author: Scott, J.

text:
    Hopple v. Hipple.
    The trustees of Brown township, in Delaware county, pursuant to a vote of the electors thereof, in August, 1851, subscribed $17,000 to the capital stock of the Springfield, Mount Vernon and Pittsburg Railroad Company, and in April, 1853, issued and delivered to the railroad company township bonds in payment therefor. Prior to the township vote on the question, B., and other parties, with a view to secure a vote in favor of subscription, proposed to the trustees and the electors of the township, that they would indemnify the township against all loss arising from such subscription, by taking the stock to be subscribed for, and paying either to the trustees, or the holders of their bonds, the interest and principal thereof as it should become due. Subsequently, but before the subscription was made by the trustees, B., in pursuance of his proposition to indemnify, executed and delivered to the trustees his bond, referring in its recitals to his agreement to indemnify the township, and binding himself to pay to the trustees, or the holders of their bonds, the interest and principal to become due on $500 of the township bonds, providing that a corresponding amount of the stock subscription should be transferred to him by the trustees; and to secure his compliance with the terms of the bond he executed and delivered to the trustees a mortgage upon certain real estate, which he afterward sold and conveyed to H. H. A portion of the township bonds were negotiated and transferred to It. H. before maturity by the railroad company, with its guaranty of payment. Interest being in arrears on the bonds, R. H., by a proceeding in mandamus, sought to compel the trustees of the township to levy a tax for the payment thereof. In that proceeding the Supreme Court of the State held that the subscription and bonds of the township were wholly unauthorized by law, and were utterly void, and created no obligation in the hands of the railroad company, or of the holder. Upon the maturity of the township bonds, H. H., to whom the mortgaged premises had been conveyed by B., filed a petition, seeking to remove the cloud upon his title arising from B.’s mortgage. The holders of the township bonds were made defendants, and R. I-I., by answer and cross-petition, sought to subject the mortgaged premises to the satisfaction of the township bonds. Upon demurrer to this cross-petition — Held: 1. That the contract of B. was made only with Brown township, and had for its sole object the indemnity of the township against such liabilities as might arise from its subscription to the stock of the railroad company. 2. That the railroad company, having accepted the subscription and bonds of the township, with knowledge of its contract with B., the mortgagor, it can not be allowed to claim that it dealt with the township as the agent of B. 3. That no liability arose against the township by reason of its unauthorized subscription, or from its bonds, which were issued without authority; there has been no breach of the condition of the bond and mortgage given for its indemnity. 4. In the absence of any privity of contract between the mortgagor and the holders of the township bonds, the mortgagor is not estopped to deny the validity of the bonds.
    Error to the District Court of Delaware county.
    On the 21st day of March, in the year 1850, the general assembly of the State of Ohio passed an act entitled “ an act to incorporate the Springfield and Mansfield Railroad Company ” (48 Local Laws, 294).
    On the 25th day of March, in the year 1851, the general assembly of the State of Ohio passed another act entitled “an act to authorize special elections to decide the question of subscription to the Springfield and Mansfield Railroad, by counties and townships” (49 Ohio L. 548).
    Under the provisions of the last-named act, on or about the 17th day of June, 1851, the electors of Delaware county, State of Ohio, at a special election then held in said county, the question of subscription to the capital stock of said railroad being submitted to them, voted a subscription of $50,000 by said county, and on the 4th day of August, a. d. 1851, the commissioners of said county did subscribe for the said sum of $50,000 to the capital stock of said Springfield and Mansfield Railroad Company, and issued the bonds of said county in payment thereof.
    On the 17th day of June, a. d. 1851, in pursuance of the act above recited (49 Ohio L. 548) an election was held by the qualified electors of Brown township, in said county of Delaware, State of Ohio, to decide whether the trustees of said township should be authorized to subscribe for said township the sum of $17,000 to the capital stock of said Springfield and Mansfield Railroad Company. At that election, a majority of the qualified electors of said Brown township voted against making the subscription.
    On or about the 24th day of Juty a. d. 1851, George Baker (at that time the owner of the real estate in the petition of defendant in error described), and some thirty other persons, all of whom are made parties herein, and who were owners of real estate situated in said township of Brown, county of Delaware, signed and delivered to the trustees of said township a proposition in writing as follows:
    “ "Whereas, it is proposed by a vote of the qualified electors of the township of Brown, in the county of Delaware, to authorize the trustees of said township to subscribe $ — — to the capital stock of the Springfield and Mansfield Railroad Company, and, 'whereas, serious objections are entertained by some of the citizens of said township to the increase, by this means, of the burden of taxation already sufficiently onerous:”
    “ Now, therefore, we the undersigned, do hereby severally propose to the trustees of said township, and to the electors, that we will secure the payment of the principal and interest as each becomes due, of the several portions of the said amount so to be subscribed by said trustees, set opposite to the names of each of us on the paper, and severally to give security for the performance of this undertaking on our part, to the satisfaction of said trustees. Provided: that the said railroad be permanently located through the said township, so as to pass as near to the town of Eden on the south, as the section line running through the center of said township east and west, or within a quarter of a mile of said town on the north side thereof, and not otherwise.”
    And, provided further, that said trustees shall agree and bind themselves to the subscribers severally, that all the dividends paid on said stock, shall be applied to the payment, first, of interest, and the remainder in satisfaction of so much' of the principal of the debt so to be contracted for said stock, and that they will assign and transfer said stock to each of us on request, as the same may be in whole or in part fully paid by us or either of us, including the amount paid by dividends as aforesaid. And, provided also, that the principal shall not become due, and payable, within a shorter time after said trustees shall have subscribed said stock, than twenty years. Provided, the township bonds be not issued until the road is in process o? construction through Brown township.”
    Subsequently to the delivery of this proposition on the 30th day of August, a. d. 1851, in accordance with the provisions of the statutes heretofore referred to, and of the proposition as above recited, an election was held by the qualified electors of said Brown township, Delaware county, and by a majority of the electors voting at that election it was decided to make a subscription to the capital stock of the Springfield and Mansfield Railroad Company. In accordance with the decision of a majority of said electors of Brown township, the trustees of said township, did afterward, on the-day of-, subscribe for three hundred and forty shares of the capital stock of said railroad company, of the value of fifty dollars per share, and all of the value of seventeen thousand dollars.
    After the passage of the acts of the general assembly above referred to, and after the proposition above set forth, and the election by the electors of Brown township, but prior to the subscription by the trustees of said Brown township, in pursuance of the law in that behalf provided, the name and title of the Springfield and Mansfield Railroad Companjr was changed to that of the Springfield, Mount Vernon, and Pittsburg Railroad Company, by virtue of a decree rendered in the Court of Common Pleas of Clai’k county, in the State of Ohio, oxx the 3d day of August, a. d. 1852.
    It is admitted by the pleadings ixi the action (the questions being preseixted on demurrer), that all of the terms and conditions of the proposition above x'ecited were kept, and performed by the trustees of said township, and that the railroad was located as thereixi required.
    Oxi the 7th day of March, a. d. 1853, George Baker (the owner of the property in the petition of Hiram Hippie, described), and the other parties to the foregoing proposition severally executed and delivered to the trustees of said Brown township, their several bonds under seal — in the words and figures as follows:
    “Know all men by these presents, that I (naming each obligor), am held and firmly bound unto the trustees of Brown township, Delaware county, Ohio, in the penal sum •of (naming the amount to be paid by each obligor), to the payment of which I hereby bind myself, scaled with my seal, and dated this 7th day of March, a. d. 1853.
    “ The condition of the above obligation is such that, whereas, heretofore, to-wit, on the 31st day of July, A. d. . 1851, an arrangement was made by and between the said trustees, of the one part, and the said (naming the obligor), and others, of the other part, in relation to the contemplated stock of said township in the Springfield and Mansfield Railroad Company (since changed to the name of the Springfield, Mount Yernon and Pittsburg Railroad Company), which arrangement was entered on the record of said trustees, to which reference is hereby made for greater certainty ; and whereas, by a vote of the legal voters of said township, had in pursuance of law, the said trustees were authorized to subscribe $17,000 of the capital stock of said company, in accordance with said arrangement; and whereas, the said (naming the obligor), has assumed the responsibility of saving the said trustees harmless from all demands, both for principal and interest on (naming the amount), of the bonds of said township, to be issued for said stock, on the terms and conditions in said arrangement stated.
    “ Now, if said (naming the obligor), shall pay, or cause to be paid, either to the holder or holders of said bonds, or to said trustees, the interest at the rate of seven per cent, per annum, on (naming the amount), of said bonds, as it shall become due thereon, and so much of the principal thereof (before it becomes due) as shall not be paid by div- • idends in a corresponding amount of said stock, then the amount of said stock, or any number of shares thus paid -shall be made over to the said (obligor of the bond), and the above obligations shall be void, otherwise of full force and intent in law.
    “ Given under my hand and seal, this 7th day of March, 1853.”
    (Signed.) (Name of Obligor.) [seal.]
    On the same day, to-wit, March 7, A. d. 1853, George Baker (the owner of the property in the petition of Hiram Hippie described) executed and delivered to the trustees of Brown township a mortgage on the said property, to secure the fulfillment, on his part, of the obligations of his said bond.
    “ The condition contained in said mortgage deed was, in substance, that, whereas, the said George Baker had that day executed and delivered to said trustees his bond in the peual sum of five hundred dollars, conditioned to pay, or cause to be paid, with interest at the rate of seven per cent, per annum (as it became due), five hundred dollars of the bonds of said township, to be issued in payment of $17,000 of the capital stock of the Springfield, Mount Vernon and Pittsburg Railroad Company, and so much of the principal thereof, before it became due, as shall not be sooner paid by advances on a corresponding amount of said stock, to be received by said trustees, in pursuance of the agreement in said writing obligatory mentioned; and it was further provided, that if the said George Baker should well and truly perform the condition of said bond, then the amount above-named of said stock, or any number of shares thus paid, should be made over to the said George Baker, and the above obligation should be void, otherwise to remain of full force in law.
    “ Now, if the said George Baker, his heirs or assigns, shall well and truly pay, or cause to be paid, the said amount of five hundred dollars, with interest at seven per cent., to the parties, and at the times, and in the manner in said bond specified, and shall in all respects fulfill the obligations by him in said bond or writing obligatory assumed, then this conveyance shall be void, otherwise of full force and effect in law.”

