut off, but a legal estate is taken from the mortgagor and transferred to the purchaser. The mortgagee is permitted to buy the land at the sale, and may thus acquire it not as mortgagee (as object of his action) but as purchaser at the sale. 3 Pom. Eq. Jur., § 1190.
    Can there be any doubt which period of limitation can apply, or under which section this class of actions come? Id., § 4980.
    When in possession the mortg-agor has twenty-one years to redeem. The suit to recover on the mortgage must be brought in fifteen years, that is to recover the debt and secure sale of the security to satisfy it, if not paid in a short day to be fixed by the court, if not done in fifteen years, his right to put the property to sale is lost by limitation. Ibid.

    A contract in writing under seal is called a specialty or deed. 1 Bouvier, Inst. Pl., 874; Bishop, Cont., § 105; Fisher v. Mossman, 11 Ohio St., 42; 1 Nash, Pl. and Pr. 4th ed. 724; Newman v. DeLorimer, 19 Iowa, 244; Lord v. Morris, 18 Cal., 482; Day v. Baldwin, 34 Iowa, 380; Morrison v. Martin, 23 Ohio L. J., 246; Martin v. Alter, supra; Harkrader v. Leiby, 4 Ohio St., 612; Moore v. Burnet, 11 Ohio, 338; Morris v. Way, 16 Ohio, 469; Baird v. Kirtland, 8 Ohio, 21; Hill v. West, Id., 222, 31 Am. Dec., 442.

      A. L. Roadarmour, for defendant in error, filed no brief.
   Burket, J.

The principal error relied upon is, that the circuit court erred in sustaining the demurrer to so much of the answer as pleads the fifteen years statute of limitations, and in overruling the demurrer to the petition.

The first and second causes of demurrer were not well taken, and were properly overruled. A court in this state cannot take judicial notice of the laws or courts of another state. If there is no such court as the surrogate court of New York City, having jurisdiction of probate matters, such fact should be made to appear by answer. Upon demurrer, the facts in that behalf set up in the petition must be taken as true.

■ The demurrer as to the statute of limitations raises a more difficult question. Section 4977, provides that:'“An action for the recovery of the title or possession of real property can only be brought within twenty-one years after the cause of such action accrues.”

Section 4980 provides that an action upon a specialty, or an agreement, contract, or promise in writing, may be brought within fifteen years after the cause of action accrues.

Defendant in error contends that the case comes within section 4977, while the plaintiff in error contends that it comes within section 4980. ,

As to which is right, can only be determined by ascertaining the character of the action, as made by the petition. If it is an action for the recovery of the title or possession of real estate, it falls within the provisions of section 4977; but if it is an action on a specialty, or an agreement, contract,, or promise in writing, it falls within section 4980.

That the petition is, both in form and substance, a petition for the foreclosure of a mortgage and sale of mortgaged premises, can not be questioned ; and both the finding of facts and judgment of the court are in line with the petition.

But it is urged, that such a proceeding is an action for the recoyery of the title or possession of real estate, as in the end the result of the proceeding is to deprive the mortgagor of the lands.

This leads us to an inquiry as to the legal effect of a mortgagee, and of a proceeding to enforce the same by action in court.

A mortgage of real estate is-regarded, in equity, as a mere security for the performance of its condition of defeasance, and where that condition is the payment of a debt, the security is regarded as an incident of the debt. Swarts v. Leist, 13 Ohio St., 419.

The mortgage being, in equity, regarded as a mere security for the debt, the legal title to the mortgaged premises remains in the mortgagor, as against all the world, except the mortgagee, and also as against him until condition broken, but after condition broken the leg-al title as between mortgagor and mortgagee is vested in the mortgagee. Allen v. Everly, 24 Ohio St., 97; Ely v. McGuire, 2 Ohio, 223; Hibbs v. Insurance Co., 40 Ohio St., 543, 559; Martin v. Alter, 42 Ohio St., 94.

A mortgage in its origin was in realty, what it still purports to be — an absolute sale of the lands by the mortgagor to the mortgagee, subject to be determined by performance of the conditions contained in the mortgage within the time therein specified, and upon failure to perform by the dajr named, the title to the lands became absolute in the mortgagee. On condition broken, the only remedy of the mortgagee was to take the lands for the debt, peaceably if possible, otherwise by ejectment.

