author: Shauck, J.

text:
    Hassaurek v. Markbreit, Admr.

      Suit for divorce — Section 5700, Revised Statutes — Rights of parties when divorce granted upon wife’s aggression — Wilful absence for three years — Court may adjudge to her share of husband’s property — Parties may agree that husband pay sum every month — His estate bound in case of death, when.

    When upon tbe trial of a suit- for divorce tbe court finds from the evidence that the wife has been wilfully absent for more than three years and that the husband is entitled to a decree upon that ground, the court has jurisdiction under Section 5700, Revised Statutes, to -adjudge to her such share of the husband’s property as it deems just and reasonable, and if the parties thereupon agree that such division shall be ¡made by adjudging that he shall pay to her a sum named every month during her life and such agreement is carried into the decree, there is imposed upon him, and upon his estate in case of his death before hers, a valid obligation according to the terms of the decree.
    (Decided June 23, 1903.)
    Error to tbe Circuit Court of Hamilton county.
    Plaintiff brought her action in the court of common pleas to recover from the defendant $600, the sum of six monthly installments which were admitted to be unpaid, and which she claimed to be due her on the following state of facts: In 1881, the late Frederick Hassaurek and the plaintiff were husband and wife, and the parents of .two children. In that year he brought suit for the dissolution of the marriage relation upon the sole ground of the wife’s wilful absence for more than three years. She was personally served in Hamilton county, but did not answer. Upon the hearing the court found that the allegations of the petition were true, and it decreed the dissolution of the marriage relation and awarded to the husband the custody of the children, but providing that the mother should be permitted to visit them at all reasonable times. The decree contained the following provision for the wife: “It is further ordered by the court, the plaintiff having expressed a willingness and desire to make suitable provision for the defendant, that the plaintiff shall pay unto the defendant $1,200 per annum in twelve equal monthly installments in advance beginning January 1, 1882, and continuing so long as the defendant shall live and shall remain unmarried, but said payments shall cease upon her death or remarriage.”
    At the time of the trial of the suit for divorce the husband was the president of the Volksblatt Co., whose capital stock was $130,000 of which he owned $50,000, par value, while its actual value was much greater. This stock was the substance of his estate. From that time until his death he continued to be the president of the company and the present defendant was its manager. From the death of Mr. Hassaurek until now the defendant has been both president and manager. The monthly installments provided in the decree were paid by Mr. Hassaurek in accordance with its terms until his death, which occurred in France in October, 1885. Upon his death the defendant was appointed special administrator; he acted in that capacity and paid to the plaintiff the monthly installments according to the terms of the decree until June 21, 1886, when, the will of Mr. Hassaurek having been admitted to probate, Eunice Hassaurek, with whom he had in the meantime intermarried, was appointed its executrix; and, until her death in May, 1891, she continued to pay to the plaintiff the monthly installments according to the terms of the decree. Upon her death the present defendant was appointed administrator de bonis non with the will annexed; He continued the payment of the monthly installments according to the terms of the decree until July 1, 1899, when he refused to make further payments. From the date of the decree in 1881 until June 1, 1899, the payments were made in dividend checks of the Volksblatt Co., the amounts being charged successively against Mr. Hassaurek as administrator and his children, and this was done with the acquiescence of all against whom the charges were made. The defendant’s refusal to make further payments in 1899 was in compliance with a demand from the executors of the son of the plaintiff, who had died shortly before. When the defendant came into possession of the papers of Mr. Hassaurek he found among them a copy of the decree upon which the plaintiff’s suit is founded.
    In 1891 the defendant filed in the probate court an account of his administration taking credit, among other things, for the amount of nine monthly payments made to the plaintiff just before the filing of the account, and filing with his account receipts from the son and daughter of the plaintiff, each for fifty shares of the stock of the Volksblatt Co. Until after the refusal to make further payments in 1899 the plaintiff did not file with the administrator a claim for money due under the decree, nor did she ever have notice of any intended or actual distribution of the estate of Mr. Hassaurek. She has remained unmarried from the date of the decree.
    The jury were directed to return a verdict for the plaintiff and a judgment followed it. The circuit court reversed the judgment and rendered judgment for the administrator for the reason, as shown by its journal that: “The said court erred in instructing the jury to bring in a verdict for the plaintiff-below and in .refusing to instruct the jury to bring in a verdict for the defendant below, for the reason that the court of common pleas had no jurisdiction to render the judgment sued on in so far as it required the payment of annual installments as alimony beyond the natural life of Frederick Hassaurek without fixing a definite sum from which the installments were to be paid.”

      Mr. Judson Harmon; Mr. Alfred C. Cassatt; Messrs. Ernst, Cassatt & McDougall and Messrs. Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error.
    As the wife was defendant in this divorce case and judgment was rendered for her aggression, the rights of the wife were regulated by Section 5700, Revised Statutes. (See the Statutes, 1880.)
    It will be observed that the statute does not contain the word “alimony,” nor does the judgment sued on. The statute authorized the court to adjudge to the defendant such share of the husband’s real or personal property, or both, as it should deem just and reasonable, and this the court did. . If it had jurisdiction to adjudge a sum of money in gross, and this is not denied, it certainly had the power to adjudge the payment of installments which it should find' to be equivalent to such gross sum, and even if it would be erroneous it would not be void.
    It is claimed that this judgment is not merely erroneous, but is void, because the court had no power to adjudge to the defendant the payment of installments during her life, and after the death of the plaintiff. In support of this contention, the claim is made that alimony cannot be made payable after the death of the person charged, and that therefore the court had no jurisdiction to enter this judgment.