      Similar mortgages were executed and delivered by the other obligors, in the several bonds aforesaid, to secure the performance by them severally of the conditions of their respective bonds; and all the mortgages were duly recorded.
    On the 20th day of April, A. D. 1858, the trustees of Brown township made and delivered to the Springfield, Mount Vernon and Pittsburg Railroad Company the bonds or writings obligatory of the said township, some for $500 each, and some for $1,000 each, amounting in all to the sum of $17,000, in payment of the subscription made by said trustees.
    By due course of assignment and transfer, and for a valuable consideration, the plaintiff in error became and is now the owner of five of the bonds of said township of Brown, together with the coupons thereunto attached; and the defendant, William A. Collard, by the same means, and for a like valuable consideration, became and is now the owner of seven of said bonds, and the coupons attached thereto. -The bonds issued by the township were of the tenor following:
    “United States oe America, State oe Ohio. $500.
    “ Township of Brown, in Delaware county, seven per cent. loan.

      “ Be it known, that the township of Brown, in Delaware county, in the State of Ohio, owes to the Springfield, Mount Vernon and Pittsburg Railroad Co. five hundred dollars, which sum the said township of Brown promises to pay to the said Springfield, Mount Vernon and Pittsburg Railroad Company, or its assigns, at the office of the treasurer of said township, on the first day of October, a. d. 1871, and to pay the interest thereon, at the rate of seven per centum per annum, semi-annually, the first payment to be made on the first day of January, a. d. 1853, and on each first day of January and July thereafter. The said township of Brown, however, reserving to the said township the right to pay the amount hereby secured to be paid, any time after the first day of October, a. d. 1860, at their option, they giving notice of the said day of payment at least six months previous thereto, by advertisement published not less than four consecutive weeks, in a newspaper published in the county of Delaware aforesaid; and after the day of payment so advertised the interest thereon shall cease.
    “ This obligation is issued in part payment of a subscription of three hundred and forty shares, of fifty dollars each, to the capital stock of the said Springfield, Mount Yernon and Pittsburg Railroad Company, made by the said township of Brown, in pursuance of the provisions of several acts of tbe general assembly of the State of Ohio, and of a vote of the qualified electors of said township of Brown, taken in pursuance thereof.
    “ In testimony whereof, the trustees of said Brown township, aforesaid, have hereunto set their hands and seals this 20th day of April, a. d. 1853. [Signed by the trustees, and attested by the township clerk.] ”
    In 1862, the plaintiff in error sued out of the Supreme Court of Ohio a mandamus against the trustees of said Brown township, to compel them to levy a tax to pay the interest on said bonds, and the court in that case decided that the trustees of said township had no authority to issue the same. See Hopple v. Brown Township, 13 Ohio St. 311.
    These bonds of Brown township became due October 1, 1871. About the 18th day of October, 1871, and shortly after the bonds became due, the defendant in error, Iliram Hippie (who had purchased the real estate so mortgaged by his grantor, George Baker), together with a large number of other persons, who had also executed their bonds and mortgages to the trustees of said township, as aforesaid, filed their several petitions in the Court of Common Pleas of Delaware county, asking the court to cancel the mortgages given by them, and alleging, as a reason, that the bonds of Brown township, which had been issued by said trustees, were void, and issued without any authority of law, and asking that the plaintiff in error, and others holding said bonds, should be made parties, and show their title to tbe same. To these several petitions, the plaintiff in error, Hopple, and other parties holding said bonds, filed their answers and cross-petitions, setting forth the foregoing facts, and alleging that they were the owners and holders of the bonds and mortgages of the parties aforesaid, as well as the holders of the bonds of said Brown township, and asking a decree for the sale of the mortgaged premises, to pay off the individual bonds of these parties, given to secure the payment of the bonds of Brown township aforesaid. To these answers and cross-petitions, the defendant in error, Hiram Hippie, demurred, and the court of common pleas sustained the demurrer, and granted the relief which he asked for. This action of the common pleas was afterward affirmed by the district court, on proceedings in error. Plaintiff in error now asks a reversal of the judgments of both the courts below.

      Hoadly, Johnson § Colston, and William H. Pugh, for plaintiff in error.

      Reid § Powell and J. Hippie, for defendants in error.
   Scott, J.

The bondholders who, by their cross-petition in the court below, claim an interest in the mortgage in question, were not parties thereto. Baker, through whom the defendant in error derives title to the premises, was the mortgagor, and Brown township, as a municipal corporation, was the mortgagee. All the transactions connected with the giving of the mortgage were between the mortgagor and mortgagee, and did not purport to affect the rights or interests of other persons. The proposition submitted by Baker and the other mortgagors to the township trustees shows upon its face that the purpose in contemplation was nothing more than indemnity to the township against the increased burdens of taxation which might arise from a subscription on behalf of the township to the capital stock of the railroad company. The object to be accomplished was the removal of objections to a vote in favor of subscription, by taking upon themselves the obligations of payment, which might arise from subscription. In pursuance of this proposition, Baker and the other mortgagors subsequently executed their bonds to the township trustees, in which they recite, among other things, that they “ have assumed the responsibility of saving said trustee's harmless from all demands, both for principal and interest, on ” such portion of the township bonds as they severally agree with the township to become responsible for. The condition of defeasance stated in the bonds is, in substance, that the obligors shall severally pay, or cause to be paid, either to the holder or holders of said bonds, or to said trustees, the interest on the amount by them severally assumed, as it shall become due thereon, and so much of the principal as shall not be paid by dividends on a corresponding amount of stock, and upon such payment then the said amount of stock, or any number of shares thus paid, shall be made over to the obligors severally, and the above obligation shall be void. The mortgages in question were given to secure the performance by the obligors of their covenants contained in these bonds.

