text:
    William A. King, guardian of Caroline F. Cooper, v. Samuel S. Bell et al.
    B. was appointed and qualified as guardian of C., an infant, and a person of unsound mind; but the record was silent as to the grounds of the appointment. 0. was of unsound mind when she arrived of age, and so continues. For more than seven years after 0. was of age B. acted as her guardian, and was repeatedly so recognized by the court in settling his accounts, in requiring a new bond, approving the same when presented, and in accepting his resignation and settling his final account. Held,

    1. That, as the court had jurisdiction to appoint a guardian, on the grounds of lunacy as well as infancy, the presumption is, upon the facts stated, that the appointment covered both grounds.
    2. That in such case, the taking of the new bond after 0. arrived of age, but while still of unsound mind, was authorized by law.
    8. The sureties on such new bond are liable for a breach of its conditions.
    4. In an action against three defendants, upon a joint and several obligation, final judgment was rendered in favor of two of said defendants, and the action was allowed to stand undisposed of as to the third.

      In a petition in error by tlie plaintiff to reverso tlie judgment against him in favor of the two defendants, tlio third, against whom no final judgment has been rendered,'is not a necessary party.
    Error to tlie District Court of Licking County.
    Tlie court of common pleas and district court sustained a demurrer, filed by defendants Flory and Shields, to the following petition, on the ground that no cause of action was stated against them.

      “ The said plaintiff, William A. King, as the guardian of Caroline E. Cooper, for cause of action herein, says:

      “ That on or about the 4th day of February, a. d. 1856, the said Samuel S. Bell was appointed by the probate court of said county to be the guardian of the said Caroline E. Cooper, who was then a resident of said county, an infant, and (as the plaintiff is informed and believes) a person of unsound mind; that the entry of said appointment, made upon the records of said probate court, did not contain any express adjudication that the said Caroline was then a minor or of unsound mind ; but stated that said Bell was appointed guardian of Caroline E. Coojier, aged seven years, heir-at-law of Elijah Cooper: that the said Bell then gave bond according to law, and entered upon the discharge of his duties as such guardian; tliat the said Caroline became eighteen years old on or about the 20th day of April, a. d. 1867, and at the time of arriving at that age she was and has ever since then been a person of unsound mind, and incapable of managing her business affairs; that the said Bell, from that time until the 16th day of September, A. d. 1874, acted as her guardian, and from time to time, and in the years of 1867, 1869 and 1871, filed his accounts as such guardian, in the said probate court, in which accounts he asserted himself to be such guardian; and his said accounts were passed upon and settled by said court accordingly; that on or about the 3d day of April, a.d. 1871, the said Bell appeared in and before the said probate court, and represented to the same that Justin Morrison and Alexander Morrison, his sureties on his bond, as such guardian, theretofore given in said court, were non-residents of Licking comity; thereupon, upon the motion of said Bell, the following order or judgment was made by said court:
    “ 1 IN THE MATTER OF THE GUARDIANSHIP OF CAROLINE F. COOPER.
    “ ‘ This day came Samuel S. Bell, guardian of Caroline F. Cooper, and on his representation that Justin Morrison and Alexander Morrison, his sureties on his bond, heretofore given in this court, as such guardian, are non-residents of Licking county, and for other causes on the motion of said guardicm, it is ordered by the court that said guardian enter into a new bond in the sum of $12,000, as such guardian, with William Shields and Abraham Flory, freeholders of this county, as his sureties, conditioned according to law, and the said guardian having entered into said new bond, the same is approved and filed.’
    “ That on the said 3d day of April, a. d. 1871, the defendants made and delmered to the judge of the said court of probate, their writing obligatory of that date, sealed with their seals (and a copy of which is attached to the original jtetition herein, and made a part of this petition), and thereby bound themselves, jointly and severally, to pay to the state of Ohio the sum of $12,000.
    “ That the said bond was and is subject to the condition that it should become void if the said Bell should faithfully discharge his duties as such guardian, and otherwise, to be and remain in full force; that on the same day the said bond and sureties were approved by said court.
    “That on the said 16th day of-September, 1874, the said Bell resigned his said guardianship, and certain proceedings were had in said probate court touching the same. The record whereof is in the following words:
    “ ‘ Be it remembered, that on this day, Samuel S. Bell, guardian of Caroline Cooper, a lunatic, tendered to this court ■his resignation as such guardian; and which resignation, for reasons satisfactory to the court, is hereby accepted, and said guardian is hereby ordered to file his final account herein, which is accordingly done.’

      “ That, thereupon, on the 22d day of September, 1874, the plaintiff herein was appointed by said probate court to be guardian of the said Caroline as a lunatic or person of unsound mind, and on that day he gave bond, with sureties, according to law, which was approved by the court, and he entered upon the discharge of his duties as such guardian.
    “ That during the time the said Bell was so acting as guardian, as aforesaid, there came to his hands, of the moneys and estate of the said Caroline,the sum of five thousand dollars or more; that the said Bell having, on the 14th day of October, 1874, filed liis final account as'such guardian in said probate court, the same was, on the 24th day of November, 1874, settled, and it was then found and adjudged by said probate court that there was, and in fact there then was in the hands of the said Bell, of the moneys aforesaid, the sum of four thousand one hundred and twenty-six dollars and eighty-four cents ($4,126.84), interest being computed to the said last named day, and which sum the said probate court then ordered the said Bell forthwith to pay to the plaintiff.
    “ That on the 8th day of December, a. d. 1874, the plaintiff, as such guardian, demanded of said Bell the payment of said last named sum; but he has not paid the same or any part thereof, except the sum of $330.14 paid by his assignee on January 8th, 1875. The plaintiff demands judgment against the defendants for the sum of three thousand eight hundred and twenty-six dollars and eighty-nine cents, with interest from the said 8th day of January, a. d. 1875. “ J. Buckingham,
    Attorney.
    “ The plaintiff, yielding to the defendant’s motion in that behalf, says that .the said sum of five thousand dollars, or more, received by said Bell was so received before the kid 3d day of April, a. d. 1871, and before the making of the bond, on which this writ is founded. “ J. Buckingham,
    Plaintiff’s Attorney.
    BOND.
    “ Know all men by these presents, that we, Samuel S. Bell, William Shields and Abram Flory, are held and firmly bound unto the state of Ohio, in the sum of twelve thousand ($12,000) dollars, for the payment of which we hereby jointly and-severally bind ourselves,'our heirs, executors and administrators.
    “ Sealed with our seals, and dated at Newark, this 3d day of April, a. D. 1871.

      “ The condition of the above obligation is such, that, whereas, the above bound Samuel S. Bell has heretofore been appoint- ■ ed by the probate court of Inching county, Ohio, guardian of the person and estate of Caroline F. Cooper, heir-at-law and child of Elijah Cooper, deceased, late of Licking county, which appointment the said Samuel S. Bell has accepted, and a new bond being required of him by the court. ■

    “Now, if the said Samuel S. Bell shall faithfully discha/rge all Ms dnties as such guardian, as is required bylaw, then the above obligation to be void, otherwise to remain in full force.
    “ Samuel S. Bell, [Seal.]
    “¥m. Shields, [Seal.]
    “ Abram Flory, [Seal.]
    “ This bond approved in open court, this 3d day of April, a. d. 1871. W. IT. Shircliee, Probate Judge.”
    The demurrers of Flory and Shields to the petition were sustained,,and final judgment rendered in their favor, leaving the case to stand as to Bell in the common pleas. He is not a party to this proceeding in error.

      I. Buchingham, for plaintiff in error:
    I. We insist that when Bell was appointed in 1856 he became guardian in respect of all the disabilities his ward was subject to, unsoundness of mind and infancy, and continued guardian as long as either disability continued, unless terminated by death, resignation, or removal. The object of his appointment was that under the direction of the court he might take care of the person and property of his ward, and the office or duty should continue as long as the necessity should exist. Morally the duty would continue, and it would be very technical if, in law, also, it would not continue.
    II. The probate court, in 1871, had the jurisdiction and power to determine whether Bell was still the guardian of Caroline Cooper as a person of unsound mind; that court did tben decide that he was still her guardian, and Bell and his sureties acquiesced in the decision; unsoundness of mind was then her only disability. ' It will be presumed that the court had the proper evidence and found all the facts necessary to sustain its action, and its action cannot be impeached in this way. Shroyer v. Richmond, 16 Ohio St. 455, 465.
    III. In case the court is of opinion that Bell had ceased to be the'guardian of his ward, as a minor, we still insist that what was done by the probate court in 1871 was tantamount to an appointment of him to be guardian in respect of her unsoundness of mind. The court had jurisdiction to do it; the person was imbecile ; the power of the court to protect the person and property was invoked ; the court acted, and its record declares that he was guardian, and, for one cause named, and other causes, ordered'him to give the bond nowin suit; thereupon he accepted; and the record and the bond both declare he gave the bond as guardian. The matter may be informal, but, certainly, we think the action of the court may fairly be regarded as a new appointment.
    IY. But, if all the foregoing positions are deemed by the court untenable, we say that Bell and his sureties are estopped by the bond to deny that Bell was guardian. Kelley v. State, 25 Ohio St. 566-577; Bigelow on Estoppel, 244, 267, 268, 272; Brown v. United States, 17 How. Pr. 437. The sureties of an officer de facto are not permitted to deny he was such officer. Brandt on Surety, § 445.