      But, even assuming that the judgment were here on error, and that any rules applicable to alimony could be applied to it, all of which we deny, nevertheless, we claim that the judgment rendered is a proper one. The overwhelming weight of authority is to the effect that alimony may be made payable during the life of the wife. Stratton v. Stratton, 77 Me., 373; Knapp v. Knapp, 134 Mass., 353; Storey v. Storey, 125 Ill., 608; Burr v. Burr, 10 Paige, 20; O’Hagan v. O’Hagan, 4 Ia., 509; Carson v. Murray, 3 Paige, 483; Miller v. Miller, 64 Me., 484.
    There are a number of cases which hold:
    1. That where the decree does not specifically order the payment of alimony during the life of the wife, it shall terminate upon the death of the husband ; and
    2. That, in a divorce a mensa et thoro, in which the marriage is not annulled and where the alimony is simply equivalent to the support which the husband owes to the wife, the alimony should not be made payable beyond the life of the husband, because the support for which it is a substitute would not have so continued, and because on the death of the husband, the wife is still entitled to her distributive share of his property.
    - 3. But where the divorce is a vinculo the marriage relation is annulled and terminated and the relative property rights of the wife and husband are forever settled; the amount adjudged the wife is not merely in lieu of support; and she is not entitled on the death of the divorced husband to share in his property. Therefore the court in such cases may make the alimony payable during the entire life of the wife.
    The record clearly shows that the decree, as to provision for the wife, was entered by consent of the plaintiff. Of course any judge or lawyer who reads the decree itself, and who knows the manner in which such cases are tried, would be absolutely certain that the decree as to alimony was by consent, and he would not doubt that the amount and the terms and manner of payment were all of them first agreed on by the parties.
    Not only is this true, but the substantial legal evidence set forth above proves that the decree in this regard was agreed to by the parties; and as the wife was clearly entitled under the statute to have the court adjudge to her a just and reasonable share of her husband’s real or personal property, any agreement entered into between the husband and wife was an agreement upon a good and valid consideration.
    1. The decree recites that both parties were in court hy their counsel, and it does not appear that any objection was made by the plaintiff to this particular provision, which establishes acquiescence on his part.
    2. The defendant and his estate paid the sum so provided for a period of seventeen years, which is the strongest possible evidence of consent.
    There is not a scintilla of testimony to contradict this evidence of the consent of Frederick Hassaurek, and we submit that the court was right in finding such consent as matter of law.
    Where there is consent, the authorities are clear that the parties charged under the judgment cannot thereafter set up error in the judgment. In Stratton v. Stratton, supra, this question arose:
    The statute of Maine provided that alimony could not be allowed to the wife on the libel of the husband, and the court undoubtedly had no right to grant alimony to the wife on the libel of the husband, but in the judgment under consideration in Stratton v. Stratton, 77 Me., 373, this had been done. Fletcher v. Holmes, 25 Ind., 458; Crews v. Mooney, 74 Mo., 26; Julier v. Julier, 62 Ohio St., 90; Buck v. Buck, 60 Ill., 241; Storey v. Storey, 125 Ill., 608. This matter has been passed on by this court. Law v. Law, 64 Ohio St., 369.
    We submit that this is not a matter pertaining to the jurisdiction of the court, but that it relates simply to the question of whether or not the court committed error. That question cannot be raised in the present action, no exception haying been taken, no error proceedings having been prosecuted, and the judgment having been complied with for so many years. It is not necessary to cite authoritiés to this court on the proposition that where the court had jurisdiction of the subject matter and of the parties, a judgment rendered by it can not be collaterally attacked, even though it might be erroneous. That has been held on numerous occasions by this court.
    We do not know of a case decided by this court in which the question has arisen as to the validity of a judgment granting relief which was greater, or different from the relief allowed by the statute, but other courts have passed upon it. Johnson et al. v. Mining Co. et al., 78 Wis., 159. This judgment was regularly paid by Frederick Hassaurek and his estate for seventeen years pursuant to its terms. As soon as the estate ceased paying the amount, the defendant in error filed her claim with the administrator, according to law, and upon its rejection entered suit upon her claim.
    We submit that this is a clear compliance with the law, and that any cases which relate to the method of collecting alimony are not applicable hereto, as this is, by the terms of the statute, and by its own terms, a judgment for money.
    The alleged final account of Colonel Markbreit as administrator did not close the estate as to Mrs. Hassaurek or release it from liability to her. The estate was still indebted to Mrs. Hassaurek under the terms of the judgment sued upon. The administrator had due notice of the claim and had recognized and paid the same is it fell due for. many years. He had certified a copy of the judgment which came to him with Mr. Hassaurek’s papers. No matter what sort of an account may be filed, an estate is not settled as long as there are assets to distribute and debts to pay. Weyer v. Watt, 48 Ohio St., 545. The estate distributed to the heirs was more than sufficient to pay this debt after paying all other debts, so it was the duty of the administrator to protect himself against his claim, or have it provided for under Section 6115, Revised Statutes. She had no notice or knowledge of the filing of the account. Law v. Law, 64 Ohio St., 369; Petersine v. Thomas, 28 Ohio St., 596; Olney v. Watts, 43 Ohio St., 499; Maxwell v. Sawyer, 90 Wis., 352; Wickes v. Wickes, 98 Ill. App., 156; White v. Bates, 89 Tenn., 570; Schmidt v. Mining Co., 40 Pac. Rep., 406; Parker v. Altschul, 60 Cal., 380; Leese v. Clark, 28 Cal., 36; Wilson v. Dougherty, 45 Cal., 35; Reynolds v. Hosmer, 45 Cal., 627; Storey v. Storey, 125 Ill., 608; Adams v. Storey, 135 Ill., 448; Johnson v. Johnson, 57 Kan., 343; Skittletharpe v. Skittletharpe, 40 S. E. Rep., 851; Rice v. Rice, 6 Ind., 100; Almond v. Almond, 4 Rand., 662; Russell v. Russell, 4 Green (Ia.), 26; Phelan v. Phelan, 12 Fla., 449; Maguire v. Maguire, 7 Dana, 181; Fishli v. Fishli, 12 Ky., 338; Kempster v. Evans, 81 Wis., 247; Galusha v. Galusha, 43 Hun, 181; Hopkins v. Hopkins, 40 Wis., 462; Davol v. Davol, 13 Mass., 264; United States v. Walker, 109 U. S., 258; Lewis v. Allred, 57 Ala., 628; Watkins Land Mortgage Co. v. Mullen, 54 Pac. Rep., 921; Seamster v. Blackstock, 83 Va., 232; Neilson, Petitioner, 131 U. S., 176; Cuddy, Petitioner, 131 U. S., 280; Page, Ex parte, 49 Mo., 291; Dill, In re, 32 Kan., 668; Folger v. Insurance Co., 99 Mass., 267; Fithian v. Monks, 43 Mo., 502; Anthony v. Kasey, 83 Va., 338; Cooper v. Reynolds, 77 U. S., 308; Ritchie v. Sayers, 100 Fed. Rep., 520; Murray v. Am. Surety Co., 70 Fed. Rep., 341; Warren v. Bank, 157 N. Y., 259; Commissioners v. Gwin, 136 Ind., 562; Railroad Co. v. Chenault, 60 S. W. Rep., 55; Venner v. Denver Water Co., 63 Pac. Rep., 1061; McCleary v. McLain, 2 Ohio St, 369; Spoors v. Coen, 44 Ohio St., 497; Railroad Co. v. Marshall, 11 Ohio St., 497; Rosebrough v. Ansley, 35 Ohio St., 107; Miller v. Miller, 11 Circ. Dec., 455; 21 C. C. R., 207; Bacon v. Bacon, 43 Wis., 197; Dinet v. Eigenmann, 80 Ill., 274; Campbell v. Campbell, 37 Wis., 206; Lennahan v. O’Keefe, 107 Ill., 620; Stahl v. Stahl, 114 Ill., 375; Craig v. Craig, 163 Ill., 176; State v. Cook, 66 Ohio St., 566; Buchanan v. Bilger, 64 Tex., 589; Crews v. Mooney, 74 Mo., 32; Keith v. Keith, 104 Ill., 397; Uhl v. Irwin, 3 Okla., 388; Taylor v. Gladwin, 40 Mich., 232; Piatt v. Piatt, 9 Ohio, 37; Marvin v. Collins, 48 Ill., 156; Edmondson v. Dist. of Allison, 98 Ia., 639; Darrow v. Darrow, 43 Ia., 411; Delafield v. Brady, 108 N. Y., 524; Julier v. Julier, 62 Ohio St., 90; DeWitt v. DeWitt, 67 Ohio St., 340; Foote v. Worthington, 4 Re., 500; 4 W. L. B., 645; Field v. Field, 15 Abb. New Cas., 434; Burr v. Burr, 10 Paige, 20; Wait v. Wait, 4 N. Y., 95; Knapp v. Knapp, 134 Mass., 353; Zuver v. Zuver, 36 Ia., 190; McCraney v. McCraney, 5 Ia., 232; Martin v. Martin, 65 Ia., 255; O’Hagan v.
      O'Hagan, 4 Ia., 509; Barrett v. Failing, 111 U. S., 523; Conrad v. Everich, 50 Ohio St., 476; Scott v. Shepherd, 2 Wm. Bl., 892.