These bonds and mortgages were evidently executed, delivered, and accepted by the parties thereto, under the belief that a majority of the electors of Brown township could, by their votes upon that question, confer upon the trustees of the township full power and authority to bind the township by a subscription on its behalf to the capital stock of the railroad company. But this belief rested bn a misapprehension and misconception of existing laws. At the suit of Hopple, tb.e plaintiff in error liere, against the trustees of Brown township, it has been adjudged by the Supreme Court of this state, that the contingency upon which Brown township might subscribe to the capital stock of the railroad company never arose; and that the proceedings of the voters of the township, and of the township trustees, were without authority of law, and that the writings purporting to be the bonds of the township are void, and created no obligation in the hands of the company or of the present holders.” Hopple v. The Trustees of Brown Township, 13 Ohio St. 311.

As between plaintiff in error and Brown township, it is, then, res adjudieata, that the township bonds, on behalf of which he claims the mortgage in question to be a security, are absolutely null and void. Neither interest nor principal has ever become or can become due thereon. And, as between the parties to the mortgage, we think it clear that there neither has been nor can be any breach of its condition of defeasance.

With full knowledge of all the facts relating to the undertaking of the mortgagors (as the cross-petition shows), the railroad company dealt only with the trustees, who professed to act solely on behalf of their township, and not in the name or by the authority of the mortgagors, in making the subscription and issuing the bonds. There is, therefore, no room for the claim that in making the subscription and issuing the township bonds the trustees 'were the mere agents of the mortgagors. They were not dealt with in that capacity, and there was no undisclosed principal in the case. The contracts evidenced by the subscription and the bonds, could not have been entered into with the mortgagors as principals acting, directly for themselves, and what they could not do directly, per se, they could not do indirectly, per alium. The written obligations of the mortgagors clearly show that it was no part of their purpose to induce the railroad company to accept a subscription from the township. The willingness of the company to accept a township subscription seems to be taken for granted in all quarters.

The only difficulty to be overcome, was the unwillingness of the electors of the township to sanction a subscription by-their votes, and, to obviate this difficulty, was the sole purpose of the arrangement made between the mortgagors and the township. No obligations were assumed for the benefit of the railroad company, or the holders of the bonds which the township might issue. The contract was with and for the security of the township alone, and was in effect an agreement to purchase from the township such stock as it might acquire in virtue of its subscription.

To this agreement the railroad company was not a party, and was wholly unaffected by its stipulations; and we can perceive no right which it had to rely upon that agreement as a security for the payment of the subscriptions which it accepted from the township. The bonds which it accepted in payment of the subscription contained no reference whatever to any such security, and they were put upon the market and negotiated upon the sole guaranty of the railroad company, before the mortgages in question were even filed for record.

In the total absence of any privity of contract between the mortgagors and the plaintiff in error, or other holders of the township bonds, we can perceive no grounds, legal or equitable, upon which the cross-petitions, in the court below, can be sustained.

But it is claimed that defendant in error is estopped to deny the validity of the township bonds. We are unable to perceive the grounds upon which such an estoppel can be legally predicated. The pleadings show no equitable estoppel arising from matters in pais. The mortgagors were parties neither to the stock subscription made by the township trustees, nor to the bonds which they assumed to have power to issue. The contract of the mortgagors with the township, no doubt, was based on the supposition' that, by force of statutes previously enacted, the trustees could be authorized, by the vote of the township, to subscribe to the stock of the railroad company! And the subscription of the trustees was accepted by the railroad company on the same supposition. But, in fact, there was no law purporting to authorize such subscription under the circumstances and at the time when it was made. A county subscription had been previously authorized and made, and the statute gave no color of authority for an additional subscription by the township.

Of the laws relating to its corporate powers, the railroad company was, at least, as much bound to take notice as were other parties. The power of the township trustees to subscribe to its stock was a question of law, upon which it had no right to rely upon the opinion of parties with whom it had no direct dealings. And if, as has been held, the township of Brown, with whom alone the railroad company contracted, is not estopped to deny the validity of its unauthorized subscription, and of its equally unauthorized bonds, we see no grounds upon which parties who never contracted with the company can be so estopped.

Had the township trustees made no question as to the validity of the bonds which they issued, and, having paid them, were now seeking to enforce the mortgages in question for their indemnity, a very different case would be presented, and it might well be held that, as against the township, the mortgagors would be estopped to deny the validity of the township bonds, and of their own contracts of indemnity. But as against others, who were not parties to these contracts, and had no right to rely upon them, we think no such estoppel can arise.

We think the court of common pleas did not err in sustaining the demurrer to the cross-petition of plaintiff in error, and that its judgment was, therefore, properly affirmed by the district court.

Johnson, Chief Judge, dissented.


source: Caselaw Access Project

author: Day, J.

license: Public Domain

text:
    Linton v. Laycock et al.
    1. A civil action for partition, where the case depends upon the determination of questions of an equitable character, is appealable.
    2. The controlling principle in the construction of wills, is the ascertainment of the intention of the testator; but where the intention remains in doubt, resort must be had to settled rules of construction for aid in the solution of the difficulty.
    3. The law favors the vesting of estates, and in the construction of devises of real estate, the estate will he held to he vested in the devisee at the death of the testator, unless a condition precedent to such vesting is so-clearly expressed that the estate can not be regarded as so vested, without directly opposing the terms of the will. To this end, words of seeming condition will, if they can bear that construction, be held to have the effect of postponing the right of possession only, and. not the present right to the estate.
    4. A devise to one when he arrives at a given age — the intermediate estate being devised to another — vests on the death of the testator, and is not defeated by the death of the devisee before the specified age. The words of futurity importing contingency, are not necessarily inconsistent with the immediate vesting of the estate, but may be regarded as merely postponing- the possession.
    5. A devise, though not otherwise expressed, is implied in a direction in the will to divide an estate among specified devisees; and the rule vesting legacies — bequeathed only by a direction to pay or divide — at the time fixed for the payment or division, does not apply to devises of real estate.
    6. "Where a testator devised his whole estate to his wife until his youngest son became of age, “ when ” it was to be “ divided amongst all his children then living, or their heirs,” and he made no other disposition of the remainder during the term of years, nor of the estate in case his wife declined to take under the will, or died before the time fixed for the division ; and it appears that he had no other motive in making the will than the creation of the estate for years for the benefit of his wife and certain other beneficiaries ; Held, 1. That the disjunctive phrase, “or their heirs,” does not refer to the children living when the youngest arrives at age, but relates to such of them as may then be dead. 2. That the word “-heirs,” is not used as a word of purchase, creating a new class of beneficiaries, but is used as a word of limitation, so that, in case of the death of a child, his share shall not go to the survivors, but pass as if inherited from the deceased. 3. That the estate vested in the children at the death of the testator, subject to the estate for years; and was not divested by the death of a child during the term, but his share descended to his heirs, who take the same by inheritance, and not as devisees under the will.
    Reserved in the District Court of Brown county.
    The suit was brought to determine the plaintiff’s right to an undivided seventh part of 212 acres of laud, and to obtain partition and an account for rents.
    The plaintiff' claims the land as devisee under the will of his grandfather, Joseph Linton; and the question is, whether the father of the plaintiff, who was the son of the testator, or tbe plaintiff, was tbe devisee of tbe land. Tbe will is as follows :
    “ I give and devise to my beloved wife tbe farm on which we now reside, situated in Brown county, and State of Ohio, containing 212 acres; and all the goods and chattels that may be thereon at the time of my decease, during the time till the youngest child, Thomas Linton, shall be twenty-one years of age — she, however, selling so much thereof as may be sufficient to pay my just debts — to be disposed of as she thinks best. "When the youngest child Is twenty-one years of age, the real estate aforesaid, and such part of the said personal property, or the proceeds thereof, as may then remain unconsumed and unexpended, to be equally divided amongst all my children then living, or their heirs. I also bind my wife, Sarah Linton, to keep my mother and two sisters, Leatha and Rachel Linton, in meat, and bread-stuff', and fuel; provided that they remain where they are and unmarried — it to be out of the proceeds of tbe place.
    “ Provided that my wife, Sarah Linton, should marry again, then her full possession to the real estate and personal property to cease, and take her dower in said premises. I do hereby nommate and appoint my beloved wife guardian for my children, Isaac Linton, Joseph Linton, Vm. J. Linton, and Thomas Linton, until they are twenty-one years of age — and my daughters, Sarah Linton and Rachel Linton. My said guardian is hereby enjoined to give my children a good English education, and to rear them in habits of industry, and inculcate in them, as far as may be, the duties of Christianity. I do hereby nominate and appoint my wife, Sarah Linton, executrix of this my last will and testament, hereby authorizing and empowering her to compromise, adjust,-release, and discharge, in such manner as she may deem proper, the debts and claims due me.”
    The will was dated January 5, 1846, and was probated April 25,1846. The widow elected to take under the will. Before Thomas Linton became of age, on October 30,1851, the father of the plaintiff conveyed his interest in the land to his brother, Isaac Linton, and died before Thomas became of age. The widow also died afterward, and while Thomas was a minor. The defendants claim under a deed of Isaac Linton. The petition states many other facts, but the foregoing statement sufficiently presents the case to raise the questions upon which the case turns. The ease was heard upon demurrer to the petition, and the demurrer was overruled, and judgment was rendered for the plaintiff. The defendants appealed to the district court, where the •case was reserved to the Supreme Court.