      J. A. Flory, for defendant in error:
    The probate courts have no powers or jurisdiction except what is conferred upon them by statute. Const, of Ohio, art. 4, § 8. Probate courts as created by statute are of special and limited jurisdiction, and can only do such acts as are specifically prescribed by statute. Davis v. Davis, 11 Ohio St. 391; Gilliland v. Sellers, 2 Ohio St. 223; Walker v. Walker, 4 W. L. Mo. 32; Sheldon v. Newton, 3 Ohio St. 498-500; Shroyer v. Richmond, 16 Ohio St. 416 ; D. & W. R. R. Co. v. Marshall, 11 Ohio St. 497; Maxson v. Sawyer, 20 Ohio, 195, 208. When a court transcends the limits prescribed for it, by law and assumes to act where it has no jurisdiction, its adjudications and acts are utterly void and of no effect either as an estoppel or otherwise. Herman on Estoppel, § 52; Adams v. Jefferies, 12 Ohio, 271, and cases there cited ; Gilliland v. Sellers, 2 Ohio St. 223 ; Walker v. Walker, 4 W. L. Mo. 32; Maxson v. Sawyer, 12 Ohio, 195, 208.
    The bond upon its face shows that the probate court had no authority to require, accept, approve or receive the bond. The conditions of the bond are as follows: “ That, whereas the said Samuel S. Bell has been heretofore appointed guardian of Caroline F. Cooper, heir-at-law and child of Elijah Cooper, deceased, &c.” The bond does not say Bell has been appointed guardian of a lunatic or a minor, but only as guardian of “ Caroline F. Cooper, heir-at-law and child of Elijah Cooper, deceased.” Sureties are only bound by the strict letter of the bond. State v. Medary, 17 Ohio, 565 ; see Myers v. Parker, 6 Ohio St. 503; Hall v. Williamson, 9 Ohio St. 22; State v. Cutting, 2 Ohio St. 2 ; State v. Corey, 16 Ohio St. 19; Carpenter v. Sloan, 20 Ohio, 331, 332; Fosdict v. Green, 27 Ohio St. 498; Smith v. Huesman, 30 Ohio St. 662. It certainly will not be claimed that there ever was any law in force in Ohio authorizing the probate court to require, accept, ■approve or receive any bond in the name of the state of Ohio, ■or any other name of any other person as “guardian of «Caroline F. Cooper, heir-at-law and child of Elijah Cooper, deceased ; ” and therefore the action of the probate court was null and void.
    A person is only guardian until the ward arrives at the age ■of majority. IS. & C. 671, § 5. Which was in this case eighteen years of age. 1 S. & C. 694, § 1; Cambell v. English, Wright, 119 ; Perry v. Bairnand, 11 Ohio, 444; Walker v. Walker, 4 W. L. Mo. 32. The probate court had no power to require a person to give a new or additional bond, ■or to accept, approve or receive any bond in the name of the state of Ohio, or any other name, from such person unless such person was at the time a guardian. 1 S. & C. 672, § 8. The probate court, in requiring, accepting, approving or receiving the bond in suit, acted wholly without jurisdiction, and all its acts were coram non judice, and void. Gilland v. Sellers, 2 Ohio St. 223 ; Herman on Estoppel, § 52; Adams v. Jefferies, 12 Ohio, 271, and cases there cited; Walker v. Walker, 4 W. L. Mo. 32 ; 2 Ohio, 277; 7 Ohio, pt. 1, 239 ; 6 Blackf. 91; 38 Ind. 513 ; 20 Ind. 47 ; 1 Leigh, 485 ; 8 Blackf. 162; 4 Id. 15 ; 1 Ind. 62; 4 S. & M. 538 ; 2 Cal. 251; 34 Miss. 150; 23 Miss. 550 ; 18 Ohio St. 50; 1 Ired. 597; 2 Id. 267.
    There is no estoppel. 18 Ohio St. 42; 18 Id. 247; Bigelow on Estoppel (2 ed.) 283, 437; 3 Phillips on Ev. § 215; 28 Ind. 513 ; Herman on Estoppel, §§ 52, 146, 148, 215 ; 6 Ohio, 367; 23 Miss. 557.
    The amended petition does not aver that the money for which it is attempted to hold these defendants as sureties for Bell, came into Bell’s possession while he was in fact guardian ; but it is averred that this money came into Bell’s hands while he was acting as guardian. In no event can these defendants be held liable for money received by Bell while he was acting as guardian, unless the money was received by him as guardian while he in fact and in law was her guardian. Walker v. Walker, 4 W. L. Mo. 32; Gerber v. Ackley, 19 Am. Rep. 751; People v. Pennock, 60 N. Y. 421.
    The bond having been given after Samuel S. Bell had ceased to be guardian of Cai’oline E. Cooper, the alleged bond is void for want of a consideration. 1 Smith Leading Cas. 224,225.
    The plaintiff brought his action jointly against Bell, Shields and Elory; but no final judgment was taken against Bell in this action in the court of common pleas, and the action is still pending there as to him, so that Bell is not before this court on the petition in error. Bell is a necessary party to the proceedings in error, and this court has no jurisdiction until the case is finally disposed of in the court of common pleas as to Bell, and he is properly made a party to this petition in error. Jones v. Marsh, 30 Ohio St. 20.
   Johnson, J.

It is claimed that said petition does not state facts sufficient to constitute a cause of action against the sureties on said bond: 1st. Because the probate court had no authority to require, receive or accept the same ; 2d. There is no breach alleged; 3d. It is void for want of a consideration; and, 4th. The bond was not delivered. It is further insisted, that as Bell is not a party to this proceeding in error, this court has no jurisdiction.

1. The point is made, that Bell, who is the principal on the bond and a defendant in the original action, is a necessary party in this proceeding in error. Smethers v. Rainey (14 Ohio St.) 287, and Jones v. Marsh (30 Ohio St. 20), hold that all parties to a joint judgment should be parties in error. Here the final judgment was in favor of Flory and Shields, and against plaintiff, and the case stands undisposed of as to Bell on the common pleas’ docket. This is authorized by section 371 of the Code, the action being upon a joint and several cause of action.

All the parties to this final judgment are before this court.

2. The petition alleges a delivery of the bond and its approval by the court, as in all like cases. Hence the claim that there was no delivery of the bond is not well founded.

3. Neither is the claim that there is a want of consideration for the bond, if it is otherwise valid. If the court had the power to take and approve this bond, the consideration is sufficient.

4. The principal, and, indeed, the only question of difficulty in the case, is as to the authority of the court to take this bond.

Bell was appointed guardian, February 4,1856. The statute vested in the probate court exclusive jurisdiction to appoint and remove guardians, to direct and control their conduct, and to settle their accounts. Swan R. S. 1854, 753, a. This power embraced the appointment of guardians for minors (Swran R, S. 1854, p. 444), and idiots and lunatics. S. & C. 847.

In the appointment of guardians for lunatics, all laws relating to guardians for minors and their wards, and pointing out the duties, rights, and liabilities of such guardians and their sureties, in force for the time being, are made applicable to guardians for idiots and lunatics, and their children, so far as the same are’in conformity with the provisions of the act relating to lunatic asylums. S. & 0. 840, § 45.

The law in force for the time being,” when the bond in suit was apjaroved and filed, relating to guardians of minors, was the act of 1858. S. & C. 670. By section 8 full power is given the court over the bonds of guardians on exceptions thereto, and upon its own motion it may require guardians to give additional bonds, whenever the interest of the ward shall demand.

Section 9 provides that “ No bond executed by a guardian' after this act shall take effect” (July 1, 1858), “-shall be void or held invalid on account of any informality in the same, nor am, aoGOwnt of an%y i/i%formali1nj or illegality in the ayypoimlment of such guardiam,/ but such bond shall have the same force and effect as if such appointment had been legally made and such bond executed in proper form.” The bond in suit is subject to the provisions of this section.

The facts admitted by the demurrer are:

1. That in 1856, Bell was duly appointed and qualified as guardian of Caroline E. Cooper, who was then - both an infant and a person of unsound mind, and entered upon the discharge of his duties as such guardian, and so continued to act until his resignation, which was accepted by the court September 16, 1874, and the present plaintiff was appointed his successor as guardian of said Caroline, a lunatic.

2. That at her arrival of age, April 20, 1867, she was still of unsound mind, and without any further action of the court, so far as the record shows, Bell continued as guardian, and in 1867, 1869 and 1871, filed his accounts as such with the court, which were audited and settled; the court in all respects recognizing and treating him as the legal guardian, as well after as before her majority.

3. That in April, 1871, nearly four years after her coming of age, Bell represented to the court that his sureties had removed from the county, and on his application and upon an order of the court requiring it, he and the present defendants executed and delivered the bond in suit, which was on his motion approved and filed, whereupon he was permitted by the court to continue his guardianship until his resignation and the appointment of his successor.

4. October 14, 1874, in pursuance of the order of court, he filed his final account, which was audited and settled November 24, 1874, showing a balance due his ward of $4,126.84, which he was ordered to pay over to plaintiff, but has failed so to doj except a small amount stated.

5. That prior to the giving of the present bond, April 8, 1871, he had received $5,000 or more of his ward’s moneys, and had in liis hands, in fact, said sum of $4,126.84 at the date of his final settlement, which, on demand, he refused to pay over.

We have not been furnished with a copy of the judgment of the court, making the appointment of Bell in 1856, but it is averred that Bell was then appointed guardian of said Caroline F. Cooper, who was then an infant, and (as the plaintiff was informed and believes) a person of unsound mind; and it is averred there was no express adjudication by the court, upon what grounds the appointment was made; that is, whether she was a minor, or of unsound mind, or both.

The court having jurisdiction on either or on both grounds, to make the appointment, its validity cannot be inquired into collaterally, though the record is silent, as to the particular ground upon which the appointment was made. Shroyer v. Richmond, 16 Ohio St. 455. Neither upon this state of facts does the presumption arise, that the appointment was made solely on the ground of infancy.

For over seven years after the ward’s majority, Bell acted as guardian of a lunatic. The court so recognized him as her legal guardian by receiving and settling his accounts, by ordering and approving a new bond and allowing him to continue to act, though the record showed she was over age, by accepting his resignation and appointing his successor as guardian of a lunatic. All this is utterly inconsistent with the presumption that the appointment was made on the ground of infancy alone, but is in harmony with the presumption that the judgment of the court, by which he was appointed,.was either based on the unsoundness of mind, or of that, as well as infancy.

In the absence of an express adjudication of the grounds for this appointment to the contrary, and in view of the fact that, after the ward arrived of age, the court continued for several years to judicially recognize him as the legal guardian, we are authorized to presume that this appointment covered both disabilities, the lunacy as well as the infancy.

This being so, the court was authorized by section 8 of the guardian act to order and approve this bond.

The condition being for the faithful discharge by Bell of his duties as such guardian, as required by law, his sureties are liable thereon for a breach of the condition.