      Mr. Edward M. Ballard and Mr. Walter M. Schoenle, for defendant in error.
    Under the Ohio statutes, the court had no right to decree alimony in installments to an erring wife, and a decree undertaking to do so can be collaterally attacked.
    In the first place, the whole matter of alimony is purely statutory. Therefore, in entering this decree, the court has only such powers as are given it by the statute, and can exercise none other. Olin v. Hungerford, 10 Ohio, 268. This principle is inferentially recognized in another Ohio case. Conrad v. Everich, 50 Ohio St., 476; Barker v. Dayton, 28 Wis., 367; Kempster v. Evans, 15 L. R. A., 391.
    Courts in this country possess in actions for divorce only the power conferred by statute. Bacon v. Bacon, 43 Wis., 197; Perkins v. Perkins, 16 Mich., 162. The power is a statutory power incident to the jurisdiction over applications for divorce. The statute describes the entire powers and regulations on the subject. Peltier v. Peltier, Harr. Ch., 19. See also, Henderson v. Henderson, 64 Me., 419; Stratton v. Stratton, 73 Me., 481; Davol v. Davol, 13 Mass., 264; Powell v. Campbell, 2 L. R. A., 617.
    It is especially true that the allowance of anything from the husband’s property to an erring wife is statutory because at common law, an erring wife received nothing at all. 2 Bishop on Marriage and Divorce (6 ed.), 377; 2 Am. & Eng. Enc. Law (2 ed.), 118; Stewart on Marriage and Divorce, Sec. 371; Nelson on Marriage and Separation, Sec. 907; Martin v. Martin, 33 W. Va., 695.
    As the plaintiff in error, who was an erring wife, had no rights at common law, her entire rights must be determined from the statutes. The statute upon this subject, which was in force at the time this decree was granted, was originally passed as one section and is found at 51 O. L., p. 377, Sec. 7. It was carried into the revision of the statutes of 1880 under the sectional number of 5699 and 5700.
    It will be noticed from an examination of this statute, that where the husband is the aggressor, the wife may be allowed “alimony,” and it may be in installments, but where the wife is the aggressor, she shall be adjudged a “share” of her husband’s property. This law was passed as one section. It becomes evident, therefore, that the legislature intended to make a distinction between the cases where the wife was the aggressor and the husband was the aggressor.
    The common pleas court in entering this decree in 1881, may have thought that the legislature ought, in such a case, to have allowed alimony in installments,or it may even have thought that the legislature intended to allow alimony in installments in such a case, but failed to do so by mistake, but this will not authorize the court to read that provision into the statute. It is a well recognized principle of law that the law is as it is written, and the court, under the guise of interpretation, has no right to inject into the law things which are not there. 23 Am. & Eng. Enc. Law (1 ed.), 303; Woodbury v. Berry, 18 Ohio St., 456; 23 Am. & Eng. Enc. Law (1 ed.), 298, with many cases cited; Smith on Stat. Const., 714; Maxwell on Interpretation of Statutes, p. 2, Sec. 2; Sedgwick on Stat. and Const. Law, 231; Cooley on Const. Lim. (5 ed.), 197; Ludlow v. Johnson, 3 Ohio, 553; McCormick v. Alexander, 2 Ohio, 66; Bruner v. Briggs, 39 Ohio St., 478.
    We would call the court’s attention also to the decision recently handed down by the Supreme Court upon the Royer Law regulating the jurisdiction in error of the Supreme Court.
    Was this order then authorized by the statute? We think not, for an order to pay to the wife one hundred dollars a month during her life is not adjudging to the wife a “share of the husband’s real or personal property.”
    There have been no decisions in this state interpreting this statute, but there have been decisions in other states upon statutes that are exactly like ours in effect. Johnson v. Johnson, 57 Kas., 343; Kempster v. Evans, etc., 15 L. R. A., 391; Skittletharpe v. Skittletharpe, 10 S. E. Rep., 851; Galusha v. Galusha, 43 Hun (N. Y.), 181; Hopkins v. Hopkins, 10 Wis., 462.
    The distinction between a division of the property and alimony in installments is recognized in Stewart on Marriage and Divorce, Sec. 396; 2 Nelson on Div., 871; Bacon v. Bacon, 43 Wis., 197, 202; Maxwell v. Sawyer, 90 Wis., 352; and has been distinctly recognized by our own Supreme Court in Olney v. Watts, 43 Ohio St., 499.
    Under an early Indiana statute, allowing a court to give alimony in money, held, there was no authority to set off specific property. Rice v. Rice, 6 Ind., 100. The right to give “alimony” does not give the right to give specific property or to give a gross sum of money. 2 Am. & Eng. Enc. Law (2 ed.), 129; Stewart of Marriage and Divorce, Sec. 374; Almond v. Almond, 4 Rand. (Va.), 662; Russell v. Russell, 4 Green (Ia.), 26; Phelan v. Phelan, 12 Fla., 449; Maguire v. Maguire, 7 Dana, 187; Calame v. Calame, 25 N. J. Eq., 548.
    Under a statute authorizing the court to “order the division of the estate, real and personal, in such a way as to them shall seem just and right,” held, a sum of money cannot be decreed, but property must be divided in kind. Fishli v. Fishli, 12 Ky., 338.
    If the court had no power under the statutes to grant alimony in installments to an erring wife, then the attempt to do so was beyond its jurisdiction, for jurisdiction is not only the power to hear and determine, but also the potoer to enter the particular judgment in the particular case. 12 Am. & Eng. Enc. Law (1 ed.), 147-150; 12 Am. & Eng. Enc. Law (1 ed.), 247; 1 Freeman on Judg., Sec. 116; Cooper v. Reynolds, 77 U. S., 308; Ritchie v. Sayers, 100 Fed. Rep., 520; United States v. Walker, 109 U. S., 258; Nielsen, Petitioner, 131 U. S., 176; Cuddy, Petitioner, 131 U. S., 280; Lewis v. Allred, 57 Ala., 628; Folger v. Insurance Co., 99 Mass. 267; Fithian v. Monks, 43 Mo., 502; Seamster v. Blackstock, 83 Va., 232; Anthony v. Kasey, 83 Va., 338; Watkins Land-Mortgage Co. v. Mullen, 54 Pac. Rep., 921 (Kans. Ct. of App., 98); Dill, In re, 32 Kan., 691; Page, Ex parte, 49 Mo., 291.
    There are also some Ohio cases which support this principle: Spoors v. Coen, 44 Ohio St., 497; McCleary v. McLain, 2 Ohio St, 369. The following cases also support the principle: Railway Co. v. Telegraph Co., 112 U. S., 306 (by Ch. Jus. Waite); Warren v. Union Bank, 157 N. Y., 259.
    The principle above enunciated has been applied in the following cases to which we would call the court’s attention in order to show how the courts have interpreted it. White Co. (Comrs.) v. Gwin, 136 Ind., 562 (22 L. R. A., 402) ; Railway Co. v. Chenault, 60 S. W. Rep., 55; Venner v. Water Co., 63 Pac. Rep., 1061 (Colo. App., 1900); Davol v. Davol, 13 Mass., 264. Under the above authorities, the decree in the divorce case of Hassaurek v. Hassaurek was in excess of the jurisdiction of the court granting it, and as this fact appears on the face of the decree, it can be collaterally attacked.
    Moreover, if our contention that it was beyond the power of the court to enter such a decree as this is correct, the fact that Frederick Hassaurek gave his consent to the rendering of.the decree cannot give the court jurisdiction to render it. 1 Black on Judg., Sec. 217; Rosebrough v. Ansley, 35 Ohio St., 107, 111; Railway Co. v. Marshall, 11 Ohio St., 497; Carriage Co. v. Miller, 11 Circ. Dec., 455; 21 C. C. R., 207; Nicholson v. Roberts, 6 Dec., 233; 4 N. P., 43; 12 Ency. Pl. & Pr., 125, par. 7, citing several cases, among them McCleary v. McLain, 2 Ohio St., 368; Johnson v. Parrotte, 46 Neb., 51; Andrews v. Wheaton, 23 Conn., 112 ; McKinnon et al. v. Hall, 50 Pac. Rep., 1052; Robertson v. Wheeler, 162 Ill., 566; Leman v. Sherman, 117 Ill., 657; Inglehart v. Arminger, 1 Bland., 519.
    1. Even in a case where alimony is properly allowed in installments, the right to it ceases by operation of law at the death of the husband, even though the decree provides that it shall continue during the life of the wife. 2 Am. & Eng. Enc. Law (2 ed.), 139.
    This principle is supported by numerous authorities. 2 Bish. on Mar. & Div. (6 ed.), Sec. 248; Stewart on Mar. & Div., Secs. 360, 374 and 392; Lockridge v. Lockridge, 3 Dana, 28; Francis v. Francis, 31 Gratt., 283; Wallingsford v. Wallingsford, 6 H. & J. (Md.), 485; Casteel v. Casteel, 38 Ark., 477; Kurtz v. Kurtz, 38 Ark., 119; Brown v. Brown, 38 Ark., 324; Stahl v. Stahl, 114 Ill., 375; Gaines v. Gaines, 48 Ky., 295; Knapp v. Knapp, 134 Mass., 353; Dewees v. Dewees, 55 Miss., 315; McGechie v. McGechie, 43 Neb., 523; Maxwell v. Sawyer, 90 Wis., 352; Martin v. Martin, 33 W. Va., 695; Odom v. Odom, 36 Ga., 286; Rodgers v. Viness, 6 Ired., 293; Lennahan v. O’Keefe et al., 107 Ill., 620, cited with approval in Craig v. Craig, 163 Ill., 176; Storey v. Storey, 125 Ill., 608.
    Even where the decree in so many words makes the alimony payable during the life of the wife it will be held to cease by operation of law at the death of the husband. Johns v. Johns, 44 N. Y. App. Div., 533.
    2. The decree in the case at bar was not founded on an agreement between the parties.
    Opposing counsel contend, first, that independent of any contract between Frederick and Eliza Hassaurek, the plaintiff in error was entitled to collect the installments falling due after the death of Frederick Hassaurek. The foregoing authorities show that this claim is not well founded. In the second place, opposing counsel contend that the decree was founded upon a contract between the parties and that for this reason the installments may be collected after the death of the husband. We deny that there was any such contract.
    We start with the presumption that a decree is founded on evidence and not on agreement. This is a presumption of ordinary experience for they are ordinarily so founded, and it has been recognized by an Ohio court. Sargent v. Sargent, 11 Dec., 218; 7 N. P., 639.
    3. Even when a decree for alimony in installments is founded on a contract, that contract must specifically bind the heirs of the husband to justify the payment of installments after the death of the husband. Storey v. Storey, 125 Ill., 608.
    4. Not only must the contract specifically bind the heirs, but the divorced wife must have, by la\V and independent of the contract, the right to dower in the husband’s estate or the installments must cease at the death of the husband. Adams v. Storey, 135 Ill., 448.
    5. There are good reasons for holding that the installments must cease at the husband’s death. Lockwood v. Krum, 34 Ohio St., 1; Field v. Field, 66 How. Pr., 346; Lennahan v. O’Keefe, 107 Ill., 620.
    The decree in the case at bar is a mere personal order, and can be enforced only by contempt proceedings. It does not create a debt and is not a- judgment, and therefore a suit cannot be maintained for the arrears due under it. We base this statement upon the following considerations:
    First — There is no provision in our statutes authorizing a suit to be brought upon such a decree.
    Second — There was no provision at common law for bringing suit upon a decree for alimony in installments. The only way to enforce such a decree at common law was in earlier times by excommunication and afterwards by imprisonment. See 2 Bishop on Mar. & Div. (6 ed.), Sec. 497; Stewart on Mar. & Div., Sec. 362.
    The reason for thus holding becomes plain when we examine the common law actions. These were real, personal, and mixed, o Stephens on. Pleading, p. 39. The real and mixed actions were writ of right, formed on, dower and quare impedit. Ib., 43. The personal actions were debt, covenant, detinue, trespass, trespass on the case and replevin. Ib., 46. It requires but a glance at the above list to see that this decree does not come within any of the above actions unless it comes within trespass on the case or debt. The writ of trespass on the case lies where a party sues for damages for any wrong or cause of complaint to which covenant or trespass do not apply. Stephens on Plead., 48. It becomes evident from this definition that the action brought by Eliza Hassaurek is not an action of trespass on the case. She does not ask for damages of any sort, but for money due under an order of court.
    This then must be an action in debt, or else it is not an action known to the common law. “The writ of debt lies when a party claims the recovery of a debt.7’ Stephens on Pleading, 46. Unless the claim rising under this decree is a debt or a judgment (which is a debt of record), it cannot be the basis of an action in debt.
    A decree for alimony in installments does not create a debt, for such alimony may be enforced by imprisonment notwithstanding the constitutional inhibtion against imprisonment for debt. Effinger v. State of Ohio, 5 Circ. Dec., 408; 11 C. C. R., 389; Myers v. Myers, 4 Dec., 217; 3 N. P., 162; Kaderabek v. Kaderabek, 2 Circ. Dec., 236; 3 C. C. R., 419; Stewart v. Stewart, 10 Re., 662; 23 W. L. B., 38; Hand v. Hand, 11 Re., 202; 25 W. L. B., 214; Bronk v. State, 31 So. Rep., 248; Cave, In re, 66 Pac. Rep., 425; Pain v. Pain, 80 N. C., 322.
    Alimony is not a debt vhich may be proved in bankruptcy, and which is barred by a discharge therein. In re Anderson, 97 Fed. Rep., 321; Turner v. Turner, 108 Fed. Rep., 785; Welty v. Welty, 195 Ill., 335; Barclay v. Barclay, 184 Ill., 375; Audubon
      v. Schufeldt, 181 U. S., 575; Campbell v. Campbell, 37 Wis., 206; Bacon v. Bacon, 43 Wis., 198; Clark v. Burke, 65 Wis., 359; Ex parte Perkins, 18 Cal., 60; Chase v. Ingalls, 97 Mass., 524.
    Moreover, the order upon which this suit is based was not a judgment (upon which an action for debt can be brought). That an order to pay alimony in installments is not a judgment is specifically held in Hart v. Hart, 1 Dec., 94; 1 N. P., 56; Myers v. Myers, 4 Dec., 217; 3 N. P., 162. It is inferentially held in Olin v. Hungerford, 10 Ohio, 368, where it is held that alimony in installments is not a lien upon real estate, and in Everick v. Conrad, 2 Circ. Dec., 517; 4 C. C. R., 234, where the court holds that alimony in installments and alimony in gross differ from each other. Stewart on Mar. & Divorce, Sec. 374; Miller v. Miller, 75 N. C., 70.
    Such a decree as this can be enforced by contempt proceedings. The very fact that this extraordinary remedy is allowed is evidence that it cannot be enforced in the ordinary way. In Haines v. Haines, 35 Mich., 138; Livingston v. Superior Court, 117 Cal., 633; 38 L. R. A., 175; Hart v. Hart, 1 Dec., 94; 1 N. P., 56; Galusha v. Galusha, 43 Hun (N. Y.), 181; Kurtz v. Kurtz, 38 Ark., 119; Allen v. Allen, 100 Mass., 373.
    The conclusion to be drawn from the foregoing authorities is that an action at law for money due cannot be maintained on such a decree as the one on which this action is founded. This conclusion is strengthened by the following decisions upon analagous questions.
    While a décree for alimony is not a decree in chancery, as was decided in Olin v. Hungerford, 10 Ohio, 268, it resembles to a chancery decree for the payment of money. Van Buskirk v. Mulock, 18 N. J. Law,. 184; 2 Bishop on Mar. & Div., Sec. 499.
    It has been held that a suit cannot be maintained on an action for alimony pendente lite because it is subject to revision or modification at any time. Vine v. Vine, 42 Atl. Rep., 871 (21 R. I., 190) ; Nary v. Braley, Admr., 41 Vt., 181; 2 Am. & Eng. Enc. Law (2 ed.), 117; Kempster v. Evans, 15 L. R. A., 391; Jordan v. Westerman, 62 Mich., 170; Daniels v. Lindley, 44 Ia., 567.
    One reason why an action should not be allowed upon such a decree is that it is too indefinite and unsettled. This is true first, because it is always liable to be modified by the court. Olney v. Watts, 43 Ohio St., 499; King v. King, 38 Ohio St., 370; Hare v. Gibson, 32 Ohio St., 33; Kempster v. Evans, 15 L. R. A., 391; and this may be done even as to installments which are overdue. Craig v. Craig, 163 Ill., 176.
    The common pleas court should not have allowed Mrs. Hassaurek a standing in court merely because that court thought she ought to have some way of collecting alimony. When the common law gives no right of action, the court cannot supply a remedy. 6 Am. & Eng. Enc. Law (2 ed.), 270.
    Alimony decreed in installments to the wife for life ceases at the death of the husband, when the divorce is granted to the husband for the aggression of the wife.