      David Thomas, for plaintiff in error:
    Appeal does not lie in a proceeding for partition, under the statute, and, if not, then this court.has no jurisdiction. 15 Ohio St. 460 ; 29 Ohio St. 440.
    Nor in any case, if no equitable relief, touching the title to the property, be demanded. Stableton v. Ellison, 21 Ohio St. 527.
    An appeal does not lie, if the parties have the right by law' to demand a trial by jury. S. & S. 589.
    In actions for the recovery of specific real property, or •of money, a jury may be demanded. Civil Code, §§ 263, 276, 560, 598. See, also, Ellithorpe v. Buck, 17 Ohio St. 72; H. A. C. & Co. v. Verner, 22 Ohio St. 372; Massie v. Stafford, 17 Ohio St. 596; Ladd v. James, 10 Ohio St. 437; Buckner v. Mear, 26 Ohio St. 514; Smith v. Anderson, 20 Ohio St. 76; Keller v. Wenzell, 23 Ohio St. 579.
    In determining who took under the will of Joseph Linton, the court is referred to the following authorities, as .bearing upon the question : 2 Blackstone, 171-173; 4 Kent, 268; 2 Blackstone’s Commentaries, 135, 136; Sinlon v. Boyd, 19 Ohio St. 30 ; Boyd v. Talbert, 12 Ohio, 212; Taylor v. Foster’s Adm’r et al. 17 Ohio St. 166; Ib., 22 Ohio St. 555; Smith v. Block, 29 Ohio St. 488.

      Loudon $ Young and Thompson Fite, for defendants in •error:
    Intestacy is never presumed, and courts of equity are never disposed to put such a construction upon the terms of a will as will lead to intestacy. 19 Ohio, 328; 3 Ohio St. 374.
    There was, in this case, no abeyance. 2 Blackstone, 107, 165 ; Fearne on Remainders, 513.
    The language of the will, “ "When the youngest child is twenty-one years of age,” etc., is, in substance and effect, a devise of his land to his children in equal proportion. 15 Ohio St. 108.
    Thé will does not provide that any estate by survivorship shall vest in the children living when Thomas arrives of age. It does not vest an estate in any of the children, to be defeated upon the happening of a future contingency provided for in the will. His children “then living, or their heirs,” implies clearly that, in case any of his children, to whom the estate passed at his death, died before Thomas arrived at age, the interest of the one so dying passed by inheritance to his or her heirs. If he or she left children they would inherit — if no children, his or her brothers and sisters should inherit, etc.
    Net the estate in remainder vesting in his children at his death, that estate can only be divested in one of three ways:
    1. By virtue of some provision in the will to that effect.
    2. By the death of the devisee, in which case it passed to his or her heirs, if an estate of inheritance.
    3. By act of the party, by which his title would be divested — as by a legal conveyance, disposition by will, or judicial sale, etc.
    Having conveyed in fee, before his death, his interest passed to his grantee in fee. No other construction can, in our judgment, be given to this will.
    Each, at the death of the testator, took his interest, and, as no provision is contained in the will as to survivorship, or any contingency upon which that interest should determine, it was assignable in fee. Jeffers v. Lampson, 10 Ohio St. 101. Even in such case, cross-remainders are not raised, but each takes a fee. Lawrence v. McArter, 10 Ohio, 37, •which, is directly in point. Lessee of Thompson & Thompson v. Hoop, 6 Ohio St. 480.
   Day, J.

Two questions are presented for our determination: First. Was the case appealable? If so — Second. Was the plaintiff a devisee under the will?

The statute under which the appeal was taken provides that “ civil actions,” in which, neither party has the right to demand a trial by jury, may be appealed. A proceeding under the special act to provide for the partition of real estate, not being a civil action, is not appealable. Barger v. Cochran, 15 Ohio St. 460.

Rut this case is not a proceeding under that act. Its provisions have not been pursued, nor are they adequate for the object sought to be attained. The code of civil procedure has been pursued in the case, and, in every respect, it purports to be a civil action. Moreover, the special statutory mode of obtaining partition, never was exclusive of that in equity, by civil action under the code. Partition was always a subject of equity jurisdiction, especially where the case involved the settlement of questions peculiarly cognizable in courts of equity.

The case involved the construction of a will, upon which the right to the partition sought depends, and for an ac- ■ count of rents, if the plaintiff was entitled to partition. It was not a case for partition merely, and therefore could not properly have been brought under the partition act. It was, then, a proper case in which to invoke the equitable aid of the court in procuring the partition and account sought.

The action being for partition and an equitable account incident thereto, and not for the recovery of money or specific real property, neither party had the right to demand a jury trial; therefore, the case was appealable.

This brings us to a consideration of the question which determines the merits of the case: Whether the plaintiff ■can derive title to the land in dispute, as devisee under the will of his grandfather, or can claim only as heir of his father? To settle this question, it must be determined whether the will gives to the children of the testator a. vested or contingent estate, and this depends on the construction to be given to the will.

The controlling principle in the construction of wills, is the ascertainment of the intention of the testator. But where the intention remains in doubt, resort must be had to settled rules of construction for aid in the solution of the-difficulty.

It is well settled that the law favors the vesting of estates,, therefore: “ In the construction of devises of real estate, ‘ it has long been an established rule for the guidance of the court, that all estates are to be holden to be vested, except estates in the devise of which a condition precedent" to the vesting is so clearly expressed that the courts cannot treat them as vested without deciding in direct opposition to the terms of the will.’ (Per Best, C. J., Duffeld v. Duffeld, 1 Bow. & Cl. 311.) To accomplish this, words of seeming condition are, if possible, held to have only the-effect of postponing the right of possession ; and if the-devise be clearly conditional, the condition will, if possible, be construed as a condition subsequent, so as to confer an immediately vested estate, subject to be divested on the happening of the contingency.” Hawkins’ Treat, on Wills, *237.

Accordingly, it has long been settled that a devise to one when hq shall arrive at a given age, with the intermediate-estate devised to another, vests immediately on the death» of the testator, and is not defeated by the death of the devisee before the specified age. It is a vested remainder. The words of futurity, importing contingency, are not regarded as a condition precedent, or as postponing the pieriod of vesting, but as specifying the time when the remainder man is to take possession. Hawk, on Wills, *237; Powell on Devises, *215 ; 2 Red. on Wills, ch. 2 ; Boraston’s case, 3 Co. 18; Tayloe v. Mosher, 29 Md. 443; Minning v. Ratdorff, 5 Penn. St. 503 ; Collier’s will, 40 Mo. 287 Roome v. Phillips, 24 N. Y. 463; Danforth v. Talbot, 7 B.. Monroe, 623; Rivers v. Fripp, 4 Rich. Eq. 276; Watkins v. Quarles, 23 Ark. 179; Harris v. Alderson, 4 Sneed, 250.; Hancock v. Titus, 39 Miss. 224.

