author: Davis, J.

text:
    The Defiance Water Co. v. The City of Defiance.

      Enjoinment of payment under contract — Section TTTf, Revised Statutes — Application for injunction — Section 4985, Revised Statutes — Time for commencing action for relief.

    An action under Section 1777, Revised Statutes, to enjoin tbe payment of a demand arising under a contract, in which, the ground for the relief sought is the invalidity ab initio of the contract, is barred under Section 4985, Revised Statutes, in ten years from the time the contract was entered into.
    (Decided June 16, 1903.)
    Error to the Circuit Court of Defiance county.
    This suit was brought on January 4, 1898, by the city solicitor of the city of Defiance in the name of the city under Section 1777, of Revised Statutes, against the council of the city. The plaintiff seeks to enjoin the council from paying the plaintiff in error, The Defiance Water Co., the sum of $3,142.50, which it alleges is claimed by the water company from the city “for water furnished said city during the latter half of the year 1897.” It is alleged that the water company claimed that said sum was due to it in accordance with the provisions of a contract entered into on August 17, 1887, between the city and S. R. Bullock & Co. to whose rights the plaintiff .in error succeeded. It is alleged that the contract is illegal on the following grounds: First, that it is for the term of thirty years and not ratified by a vote of the electors of the city. Second, that no certificate had been made by the city clerk that the money required to meet the obligations arising under the contract was in the city treasury to the credit of the fund from which it was to he drawn. Without notice a temporary injunction was allowed upon this petition by the probate judge. Afterwards in the court of common pleas a general demurrer to the petition was sustained and final judgment rendered in favor of the plaintiff in error dissolving the temporary' injunction and dismissing the plaintiff’s petition. On appeal to the circuit court the demurrer to the petition was overruled, and after answer by the plaintiff in error and reply by the defendant in error, the suit came on for final hearing, in which the circuit court found in favor of the city and against the water company. This proceeding in error is brought to reverse the judgment of the circuit court.

      Messrs. Henry Newbegin and Robert Newbegin, for plaintiff in error.

      Messrs. George T. Farrell, city solicitor, and Henry B. Harris, for the defendant in error.
   Davis, J.

There are several very interesting legal propositions propounded and defended in this case; but we think that one point in the case is decisive, rendering it unnecessary to consider any of the others. If it be true that the contract between the defendant in error and Samuel R. Bullock & Co., to whose rights thereunder the plaintiff in error succeeded, was invalid for any of'the reasons assigned, it is clear that a cause of action to restrain its performance accrued as soon as the parties attempted to enter into it and to act upon it, that is, upon August 17, 1887. An action for relief of the kind sought in this action is barred in ten years. Section 4985, Revised Statutes. This suit was begun January 4, 1898, ten years, four months and seventeen days after the cause of action accrued. Meantime the water company constructed the waterworks at great expense; and as it appears from the pleadings, the defendant in error accepted the waterworks under the alleged contract, took possession of and used hydrants as provided, and paid the water rent therefor for several years, without any question being raised as to the legality of the contract or the liability of the city. In fact, although there has been some contention over the validity of the contract since 1896, the defendant in error has used the hydrants and paid the water rents until about the time the present suit was begun. It is a stale equity, if any, which it is now sought to assert. Kellogg v. Ely, 15 Ohio St., 64. It is true that the object of this action is to restrain the payment of a demand under the contract which only accrued in 1897, and to restrain the payment of any other or further claims; but the ground for the relief sought, and the sole pretext for refusing to pay for that which the plaintiff below has had and enjoyed is the alleged invalidity of the contract which it entered into on August 17, 1887, a ground which it might have asserted and which it was its duty to assert, if at all, long before it did so in this action. There are averments in the reply of unfitness of the water supplied and of the mains, pipes and hydrants being stopped with mud; but these cannot be considered as a ground for injunction in this case because the plaintiff can only recover on the cause of action stated in the petition. Durbin v. Fisk, 16 Ohio St., 533.

The judgment of the circuit court is reversed, the demurrer to the petition is sustained and the petition is dismissed.