      Construing the statute in the light of the law of alimony, the court exceeded its jurisdiction.

    The law of alimony is based on the duty of the husband to support the wife. This duty arises on marriage, and when the marriage relation is terminated by the death of the husband, this duty naturally and of itself ceases. When the divorce is granted for the aggression of the husband, this same duty is enforced by the court, and is known in the law as alimony. The decree for alimony takes the usual form of installments of money payable at regular intervals by the husband, as presented in the alimony decree at bar.
    The support that a wife receives after a husband’s death is created by statute, and is an interest in the husband’s property, known as her dower in his real and personal estate. Therefore during a husband’s life a wife has her right of support; after his death her other rights in his property accrue — in our state fixed expressly by the statutes. Lockwood v. Krum, 34 Ohio St., 1; Conger et al. v. Barker’s Admr. and Heirs, 11 Ohio St., 1; 2 Am. & Eng. Enc. Law (2 ed.), 139; Stillman v. Stillman, 99 Ill., 196; Martin v. Martin, 65 Ia., 255; Secs. 3108, 3111, Rev. Stat.
    In England the courts had no power to grant divorces a vinculo, and therefore alimony could only be granted for divorces a mensa et Choro; but in this country the prevailing practice obtains that the courts have jurisdiction to grant absolute divorces, hence have granted alimony and applied its principles. Pomeroy’s Eq. Jur. (2 ed.), Sec. 1120; Campbell v. Campbell, 37 Wis., 206.
    The statute in force at the time is found in 51 O. L., 377, Sec. 7 (sections 5699 and 5700, inclusive of the statutes of 1880).
    This precise question has been decided by the Supreme Court of Kansas in Johnson v. Johnson, 57 Kan., 343, involving a statute similar to ours and a decree for alimony like the present.
    So the court in this case had the power to grant a certain portion of the husband’s real or personal property at the time of the divorce; could have granted a sum in gross as alimony, which might also be made payable in installments, but would still be a part of that gross sum. This is exemplified in the statute itself, for if a divorce be granted for the husband’s aggression the wife is entitled to a “sum of money, payable either in gross or in installments.” It follows that the section cannot be extended from its apparent intention in favor of the erring wife.
    Therefore we claim, as our first ground, that the court had no jurisdiction to grant the decree as entered.
    The distinction between a division of property and an alimony decree in installments is now well settled by the authorities. Bacon v. Bacon, 43 Wis., 197; Maxwell v. Sawyer, 90 Wis., 352; White v. Bates, 89 Tenn., 570; Olney v. Watts, 43 Ohio St., 499.
    Moreover the duration of the payments is indefinite, for it may be terminated at any time by the remarriage of the plaintiff in error, and for that reason can not be considered a final division of the husband’s property. This is shown in the case of Kempster v. Evans, 81 Wis., 247 (15 L. R. A., 391).
    Another reason that this judgment is not a division of the husband’s property at the time of divorce, is that a decree of this nature for the aggression of the wife is subject to modification. Olney v. Watts, 43 Ohio St., 499; Pretzinger v. Pretzinger, 45 Ohio St., 452.
    The wife for whose aggression a divorce is secured is not entitled to any alimony unless expressly allowed to her by statute. 2 Am. & Eng. Enc. Law (2 ed.), 818; Spitler v. Spitler, 108 Ill., 120.
    The decisions of the Supreme Court of Illinois are instructive on this question. That court has the power to grant a share of the husband’s property (Dinet v. Eigenmann, 80 Ill., 274), but if the alimony is decreed in installments, it is not a division of the husband’s property, and a court has no jurisdiction, though the divorce be granted for the husband’s aggression, to decree the installments beyond the husband’s life,, unless the alimony be in lieu of dower. Lennahan v. O’Keefe, 107 Ill., 620; Stahl v. Stahl, 114 Ill., 375; Adams v. Storey, 135 Ill., 448 (11 L. R. A., 790) ; Starr & Curtis, Ann. Ill. Statutes, Ch. 41, Sec. 14.
    These principles of alimony and alimony in lieu of dower are well stated as a deduction from the authorities, in 7 Enc. of PI. & Pr., 124.
    The same is held in the decisions from the state of New York. In Field v. Field, 15 Abb., N. Cas., 434, suit was brought for unpaid installments of alimony that had accrued since the husband’s death. The decree for divorce had been granted to the wife for the husband’s aggression and alimony ordered to continue in express terms during the life of the wife. The case is affirmed in Johns v. Johns, 44 App. Div., 533, in which the court holds that if alimony be also given in lieu of dower which is secured to her by the New York statutes, the court would then have jurisdiction to continue the installment beyond the husband’s life. So in Wait v. Wait, 4 N. Y., 95.
    Also in Massachusetts the court may grant a gross sum as alimony, as in Livermore v. Boutelle, 77 Mass., 217; but if the alimony is granted in installments, though for the husband’s aggression, it ceases at his death. Knapp v. Knapp, 134 Mass., 353.
    In Iowa alimony may be granted to a wife divorced for her aggression, as held in Zuver v. Zuver, 36 Ia., 190; but in McCraney v. McCraney, 5 Ia., 232, a bill of equity having been filed to set aside a decree for divorce for the purpose of having a wife divorced for her aggression, decreed her dower in the husband’s real and personal estate.
    When the divorce is granted for the aggression of 'the husband, this court has held that alimony may be granted in lieu of dower. Julier v. Julier, 62 Ohio St., 90.
    It is an axiom of statutory and constitutional law that what is expressly prohibited cannot be done indirectly. Dower could not be granted to plaintiff in error, and therefore nothing in lieu thereof. Doyle v. Doyle, 50 Ohio St., 341.
    Also it is to be noted, that the statute provides that she shall be “barred of all right of dower in the lands of which her husband is seized at the time of filing the petition for divorce, or which he thereafter acquiresj” but the effect of this decree of alimony is to charge not only the real estate at the time of the divorce, but also that which is acquired thereafter.