Judgments of the district court cmd of the court of common fleas reversed.


source: Caselaw Access Project

author: White, J.

license: Public Domain

text:
    Porter v. Wagner.
    1. A judgment of dismissal of a petition for the specific performance of an agreement and of a counter-claim asking a rescission of the same, is no bar t.o an action for the recovery of money paid on the agreement, although the cause of action accrued before the rendition of the judgment.
    2. Where a judgment between the parties is relied upon as an estoppel, the question is not what the court might have decided in the former action, but what it did in fact decide, as shown by the judgment.
    3. A judgment is conclusive by way of estoppel only as to facts, without the proof or the admission of which it could not have been rendered.
    Error to the District Court of Trumbull County.
    Tbe original action was brought by the plaintiff in error,' George H. Porter, against the defendant in error, Henry Wagner. Porter and Wagner had entered into a written agreement whereby the latter agreed to sell and convey to the former certain real estate; and the petition avers that in consideration that the plaintiff, Porter, would release the defendant, Wagner, from the obligations of the contract, the defendant promised the plaintiff and undertook that the said contract should be rescinded, and that he would repay to the plaintiff the sum of $1,000 whicli he had paid on the contract, and also the sum of $10 taxes paid on the land. Judgment was asked for these sums.

      Among other defenses, the defendant set uj> that the matter in controversy had been adjudicated in a former suit between the parties. This defense was controverted by reply.
    On the trial it appeared that Wagner, the vendor, in the former suit, had filed a petition for the specific performance of the agreement for the sale of the real estate; and that Porter in his answer to the petition controverted the right of Wagner to have specific performance of the agreement, and charged him with numerous defaults under the agreement. Porter also charged that in consideration that he would release Wagner from the agreement of purchase, the latter promised to repay the $1,000 paid on the agreement, and $10 taxes paid by Porter.
    • The defendant prayed “ that said contract may be declared rescinded, and the plaintiff ordered to repay said sum of money to respondent, with interest, and for other proper relief.”
    The answer was controverted by reply.
    The following was the decree rendered in that suit:

      “ This cause^ came on for trial upon the issues joined and the testimony, and was submitted to the court for decision, and the court thereupon find that the plaintiff is not entitled to an order for the specific performance of said contract, and the defendant is not entitled to an order for the rescission of said contract, and do therefore order, adjudge and decree that said petition and counter-claim be dismissed, and that plaintiff pay all costs in this cause made before appeal, and that defendant pay all costs made since said appeal, and that execution issue to collect the same.”
    On the trial of the case now under review, the plaintiff asked the court'to charge the jury as to the effect of the decree in the suit for specific performance, in substance, as follows : That the decree did not bar the plaintiff’s right of action in this cause, if the jury should otherwise find the issues in favor of the plaintiff.
    The court refused so to charge; but charged, in substance, that said decree was a conclusive bar to the right of the plaintiff to recover either on account of said alleged agreement to rescind said contract, or on account of said original contract and the breach thereof, if not rescinded.
    To the refusal to charge as asked, and to the charge as given, the plaintiff excepted. • ;
    Yerdict and judgment were for the defendant. On error, the judgment was affirmed by the district court. The present proceeding is instituted to reverse these judgments.

      George M. Tuttle, for plaintiff in error:
    The simple refusal of the court having equitable jurisdiction to aid the party asking for specific performance of an agreement, does not bar the right of the same party to proceed in the proper jurisdiction to recover back the money paid. Love v. Truman, 10 Ohio St. 53; Rogers v. Atwater, 4 Day, 432 ; Railroad Co. v. Hunt, 20 Ind. 468 ; Hunter v. Dawes, 19 Geo. 413; Griffin v. Seymour, 15 Iowa, 30; Morley v. Shattuch, 3 Cranch, 458; Church v. Chapin, 35 Vt. 223; 1 Greenl. Ev. § 524; 2 Cow. & Hill’s Notes (ed. 1839) 826, note 587 ; Jackson v. Ashton, 11 Pet. 248 ; Seymour v. Delancey, 6 Johns. Ch. 223; Campbell v. Hicks, 19 Ohio St. 433; Twining v. Morrice, 2 Brown C. C. 326; Emery v. Wase, 5 Vesey, Jr. 845, 849; 13 Ves. 25, 38; 1 Vesey, Jr. 213; 4 Johns. Ch. 591; 5 Johns. Ch. 195.

      H. H Moses, for defendant in error:
    The plaintiff’s right to recover the money claimed in his petition in this case, was made an issue in the former case, and was submitted to the court for decision, and, consequently, he might have had his right to a judgment for the money claimed decided by the court. If he neglected to have the court pass upon that branch of his case, it was his own fault, and he cannot now complain, or again have the opportunity of litigating his claim. Stockton v. Ford, 18 How. U. S. 418; Hites v. Irvine, 13 Ohio St. 284; Wilson v. Hamilton, 9 Serg. & R. 429; Embury v. Connor, 3 N. Y. 512; Gates v. Preston, 41 N. Y. 113; Harris v. Harris, 36 Barb. 88; Bigelow v. Windsor, 1 Gray, 301; Pickett v. Logan, 14 Ves. 232; 5 Allen, 377; 5 Cowen, 559; 6 Mass. 277; 17 Serg. & R. 319.

      If there is any proposition of law so thoroughly established as to be beyond doubt, it is that a judgment or decree of dismissal, upon the merits, is a final determination, and constitutes a bar to any further litigation of the same subject-matter between the same parties. And that a general entry of “ bill dismissed,” with no words of qualification such as “ dismissed without prejudice,” or, “ without prejudice to an action at law,” or the like, is conclusively presumed to be upon the merits, and is a final determination of the controversy. Foot v. Gibbs, 1 Gray, 412; Durant v. Essex Company, 7 Wall. 107; Borrowscale v. Tuttle, 5 Allen, 377; Bigelow v. Windsor, 1 Gray, 301; Thurston v. Thurston, 99 Mass. 39; Perrin v. Dunn, 4 Johns. Ch. 140 ; Kelsey v. Murphy, 26 Penn. St. 78; Wilcox v. Badger, 6 Ohio, 406; White v. Bank of United States, 6 Ohio, 529.
    Counsel for plaintiff in error has cited a number of cases, which lie insists are direct authority, that the simple dismissal in any case does not bar the further remedy to recover damages. But he seems to have not observed that all of these decisions, save one, were rendered under an entirely different system of practice from the one now in force. "When those decisions were rendered, courts of equity were distinct from courts of law; and courts of equity had no jurisdiction in a case at law, nor could they consider or pass upon a legal defense, or a counter-claim, not strictly equitable in its character.
    As the law then was, when a case for specific 'performance, or for a rescission of a contract, was before a court of equity, and the equitable relief demanded was refused, the court could ■not go forward and determine the legal rights of the parties, for the reason that the court possessed no jurisdiction over the matter. Biggerstaff v. Loveland, 8 Ohio, 44; Hatch v. Cobb, 4 Johns. Ch. 559 ; Kempshall v. Stone, 5 Johns. Ch. 193; 13 Ohio St. 288; 6 Ohio St. 216.
   White, J.

The principle upon which the decision of this case turns was determined in Creamer v. Moore, decided at the present term, ante, 347.

The question is not what the court might have decided in tlie former action between tbe parties ; but what tbe court did, in fact, .decide, as shown by the record. The court found that the plaintiff in that case, "Wagner, was not entitled to an order for the specific performance of the contract, and that the defendant, Porter, was not entitled to an order for its rescission; and, as a consequence of these findings, it was adjudged that the petition and the counter-claim each be dismissed.

This left the legal rights of the parties under the contract, as distinguished from their equitable rights, unaffected by the judgment.

The system of pleading under the code does not affect the question. Since the adoption of the code as well as before, the question in each case is, what was adjudicated in the former suit. In answering this question, reference must be had, of course, to the pleadings as well as to the judgment or decree.

If the court had decreed specific performance, the money paid by the purchaser would have been credited to him in taking the account with the vendor; or, on the other hand, if the contract had been canceled, he would have been compensated for the money he had paid in performance of the contract. The court, however, did neither, but refused to interfere, and left both parties to their strict legal rights.

The refusal of the court to rescind the contract is not inconsistent with the alleged promise of the vendor to refund the money paid, in consideration of his release from the contract.

That may have been the ground upon which the court refused to declare a rescission; but, whether so or not, such refusal does not negative the existence of such agreement to refund.

A judgment is conclusive by way of estoppel only as to facts, without the proof or admission of which it could not have been rendered. Burlen v. Shannon, 99 Mass. 200 ; Lea v. Lea, Id. 493.

Judgment of the district cou/rt and that of the common fleas reversed, and cause remanded to the court last named for a new trial.


author: Botnton, O. J.

text:
    William Fields v. The Commissioners of Highland County.
    The act of March 29, 1879, “ to authorize the commissioners of certain counties to locate and construct turnpike roads” (R. S. §§ 8017-8057, inclusive), which exempts certain lands therein named from taxation for the improvements therein provided for, is in conflict with section 2 article 12 of the constitution, and is therefore void.
    Appeal. — Reserved in the District Court of Highland County.
    The plaintiff, suing for himself and others tax-payers in Highland county, brought an action to enjoin the commissioners of said county from taking further steps towards the construction of certain turnpike roads, under the act of March 29, 1879. Revised Statutes, §§ 8047-8057, inclusive. The petition stated, among other things, that the commissioners had caused the roads to be laid out, under said act, and were proceeding to cause advertisements to be made for bids for the construction of a part thereof. That a large number of free turnpikes, or improved roads, had been constructed in said county, and a large number were in course of construction; for the construction of which a large number of acres of land in said county' had been assessed, by reason whereof said lands would be exempt from bearing any of the burden of taxation necessary to the construction of said roads, that the commissioners were then establishing under said act. A perpetual injunction was prayed. To the petition the defendants demurred, upon the ground that facts -sufficient to constitute a cause of action were not stated therein. The court of common pleas overruled the demurrer and gave judgment for the plaintiff. The defendants appealed to the district court, where the cause was reserved for decision here.