Later on courts of chancery began to. regard the mortg’age as a mere security for the debt, and to grant relief, to the mortgagor by allowing him a certain time, to be fixed by the chancellor, usually six months, in which to pay the debt and redeem the land; the decree in such cases provided that in case the mortgagor should fail to pay the debt within the time so fixed, that his right to redeem should be forever cut off and barred, or as it was usually expressed, foreclosed. Ohio Forms and Practice, by Wilcox. 2nd Ed., 794.

Upon his failure to pay the debt within the time ,so fixed, the mortgagee became the absolute owner of the lands in fee, and thereby the debt was discharged.

Still later on, and about the beginning of the present century, courts of chancery, by degrees, adopted a further rule of practice, whereby the mortgagee was allowed, at his election, to either foreclose his mortgage and take the land for the debt, or to have the mortgage foreclosed, the equity of redemption cut off, and then have a master sell the land by order of the court and apply the proceeds to the payment of the debt, rendering any surplus to the mortgagor, and in ease of a deficiency have execution awarded in his favor therefor.

This rule of practice of the -courts of chancery ordering a sale of the mortgaged premises, met with so much favor that in many of the states it was enacted into statute.

In England, by statutes 15 and 16 Viet., eh. 86, section 48, the court, at the request of either party to a foreclosure suit, may direct a sale of the mortgaged property instead of decreeing- a strict foreclosure.

In our own state, the right to foreclose a mortgage' after condition broken, either by a strict foreclosure, or by a foreclosure and sale of the mortgaged property, continued down to the adoption of the code of civil procedure in 1853. By sec. 374 of the code, now section 5316, Revised Statutes, it is provided that: “When a mortgage is foreclosed, a sale of the premises shall be ordered.” This prohibits a strict foreclosure in this state, and now, after condition broken, if the mortgagee appeals to the courts to enforce his mortgage, he must elect between two remedies. He may sue for the recovery of the possession of the land in a real action in the nature of ejectment, using his mortgage to prove his title; or, he may sue for a foreclosure of his mortgage, and a sale of the mortgaged premises.

After condition broken, the title is vested in the mortgagee, as between him and the mortg-agor, and as the right of the mortgagee to recover the possession of the land by ejectment, always existed at common law, and has not been taken away by statute, it still exists in this state. Heighway v. Pendleton, 15 Ohio, 735; Allen v. Everly, 24 Ohio St., 97; Hibbs v. Insurance Co., 40 Ohio St., 543-559; Rife v. Lybarger, 49 Ohio St., 427.

If such right does not exist, then it must be clear that an action on a mortgage is not a direct proceeding for the recovery of title or possession of real estate. Is title or possession recovered in such an action indirectly, or at all? Conceding such right of ejectment to exist, as we do, what is the result ?

In case of a strict foreclosure in chancery, if the mortgagee was out of possession, his foreclosure had no further effect than to cut off the right to redeem, and after foreclosure he was still compelled to bring ejectment to obtain possession. Sutton v. Stone, 2 Atkyns, 101; Ohio Forms and Practice, by Wilcox, 2nd ed., 795, note a.

A strict foreclosure, was, therefore, in no sense a recovery of either title or possession, because he already had the title vested in. him, and the strict foreclosure did not give him possession.

The same is true of a foreclosure and sale under the code. The right to redeem is cut off by the foreclosure, but no title is thereby recovered by the mortgagee, because the title, as between him and the mortgagor, is already in the mortgagee. No possession is thereby recovered, because a strict foreclosure did not award possession. Some attorneys improperly incorporated into the decree for foreclosure an order for a writ of possession. An instance of the kind is mentioned in the case of Allen v. Everly, 24 Ohio St., on page 109. The authorities are, however, against such practice. Lansing v. Goelet, 9 Cowen, 346; Sutton v. Stone, 2 Atkyns, 101.

The sale ordered and made by virtue of the code, is only an additional step added to a strict foreclosure (and not a change of the nature of the action), and thereby a transfer is made of the title and possession of both mortg-agor and mortgagee to a purchaser for value. The deed of the sheriff as completely transfers to the purchaser the title and rig-ht of possession as would a joint deed made by both mortgagor and mortgagee. In such .case, instead of á recovery of title or .possession by the mortgagee, all title and possession already in him, under the mortgage, is transferred to the purchaser.

True, in case the mortgagee buys in the land at the sale made by the sheriff, the land is transferred to him by the sheriff’s deed, but such transfer is to him as a purchaser and not as a mortgagee. In such case the mortgagee no more recovers the title or possession, than would a purchaser who is a-stranger to the suit.