      This jurisdiction is denied by the statutes of Ohio.
    Upon a divorce from the bonds of matrimony, no rights in each other’s property exist at the death of either party, unless expressly granted by the legislature. American Legion of Honor v. Smith, 45 N. J. Eq., 466; Barrett v. Failing, 111 U. S., 532.
    A number of authorities hold that if the divorce is granted for the husband’s aggression, the divorced wife may, besides her alimony, be awarded a sum in lieu of dower in his real and personal estate, as if the husband were dead, on the theory that the husband should not take advantage of his own wrong. Musselman v. Musselman, 44 Ind., 106; Gercke v. Gercke, 100 Mo., 237; Percival v. Percival, 56 Mich., 297; Reed v. Reed, 86 Mich., 600; Dow v. Bleak, 148 Ill., 76. But in the present case plaintiff in error is not entitled to anything on the husband’s death, and therefore nothing in lieu thereof can be granted her.
    What if Fred. Hassaurek had remarried and had been once more divorced, but this time for his own aggression? Would the wife divorced for her own aggression be permitted to oppose the dower rights of the innocent divorced wife? ' How does this decree affect the heirs at law of Fred. Hassaurek? Lennahan v. O’Keefe, 107 Ill., 620.
    By virtue of sections 4158 and 4159 all. real estate and personal estate “shall descend and pass to the children of the intestate;”- and their inheritance is subject only to the dower rights of a widow. Not only would the rights of innocent heirs be defeated, but even the support for the minor children would be in danger.
    A judgment can not be varied by parol testimony, and for this reason parol evidence can not be introduced to prove that this decree was entered with the consent or agreement of Frederick Hassaurek. Maxwell v. Sawyer, 90 Wis., 352; 2 Nelson on Divorce, 881.
    It is held in this state that an express recital of consent or of an agreement is necessary. 5 Enc. of Pl. & Pr., 963; Law v. Law, 64 Ohio St., 364; Petersine v. Thomas, 28 Ohio St., 596.
    The court exceeded its jurisdiction in this decree for alimony on the grounds as set forth in the first section of our brief. The principle also , applies that, though a court may have jurisdiction of the person and subject matter, it can not in its decree exceed the jurisdiction conferred. This doctrine is recognized by the Supreme Court of the United States in the case of Windsor v. McVeigh, 93 U. S., 274; Cooper v. Reynolds, 77 U. S. (10 Wall), 308. We claim that this question has been decided by this court in Rosebrough v. Ansley, 35 Ohio St., 107. Then Spoors v. Coen, 44 Ohio St., 497, holds that where no claim is stated, and the court renders judgment, that it is such a judgment as may be collaterally attacked. McCleary v. McLain, 2 Ohio St., 369.
   Shauck, J.

There was, upon the evidence, no question of fact for the consideration of the jury. The general question is whether, upon the conceded facts, the judgment should be for the plaintiff, as was held in the court of common pleas, or for the defendant, as was held in the circuit court. The decree of divorce upon which the plaintiff’s action is founded is easily recognized as the termination of marital relations between a pair with whom respect had survived devotedness. Its terms show that the natural relations between the mother and her children were to continue so far as was compatible with a severance of the relations between the parents; that although the evidence established the allegations of the wife’s willful absence the husband desired to secure to her during her life such support as was consistent with his means; that it was by his request that his desire found expression in the terms of the decree, and that the obligation which it imposed was to continue during her life without regard to the duration of his own, if the wife should not by remarriage acquire other means of support. The binding character of this obligation was recognized throughout eighteen years by all the members of the family of the parties. It is now disputed by strangers. Certainly an arrangement so consonant with natural justice should be enforced unless it is forbidden by some inflexible rule of the law so beneficent in its general operation that it should be maintained notwithstanding hardships which may result from its application to particular cases. Such a rule was thought to be applied to the case in the circuit court when it reversed the judgment of the court of common pleas because that court “had no jurisdiction to render the judgment sued on in so far as it required the payment of annual installments as alimony beyond the natural life of Frederick Hassaurek without fixing a definite sum from which the installments were .to be paid.” To support this conclusion much is urged and many cases are cited in the elaborate briefs of counsel for the defendant. That inquiry may be effective, attention should be given to the precise nature of the case. There is no direct attack upon the decree of 1881 by a proceeding to reverse it as erroneous. It is attacked collaterally as void. There is no occasion for considering what presumption should be indulged when the decree in a case of this character is silent with respect to the time during which payments are to be made, ¿unce it is here provided expressly that they should continue during the life of the wife, she remaining unmarried. Nor need we consider the nature of the obligations upon which decrees for alimony are founded since the finding of the court upon the evidence that the wife had been willfully absent for more than three years, and its judgment that the marriage relation should be terminated for that -reason, excluded her right to alimony. The court having concluded that a divorce should be decreed for her aggression, its further jurisdiction was defined by Section 5700 of the Revised Statutes, as follows: “And the court may adjudge to her such share of the husband’s real or personal property, or both, as it deems just and reasonable.” In view of the wide discretion vested in the court in making that adjudication it cannot be said that its power to adjudge is limited to the allegations of the pleadings as in Rosebrough v. Ansley, 35 Ohio St., 107. The court having this duty to perform and having the parties and their counsel before it, with their consent and at the request of the husband adjudged to the wife during life the equivalent of less than one-third of the dividends of the stock owned by the husband. Whether this judgment would have been an erroneous exercise of the jurisdiction which the statute vested in the court if it had been rendered without consent we need not consider. It must now be regarded as settled beyond controversy that when, in an action for divorce, the court is satisfied from the evidence that the marriage relations should be annulled the parties are competent to contract with respect to such changes in property rights as are to result from the severance of the former relation and their contract, if approved by the court, may be carried into its decree, thus becoming a perpetual obligation. Petersine v. Thomas, 28 Ohio St., 596; Julier v. Julier, 62 Ohio St., 90; Law v. Law, 64 Ohio St., 369. Whether the request of the husband that the decree should be in the terms employed was prompted by a desire to advance his own interests by retaining personal control of the stock which would otherwise have been adjudged to the wife, of by the conviction that in this mode her future support would be more secure, cannot be material to the validity of the obligation. The judgment of the circuit court cannot stand upon the ground npon which, it was placed. The plaintiff’s demand having been made upon the executor upon his appointment as special administrator and having been complied with because of his knowledge of its existence and justice, there is no basis for the contention that there should have been a further presentation of the claim. Nor could the administrator with knowledge of the existence of this demand against the estate defeat it by a distribution of the estate in his hands. Indeed, the conduct, of the parties for eight years thereafter shows that what is spoken of as the distribution of 1891 was regarded by the parties as •subject to the demand of the plaintiff to be discharged by the administrator.

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

Burket, C. J., Spear, Davis, Price and Crew, JJ., concur.


source: Caselaw Access Project

author: Davis, J.

license: Public Domain

text:
    The Cleveland City Railway Co. v. First National Bank of New York.

      Consolidation of constituent companies — Section 8381, Revised Statutes — Proceedings to effect consolidation — Lawful for directors of such constituent companies to agree — That such companies shall enter consolidation free from, debt — Sale of stock apportioned to one company to pay debts — Distribution of remaining stock among holders in said company— • Agreement between holders of majority of stock in said companies respectively — Solder of shares as pledgee — Not stockholder till stock transferred on company’s books — Rights of pledgee — Consolidated company not liable for conversion of pledged stock of constituent companies, when — Restriction of transfer — Certificate of stock — Law of corporations — Consolidation.