      John F.' Follett, F. M. Dittey and J. M. Spencer, for plaintiff:
    The act in question is in conflict with section 2 of article 12 of the constitution of Ohio, for that the contemplated taxation under the act is not by a uniform rule. Zanesville v. Richards, 5 Ohio St. 592; Telegraph Co. v. Mayer, 28 Ohio St. 521; Lima v. McBride, 34 Ohio St. 351; Reeves v. Treasurer, 8 Ohio St. 338; Foster v. Commissioners, 9 Ohio St. 540; Chamberlain v. Cleveland, 34 Ohio St. 561; Hill v. Higdon, 5 Ohio St. 248 ; Northern Indiana R. R. Co. v. Connelly, 10 Ohio St. 165 ; Cooley on Constitution, 499 ; Cooley on Taxation, 416; Knowlton v. Supervisors, 9 Wis. 410; Lin Sing v. Washburn, 20 Cal. 534; State v. Insurance Co., 12 La. Ann. 802; Adams v. Somerville, 2 Head, 363 ; McComb v. Bell, 2 Minn. 295 ; Attorney-General v. Winnebago Lake P. R. Co., 11 Wis. 35; Weeks v. Milwaukee, 10 Wis. 242; O'Kane v. Treat, 25 Ill. 557; Philadelphia Association v. Wood, 39 Penn. 73; Saeramento v. Crocker, 16 Cal. 119; Howell v. Bristol, 8 Bush (Ky.) 493.

      Ulric Sloane, for defendants :
    In answer to the objection of unconstitutionality of the statute in question, because in violation of section 2 of article 12, we say:
    1. The power of the legislature, under article 2, section 1, of the constitution, extends to all the objects and purposes of government. The grant of power is general and unrestricted, unless by express limitations in the constitution. 11 Ohio St. 534; 15 Ohio St. 573 ; 21 Ohio St. 198.
    2. Such limitation must be express, or necessarily implied from the language of the constitution, fairly construed. Lehman v. McBride, 15 Ohio St. 592.
    3. The taxing power is legislative, and is supreme and unrestricted unless the constitution imposes some limitation. Baker v. Cincinnati, 11 Ohio St. 543.
    4. This unlimited power of taxation necessarily involves the right to designate the property upon which it is to be levied, to apportion the tax territorially. 1 Ohio St. 138 ; 10 Ohio St. 192; 19 Ohio St. 418; State v. Commissioners, 35 Ohio St. 408; Cooley on Taxation, 110, 111; Cooley on Const. Lim. 624.
    5. Taxation may be general or special, in the discretion of the legislature. The legislature may create and define a taxing district, and impose taxes upon all the property of that district, according to a uniform rate per centum, or specially, according to benefits upon adjacent property. 5 Ohio St. 246; 8 Ohio St. 333; 9 Ohio St. 540; State v. Commissioners of Franklin County, 35 Ohio St. 448 ; Cooley on Taxation, 110, 111. Taxation, as used in section 2, article 12, of our constitution, means impositions for purposes of general revenue; but this does not include the whole taxing power ; the power of levying special taxes for local purposes, which has received the name of “ assessments,” is still intact, and left by our present constitution “in all its integrity and extent the same as it was under the constitution of 1802.” Hill v. Higdon, 5 Ohio St. 246 ; Zanesville v. Auditor, 5 Ohio St. 584; Reeves v. Treasurer, 8 Ohio St. 333; Foster v. Commissioners, 9 Ohio St. 540.
    7. The taxation provided for in the statute in question is not for the purpose of general revenue ; but is local, for local improvements, and is but the exercise of the power of assessment in the legislature. Reeves v. Treasurer of Wood Co., 8 Ohio St. 333; Foster v. Commissioners of Wood Co., 9 Ohio St. 540; Northern Ind. R. R. Co. v. Connelly, 10 Ohio St. 154; State v. Commissioners of Franklin County, 35 Ohio St. 458; State v. City of Newark, 3 Dutch. 186; City of Paterson v. Society, &c., 4 Zab. 386 ; Yeatman v. Crandall, 11 La. 220 ; Mayor of New York, &c., 11 Johns. 80 ; People v. Mayor of Brooklyn, 4 N. Y. 440; Dorgan v. City of Boston, 12 Allen, 237.
    8. If the taxation authorized by this statute be that exercising of the taxing power known as assessment, the discretion as to how and upon what property, and in what proportion, it was to be levied exists entirely and without limitation in the legislature. See cases last above cited.

      Matthews, Huggins de Quinn, for defendants :
    As to the claim that the law in question violates section 2, article 12, which provides that “laws shall be passed taxing by a uniform rule . . all real and personal property according to its true value in money.
    1. Section 2, article 12, only governs taxation for general revenue purposes. Zanesville v. Auditor of Muskingum County, 5 Ohio St. 590; Hill v. Higdon, 5 Ohio St. 246-249 ; Cooley on Taxation, 136, 146, 436, 446, and cases there cited; Dorgan v. City of Boston, 12 Allen, 234-238; Reeves v. Treasurer of Wood County, 8 Ohio St. 345. The taxation provided for in this law is not for general revenue purposes, therefore is not controlled by section 2, article 12.
    2. The law in question does nothing more than create a taxing district for a local improvement, and apportion the burden which the legislature has power to do. Cooley on Taxation, 110, and cases there cited; Lima v. McBride, 34 Ohio St. 338.
    3. Chattels can be assessed. Cooley on Taxation, 457, 458; Cooley on Const. Lim. 622, 623, 637.
    4. Chattels are assessed by other legislation in Ohio. Rev. Stat. §§ 2263, 2264, 2265, 2276, 2295; Rev. Stat. §§ 4758-4773:
    5. The taxation provided for by the law in question is an assessment. 1 Bouvier, 152 ; Hill v. Higdon, 5 Ohio St. 248; State v. Commissioners of Franklin Co., 35 Ohio St. 458; Scoville v. Cleveland, 1 Ohio St. 126-138 ; Foster v. Commissioners of Wood Co., 9 Ohio St. 540-545.
    6. If this law provides for an assessment, the legislature has the power to apportion in the law, and the exercise of such power will not be interfered with by the legislature. Baker v. Cincinnati, 11 Ohio St. 534; Western Union Tel. Co. v. Mayer, 28 Ohio St. 521; Foster v. Commissioners of Wood Co., 4 Ohio St. 540-545; Hill v. Higdon, 5 Ohio St. 243-245; Cooley on Taxation, 110, 111; People v. Mayor of Brooklyn, 4 N. Y. 426, 427; Providence v. Billings, 4 Pet. 314-563; McCullock v. Maryland, 4 Wheat. 428; Cooley on Const. Lim. 639; State ex rel. Commissioners of Franklin Co., 35 Ohio St. 458; Reeves v. Treasurer of Wood Co., 8 Ohio St. 345.

      . 7. The tax provided for has been apportioned according to benefit by the law.
   Botnton, O. J.

The question reserved in the present case arises on demurrer to the petition, and involves the constitutionality of the act of March 29, 1879, entitled, “An act to authorize the commissioners of certain counties to locate and construct turnpike roads.” R. S. §§ 8047-8057, inclusive. The act authorizes the commissioners of all counties having a population, at the federal census next preceding its passage, of not less than 29,130, and not more than 29,135, when they become satisfied that the jjublic interests of their county demand and justify special action for the improvement of the roads therein, to proceed to lay out and construct the same in the manner therein prescribed. Section 6 of said act (R. S. § 8052) provides that, “ Upon the location and establishment of any such turnpike road by the county commissioners, they may, for the purpose of aiding in the construction thereof, levy annually, in addition to other road taxes authorized by law, a tax for turnpike road purposes, of not more than two mills on the dollar of valuation, on the grand duplicate of taxable property in the county, and to continue such levy from year to year, until the road or roads which have been commenced have been' completed.” So much of section 7 as relates to the property to be taxed, is as follows: “No such taxes shall-be levied on any lands which have been heretofore assessed for the construction of any free turnpikes or improved road or roads, already constructed, or in the course of construction at the time of the levy of the tax, unless the amount that would be ratably levied upon such lands exceeds the amount of such assessment, and in such case, such excess only shall be levied and collected.”

The validity of this act is assailed on two grounds.

First, that it is a law of a general nature, and being limited in its operation to Highland county, is in contravention of section 26, article 2, of the constitution, which declares that “all laws of a general nature shall have a uniform operation throughout the state.”

And secondly, that by exempting from the burden of taxation lands previously assessed for the construction of free turnpike or improved roads, whether completed, or in process of construction at the time the tax is levied, the act violates the second section of article 12 of the constitution, which, with the exceptions therein specifically provided for, requires all property to be taxed according to its true value in money.

There is no doubt that the county of Highland is the only county in the state to which the provisions of this act can ever apply, and the legislature might just as well have conferred on the commissioners of that county, in express terms, and by direct language, the power actually conferred, as to name the county through the aid of the previous federal census. If the object in employing the language used to designate the county was to give to the act a general character, and thereby to obviate any constitutional objection, while intending to limit its operation to one county, the means adopted very clearly fails to accomplish the object intended. This court has repeatedly said that the constitutionality of an act, in respect to being local or general, is to be determined by its operation, without reference to its form. The State ex rel. v. The Judges, 21 Ohio St. 11; The State ex rel. v. Mitchell, 31 Ohio St. 592; McGill v. The State, 34 Ohio St. 228. If local in its operation, no phraseology can make it general.