The testator, in the will before us, devises his whole estate to his wife, until his youngest son, Thomas, arrives at the age of twenty-one, “ when” he directs it to be “ divided amongst all his children then living, or their heirs.” So far as relates to the time of division, it is clear, upon the controlling principle of the foregoing authorities, that the estate must be regarded as having vested in the children of the testator at his death. They then had the right to the estate, although its enjoyment was postponed until the youngest child became of age. This view favors the vesting of the estate, it is true, but so far as relates to the time of the division, it is not irreconcilable with the terms of the will.

Moreover, there does not appear to have been any intent to postpone the right of his children to an immediate title to the estate, but the postponement of possession was merely to let in an intermediate estate for a term of years to the testator’s wife, which was not inconsistent with a vested right of the children in the remainder. Bequests of personalty of this character vest immediately, and, on the death of the legatee, during the intermediate estate, pass to their representatives. (Haw. on Wills, [*232], and numerous cases cited by the Am. ed.) Much more would the same principal favor the immediate vesting of devises of realty.

There is then no doubt but that the estate vested in the children of the testator at his death, unless the words, “ then living or their heirs,” in the clause directing the division, changes the case and makes the estate contingent.

No other indication is contained in the will of an intention to create a condition precedent to the vesting of the estate. Nor do we think the testator so intended by this clause, for he does not thereby impose any condition of survivorship, nor give to his children then living any advantage thereby, in the view we take of the meaning of the words “ or their heirs.” Those words, in a sense, it is true, might refer to the living children, and thus operate as a condition subsequent, divesting a child who might die before the period named. But we do not regard that as being the meaning of the testator. In a strict sense, the children living at the time mentioned, could not then have heirs. The word “ their,” in the disjunctive phrase, “ or their heirs,” evidently does not refer to the living children, but relates to children in the mind of the testator not expressed, who, he supposed might be dead at the time of the division, and he intended to provide thereby, if that should occur, that it should make no difference in the division of the estate amongst “ all” his children. Nor was it designed to create thereby a new class of beneficiaries, but to recognize the right of inheritance to his estate from any of his children who might then be dead — that is to -say, in case of the death of one of his children, his share was not to go to the survivors, but to be considered as if inherited by the heir of the deceased, for the word “ heirs,” unless the contrary plainly appears, is a word of limitation and not of purchase, nor can it be changed from its proper meaning, as importing inheritance, to defeat the vesting of an estate, unless it was clearly intended by the testator to use it as a word of purchase, designating a new class of beneficiaries. "We think it was not so used in this will. Brasher v. Marsh, 15 Ohio St. 103; Patterson v. Hawthorn, 12 S. & R. 114; McGill’s Appeal, 61 Penn. St. 50.

It is reasonable to presume that the testator had in view the disposition which the law makes of intestate estates. His only purpose in making a will seems to have been to change the rights secured by law to his wife, and perhaps thereby through her to benefit his minor children, mother, and sisters. He therefore gives her the use of his whole estate for a term of years, but makes no disposition of the title or remainder during that time, further than what may be implied by the direction that the whole estate shall be divided amongst all his children. He carves out a special limited estate, and says only enough more to indi■cate a purpose to leave all else to go as it would be disposed of by the law of descents and distribution. It is apparent that the same equality among his children that is provided by the law was contemplated by him, subject to the provision made for his wife. He makes no disposition, of his estate on the contingency that his wife should decline to take under the will, or marry, or die as she in fact did, before the youngest child came of age. It can not be supposed that, in either event, he intended to delay the right of his children to the estate until the youngest became of age, and that it should remain undisposed of. He undoubtedly regarded the estate as vested or belonging to his children, and that they would come to its enjoyment whenever the special estate, for any reason, ceased. This theory only will give effect to the apparent understanding of the testator, and effect his intention of securing his estate, subject to the bequest to his wife, equally to all Ms children, whether living or dead at the time of division. This view of the will effects a vesting of the estate, as favored by the law, and does no violence to its provisions; while a contrary view, regarding the remainder to the children as contingent, leaves the estate but partly or loosely disposed of; renders it partial and not equal toward the testator’s children; converts words of limitation to words of purchase upon a doubtful construction of words; renders the will more doubtful, and less in accordance with the natural and fairly apparent intention of the testator.

Nor does the vesting of the estate encounter any serious difficulty for want of an express devise to the children. The required division implies a gift which as effectually carries the estate to them as an express devise would take it. Nor does the rule, sometimes applied to the vesting of legacies bequeathed only by a direction to pay or divide, which fixes the vestiug at the time of payment or division, apply to devises of real estate; for, as said by Gibson, J., in Kinsey v. Lardner, 15 S. & R. 192: “ The distinction between merely appointing a time for the payment of a legacy, and annexing the time to the very substance of the gift, is borrowed from the civil law; and the rale of construction, which in this particular governs cases of legacies, is inapplicable to cases of devises, which are governed by the common law.”

This, then, is only another case where a testator used nearly the same words in regard to the division of his estate amongst all his “ children then living, or their heirs,”' which were employed in the will in Brasher v. Marsh, supra, without intending in this case, as was not intended In that, to create a contingent estate.

"We are therefore constrained to hold that the plaintiff can not be regarded as a devisee under his grandfather’s - will; that his father had an indefeasible title to the land in dispute; and that his father, having conveyed it to the grantor of the defendants, the plaintiff’s claim of title thereto wholly fails. It follows that the demurrer to the-petition must be sustained, and the petition dismissed.

Judgment accordingly.


author: Ashburn, J.

text:
    Wilkins v. Irvine.
    1. A -written license, without seal and unacknowledged, to enter upon and imbed water pipes in the land of another, with privilege to enter and repair them, creates no interest in, nor incumbrance upon the land such as will disable the owner thereof from making a good and sufficient deed conveying a good title thereto.
    2. A vendee of real estate protected as an innocent purchaser without notice, may not, at his option, elect to waive such protection, and rescind the contract of purchase for an alleged incumbrance not aifeeting the validity of the title.
    Error to the Superior Court of Cleveland.
    Defendant in error, T.. M. Irvine brought an action in the Superior Court of Cleveland, against Horace Wilkins,, plaintiff in error, on a written contract for the recovery of money. On the 18th of September, 1873, Wilkins bought of Irvine the undivided half of a tract of land, described in-the petition, situated in Newburgh township, Cuyahoga; county, owned by T. M. Irvine and IT. A. Massie, and agreed to pay therefor twenty-one thousand one hundred and twenty-five dollars, part in money, and part by the assumption of the payment of Irvine’s liability on certain purchase money notes, given by Irvine and,Massie to one-John Brqoks, from whoi'n they had purchased the land.. The deferred cash payments were $2,883.18, due October 8,. 1873, and $3,000, due November 17,1873, both sums to bear interest from date. Irvine obligated himself on the payment of the purchase money by Wilkins, to execute to him, in fee simple, a good and sufficient deed for the undivided half of the laud. Irvine alleges both sums of money to be-due; and, with his petition, filed in court what he claims-to be a good and sufficient deed for the land, for the use and benefit of Wilkins; admits the payment- on the contract of three sums, amounting in all to $1,350, and prays judgment for the balance, $4,607.22, which he claims with, interest.
    To this petition Wilkins interposed an answer and cross-petition, admitting the execution of the contract, the payments made, and that he promised as stated, denying all other allegations of the petition. To his cross-petition he-makes II. A. Massie, John Brooks, and the Cleveland Rolling Mill Company defendants. Wilkins charges that Irvine- and Massie purchased the land from John Brooks, and that while Brooks was the owner of the land, he and others entered into an agreement with the Cleveland Rolling Mill Company, of which the following is a copy ;
    “ Cuyahoga County, Ohio.
    Whereas, the Cleveland Rolling Mill Company are desirous of laying and maintaining permanently a pipe from their works in Newburgh to the Cuyahoga- river, for the-purpose of supplying their works with water, to be laid on a line as shown by a survey now shown as made by Geo. H. Hyde, engineer, and dated September 26, 1872, which line crosses land owned by us., Now, for good considerations, we hereby grant to said company the right to come upon said lands, and so lay said pipe, at a depth of not less than two feet, and there permanently to maintain the same with like privilege at any time for repair, relaying, or removing. It being hereby especially agreed by said company, that they will do this work in a careful manner and to be responsible for and to pay to the undersigned, respectively, any damages occasioned by said company or their .agents in so laying, or by said pipes in bursting or otherwise, or that may result in any manner to said lauds or ■owners, under or in consequence of this license.
    Signed, JOHN BROOKS, and others.
    We hereby acknowledge ourselves to be bound by the ■conditions of the above agreement on our part to be performed.
    Signed, Cleveland Rollins Mill Company.
    By H. Chisholm.