      1. Under Section 3381, Revised Statutes, which authorizes the directors of the constituent companies of a proposed consolidation to enter into a joint agreement for the consolidation, •prescribing the terms and conditions thereof, the mode of carrying the same into effect and the manner of converting the capital stock of each of the constituent companies into that of the new company, with such other details as they may deem necessary to perfect the new organization and the consolidation of the companies, it is lawful for such directors to agree, as part of the terms and conditions of the proposed consolidation, that the constituent companies shall come into the consolidated company free from debt; and that of the stock apportioned to one of the constituent companies enough shall be sold to pay the floating indebtedness of that company, and the remainder distributed among the holders of the preferred and common stock of such company, in proportion to the relative value of such preferred and common stock.
    2. Where the directors of two constituent companies made it a part of the terms and conditions of the consolidation that, as to all property matters between the two companies which were not specifically adjusted in the agreement of consolidation, they should “be adjusted pursuant to a memorandum of agreement entered into by the holders of more than a majority of the stock of said constituent companies,” previously entered into, such agreement by the stockholders was thereby made part of the consolidation agreement, and stockholders who signed the latter agreement, as directors must he held to have been cognizant of, and to have assented to the said agreement by the stockholders, and they and those claiming under and through them are bound by a distribution of stock which was made in pursuance of such stockholders’ agreement and such' directors’ agreement for consolidation.
    3. A person who holds shares of stock in pledge, although the shares are assigned in blank by the registered owner, does not become a stockholder until the shares are transferred to ' 'him on the books of the corporation; and a mere pledgee, who has not become a registered stockholder, is not entitled to participate' in, or to be notified of, the proceedings to effect a consolidation of two or more companies.
    4. Where it was agreed by the directors of the constituent companies that certain shares of the capital stock of the consolidated company should be distributed to one of the constituent companies, to be disposed of by that company so far as necessary tcf liquidate its floating indebtedness, the remainder to be distributed among the holders of the stock of that company, which agreement was assented to by the pledgors of such shares, but without the knowledge of the pledgees, and was performed by the consolidated company by delivering the shares to “agents and proxies” of the constituent company and its stockholders, designated by .them to carry out the agreement of consolidation in regard thereto, the consolidated company is not liable for the conversion of such pledged shares after théy passed into the possession of such agents and proxies; nor is such a distribution of shares of its capital stock'by the consolidated company a violation of the. provision contained in the certificates of shares in the constituent company that they were transferable on the books of that company only on the surrender of the certificates.
    (Decided June 23, 1903.)
    Error to tbe Circuit Court of Cuyahoga county.
    This action was instituted in the court of common pleas of Cuyahoga county hy the First National Bank of New York, defendant in error, against the Cleveland City Railway Co., the plaintiff in error, to recover damages for the alleged wrongful conversion of certain shares of the capital stock of the plaintiff in error, which, the Bank claimed that it was entitled to recover under the terms of a certain agreement of consolidation between the two constituent companies of the plaintiff in error. A judgment was rendered in the court of common pleas for the Bank in the sum of $22,082.34, which was affirmed by the circuit court. This proceeding in error is prosecuted to reverse these judgments. The material facts of this case are practically undisputed and are as follows:
    In May, 1893, the Cleveland City Cable Railway Co. and the Woodland Avenue and West Side Street Railway Co. each operated and owned lines of street railway in the city of Cleveland, Ohio. On May 10, 1893, stockholders of both companies, owning more than two-thirds of the stock of each, entered into a preliminary agreement for consolidation, fixing the name of the proposed consolidated company, the amount of its capital stock, the share thereof of each constituent company, and the manner of converting the stock of each into that of the new company. This agreement also contains the following provisions:
    “Each of the respective companies hereto, shall pay off all of its floating indebtedness on June 1, 1893, so that when said consolidation goes into effect on such date, each shall be free and clear of all indebtedness beyond the two million dollars of bonds assumed as above stated, except such indebtedness incurred for new material and equipment in the regular course of business, which has not yet been delivered, and such equipment and material as has already been delivered to provide St. Clair street with electricity, which indebtedness the Cleveland City Railway Co. is to assume, and also to assume all contracts by the Cleveland City Cable Railway Co, for equipping St. Clair street with electricity, and also all contracts made by the Woodland Avenue and West Side Street Railroad Co. for new rails, cars, material, etc.
    “The undersigned stockholders of the Cleveland City Cable Railway Co. hereby appoint, and irrevocably designate Frank DeH. Robison and John J. Shipherd as their agents and proxies to carry out this agreement and perfect said consolidation, and they are hereby authorized to attend any and all stockholders’ meetings of the Cleveland City Cable Railway Co. called for the purpose of carrying out the terms of this agreement, and to vote all the stock standing in the name of each of the undersigned, in such manner as they shall find necessary to carry out and ratify all of the purposes of this agreement, and each of the undersigned stockholders in said company hereby agrees to deliver to said two persons, or their chairman, at such time as they may designate, all of the stock held by him, to be exchanged for stock of the consolidated company, in proportion to the respective holdings of each as each shall be entitled to receive the same.
    “The method of organization of the consolidated company, and all of the details with reference to it, and the working out of the settlement and adjustment of the details of this agreement, are left by all of the undersigned to said * * * Frank DeH. Robison and John J. Shipherd, committee for the stockholders of the Cleveland City Cable Railway Co., to be agreed upon and to be to the satisfaction of each of said committees.”
    On May 11, 1893, the directors of the two companies entered into an agreement of consolidation pursuant to statute (section 3381), and in accordance with the preliminary agreement of stockholders, fixing the amount of the capital stock of the new company at eighty thousand (80,000) shares of the par value of one hundred dollars ($100) each. The provisions of said agreement relating to the disposition of this stock are as follows:
    “Seventh — Said shares of capital stock shall be distributed as follows:
    “(1) To said the Woodland Avenue and West Side Street Railroad Co., party of the first part, fifty-one thousand seven hundred and fifty (51,750) shares, to be distributed by said company among its stockholders as they are respectively entitled to receive the same.
    “(2) To the Cleveland City Cable Railway Co., party of the second part, eighteen thousand two hundred and fifty (18,250) shares, to be disposed of by-said company, so far as necessary, to liquidate its floating indebtedness, and the remainder to be distributed among the holders of the common and preferred stock of said company, in proportion to the present relative value of such preferred and common stock.
    “(3) Ten thousand (10,000) shares of said ■ stock to remain in the treasury of the company, to be issued by the board of directors, according to law, at such time and in such manner as the interests of the company may require.”
    Said agreement also contains the following provisions :
    “Ninth — Each of the constituent companies, parties hereto, is to pay off and discharge all of its floating and current indebtedness now existing, and each of said companies shall be entitled to receive all of the receipts of its present lines until and including May 31, 1893, so that on June 1, 1893, the consolidated company shall be entirely free and relieved from all such floating and current indebtedness, and not obliged to pay any of the same, except such indebtedness incurred for new material and equipment in the regular course of business which has net yet been delivered, and such equipment and material as has already been delivered to provide St. Clair street with electricity, which indebtedness the Cleveland City Railway Co. is to assume, and also is to assume all contracts by the Cleveland City Cable Railway Co. for equipping St. Clair street with electricity, and also all contracts made by the Woodland Avenue and West Side Street Railroad Co. for new rails, cars, materials and equipment. All claims held by each of the constituent companies hereto against other street railroad companies in the city of Cleveland, Ohio, are hereby assigned to the consolidated company, and the consolidated company, upon collecting the same, shall account to the stockholders of the constituent company entitled to receive the same for all net amounts received on account of such claims. The Cleveland City Railway Company assumes all liabilities against each of the constituent companies for injuries heretofore committed by them. The adjustment of all other property matters remaining between the two constituent companies and the consolidated company shall be adjusted pursuant to a memorandum of agreement entered into by the holders of more than a majority of the stock of said constituent companies, bearing date May 10,1893.”
    This agreement of consolidation was duly executed, ratified by more than two-thirds of the stockholders of each constituent company, and duly filed with the secretary of state as provided by law.
    On June 16, 1893, the Cleveland City Railway Co. issued stock certificate No. 2 for 51,750 shares of its stock to * * * for 18,250 shares of its stock to Prank DeH. Robison and John J. Shipherd, trustees, being the share of the Cable Co. stockholders.
    Mr. Robison was president and Mr. Shipherd was vice-president and treasurer of the Cable Co. Both were directors of that company; and immediately upon the consolidation both were made members of the directory and the executive committee of the new company. Mr. Robison was also made vice-president, and Mr. Shipherd, treasurer and transfer agent of the new company.
    The floating debt of the Cable Co., at the date of consolidation, June 1,1893, was such sum as, with interest to December 1, 1894, amounted to $420,318.86.
    The firm of Taintor & Holt was, during the time of the proceedings resulting in consolidation, composed of the following individual members: George H. Holt, G. E. Taintor, and G. D. l’Huillier; they were directors of the Cable Co. and joined in the execution of the consolidation agreement.. Mr. Holt was one of the vice-presidents, and Mr. l’Huillier was assistant secretary of the Cable Co.
    On June 1, 1893, 100 shares of preferred Cable Cp. stock stood in the name of George H. Holt, and 200 shares in the name of Giles E. Taintor, both of whom were members in the firm of Taintor & Holt, as above stated.
    In addition, on the same date, Taintor & Holt held 13,300 shares of common stock, equivalent, on the basis of five shares of common stock to one of preferred, to 2,650 shares of preferred. This stock stood on the books of the company in the name of G. Á. Schriefer, a clerk in the office of Taintor & Holt, but was admitted, upon the trial, to belong to the firm of Taintor & Holt. The jury rendered a special finding to the effect that the firm of Taintor & Holt were the owners .of the 300 shares of preferred stock, subject to its pledge to the plaintiff hereinafter referred to.
    In 1891, Taintor & Holt borrowed of the defendant in error $25,000, and pledged with it as collateral security said 300 shares of preferred stock, indorsed in blank,which certificates of stock have remained in the possession of the bank since that date. Power to transfer was also indorsed upon the certificate, but that power was never executed, Taintor & Holt remaining the registered owners of the stock on the books of the Cable Co. By the terms of these certificates they were transferable only upon the books of the company. On November 7, 1898, said Taintor & Holt and the bank jointly made demand upon the Cleveland City Railway Co. for the issuance of a certificate of stock for Taintor’s alleged proportion of the 18,250 shares, and offered to pay the portion of the floating debt chargeable thereto. A like demand was made on the same date on behalf of the said Holt and the bank jointly. Both the said demands were refused.
    On November 15,1898, the bank took an assignment of said stock from Taintor & Holt, and agreed to prosecute this action and account for any surplus recovered after payment of its debt.
    Dividends paid upon the stock of the new company from June 1, 1893, to October 1, 1898, amounted to $10.25 on each share of stock outstanding.
    The certificate for 18,250 shares was, after its issuance and delivery to Robison and Shipherd, trustees, indorsed by them in blank and deposited with the Savings & Trust Co., the registrar of the consolidated company, and new stock charged up against it as issued by Shipherd. All the stock covered by this certificate had been issued against it by Shipherd on September 21, 1893, except twelve shares which were issued to M. A. Hanna, president, trustee, January 15, 1895, to balance the account. A large amount of this stock was wrongfully converted by Shipherd to his own use, and it is claimed that the portion of stock to which the bank claims it was entitled, by virtue of the 300 shares pledged with it, was a portion of the stock thus wrongfully converted.
    All of the stockholders of the Woodland Avenue Co. received their proportionate shares of the new stock covered by certificate No. 1.
    On June 29, 1893, stock of the new company to the amount of 1995 shares was issued to Mr. Schriefer, for and on behalf of Taintor & Holt, and sent by Mr. Shipherd to them, without the delivery of any of the certificates of the Cable Co.; but some time in 1896, 9975 shares of the common stock held in his name-were returned to Mr. Shipherd by Taintor & Holt.
    At the time of the delivery of this stock, no part, of the floating debt was paid by Taintor & Holt; nor has any of the floating debt of the Cable Co. charged to all the stock held, at the time of the consolidation, by Taintor & Holt, viz.: 300 shares of preferred and 13,300 shares of common, been held. No shares of the new company were ever issued for the balance of the preferred and common stock held by Taintor & Holt.
    At the time of consolidation there were outstanding 10,000 shares of preferred and 30,000 shares of common stock of the Cable Co. The relative value of the common stock, as fixed by a committee appointed by the stockholders, to-wit, Shipherd and Robison, was as five shares of common to one of preferred.