The act in question is not only local in its operation, but it was so intended to be by the legislature; and if a law of a general nature, within the meaning of the constitution, it is clearly unconstitutional because of such restricted operation. McGill v. The State, 34 Ohio St., supra. But whether or not the act is general in its nature we find it unnecessary to determine. In our opinion it is clearly in conflict with section 2, article 12, of the constitution, which, with certain specific exceptions, requires all real and personal property to be taxed by a uniform rule, and according to its true value in money. “Equality of burden is the principle of the constitution.” There is to be “ no rule that exempts some proj>erty and casts the burden of government upon the rest.” Exchange Bank of Columbus v. Hine, 3 Ohio St. 43. This, section 7 of the act expressly does. -Lands before assessed for similar improvements are exempted from taxation to .the extent of the assessment previously made, and the burden from which such lands are thus relieved, is cast on the remaining property of the county. In The City of Zanesville v. Richards, 5 Ohio St. 589, respecting the effect to be given to this provision of the constitution, it was held that “ no tax, either for state, county, township, or corporation purposes, can be levied without express authority of law; ” and “ that this section of the constitution is equally applicable to, and furnishes the governing principle for, all laws authorizing taxes for either purposeand that “ it requires a uniform rate per cent, to be levied upon all property according to its true value in money, within the limits of the local subdivision for which the revenue is collected, subject only to the exemption specifically provided for in the section.” That the act violates this provision of the constitution, in case the fund .to be raised to construct the road or roads is for general revenue purposes, as distinguished from a fund arising from local assessments founded on the principle of furnishing an equivalent by special benefits to the property assessed, is not doubted by •counsel for the defendants. But they contend that the purpose of the legislature, as evinced by the act, was to provide for a local assessment upon real and personal property especially benefited to pay the cost of a local improvement. In this view wTe do not concur. If effect be given to the act, the commissioners are authorized to establish roads anywhere in the county, and to levy a tax from year to year, of two mills on the dollar of valuation on all the property of the county, to pay •the cost of construction, except such lands as have been previously assessed for similar improvements, without any reference to the special benefits conferred. And in the exercise of this discretion they may establish one or more roads, as they may deem the public interests to require, or they may establish none; and if they see fit to establish but one, they are required to cause the property of every citizen of the county, save the excepted lands, to be taxed, however remotely the owner may live from the road constructed, and notwithstanding his property may derive no more benefit therefrom than lands in a remote county. Were we to construe the act as one intended to create an assessing district bounded by county lines, and to authorize all the property therein, both real and personal, except the exempted lands,to be assessed for the roads constructed, on the principle that such property was specially benefited by the improvement, and that it is within the power of the legislature to enact the statute with such effect, we would sanction a very easy mode of violating the constitution. There is nothing in the language of the act that indicates any intent on the part of the legislature to provide for assessment, as distinguished from taxation. Nothing, in other words, to indicate that the act was passed in the exercise of the power to authorize local assessments, on the principle of special benefits conferred. On the contrary, it was enacted in the exercise of the taxing power. The fund to be raised to pay the cost of the roads to be constructed under the act, was to be provided by a tax levied and collected as ordinary road taxes are, with the difference that the ordinary taxes are raised from a levy on all the taxable property, and the taxes under this act upon a part only. The lands formerly assessed for improved roads cannot be taxed under the act, because expressly exempted; and the remaining property cannot be taxed, because of such exemption. The restriction upon the power to lay a tax on all the property on the grand duplicate of the county, is in direct conflict with the provision of the constitution above quoted, requiring all property, with certain exceptions, to bear its equal and just proportion of the public burdens.

Demurrer to petition overruled cmd injunction made perpetual.


author: Johnson, J.

text:
    William V. Sked v. James Sedgley et al.
    1. The act of May 1, 1861 (58 O. L. 118), which exempts from sale the property of persons belonging to the militia of Ohio, who have been mustered into the military service of the United States under any requisition of the president, is an act conferring upon a certain class of persons a right or privilege, which must be asserted by him who seeks its benefit.
    2. Where, after judgment and order of sale have been duly and regularly entered in an action to foreclose a mortgage, the mortgagor becomes entitled to this exemption, by being mustered into the United States’ service for three years, if the war should last that long, and a sale is made and confirmed, and deed executed to the purchaser, while he is still in such service, the sale and proceedings are not void, but voidable only.
    3. In casé of a sale of the mortgaged premises upon a decree of foreclosure, while the mortgagor is entitled to such exemption, and the sale is confirmed, deed made and possession taken without objection by him, his proper mode of relief, if entitled to any, after confirmation, and the proceedings are not reversible for error, is by a direct proceeding in that case, to have such sale and confirmation set aside.
    Appeal. Reserved in the District Court of Cuyahoga County.
    . The question for decision arises on a demurrer to the petition, on the ground that it does not state facts constituting a cause of action.
    The petition was filed in the superior court of Cuyahoga county, and on appeal to the district court was Reserved for decision in this court.
    The plaintiff alleges that, on September 28, 1861, one Hiram Iddings, now deceased, commenced an action in the court of common pleas of said county against him, for a foreclosure of two mortgages, executed in 1853 and 1856, by him, to secure certain notes, of which notes and mortgages Iddings had become the owner; that on December 1, 1861, judgment for the amount due was rendered, and.an order of sale granted on default of payment for ten days, and that the property was appraised and advertised to be sold January 30, 1862.
    He also alleges that he was a citizen of Ohio, belonging to the militia force of the state, and that he volunteered into the United States’ service in the late war, and was accepted and mustered into such service January 21, 1862, for three years, •if the war should last so long, and continued in such 'service until January 2, 1865, when he was discharged.
    Eor the purpose of staying the proceedings and sale, he, on January 29,1862, filed a petition under the act of May 1,1861, to exempt from sale the property of Ohio militia in the military service of the United States, and obtained a restraining order against such sale. "Whether a bond was given, does not appear, but it is alleged that Iddings and the master-commissioner charged with the sale had notice thereof, and of his claim for exemption, nevertheless the sale was made to said Iddings on the day fixed.
    March 18, 1862, this sale was confirmed by the court, the petition for an injunction having been dismissed before the day of sale, by plaintiff’s attorney, but without his knowledge or consent, as he alleges. No objection was made in court to the confirmation or conveyance to Iddings.
    Iddings received a deed, and went into possession April 2, 1863 ; he conveyed to James J. Monroe, and died November, 1863, leaving heirs, who are defendants. April 4, 1865, Monroe conveyed part of the land to Augustus Fuller, one of defendants now in possession ; April 9, 1866, Monroe conveyed part to Ahimaz Sherwin, who, in October, 1872, conveyed the same to James Sedgeley, a defendant now in possession. April 9, 1866, Monroe conveyed the balance .of the land to O. 0. Beckwith, who conveyed to McDowell. In 1867, McDowell conveyed to Sarah Stewart, a defendant in possession.
    Iddings’ heirs, with Monroe, Sherwin, Beckwith and McDowell, former owners, are made defendants.
    The object and prayer is, to have an account of the rents and profits since the sale, and their application to the mortgage debt, and that he be restored to the possession of the premises, upon paying the balance found still due.
    This action was commenced November 14, 1874.

      McMath <& Everett and A. M. Jachson, for plaintiff in error:
    That the legislature of a state may modify remedies without destroying them, or may change remedies without impairing the obligation of contracts, I think we may assume is well settled by the decided weight of authorities. In support of the general doctrine, covering a great variety of legislation, effecting the remedy by which the obligation of the contract in the given case was sought to be enforced, we cite the following authorities: Sturges v. Croninshield, 4 Wheat. 200; Chadwick v. More, 8 Watts & S. (Pa.) 49 ; Stevens v. Andrews, 31 Mo. 210; McCormic v. Rusch, 15 Iowa, 127 ; Donnell v Stephens, 35 Mo. 441; Edmundson v. Ferguson, 11 Mo. 344; Barbride v. Early, 11 Mo. 545; Ogden v. Saunders, 12 Wheat. 349; 1 Bibb, 567; 2 Bibb, 202-208 ; 4 Bibb, 62-65 ; 3 Cranch, 319 ; 4 Wheat. 200; 1 Johns. 140; 2 Mass. 88; 2 Johns. 198; 3 Dallas, 370-373; 34 Mo. 330; 35 Mo. 441; 15 Iowa, 127; 44 Pa. St. 179, 313; Id. 322.

      J. E. Ingersoll, for defendant in error: >
    1. The said act of the legislature impairs the obligations of a contract, and is therefore in conflict with section 10 of article 1 of the federal constitution, and with article 2, section 28, of the state constitution. And see Bronson v. Kinzie, 1 How. (U. S.) 311; McCracken v. Haywood, 2 Plow. 608; Aycock v. Martin, 37 Ga. 124; 6 Rob. (N. Y.) 501; Peck (Tenn.) 1; 4 Little (Ky.) 53 ; 6 Otto, 595 ; 15 Ohio St. 210.
    2. The statute in question is not self-operating. It must heeds be set up as a privilege by him who seeks itu benefit. In this case it is alleged that he began to insist on his rights ; brought an injunction for that purpose; but his attorney after-wards dismissed the suit. He alleges this dismissal to have been made without his consent, but does not allege that the parties now made defendants and called on to permit him to redeem, had knowledge that his attorney acted without his authority ; and as he gave no bond at the time of the injunction and afterwards dismissed his case, he did not thereby waive his privilege to the provision of this law %

    3. We insist that this claim is stale. The statute in question only seems designed to furnish immunity to a soldier in active service and for two months after his discharge. Here the plaintiff brings his suit to reap the benefit of this statute almost ten years after his discharge from the army. That date he fixes January 2, 1865. Plis suit is commenced November 14,1874. Although the act does not in express terms say, no action shall be brought after a period of two months subse-quent to his discharge from such military service, yet it extends the benefit thereof — right to stay of process — to this period-; and it seems a very great enlargement of the privilege if a person claiming its benefits may sue for them ten years after.
   Johnson, J.

It is claimed that the sale made January 30, 1862, and the order of confirmation thereof, March 18, 1862, are void, and that plaintiff is now entitled to be let in to redeem, notwithstanding the sale and conveyance stated.

The ground of this claim is, that under the' act of May 1, 1861, his property was exempt from sale. This statute is entitled: “ An act, to exempt from execution the property of the militia of Ohio, mustered into the service of the United States,” and reads:

“That the individual, real and personal property of any person, who may belong to the militia of this state, and who shall be mustered into the actual service of the United States, under any requisition of the president, shall be, and the same is hereby declared exempt, during the time such person shall remain in the actual service of the United States and two months thereafter, from sale on any execution or order of sale issued on any judgment rendered by any of the courts of this state, and the individual personal property of such person shall also, for the period aforesaid, be exempt from the levy of execution, any law of this state notwithstanding.” 58 Ohio L. 113.

On the other hand it is claimed:

1. That this statute is in contravention of the constitution of the United States, because it impairs the obligation of tho contract embodied in the notes and mortgages on which tho judgment and-order of sale were founded.

2. But if not void, it only confers a personal right or privilege in favor of a judgment debtor who belongs to the Ohio militia in the United States service, which can be and has been waived.

3. That tho statute is not self-operating, but its immunity must be sought and obtained by the interposition of the soldier within some reasonable time. And it is claimed, that the present demand, now first interposed mure than twelve years after tbe sale and confirmation, is stale, and barred by the statute of limitations. This statute does not operate to stay judicial proceedings in an action against one in the military service. Jt simply exempts his property from sale while in such service, and for two months thereafter. It does not apply to all judgment debtors, but only to persons belonging to the Ohio militia mustered into the actual service of the United States under any requisition of the president.