    It is substantially alleged in .the cross-petition, that Wilkins bought the land for the purpose of alloting and selling for dwelling-house lots, etc., that the Cleveland Rolling Mill Company were at the date of the contract, and had for a long time prior been in the occupancy and possession ■of a portion of the land by occupying it with a water-pipe fourteen inches in diameter, laid under the surface from two to three feet deep, used for the purpose of conveying water from the Cuyahoga river to their mills, under, and by virtue of the foregoing agreement in writing between Brooks and the mill company. It is claimed that this license and the rights acquired by virtue of it, constitute an incumbrance upon the land, thereby rendering the land of little value, and disabling Irvine from making a good and sufficient deed for the land. That Wilkins, prior to his purchase, had no knowledge of the existence of the license or occupancy of the land by the mill company, and that the same was known to Irvine and Massie from the time the pipe was laid in the land, and in fraud of his rights, and intending to defraud him, Irvine fraudulently represented to him that lie could give him a good title, etc.; that he was induced by the fraudulent representations of Irvine, to enter into the contract ; that as soon as he discovered the- Rolling Mill Company held such license and were occupying the land with their pipes, he notified Irvine, and in writing demanded a rescission of the contract. The cross-petition prays for a rescission of the contract, for general relief, and for repayment of money paid by him on the contract.
    The defendants, Irvine, Brooks, and the Cleveland Rolling Mill Company, each interposed a general demurrer, and Massie answered denying all knowledge of the license and fraud charged against him. The court sustained the demurrer of Irvine and Brooks, overruled the demurrer of the Rolling Mill Company, dismissed the cross-petition as to Brooks and Massie, and entered a judgment for $4,779.89, in favor of Irvine. To each and all of which orders and judgments Wilkins excepted.
    The ease was taken on error to the superior court in general term, and the judgments at special term there affirmed. Plaintiff’ in error prosecutes his petition in error here to obtain a reversal of the judgments respectively entered in the courts below.
    There are many assignments for alleged error on the record, but we think the controlling questions, for consideration, are substantially covered by two of them, viz:

      First. That the court erred in sustaining the demurrer of Irvine to the cross-petition and amended answer of Wilkins.

      Second. That the court erred in sustaining the demurrer of Brooks to the cross-petition of Wilkins.

      Hamilton ¡j¡¡ Denison and Tyler $ Denison, for plaintiff in error:
    As to the effect of a parol license, see Wilson v. Chalfant, 15 Ohio, 248; Sullivant v. Comm’rs, 3 Ohio, 89; Le Ferre v. De Ferre, 4 Sergt. & Rawle, 241; Derick v. Kern, 14 Sergt. & Rawle, 267; Prince v. Case, 10 Conn. 375 ; Hiatt v. Morris, 10 Ohio St. 523; and see 1 Ohio, 251; 3 Ohio, 294.

      We say that for this court to hold that, on the principle that gives a good title to an innocent purchaser of real estate without notice, Wilkins, the plaintiff in error, would .get an absolute and unincumbered title to the premises contracted to him by Irvine, under the deed tendered him, and that, for that reason, he can not demand a revocation of the contract for the fraud, concealment, and deceit complained -of in Wilkins’ amended answer and cross-petition, would be to force him, willingly or unwillingly, and innocent of any fraud in the premises, to help Irvine perpetrate a fraud on the Rolling Mill Company, and to enable Irvine, taking advantage of his own wrong, to enforce his contract against the plaintiff in error.
    Irvine would thus be allowed to invoke against plaintiff 'in error a principle of equity, declared for the benefit of innocent purchasers of real estate, for the prevention of fraud, in order that he might, in violation of equity, perpetrate a fraud on the Rolling Mill Company, and compel plaintiff in error to assist him in such perpetration. In all the various forms in which it maybe stated, the question involved in this case resolves itself to this : Whether Irvine has a right to insist that Wilkins shall, nolens volens, assist him in the perpetration upon the Rolling Mill Company, of such fraud, or whether, bringing all the parties before the court, Wilkins may insist that he shall not be made an instrument of fraud against the Rolling Mill Company in the hands of other parties, but that justice and equity shall be meted out to himself and all the parties in the case, as its circumstances and needs require. Courts, certainly, should not insist that a party shall avail himself of every equity he might maintain for self protection, in an action, for the purpose of enabling another to work a fraud upon a third and innocent party possessed of vested rights.
    If Wilkins chooses to give up his contract, rather than •stand on it and insist upon his rights as an innocent purchaser, without notice of the lights of the Rolling Mill Company, thereby working a wrong upon it, for the benefit ■of Irvine, it would seem to us equitable and just to allow him to clo so, on the part of the court, and it would appear honest and fair, on his part, that he should prefer that choice.

      Marvin, Hart &¡ Squire, for defendant in error:
    The parol license created no incumbrance. 1 S. & C., Stat. 458-467; section 557 of the code.
    A license which would run with the land, must be in some manner of as high a nature as that which under like circumstances would pass the title'to the land and give to the one in possession under it the fee.
    If it falls short of this, then it can not be said to run with the land, and if it can not run with the land, a conveyance of the land without reservation would put an end to the license. Miller v. Railroad, 6 Hill, 64; 4 M. & W. 538; Wasliburne on Real Prop. 381, § 14; Id. 399, 400, and authorities there cited.
    Judge Selden, in 29 N. Y. 639, says : A permanent interest iu land, even by way of easement can not be created by or under a parol license.
    The doctrine that an executed license, as between the licensor and licensee, is irrevocable, does not receive the favorable consideration of any number of our state courts, and in England it is not recognized. In Massachusetts it is held that a license executed or unexecuted is revocable at the will of the licensor. Ruggies v. Lesure, 24 Peckr 187; Owen v. Field, 12 Allen, 457. In Connecticut the doctrine is considered settled by Prince v. Case, 10 Conn. 375. In New Hampshire, by Huston v. Laffee, 46 N. H. 507, and 24 N. H. 176. In New York, by 29 N. Y. 639.
   Ashburn, J.

The facts alleged in the petition and admitted by the answer, would entitle the plaintiff below to & money judgment, unless the legal effect of the facts set up in the cross-petition is such as to require a court of equity to interpose and grant a rescission of the purchase-money contract.

From the nature of this case, the general charge of fraud against plaintiff alleged in the cross-petition, can avail defendant, only when it shall appear that the alleged incumbrance upon the land is such as affects, not the money value of the land, but the title thereto to his prejudice. The vital force of all other facts hinges upon this one.

The grounds and charge upon which a rescission of the contract is claimed, are that the license to, and occupancy of, the Cleveland Rolling Mill Company create a permanent incumbrance upon the land, to which is added the ' equitable circumstance that in consequence of such incumbrance the land for allotment and division into dwelling-house lots is rendered comparatively valueless.

Erom two considerations a majority of the court think a case for a rescission of the contract is not made by the cross-petition.