.A sale on foreclosure is no more a recovery of „ title or possession, than a sale made by order of court to satisfy mechanics’ liens, or judgment liens.

It is therefore clear, that an action for the foreclosure of a mortgage and sale of mortg’aged premises, is not an action for the recovery of the title or possession of real property, and the limitation provided for in section 4977 does not apply thereto.

Does the limitation provided for in section 4980 apply to such action?

Blackstone in his Commentaries, vol. 2, page 465, says: “Debts by specialty, or special contract, are such whereby a sum of money becomes, or is acknowledged to be due by deed or instrument under seal.” See also Tyler v. Winslow, 15 Ohio St., 364.

Again, a specialty is defined to be: “An obligation or contract under seal; an instrument sealed and delivered.”

Am. & Eng. Ency. of Law, vol. 22, page 905.

In the case of Stockwell v. Coleman, 10 Ohio St., the court say on page 40, that: “The term specialty, in the strict and early use of the word, was regarded as only applicable to bonds, deeds, or other instruments under seal."

In the case of Marriott v. Thompson, Willes Report, the court say on page 189: “Whenever a man by deed obliges himself to pay money to another, it is a debt by specialty.”

A mortgage is an instrument whereby a debt or duty is acknowledged tobe due or owing to another, and very often an agreement, contract, or promise in writing, is also contained- therein. In 1868, when the mortgage in question was executed, the law required a mortgage to be under seal, that is, sealed and delivered.

It is, therefore, clear that a mortgage is a specialty, and that an action for the foreclosure thereof and sale of the premises, comes within the provisions of section 4980, and is barred in fifteen years after the cause of action accrued, unless extended by virtue of the provisions of section 4992. No such extension of time appears in this case, and it therefore follows that the circuit court erred in overruling the third cause of demurrer to the petition, and in sustaining the demurrer to so much of the answer as pleads the statute of limitations, and in the judgment rendered against the defendants below.

The case of Longworth v. Taylor, 2 C. S. C., 39, which seems to regard the limitation in such cases to be twenty-one years, is very meagerly reported, and there is some error or mistake, either in the report of the case or in the decision thereof. The syllabus is certainly not now law in this state.

The case of Fisher v. Mossman, 11 Ohio St., 42, correctly holds that the bar of the note, or other instrument secured by mortgage, does not necessarily bar an action on the mortgage. The ease does not show that the action was commenced more than fifteen years after it accrued, and also fails to show that the fifteen years’ statute was pleaded against the action on the mortgage. The only statute which the opinion of the court mentions, is the four years statute in favor of administrators.

The case does not decide that the statute of twenty-one years applies to an action for the foreclosure of a mortgage.

Neither does the case of Baily v. Smith, 14 Ohio St., 396, 411, so decide. Both of these cases have often been cited- as holding that an action for the foreclosure of a mortgage and sale of mortgaged premises, is not barred short of twenty-one years; but a careful examination of these cases will show that no such question is decided in either of them.

The case of Riddle v. Howenstein, 16 Bull., 178, decided by the Commission May 29, 1883, was not carried into the reports, because it was not, upon reflection, regarded as sound law.

A mortgage may be made to secure an account, and an action on account may be barred in six years, while an action on the mortgage would not be barred short of fifteen years.

The payment of the account would extinguish the right of action on the mortgage, and in an action for the foreclosure of the mortgage after action on the account is barred, the presumption of. payment of the account arising from the lapse of time, mig’ht be used as an item of evidence to prove payment, but such presumption would not be conclusive and might be overcome by satisfactory proof showing that in fact such account remains unpaid. In such case the lapse of six years is not the equivalent of payment. The condition of the mortgage is for payment of the account, and not for its bar by the statute of limitations. Allen v. Everly, 24 Ohio St., 97; Bissell v. Jaudon, 16 Ohio St., 498.

But when a note is secured by mortgage, the statute of limitations as to both is the same; and therefore the mortgage will be available as a security to the note in an action for foreclosure and sale until the note shall be either paid or barred by the statute; but in such case an action for foreclosure and sale can not be maintained on the mortgage after an action on the note shall be barred by the statute of limitations. The judgment of the circuit court is reversed, and judgment rendered on the findings of facts in favor of defendants below.

Judgment reversed.