Whether the legislature had the power to pass this act has now ceased to be a question of public concern. While it was so, the general current of authority was, that an act like this, simply staying the power of sale for a definite period during a period of public war and great financial depression, in favor of soldiers in the active service, while the creditor was left free to prosecute his action, and to secure by judgment and. levy all possible security that an order of court or a levy could afford, did not impair the obligation of the contract.

In the view we take of this case, however, it becomes unnecessary to consider this question.

This act is unlike those statutes which, in terms, exempts from execution and sale specific property of the judgment debtor. There, the process in the officer’s hands definitely fixes the person whose property is to be exempted, and the law enumerates the specific property not subject to levy and sale. It does not depend' on the selection of property by the debtor, and ajoplies to all debtors alike. The officer takes such property at his peril, and if he takes property so exempted, he is a trespasser, and liis- levy and sale are void. Frost v. Shaw, 3 Ohio St. 270.

The act is for the benefit of a certain described class of persons. Whether a person belongs to that class is a question of fact, outside of the record or order of sale, of which neither the court nor the officer can take notice. The burden of bringing this fact before the court, so as to entitle the party to his exemption, is upon the person claiming to belong to that class. As in the case of exemptions dependent upon selection, the claim must be asserted at the proper time, and before the proper court or officer. The officer has no power to disobey the command of the process in his hands upon an order of sale legally made. Again, like all other exemptions, whether of enumerated articles, or dependent upon selection, the right may be waived. Frost v. Shaw, 3 Ohio St. 270.

This being so, the sale and confirmation without objection is not void, but, at most, voidable only. The remedy for the debtor is to assert his privilege either by resisting the confirmation before the court, or, if he has had no opportunity to do this, by a direct proceeding in the foreclosure suit, to set aside the sale and confirmation. Being voidable only, the title cannot be attacked collaterally.

Wliat are the facts of this case ?

The notes and mortgage were given long prior to this statute. The action to foreclose and for judgment, and the judgment and order of sale, were made in due course of law. Subsequently the debtor, by being mustered into the United States service, became entitled to have the order of sale stayed while he was in such service, and for two months thereafter. Tie made an ineffectual attempt to do this by a petition for a restraining order, but this failed, either because he did not give the proper bond, or by the act of his attorney in dismissing the action. The fact that his attorney did this without his knowledge or consent cannot affect the action of the court, in "confirming a sale against which there was no objection interposed, after the dismissal of the action to restrain.

He made no further objection, by motion or otherwise, to the confirmation of the sale, or to the execution of the deed to the purchaser. He surrendered possession of the premises, and without objection, to the court or the purchaser, allowed the latter to take possession, and by sales and conveyances transmit title and possession to Monroe, and through him by sundry mesne conveyances to the present owners, none of whom had notice, so far as is alleged, of the plaintiff’s claim. It is not alleged that they are not Iona fide purchasers for a valuable consideration, and we must assume that they were.

The sale was confirmed in March, 1862, and this action was brought in November, 1874.

For more than twelve years he slept upon his rights, if he had any after failing to object to the confirmation, and has allowed the property to be several times sold, and to pass into the hands of innocent holders.

His proper remedy in the first instance was, to object to the sale and confirmation. Aside from the provisions of the statute of limitations, the rule in chancery was, that the proper remedy for a party whose property was sold by a master without authority, was by an application in the foreclosure suit to have the sale set aside. But such an objection would not be listened to after a great lapse of time. Nichols v. Nichols, 8 Paige, 349.

Neither will a sale be set aside and a re-sale directed, to protect persons competent to protect their own rights, from their own negligence. American Ins. Co. v. Oakley, 9 Paige, 259.

The purchaser at such a sale has the right to be protected in his purchase, and after the sale has been confirmed, deed made and possession taken thereunder, his title is perfect until the proceedings in the foreclosure suit are opened up in a direct proceeding for that purpose. And this rule applies as well to a mortgagee who is a purchaser as to a stranger. Brown v. Frost, 10 Paige, 204.

This was á case of a purchase by a mortgagee, at his own sale in foreclosure, who received a deed from the master. On the same day, but after actual delivery of the deed, the mortgagor tendered the whole amount due' and demanded a redemption, which being refused, he filed an original bill in chancery to be allowed to redeem.

Chancellor Walworth, in deciding against the complainant, says, the decree in the original suit in foreclosure is conclusive upon the rights of the parties, and cannot be opened up or disturbed in a collateral way; and he expressed the very decided opinion “ that an original bill in chancery cannot be sustained by a party to a foreclosure suit, to impeach or set aside the proceedings upon a master’s sale under the decree, when there was nothing which could have prevented an application to the court, in that svM, for a re-sale, by those who are interested in the premisesand he cites numerous authorities to the effect that the proper remedy is by a summary application, in the suit in which the foreclosure' decree was made, for relief.

The present action is in the nature of an original bill in chancery, filed in the superior cowrt, by the mortgagor, for a redemption of premises sold and conveyed under a decree of foreclosure, made in the court of common pleas of the same county, over twelve years before the commencement of this action. It is not an appeal to the same court in the same suit. This cannot be done unless the sale, confirmation and convey anees are nullities. Clearly they are not, but at most are voidable only.

No reason is shown why plaintiff did not appear and resist confirmation of the sale. If, after neglecting to do this, he was entitled to relief, he should state facts warranting the court in granting it. No such facts are stated even as against the heirs of Iddings, after the lapse of so many years, much less as against innocent bona fide purchasers.

Deirmrrer to the petition sustaineda/nd petition dismissed.


author: Boynton, C. J.

text:
    Emerine v. O’Brien.
    1. The surrender of a promissory note to the maker, upon receiving in payment thereof a new note, the signatures to which were supposed to be genuine by the payee, but one or more of which were forged, does not operate as payment of the original note, nor extinguish the right of action thereon.
    2. E., the owner of a promissory note executed by M., as principal maker, and 0., as surety, agreed with M. that he would accept his note with E. and V. as sureties thereon, in payment of the note of M. and O. Whereupon, M. delivered to E. a promissory note, executed by himself, and purporting to be executed by P. and V. as sureties, but whose signatures M. had forged to the note. E. received the forged note believing it to be genuine, and delivered to O. the original note, which was destroyed.

      Held, that said new note did not operate as payment of the original note, nor relieve O. from liability thereon.

      Error to the District Court of Seneca County.
    The original action was brought by the plaintiff in error, Andrew Emerine, against Thomas O’Brien, to recover the amount alleged to be due on a promissory note, executed by the defendant as surety of John T. Mitten'. The petition alleged, in substance, “that on the 15th day of March, 1872, the plaintiff loaned to one John T. Mitten, $600 ; that Mitten then gave the plaintiff his promissory note for that amount, with the defendant, Thomas O’Brien, as surety thereon.

      “ That on the 16th day of May, 1872, about a month after the note became due, the plaintiff and O’Brien called on Mitten for payment; that Mitten then paid $100 on the note and gave a renewal note for $509, the balance then due upon the original note, and that Mitten then agreed to procure one ITenry Fleck and one Frank Yogle, to sign the renewal note as his sureties ; that Mitten signed the renewal note and wrote upon it the names of Fleck and Yogle as his sureties, without their knowledge or consent; that this signing was done not in the presence of the plaintiff, and that the plaintiff had no knowledge or suspicion that the names of Fleck and Yogle were forged upon the note, until after the maturity thereof.”
    That the original note was joint and several.
    Upon this state of facts, the plaintiff asked judgment against O’Brien for the*balance remaining unpaid on the original note, after deducting all actual payments .made upon it.
    The answer admits these facts, except that the names of Fleck and Yogle were forged, and as a defense sets up that the transaction in which the renewal note was given did not occur in the presence of O’Brien, and that he knew nothing of it until some time after the renewal .note had been given.
    This alleged defense is denied in the reply.
    On the trial Emerine testified as follows:

      “ On the 16th day of May, 1872, I went with the defendant, at his request, from Fcstoria, in Seneca county, where we resided, to Upper Sandusky, in Wyandot county, Ohio, to collect the money on a note I then held against John T. Mitten and the defendant for $600. I called on Mitten for the money due on the note and he proposed to pay me $100 on it, and wanted thirty days’ time on the remaining $509 then due on the note, and offered me Henry Eleclc and Frank Vogle, merchant tailors, as sureties with him, on his note for $509, at thirty days. He paid me $100, and I renewed the balance with said Fleck-and Vogle as his sureties. I did not know nor suspect that the names of Fleck and Vogle were forged. The original note of Mitten and the defendant was dated March 15th, 1872, and was written £ we or either of us promise to pay, &c.’
    “I found out that the names of Fleck and Vogle were forged some time in December, 1872 — after Mitten had run away and left the country.
    “The defendant and. Mitten came to my office together, when I loaned him the money, on the 15th of March, 1872; O’Brien spoke for Mitten and wanted $600 for six months ; I loaned Mitten $600, and he and O’Brien gave their note for it, payable about the 1st of April, 1872 ; O’Brien was surety on this note. When I took the new note for $509 at Upper San-dusky, I went there at O’Brien’s request; he said Mitten was not worth anything. When I took the new note O’Brien and-Mitten and myself were present; there was nothing done till O’Brien came in; this occurred in Mitten’s store room. Mitten went out of the store to get the signatures of Fleck and Vogle on the note, and in a few minutes returned with the note with the names of Fleck and Vogle on it. I had no suspicion of any forgery, and I supposed I had good security for the balance due, so I delivered up the old note to the defendant, O’Brien, and upon his demanding it.”
    Proof was given that the names of Fleck and Vogle were forged, and written upon the note by Mitten.
    The defendant testified as follows:
    “ I told Emerine he should collect the money from Mitten, as I was afraid he was not worth anything; and I hired a team and took Emerine up to Upper Sandusky for that purpose, when he made this new arrangement with Mitten. 1 was not present when Emerine and Mitten made the new arrangement. Emerine told me to stay on Main street and he would go and settle with Mitten, so that Mitten and I wouldn’t ■ quarrel. I stayed out about half an hour, when Emerine came and called me into the store and said to me, ‘ I have settled this matter with Mitten, and you have nothing more to do with it.’ I said, ' Then am I free ?’ and he told me ‘Yes.’ I said, ‘Then give me up my note,’ and he gave me my note and I took it and tore it up into small ‘ bits’ there in the presence of Emerine and Mitten.
    “ I did not see the new note and knew nothing about how he had settled, until he told me on the way coming home.
    “ I intended to get an attachment for Mitten if the matter was not settled that day.
    “I asked Emerine and urged him to go and collect the money from Mitten. I did not see Mitten pay any money; Emerine called me in the store. I did not see Mitten go out to get the note signed. Emerine handed my note to me when I demanded it, and Mitten was there. Emerine said to me, in Mitten’s store, that he had arranged the matter with Mitten and I had nothing to do with it any more, and that I should not quarrel about it.”
    After the close of the argument, the plaintiff requested the court to instruct the jury :
    “ That if the plaintiff received of Mitten $100 in money, and his note of $509, with Henry Fleck and Frank Yogle as sureties thereon, and for the money thus paid and the note signed by Mitten, Fleck and Yogle, he surrendered and gave up to Mitten and to the defendant the original note signed by Mitten and the defendant, and if the signatures of Fleck and Yogle to the note for $509 were forged upon said note, then the plaintiff should recover of the defendant the amount remaining unpaid on the original note, after deducting from the full amount thereof any and all payments made on it in money.”
    Which instruction the court refused to- give, but instructed the jury:
    1 “ That if the defendant took the plaintiff to Upper Sandusky in order to have this note, on which this action is brought, paid, or in some way arranged, so that he — the defendant— should be no longer liable on it; and if, after the parties got there, the defendant took no part in getting this new • note spoken of in the testimony, but the taking of it was the work of the plaintiff only, and the defendant had no knowledge as to whether the names of the sureties to it were genuine or not; and if, after this new note was taken, the note sued on in this case was delivered up to the defendant, as canceled, and he then acted on the faith, or fact, that he was no longer liable on it, then the plaintiff cannot recover, and the defendant is entitled to your verdict, although the names of the sureties to this new note are forged.