I. An interest in, or permanent incumbrance upon, land in this state, can only arise from some of the modes provided for or recognized in law. If it exists in this case, the incumbrance was created by a writing without seal and unacknowledged and unaccompanied by actual possession. The statute, S. & C. § 6458, provides, “ that when any man . . . shall execute, within this state, any deed, mortgage, or other instrument, by which any lands, tenements, or hereditaments, shall be conveyed or otherwise incumbered in law, such deed, mortgage, or other instrument of -writing-shall be signed, sealed, etc., and such signing and sealing shall be acknowledged by such grantor or maker in the presence of two witnesses, who shall attest such signing, etc.”

The writing claimed in the cross-petition to create upon the land a permanent incumbrance in favor of the Rolling Mill Company, is at most a license to enter upon the land for a specific purpose. It has none of the characteristics and sanctions provided by the statute creating an incumbrance that could possibly impart to the instrument a quality to run with the land. It gave the Cleveland Rolling Mill Company no dominion over the land, nor did it create, in its favor, an easement in the land. If its terms had been-violated by Brooks or Ms grantees, the jurisdiction of a court of equity could not have been successfully invoked to enforce a specific performance. The remedy, if any it had,, would have been an action for damages.

A license to do a particular thing, does not, in any degree, trench upon the policy of the statutes requiring that contracts respecting the title to land shall be by deed or other written instrument under seal. They amount to no more than an excuse for the act, which would otherwise be a trespass. A permanent right to enter upon and hold another’s laud, for a particular purpose, without his consent, is an important interest which should pass only in the mode and by the instrumentalities provided by law. '

The written license executed by Brooks to the Cleveland Rolling Mill Company, being without any of the characteristics of a deed, does not create such an incumbrance' upon this land, as to create an equity in favor of the defendant, Wilkins, which will authorize a rescission of the contract.

II. Section 8 of the statute already referred to (S. & 0.. 467) after providing for the recording of all other deeds and instruments of writing for the conveyance or incumbrance of any lands, etc., then provides :

“ And if such deed or instrument shall not be so recorded within the time herein prescribed, the same shall be deemed fraudulent, so far as relates to any subsequent bona fide purchaser, having at the time of making such purchase no knowledge of the existence of such former deed or other instrument of writing.”

The instrument in writing under which it is claimed this incumbrance arises, never was recorded, and is not an instrument authorized to be recorded. Wilkins purchased the land ignorant of the existence of such license, and without knowledge that the Cleveland Rolling Mill Company occupied any portion of the land by pipes secreted in the ground, or otherwise. His relation to the Rolling Mill Company and any supposed rights it may have from or under the license, is that of an innocent purchaser without notice, and. he is therefore protected. •Whatever might be the rights and liabilities of the original parties to the writing, the secret claim of the Rolling Mill Company can in no way affect the rights of Irvine or Wilkins.

The policy of the law is that titles to land, when affected by written instruments, shall appear upon the appropriate record, so that all may be informed who hold incumbrances, their character, and where the title reposes or is vested. But is this secret license mode of incumbrance to be sustained? If so, incumbrances might frequently be found to exist, against which no vigilance could guard, no diligence protect. Our records would cease to be reliable guides. To avoid all uncertainty, to notify all wishing information in regard to land titles, our registry laws were created, and their purpose can not be defeated by claims of the character we are considering.

No notice to Wilkins of the claimed incumbrance can he implied, because the writing was not recorded, and the pipes were hidden from view in the ground. The Cleveland Rolling Mill Company had no visible open possession of any portion of the land. At best, it had, under the license, a bare right to enter to repair the pipes when such need occurred. Hence, Wilkins is an innocent purchaser, .and in relation to him there is no such incumbrance on the land as will affect the title Irvine has tendered him.

No case for affirmative relief against Brooks is made, so that his demurrer to the cross-petition was rightfully sustained. As no valid ground for a rescission of the pur•chase-money contract between plaintiff and defendant exists, the judgment of the superior court in general term, .affirming the judgments at special term, is affirmed.

Day and Wright, JJ., dissented.


author: Wright, J.

text:
    Maud v. Maud.
    1. To authorize a decree for specific performance, on the ground that the party seeking it had contributed to the purchase-money, such contribution must be a definitely ascertainable portion thereof, and the contract, specific performance of which is sought, must so far describe the premises claimed, as that the court may be able to ascertain what they are.
    2. The decree of the court below is against the evidence, inasmuch as the plaintiff, upon his own ease, shows that the action is premature, and that he is not now entitled to the relief sought.
    Error to the District Court of Butler county.
    In the Court of Common Pleas of Butler county, ¥m. Maud filed his petition against John and Hannah Maud, who were his parents. In substance he alleges, that after he became of age, he labored upon a farm, with his parents and a brother, with an agreement among the parties that the proceeds of their labor should be invested in farms, several of which, in a long course of years, were thus purchased. He says he has an equitable interest in all the land thus acquired, to the extent of the value of that labor, and asks that the court will ascertain and define the value of that interest, and that defendants may convey to him one of the tracts owned as above by them. Other matters are stated, but this is sufficient for the purposes of this decision.
    The answer denies the allegations of the petition.
    John Maud, the brother said to have been party to the .alleged agreement, is subsequently made defendant, and answers, also, denying the existence of any such agreement.
    From the evidence, it appears that the Maud family came Fere from England, without property of consequence, and began farming. By thrift and industry, they were successful in the pursuit of wealth, and by slow accumulations purchased first one tract of land, and subsequently others. Sons and daughters, while they lived at home, contributed; by their daily labor to the common stock. The deeds of‘ the various farms were taken in the name of the mother,. Hannah Maud, who seems to have been a woman of energy and force of character sufficient to manage affairs of importance.
    ¥m. Maud, plaintiff below, was the oldest son, and. seems to have been faithful in his capacity of farm-hand, and now claims that there was an undei’standing by which he was to have an interest in the lands held in his mother’s name as a reward for the services he had rendered, and he claims that one of the farms be conveyed to him.
    The court of common pleas dismissed the petition of ¥m. Maud. On appeal, the district court found in favor of ¥m. Maud, decreeing him compensation in the sum of $7,566.66. There are other findings not necessary to be recapitulated.

      Harmon $ Maxwell, for plaintiff in error.

      Israel Williams and Thomas Millikin, for defendant in-error.
   Wright, J.

Counsel for defendant in error, ¥m. Maud, appear to concede that no case is made for specific performance ; and if it were not so, we are at loss to see upon what grounds a judgment of that nature could be based. The alleged contract on which the action is based is quite indefinite, and no land at all is described in it upon which a court could lay hold 'to order a conveyance. This is the contract, as Wm. Maud states it: “We agreed to work altogether, and lay out in land, or the best way we could,, till we all got a farm apiece (John and me), and title to-land to be taken in mother’s name, I believe.” Under such a contract, if proved, it would be difficult for a court to determine what particular farm or tract of land Wm. Maud claimed or was entitled to, and it would be quite as difficult to determine what metes and bounds could be put in a de•cree for specific performance. Ery on Specific Performance, 157.

And, again, in order to authorize specific performance, on the ground that the party asking such performance has ■contributed to the purchase-money, he must show that the amount so contributed was a definitely ascertainable portion, as is held in Reynolds v. Morris, 17 Ohio St. 510. ¥m. Maud’s alleged services can not be considered such definitely ascertainable portion.

Although ¥m. Maud testifies that there was this agreement, he is directly contradicted by his mother and brother John, and, without entering into a discussion as to the weight of evidence, it seems to us that the upshot of the matter is that parents and children all lived together, engaged in earning a common support, and accumulating a common property, with a sort of general understanding that, after the death of the father and mother, the children would succeed to the inheritance as a reward to their joint industry, but without any specific contract even to that effect. But, passing this by, ¥m. Maud, upon his own testimony, ■can not prevail in this action. "We have referred to the agreement which he claims as the foundation of his rights, in regard to which, in cross-examination, he says : “ I supposed I was to get my share of the property at mother’s death, and it would have been so if it had not been for this trouble. She promised to let me have the Johns farm ” (which is the one he now claims) “ after she was dead. She said she wanted the reins in her own hands as long as she lived, and I would have lived according to the contract but for this fuss.”