      Messrs. Squire, Sanders & Dempsey, for plaintiff in error.
    The bank is bound by the terms of tbe consolidation agreement.
    The provisions of tbe consolidation agreement were sucb as tbe directors were authorized to make. Tbe statute gave them tbe broadest powers. Tbe agreement they were authorized to make was — to prescribe tbe terms and conditions for the consolidation, tbe mode of carrying tbe same into effect, tbe name of the new company, tbe number of directors and other officers thereof and their places of residence, tbe amount of capital stock of tbe new company, tbe number of shares and amount of each, the manner of converting tbe capital stock of each of tbe constituent companies into that of tbe new company, with such other details as they may deem necessary to perfect the new organisation and consolidation of the company.

    It was therefore proper for tbe directors of tbe constituent companies to provide:
    First — That tbe constituent companies should come to tbe new company free of debt.
    Second — That, of tbe stock going to tbe Cable Co., enough should be sold to pay tbe debt of that company.
    Third — For tbe method by which this should be done, viz.: By tbe delivery of tbe stock in bulk to tbe officers and agents of tbe stockholders as trustees, and to whom tbe stockholders bad agreed to deliver tbe stock held by each respectively, to have tbe same transferred into their proper share of tbe stock of tbe new company after tbe payment of tbe debt.
    It is hardly necessary to cite authorities upon tbe proposition that assenting stockholders are bound by the provisions of such an agreement. Bradford v. Railroad Co., 142 Ind., 383; Hale v. Railroad Co., 161 Mass., 443; Railway Co. v. Hellman, 109 Cal., 571; In re The Utica Brewing Co., etc., 154 N. Y., 268.
    Certificates of stock are not negotiable paper, as the Supreme Court of the United States has declared in Hammond v. Hastings, 134 U. S., 401.

      Messrs. Hoyt, Dustin & Kelley, for defendant in error.
    A pledgee in possession of a certificate for shares of stock indorsed in blank by the party to whom the same is issued may present such certificate to the corporation issuing the same and demand the issue of a new certificate to himself. If refused, he may sue the corporation as for a conversion and recover the value of such shares at the time of the demand. Railway Co. v. Rawson & Sons, 9 Re., 709; 16 W. L. B., 423 (affirmed by Supreme Court of Ohio, without report, in 25 W. L. B., 87); Railway Co. v. Bank, 56 Ohio St., 351; Bank v. Bank, 37 Ohio St., 215; Cook on Stock & Stockholders, Sec. 581.
    By the consolidation, the railway company became obligated to perform all the obligations of the cable company toward its shareholders and is liable for conversion when it refused to make the exchange demanded by plaintiff bank.
    The certificates of stock in the Cable Co. held by plaintiff contained on their face the representation and statement that the shares represented thereby would be transferred on the books of the corporation only upon the return of the certificate properly indorsed. This declaration constituted a continuing affirmation upon which any lawful holder of the certificate had a right to rely, and his vested interest in such certificate could not he divested by any arrangement between the corporation and the registered owner. Railway Co. v. Robbins, 35 Ohio St., 484; Bank v. Lanier, 11 Wall., 378; Thompson on Corp., Secs. 2601, 2486 to 2489, 2501 to 2505, 2517; Campbell v. Zylonite Co., 122 N. Y., 455; Thompson on Corp., Sec. 2350; Colebrooke on Collateral Securities, Secs. 264 to 267; Sec. 270, et seq.

    Section 3384, Revised Statutes, provides “that all debts, liabilities and duties of either of said companies shall thereupon attach to the new company and be enforced against it to the same extent as if * * * contracted by it.” This statute makes the statement on the face of the Cable Co.’s certificates that new certificates will not be issued until the old are surrendered the obligation of the consolidated company. Therefore, the defendant railway company should have kept unissued the 342 .and a fraction shares of stock for the holder of the 300 shares of preferred stock of the cable road (the plaintiff in this case) until said shares of stock were surrendered.
    By Section 3381, Revised Statutes, the stockholder in the constituent company is entitled to be present at the meeting called to consider the question of consolidation, and, likewise, by section 3383, he has the right to be present at the election of the directors of the new company. While the consolidation provided by our laws has some analogy to a sale, it is more accurately described as a union or amalgamation of two ór more companies. By the consolidation, the property and franchises of the separate companies become vested in the new legal entity; the stockholders in the old companies become, by the consolidation, ipso facto stockholders in the new company, with all the rights attaching to that relation; the old companies have become defunct. Shields v. Ohio, 4 O. F. D., 471; 95 U. S., 319; Railway Co. v. Ham, 114 U. S., 587; Compton v. Railway Co., 45 Ohio St., 615; 1 Thompson’s Com. on Corp., Secs. 395 to 403.
    Constituent corporations are considered in existence simply to preserve the rights and liens of creditors unimpaired. Section 3384, Revised Statutes.
    The rights of stockholders in the consolidated company is governed by Section 3254, Revised Statutes, which in reality, is nothing but a re-enactment of the common law.
    The plaintiff in error claims that the bank is bound by the terms of the consolidation agreement.
    The charter of a corporation is a contract which cannot be changed except by unanimous consent of the stockholders, or in the manner provided by law. At common law there could be no sale of all the property of a corporation without the unanimous consent of the stockholders. It is questionable whether at common law there was any such a thing as we now know as a consolidation. But, in any event, there eoulcL not at common law be a consolidation except by unanimous consent, as a consolidation would materially affect the rights of stockholders. Power of the majority of stockholders and directors to consolidate and the terms and provisions of the consolidation agreement are such only as the statute gives. The statutes are the full measure of the power of the majority and anything incorporated into the consolidation agreement in excess of the statute was not binding. Cook on Stock & Stockholders, Sec. 668; 2 Morawetz on Corp., Secs. 646, 951; 7 Thompson’s Com. on Corp., Sec. 8231; Id., Vol. 1, Secs. 75, 343; Fee v. Gas Co., 35 La. Ann., 416-17. Hale v. Railroad Co., 161 Mass., 443, is a direct authority in favor of our contention. The case, The Utica National Brewing Co., In re, 154 N. Y., 268, is an authority in our favor. What is true of non-assenting stockholders of record is equally true of a pledgee who received his certificates properly indorsed in blank before the consolidation. Fee v. Gas Co., 35 La. Ann., 416; Campbell v. Zylonite Co., 122 N. Y., 455.