      “ But if the defendant was present and took part in making the arrangement for the renewal of the note, and knew what was done, and how it was done, then, if the names of the sureties on the renewal note are not genuine, the plaintiff is entitled to recover.” To which charge and instructions so given, the plaintiff then excepted.
    The jury found for the defendant, and a judgment was rendered for him, which judgment, on error, was affirmed by the district court.

      John McGamley, for plaintiff in error:
    Forgery is not a payment. Ritter v. Singmaster, 73 Pa. St. 400; Goodrick v. Tracy, 43 Vt. 314; Scholefield v. Trumpler, 4 De Gex & J. 429.

      Noble <& Lutes, Nelson B. Lutes, and Nettie O. Lutes, for defendant in error:
    As to whom the loss must fall upon, where neglect or fault can be traced to either party, see 3 Ohio St. 302; 5 Ohio, 222; 13 Wend. 572.
    For the rule, where one of two innocent parties must suffer, see Gloucester Bank v. Salem Bank, 17 Mass. 41.

      By the plaintiff taking the new note and surrendering the old note to defendant, the defendant was discharged from liability on the old note. Goodwin v. The State, 18 Ohio, 6; Baker v. Briggs, 8 Pick. 121; 7 Watts (Penn.) 523; 54 Geo. 277; 21 Pick. 195; 1 Bush, 412; Bank v. Haskell, 51 N. H. 116; High v. Cox, 55 Geo. 662; Waters v. Creagh, 4 Stew. &
      P. (Ala.) 410; Thornburg v. Marden, 33 Iowa, 380 ; Carpenter v. King, 9 Met. (Mass.) 511; Teague v. Russell, 2 Stew. (Ala.) 420; Roberts v. Miles, 12 Mich. 297; White v. Walker, 31 Ill. 422.
   Boynton, C. J.

The court of common pleas gave entirely too much importance to the facts which were held sufficient to exonerate the defendant from liability on the note that he executed as surety for Mitten. The fact that the new note was a forgery left the liability of the defendant on the original note, to the extent that the new note was received in payment, entirely unaffected, unless there were circumstances attending the taking of the note, that relieved him from such liability. No principle is better settled or rests upon more solid reason, than that a forged note delivered in payment does not operate as ^ satisfaction or extinguishment of an antecedent debt or demand. Goodrick v. Tracy, 43 Vt. 314; Ritter v. Singmaster, 73 Pa. St. 400 ; Eagle Bank of New Haven v. Smith, 5 Conn. 71; Markle v. Hatfield, 2 Johns. 455 ; Cook v. Barnes, 3 N. Y. 520; Scholefield v. Templer, 4 De Gex & J. 429 ; Stedman v. Gooch, 1 Esp. 3 ; 2 Par. on Notes and Bills, 205 ; 2 Daniel on Neg. Inst. § 1274. The circumstances which the court held sufficient to relieve the defendant from the obligation to pay the amount remaining due on the original note, the new note being a forgery, were, that he took the plaintiff to Mitten’s residence in order to have the note paid, or in some way arranged so that'he should-be relieved from liability thereon, took no part in obtaining the forged note, and had no knowledge whether the name of the sureties thereon were genuine or not, received his own note as canceled, and thenceforward acted on the faith that he was no longer liable thereon. The fact that he took the. plaintiff to the residence of the principal maker in order to have the note paid, or some arrangement made by which he was to be relieved from further liability for the debt, is of no importance whatever, unless the arrangement made, or the new relation created, was a valid substitute for the original debt. Nor is it of the slightest importance that the defendant took no part in obtaining the new note. It is sufficient to preserve his liability, that the new note was void. It is not pretended that the plaintiff agreed to take the genuine note of Mitten, with the forged signatures of Eleck and Yogle as sureties, in payment of the note of Mitten and the defendant. ITe supposed and had the right to suppose that their signatures were genuine. There was an implied representation that the note was genuine in its delivery. In Goodrick v. Tracy, supra, the principal maker of the note sued on gave a new note with a forged signature of a surety thereon, and the names of the principal maker aud surety on the original note were torn therefrom. The surety in that case had no part in obtaining the new note, yet in the disposition of the case that fact was not even noticed. The new note being void, his liability on the original note was held to be in nowise affected.

Nor does the circumstance that the note in the present case was delivered up as canceled affect the defendant’s liability thereon. This was done in the belief, which the facts fully justified, that the new note was genuine. That it was not genuine was not the fault of the plaintiff. As was said by Lord Kenyon, in Puckford v. Maxwell (6 Term, 52), •“ In cases of this kind, if the bill which is given in payment does not turn out to be productive, it is not what it purports to be and which the party receiving it expects it to be, and therefore he may treat it as a nullity and act as if no such bill' had been given at all.” Payment by a forged note or check is not different in its effect upon the liability of the debtor, than payment in counterfeit money. The pretended payment in either case is void, and leaves the original liability subsisting, although the written evidence of it may have been destroyed. Hughes v. Wheeler, 8 Cow. 77; Arnold, v. Crane, 8 Johns. 79 ; Pierce v. Crafts, 12 Johns. 90; Young v. Adams, 6 Mass. 182; Gerwig v. Sitterly, 56 N. Y. 214; Alcott v. Rathbone, 5 Wend. 490.

The remaining circumstance to which the court seems to have attached some importance, is, that the defendant may have acted on the faith that he was no longer liable on the note. It is, no doubt, a well-settled rule of law, that where the holder of the note assures the surety that he will look to the principal maker lor payment, knowing the surety is about to obtain indemnity against his liability, and who is thereby induced to relax or forego all efforts to obtain indemnity, which he otherwise would have obtained, the holder of the note would be estopped from insisting that the surety continued bound upon the note. This is the result of the cases cited in argument by counsel for the defendant, and they rest wholly upon the doctrine of estoppel.

It is clear to us, that the present case does not fall within the principle of these cases. The mere fact that the defendant, supposed the note signed by him had been paid by the new note, and that he acted on the belief that he was discharged, does not relieve him from liability. It was evidently the understanding of both parties that the new note was genuine, and operated as payment of the first one. But this understanding was founded on a mistake of facts, for which mistake the plaintiff was no more responsible than the defendant.

It was no more the duty of the plaintiff to ascertain that the signatures of Fleck and Yogle were genuine, than of the defendant. Being a maker of the original note, and equally as liable thereon as Mitten, it was his duty to see ■that it was paid. Nothing short of payment, or a release by a ■valid contract, or by circumstances creating an estoppel, would cancel his obligation to pay, or discharge him from liability. The facts which, if found, the jury were told entitled the defendant to a verdict, considered either separately or as a whole, were entirely insufficient to defeat the plaintiff’s right •to recover, on his establishing the fact that the note received an payment was a forgery.