It is his own sho vying, therefore, that, if he was entitled to .any share, his right to it did not arise till upon his mother’s death. Ilis suit, therefore, is premature.

Nor can it be, as his counsel claim, that, because his mother repudiated the contract, as he claims she did, he can have his action upon the principle that a renunciation of a .contract, before the time for its performance, amounts to a breach, so as to entitle a party to sue by way of anticipation.

The mother has not denied but that the son may be entitled to his share at her death. She only insists, and for the purposes of this suit, that he is not entitled to it now.

Judgment reversed.


text:
    Kumler, Adm’r of James Larkin, v. The Junction Railroad Company.
    Where a railroad company, engaged in ballasting its road, employed a hand to assist in loading and unloading a gravel train, and in the execution of this service it was necessary for him to ride on the train from the ■ gravel pit to the place of unloading — the train being run under the direction of a conductor, and said hand having nothing to do with its management: Held, That such hand, while riding on the train, was a mere employe, and did not assume the character of a passenger; that he and the engineer of the train were engaged in a common service, and that, as he was not under the control or subject to the orders of the engineer, the railroad company can not be held liable for negligence of the engineer, resulting in his death, if it was not guilty of negligence in selecting the engineer.
    Error to the District Court of Butler county.

      Hansford. Smith and J. Ij. Vallandigham, for plaintiff in error.

      Thomas Millikin, for defendant in error.
   Scott, J.

The plaintiff in error seeks to reverse a judgment of the District Court of Butler county, by which a judgment previously rendered, between the parties, in his favor, by the court of common pleas of the same county, was, as he claims, erroneously reversed. The original action in the court of common pleas was brought by the plaintiff in error, to recover damages, under the statute, for • the culpable negligence of defendant’s servants, in the running of a gravel train, whereby the plaintiff’s intestate,. Larkin, was killed.

The facts of the ease, as shown by the pleadings, and the evidence offered to the jury upon the trial, wrere substantially these: The defendant was engaged in ballasting its road, at a point some miles west of Hamilton, in Butler county, and, for this purpose, was employing and using a gravel train to carry gravel from a pit, near Hamilton, to-the point where it was needed for ballast. Larkin and a number of other hands were employed by defendant to-load the cars of the train with gravel at the pit, and to unload them where ballast was needed. Eor the discharge of the latter duty, it was necessary, and was the usual custom, for the hands so employed to ride on the cars, when loaded,, from the pit to the place of unloading. The trains we rerun under the supervision of a conductor, and with their operation and management Larkin and the hands employed with him had nothing to do. No express contract, was made with Larkin in regard to his safe transportation from and to the gravel pit, nor was defendant charged with, negligence in the selection of its servants. At the time of the occurrence of the alleged injury, Larkin and the other-hands, with their shovels, were riding on a loaded train,, which had nearly reached the place of unloading. The train was stopped a little short of the proper place, and upon a signal from the section boss, who had charge of th& distribution of the ballast, the engineer again started it forward, without giving the customary notice to the hands who were aboard. By this sudden and unexpected movement, Larkin, who had risen to his feet when the train first stopped, was thrown from his car and run over by a portion of the train, and thereby was killed. The negligence complained of was that of the engineer in starting the train without giving proper notice.

The liability of the defendant for damage resulting to a co-employe from this negligence of the engineer was drawn in question, and, on the trial, the court charged the jury, among other things, as follows:

“The law is, that if Larkin and all other employes of the defendant on the train at the time Larkin was killed were employed in a common service, as fellow-servants of the defendant, and Larkin was killed by the negligence and carelessness of one or more of such employes or servants, that the plaintiff can not recover. But if the service, as between the employes or servants on the train, was not common, then this rule does not necessarily apply. If it was the exclusive' duty of certain designated employes or servants of the company to manage the running of the train — that is, startiug, turning, stopping it, etc. — aud Larkin was not one of such persons, but was one of another class of employes or servants of the defendant, who had no control of the running or management of the train, but whose duty it was simply to load the train with gravel, at one point, and unload the gravel at another and distant point, and a part of the conti’act of employment, expressed or implied, between Larkin and the defendant, was that Larkin was to be safely carried from the point he was at in loading the train to the place it was to be unloaded, on the train controlled by the class of employes first mentioned, then, although Larkin was a servant of the company, and, in a general sense, engaged, in common with ■all the servants of the defendant on the train, in the service of ballasting the defendant’s road, yet, in a special sense, he was in subordination to the class of persons or employes who had exclusive control of the train, so far that he was ■entitled to the exercise, on the part of such persons or employes, of ordinary care — not extraordinary care and skill— in the running of the train ; and if ordinary care and skill, •on the part of the employes having charge of the train, would have saved his life, or, in other words, if his death was occasioned by the want of ordinary care and skill, on the part of such persons in charge of the train, then this defense fails, and the plaintiff will be entitled to recover.”

This instruction was excepted to, at the time, and, the jury having found for the plaintiff, defendant moved for a new trial, which motion was overruled, and judgment was entered on the verdict.

Of the' errors assigned in the district court, we think it necessary to consider only those which relate to the charge of the court and the overruling of the motion for a new-trial.

"Was the instruction which we have quoted erroneous, and calculated to mislead the jury? We think that the •adjudications of the Supreme Court of this state, on the subject to which the instruction relates, require us to answer this questiou in the affirmative.

That Larkin and the engineer of the gravel train were 'fellow-' servants, engaged in a common service, admits, as we think, of no doubt. They were acting together, under one master, in carrying out a common object, viz., the ballasting of defendant’s road, and so were engaged in a common service. On this-subject it is only necessary to refer to the cases of Whalan v. M. R. & L. E. R. R. Co., 8 Ohio St. 249; Manville v. Cleveland and Toledo R. R. Co., 11 Ohio St. 417; and P., Ft. W. & C. Ry. Co. v. Devinney, 17 Ohio St. 198.

The strict and limited sense in which the instruction under consideration construes “ a common service,” is wholly inconsistent with the views expressed by the- court in each of those cases.

The general rule of the common law unquestionably is, that “a servant, by entering into his master’s service, assumes all the risks of that service which the master can not control, including those arising from the negligence of his fellow servants.”

The single exception engrafted on that rule in this state, by the cases of L. M. R. R. Co. v. Stevens, 20 Ohio, 415, and C., C. § C. R. R. Co. v. Keary, 3 Ohio St. 201, is thus stated by Judge Brinkerhoff: “ "Where one servant is placed in a position of subordination to, and subject to the orders and control of another servant of a common master, and the subordinate servaut, without fault of his own, and while in the performance of his duty, is injured through the negligence of the superior servant while acting in the common ¡service, an action lies in favor of the inferior servant so injured, against the master. But this is the extent and limit of the exception. Beyond it no case in Ohio has= ever gone.” P., Ft. W. & C. Ry. Co. v. Devinney, supra, 211.

We are quite clear that the case before us can not be-brought within this exception. Larkin was not subordinate to, and subject to the orders and control of the engineer. Under the conductor, it was the duty of the engineer to operate and manage the running of the train. In this department of business Larkin had no duty to perform. Though he and the engineer were engaged in a common service, yet their respective spheres of duty were outside of each other, and the position of neither, so far as is shown, gave any right of control over the other.

By a portion of this instruction the question seems to' have been referred to the jury, whether it was not one of the implied terms of the contract of employment between Larkin and the defendant, that Larkin should be carried safely to and from the gravel pit. This was a question of law, and should not have been referred to the jury. By the charge given, the jury was substantially instructed that Larkin’s position, while being carried on the train, was so' far one of subordination to the servants engaged in running the train, as to render the defendant liable for any damage resulting to him from their want of ordinary care.. By this instruction we think the jury must have been misled.

It may be proper to say, that Larkin did not, by riding on the train, drop his status as employe and assume that of a passenger. On this subject we need only refer to the-case of Manville v. Cleveland and Toledo R. R. Co., supra.

For the errors which we have indicated, we think the-verdict of the jury should have been set aside and a new trial granted pursuant to defendant’s motion, and that the district court did not err in reversing the judgment entered on the verdict.

Judgment of district court affirmed.