      Hammond v. Hastings, 134 U. S., 401, is cited to the proposition that certificates of stock are not negotiable. It is hardly necessary to discuss the characteristics of stock certificates in Ohio in the light of a very full consideration thereof in Railway Co. v. Bank, 56 Ohio St., 351; Bank v. Lainier, 11 Wall., 377.
    Had there been no consolidation, the Cable Co. could not have lawfully delivered to Taintor or Holt new certificates without requiring the surrender of the old. Railway Co. v. Bank, 56 Ohio St., 351; Railway Co. v. Robbins, 35 Ohio St., 484.
    The intent of the contract of consolidation must be determined from an examination of the contract itself in the light of all the statutes, including section 3254. This section governs all corporations, including, necessarily, consolidated corporations. There is no authority to delegate to others the duties and responsibilities imposed by this section upon the officers of the company.
    The statutes must all be so construed as to be consistent, if that is possible. In the incorporation of ordinary companies the subscribers to the capital stock are the first stockholders. They meet and elect the first board of directors, voting at such meeting the shares of stock to which they have subscribed and upon which they have paid the preliminary assessments. Upon the election of the first board of directors and not before, the corporation come into existence. Secs. 3239, 3382, Rev. Stat.; State ex rel. v. Insurance Co., 49 Ohio St., 440; Trust Co. v. Floyd el al., 47 Ohio St., 525; Morawetz on Corp. (2 ed.), Sec. 33; Sec. 3383, Rev. Stat.
    By the consolidation statutes the stockholders of the constituent companies become stockholders in the new company. They do not make subscriptions nor do they pay assessments. The act of consolidation, whereby the property of the constituent companies becomes vested in the new company, dispenses with the necessity of subscriptions and assessments. The capital to be contributed by the stockholders has already been contributed. The number of shares to be voted by the stockholders in the consolidated company is determined by their respective holdings in the constituent company , converted proportionately into .the stock of the new company.
   Davis, J.

This case was orally argued before one division of the court; but it has been fully considered by the whole court. Only one of the assignments of error will be noticed in this opinion because, on the conceded facts, we are. of the opinion that the court ■of common pleas should have directed a verdict and rendered a judgment in favor of the defendant; and failing to do this it was the duty of the circuit court to reverse the judgment of the court of common pleas and to render a judgment for the plaintiff in error. This conclusion results directly from the considerations following.

By Section 3381, Revised Statutes, the directors of the constituent companies of a proposed consolidation are authorized to “enter into a joint agreement, under the corporate seal of each company, for the consolidation of the companies, and prescribing the terms and conditions thereof, the mode of carrying the same into efect, the name of the new company, the number of directors and other officers thereof, and their places of residence, the amount of capital stock of the new company agreed upon, the number of shares of capital stock, the amount-of each share and the manner of converting the capital stock of each of the constituent companies into that of the new company, with such other details as they may deem necessary to perfect the new organization and the consolidation of the companiesIn prescribing the terms and conditions of the consolidation it is entirely competent for the directors to agree that the constituent companies shall come into the new organization free from debt, although if they do not do so the liabilites of such companies will attach to the new company as provided in Section 3384, Revised Statutes; and the directors are expressly authorized to agree upon the mode of carrying into effect the terms of the consolidation which shall be agreed upon. And further, the directors are not only expressly empowered to agree upon the manner of converting the capital stock of each of the constituent companies into that of the new company, but they are invested with the widest discretion as to the details of the consolidation, which may not be specifically included in the words of the statute.

It was therefore lawful for the directors of the two constituent companies which were consolidated into the Cleveland City Railway Co. to agree, as they did agree, as part of the terms and conditions of the proposed consolidation, that the constituent companies should come into the consolidated company free from debt and that of the stoclr apportioned to the Cleveland City Cable Railway Co., enough should be sold to pay the floating indebtedness of that company, the remainder to be distributed among the holders of the common and preferred stock of the Cable Co., in proportion to the relative value of such preferred and common stock. The directors were also clearly acting within the powers conferred upon them by the statute when they made it a part of the terms and conditions of consolidation that as to all property matters between the two companies which were not specifically adjusted in the agreement of consolidation, they should “be adjusted pursuant to a memorandum of agreement entered into by the holders of more than a majority of the stock of said constituent companies, bearing date May 10,1893;” because not only was it a certain and proper term or condition which might be stipulated for by the parties to the agreement, but it provided “the mode of carrying into effect” the terms and conditions, and it provided “the manner of converting the capital stock of each of the constituent companies into that of the new company,” and because it specifically pointed out and prescribed “other details” which, in the judgment of the directors, were necessary in perfecting the consolidation of the two companies. The agreement by the stockholders, dated May 10, 1893, was thereby read into and made part of the agreement of consolidation by the directors. So that whoever signed the latter agreement as directors must necessarily be held to have been cognizant of, and to have assented to, the agreement by the stockholders; and that is the position in this action of Taintor & Holt, from whom the defendant in error claims to have acquired title to the shares in the Cable Railway Co. which it alleges that the plaintiff in error wrongfully converted to its own use.

In prescribing the proceedings to effect a consolidation of two or more companies, the statute requires a ratification of the agreement for consolidation by the stockholders; and it virtually defines the term “stockholders” by requiring due notice of the time and-place of the meeting and the objéct thereof, to be given “to each of the persons in whose names the capital stock of the company stands on the books thereof.” Section 3381, Revised Statutes. There is no provision for notice to or requirement of participation by, a person who has a concealed equity in stock. A person who holds shares of .stpck in pledge, assigned in blank by the registered owner, may protect himself by having the stock transferred to him on the books of the company. Until he does so he does not become a stockholder. Henkle v. Salem Manufacturing Co., 39 Ohio St., 547. “If the shares of stock are merely pledged by the assignment of the certificates, the holders would not be entitled to the rights, nor subject to the liabilities of the owners of the shares; they could only become owners by a sale and purchase of the stock pledged, on failure of the pledgee to pay the debt.” Per Nelson, J. Becher v. Wells Flouring Mill Co., 1 McCrary (U. S.), 62. The jury specially found in this case that on June 29, 1893, after the consolidation, Taintor & Holt were still the owners of the stock and that on that date they received from the plaintiff in error all of the stock which they were entitled to receive by reason of their ownership of the Cable Co. stock. It appears therefore, the plaintiff in error having performed its agreement as to the registered and actual owners of the stock, that it is now sought to compel it to perform again, or account for the value of the stock, to a pledgee, who has not shown that it was entitled to more than a mere lien upon the stock at the time of the consolidation.

We return now to the stockholders’ agreement, which contains the following stipulations:

“The undersigned stockholders of the Cleveland City Cable Railway Co. hereby appoint, and irrevocably designate, Frank DeH. Robison and John J. Shipherd as their agents and proxies to carry out this agreement and perfect said consolidation, and they are hereby authorized to attend any and all stockholders’ meetings of the Cleveland City Cable Railway Co. called for the purpose of carrying out the terms of this agreement, and to vote all the stock standing in the name of each of the undersigned, in such manner as they shall find necessary to carry out and ratify all of the purposes of this agreement, and each of the undersigned stockholders in said company hereby agrees to deliver to said two persons, or their chairman, at such time as they may designate, all of the stock held by him, to be exchanged 'for stock of the consolidated company, in proportion to the respective holdings of each as each shall be entitled to receive the same.
“The method of organization of the consolidated company, and all of the details with reference to it, and the working out of the settlement and adjustment of the details of this agreement, are left by all of the undersigned to said * * * Frank DeH. Robison and John J. Shipherd, committee for the stockholders of the Cleveland City Cable Railway Co., to be agreed upon and to be to the satisfaction of each of said committees.”

These stipulations being incorporated by reference in the agreement of consolidation, which was signed by all of the members of the firm of Taintór & Holt, they and their firm must be held to have assented to the appointment of Robison and Ship herd. “as their agents and proxies” for all the purposes therein named, and thereby agreed “to deliver to said two persons, or their chairman, at such times as they may designate, all of the stock held by them, to be exchanged for stock of the consolidated company, in proportion to the respective holdings of each as each shall be entitled to receive the same.” The stock certificates which were pledged by Taintor & Holt to the defendant in error, contained a provision that they were transferable on the books of the company only on surrender of the certificates. The utmost that can be claimed from this is that the duty was imposed on the Cable Co. to not transfer on its books without surrender of the certificates. But transfer on the books of that company was not asked for, nor was such a transfer by that company made. It was agreed by the directors of the constituent companies that 18,250 shares of the capital stock of the consolidated company should be distributed to the Cable Co. to be disposed of by that company, so far as necessary to liquidate its floating indebtedness, the remainder to be distributed among the holders of the stock of the company. The agreement was lawful, it was assented to by Taintor & Holt,, and on the part of the plaintiff in error it was fully performed by the issue of the 18,250 shares of stock to Robison and Ship-herd as “agents and proxies” for the Cleveland City Cable Railway Co. and its stockholders to carry out the agreement of consolidation in regard, thereto. The designation of Robison and Shipherd in the certificate as “trustees” instead of “agents and proxies,” does not alter the legal consequences of the transfer. Hence if there was any conversion of the shares belonging to Taintor & Holt it was not by the plaintiff in error and it is not liable therefor.

It is not for us to determine in this action whether the defendant in error has a cause of action against Robison and Shipherd or either of them, or against Taintor & Holt, or against the Cleveland City Cable Railway Co. It is sufficient now to determine that the plaintiff in error is not liable for the alleged conversion.

Judgments of the circuit court and that of the court of common pleas are reversed and judgment for plaintiff in error.

Burket, C. J., Spear, Shauck, Price and Crew, JJ., concur.