Judgment reversed, cmd cause rema/nded.


author: McIlvaine, J.

text:
    Michael Hayes et al. v. William G. Fish.
    A. agreed, in writing, to sell and convey to B., C., D. and E. four undivided fifths of certain lands, in consideration whereof the purchasers .agreed to pay $10,000 in installments, payable at stated times, the same to he paid as afterward specified in the writing. It was afterward, in the same written instrument, agreed that the vendor and purchasers should enter into a partnership for quarrying stone on the same lands, “ for the purpose of realizing the money necessary to make said payment of §10,000,” and that after defraying the expenses of the business, “the balance of all profits are to beapplied in payment of the $10,000, purchase price of said lands, as fast as the said profits are from time to time ascertained.” And that “afterthe said sum of $10,000 is paid as herein agreed, and from that time forward, all are to be equal partners, and to share equally the profits of the said business, and have an equal interest in the lands and all property of the firm.” Reid,

    1. That the net profits of the partnership, to the extent of fhe purchase money, to wit, $10,000, including the part which would otherwise belong to the vendor, were appropriated to the use of the purchasers for the payment of the purchase-money, and for the reimbursement of any part of the purchase-money paid with other meahs.
    2. Upon the failure qf profits to the extent, in whole or in part, of the purchase-price, no part of the purchase-money was to be remitted by the vendor on account of such deficiency of profits, unless such deficiency was caused by the default of the vendor.
    3. After the dissolution of such firm, a decree for the specific performance of the contract, at the suit of the vendor against the purchasers, ought to be postponed to the settlement of the partnership accounts.
    Error to tbe District Court of Lucas County.
    The original action was brought by William G. Eish, as vendor, against Michael Hayes, John Z. Smith, James Hayes and J. H. Steadman, as vendees, in the court of common pleas of Lucas county, on March 21, 1874, to compel specific performance of a contract for the purchase of certain real estate. The contract was in writing, as follows:
    “ This memorandum, made and entered into this 11th day of April, a. d. 1873, by and between William G. Fish and Sallie Fish (husband and wife) of the first part, and Michael Hayes, John Z. Smith, James Hayes and S. H. Steedman of the second part, witnesseth:

      “ That said first parties this day have and hereby do contract and agree to sell to said second parties the undivided four-fifths part of sixty acres of land off the south side of the west half of the south-east quarter of section No. 29 in township number two (2) of the United States Eeserve in Lucas county, Ohio. Also four-fifths of the north half, of the south-east quarter of the south-west quarter of the same section. In consideration whereof the said second parties covenant and agree to pay to said first parties the sum of ten thousand dollars, as follows: First, eight hundred dollars ($800) down-at the ensealing of these presents. Second, ten hundred dollars ($1,000) within thirty days from this date. Third, to pay off from time to time as the same fall due and payable such debts of the first party as are a lien on the property above described, and such other debts of the first party as he may direct and may be agreed upon. The amount of all liens and debts so j>aid to be applied as payments upon said sum of ten thousand dollars as fast as paid, and after such liens and debts are paid, only the balance remaining, enough in the aggregate to make the said sum of ten thousand dollars is to be paid to said Fish (first party), and the same is to be paid as hereinafter specified. On completion of such payment of ten thousand dollars the first parties agree to convey to the said second parties as tenants in common the four-fifths of said lands above described, by a good and sufficient warranty deed in fee simple and free from incumbrances, said deed to have the legal effect of making such conveyance.
    “ Second. And the parties named in this instrument (saving and excepting the said Sallie Fish, wife of said "William G-. Fish), for the purpose of realizing the, money necessary to make said payment of ten thousand dollars, this day have and hereby do enter into a copartnership under the name, style and firm of Wm. G-. Fish & Company.. The place of business of said company to be on the land above described. Its business the quarrying and sale of stone, also the making, burning and marketing of lime. Its 'duration until dissolved by a majority of the members. The names of the partners áre William G. Fish, Michael Hayes, John Z. Smith, James Iiayes and S. H. S teed-man. Each partner is to have an equal interest and to share equally in the profits and losses. Each partner to give his individual labor, time, and attention to the business, unless by consent of parties a substitute is agreed upon from time to dime, by which the personal services of a partner are dispensed with. From the amount of the net sales and profits there shall be deducted first and paid the necessary expenses incurred in carrying on the business. After such expenses 'are defrayed the balance of all profits are to be applied in payment of ten thousand dollars purchase-price of said lands, as fast as the said profits are from time to time ascertained. In making such payments the company may first apply money to pay the liens on said lands and -the debts of said Fish, and may, if they so prefer, make their payments to the creditors direct. After the said sum of ten thousand dollars is paid as herein agreed, and from that time forward, all are to be equal partners and to share equally the profits of the said business and to have equal interests in the lands and all property of the firm.” [Signed.]
    The plaintiff, in his petition, having alleged performance and readiness to perform said contract on his part, and a failure to perform on behalf of defendants, prayed for an account of the amount due from defendants, and for the sale of said lands to satisfy the same, &c.
    The defendants, by their answer, averred that they had paid to plaintiff the sum of $800 and $1,000, as stipulated, and had discharged a portion of the liens on said property, and had arranged with the creditors for an extension of time for the balance; and had also placed in the hands of plaintiff the further sum of $1,186.80, which he had promised to apply on balance of said liens, but had failed to do, and denied that they had failed to perform said contract on their part.
    And they further answered, in substance, that the formation of the partnership as therein set forth was the principal inducement to said contract, and the object in making said purchase was solely for the purposes of the partnership. That the amount ($10,000) agreed to be paid for the four-fifths of the land was, in fact, the estimated value of the whole. That all the members of the firm were to contribute equally to the payment thereof. That the net profits of said business were the means for the payment of the whole of the price, and for the reimbursement of individual means used, in such payment. That the plaintiff was made the financial agent of the company, and during his management he appropriated to himself and embezzled large sums of money. And, instead of advancing i tbe interests of the company, he had destroyed its credit, diminished its profits, &c. Wherefore, they prayed for a dissolution of the firm and a settlement of all its affairs, and that the whole of said real estate, as a partnership asset, might be subjected to the payment of its debts, including any unpaid portion of the purchase price, &c. Upon the new matter contained in the answer, issue was joined by reply.
    A decree having been rendered in the court of common pleas in favor of the plaintiff, the cause was taken by appeal to the district court.
    In the district court the cause was submitted to and tried by a referee, who reported in favor of the plaintiff, finding that there was due from defendants, of said purchase-money, $6,140.95, which should have been paid upon said liens, subject to a deduction of $798.26, in the hands of the plaintiff.
    Said referee also reported that “ The partnership mentioned in the pleadings should be declared dissolved,” and that, £<In determining the amount due from the defendants as hereinbefore stated, the undersigned holds and decides, as the true construction of the said contract, that the amount of the liens thereby stipulated to be paid to make up, with the cash payments to the plaintiff, William J. Fish, the sum of $10,000, was payable by the defendants alone, and not by all the partners jointly.” To which decision the defendants excepted.
    The report of the referee was confirmed by the court, and the cause was remanded to the court of common pleas, with instructions to order the sale of the four-fifths of said land, to satisfy the amount so found due from the defendants, the same remaining unpaid, upon satisfactory proof that the plaintiff had applied the sum so found in his hands, to wit, $798.26, to the- credit of defendants.
    The partnership was dissolved by the decree, but the partnership accounts were not stated either in the report of the referee or the decree.
    The cause being again in the court of common pleas, on mandate from the district court, on motion of the plaintiff for an order of sale of the four-fifths of said premises, and upon the following testimony alone, the court granted the motion and ordered the sale, to wit:
    “ And thereupon came the said plaintiff and offered in evidence the appearance docket of this court, volume 21, at page 297, upon which there appears an entry of which the following is a true copy.
    “ June 3. — This day there was shown me a paper writing of which the following is a true copy, viz.:
    “ William E. Fish, eb al.

      vs.

    Michael Hayes, eb al.

    “Received of William G-. Fish seven hundred and ninety-eight and twenty-six one-hundredths dollars in full satisfaction of the amount found due from said Fish by the court in said cause, and we hereby release the said defendants from all obligation to pay the same.
    “ Jefe. Miller,
    John Miller.”
    . To the introduction of this testimony the defendants excepted.
    On proceedings in error, the district court affirmed the order of sale, as decreed by the court of common pleas. .
    This proceeding is now prosecuted in this. court to reverse the order of sale made by the court of common pleas, the judgment of the district court affirming the same, and also the decree of the district court, confirming the report of the referee.

      G. H. Scribner and II. H. Dodge, for plaintiffs in error.

      A. H. Me Vey, for defendants in error.
   McIlvaine, J.

The testimony offered by the plaintiff below, in the court of common pleas, under the mandate from the district court, in support of liis motion for an order of sale, was incompetent.

The principal question in the case, however, arises upon the decree of the district court, confirming the report of the referee, and relates to the construction of the agreement between the parties. Although the intent of the parties appears, at first glance upon the face of the agreement, to be somewhat involved in uncertainty, yet, upon careful consideration of all the stipulations contained in it, we think it quite clear that the construction of the referee was wrong.

While it may be said that this written instrument embodies two contracts, one for the sale of land, the other for the formation of a partnership, it is nevertheless quite apparent that each was an inducement for the other, and neither, as a separate contract, would have been entered into without the other; so that the meaning of the terms and stipulations of each must be construed in the light and by the aid of the other.

It is true that plaintiffs in error agreed to pay defendant in error (and his wife) $10,000, for four-fifths of the lands described. To the defendant in error, directly, $1,800, at times specified; then certain debts of the defendant in error, liens on the land, or other debts to be designated and agreed upon; and balance, if any, to the defendant in error; but it was expressly stipulated that the same should he paid as iher&mafiter specified. The subsequent specifications were that the vendor and the vendees should enter into a partnership for quarrying stone and marketing lime upon the premises, for the purpose of realizing the money necessary to make payment of the $10,000 purchase-money, and that the net profits of the partnership business should be applied in the payment of $10,000, purchase price of said lands. The interest of each and every partner in the net profits was to be so applied. This included the interest of the vendor as a partner of the firm. The inducement to the purchase, offered by the vendor to the purchasers, was, that his interest in the profits of the partnership should be dedicated as a means in their hands for the payment of the whole of the purchase-money; and then it was further stipulated that, “ after the said sum of ten thousand dollars is paid as herein agreed, and from that time forward, all are to be equal partners, and to share equally the profits of the said business, and to have equal interests in the lands and all the property of the firm.” This clause clearly shows that the interest of the vendor in the profits of the business was to be appropriated to the use and benefit of the purchasers, until such profits should equal the purchase price of the land.

"We do not think that these subsequent stipulations released the purchasers from making payment at the times specified in the agreement, in case the net profits of the business did not accrue within the times named; but if other -means should be used in making payments at the time specified, the entire net profits of the concern were pledged to their re-imbursement. -Nor do we think that it was the intent of the parties that any portion of the purchase-money should be remitted in case no profits were realized by the firm, or if the profits should prove insufficient to folly discharge the debt.

' Upon the true construction of this contract, we think that the entire net profits of the business, to the extent of $10,000. if so much were realized, were to be surrendered to the use of the purchasers; but for any deficiency in that amount the vendor was not chargeable, unless such deficiency was caused by his default.

From these views, it follows, that upon the dissolution of the partnership, an account and settlement of its affairs should have been taken. And it also follows that the decree of the district court must be reversed for error in construing said-contract.

. Judgment of common pleas, and also the judgment of the district court affirming the same, and the judgment of the district court on appeal, are reversed, and cause remanded to the district court for further proceedings.