Burket, O. J., Spear, Shauck and Crew, JJ., concur.

Price, J., not participating.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Jewett v. Feldheiser.

      Inchoate dower of wife — Not a lien on husband's land — Sale of land by judgment creditor — Does not bar dower of wife — - Judgment by court in favor of mortgagee against husband— Does not affect wife’s interest, when — Purchaser at sheriff’s sale not subrogated to mortgagee’s rights, when — Statute of limitations — Law of dower.

    1. The inchoate dower of the wife is not a lien upon the land of the husband but is an interest in it.
    2. A sale of land at the- suit of a judgment creditor of the husband brought to marshal liens, does not have the effect to bar or foreclose the inchoate dower of the -wife.
    3. The rule is not different although the wife is made a party to the creditor’s suit and is in default of answer when the judgment ordering a sale is entered and the sale is made, and although a mortgagee, in whose mortgage the wife has joined releasing dower, is also made defendant but is in default at the time the judgment is rendered and the sale is made.
    4. The filing after sale of an answer by the mortgagee setting up his mortgage (not followed by summons) and a finding and judgment by the court on the mortgage against the husband and ordering a sale of the premises in default of payment by him, but not followed by a sale or the issuing of an order of sale, will not affect the interest of the wife in the land, although the purchase money is in part applied on the mortgage debt.
    5. The purchaser at the sheriff’s sale, not being in privity with the mortgage, is not entitled to be subrogated to any supposed rights of the mortgagee. A further fact in the case negatives the claim of subrogation, viz.: That more than twenty-one years having elapsed after the rendition of the judgments, and the sale and distribution of proceeds, any such suppqsed right of the mortgagee is barred by the statute -of limitations.
    6. In such case the wife is not required to redeem the mortgage and is entitled to dower.
    (Decided June 16, 1903.)
    Error to tbe Circuit Court of Mercer county.

      The-facts aré sufficiently stated in the opinion.

      Mr. J. D. Johnson, for plaintiff in error,
    cited and commented upon the following authorities:

      Mandel v. McClave, 46 Ohio St, 407; Ketchum v. Shaw, 28 Ohio St., 503; Kitzmiller v. Rensselaer, 10 Ohio St., 62; Carter v. Goodin, 3 Ohio St., 76; Taylor v. Fowler, 18 Ohio, 567; Harrison v. Eldridge, 2 Hals., 392; Barker v. Parker, 17 Mass., 564; Bank v. Buckingham, 12 Ohio St., 402; McDonald v. Aten, 1 Ohio St., 293; Dingman v. Dingman, 39 Ohio St., 172; McArthur v. Franklin, 15 Ohio St., 485; Parmenter v. Binkley, 28 Ohio St., 32; Black v. Kuhlman, 30 Ohio St., 198.

      Mr. A. D. Marsh and Mr. John IF. Loree, for defendant in error,
    cited and commented upon the following authorities:

      Southward v. Jamison, 66 Ohio St., 290; Brown v. Kuhn, 40 Ohio St., 468; Winemiller v. Laughlin, 51 Ohio St., 421; Baird v. Kirtland, 8 Ohio, 21; Bank v. Bank, 11 Ohio, 444; Fosdick v. Risk, 15 Ohio, 84; Bridge Co. v. Sargent, 27 Ohio St., 233; Petersine v. Thomas, 28 Ohio St., 596; Hixon v. Ogg, 53 Ohio St., 361; Railroad Co. v. Smith, 54 Ohio St., 562; Taylor v. Fowler, 18 Ohio, 567; Dingman v. Dingman, 39 Ohio St., 172; Ketchum v. Shaw, 28 Ohio St., 503; McArthur v. Franklin, 15 Ohio St., 485; Parmenter v. Binkley, 28 Ohio St., 32; 1 Freeman on Judgments, sec. 45; Myers v. Hammond, 6 Baxt., 61; Morgan v. Burnet, 18 Ohio, 535; Reed v. Radigan, 42 Ohio St., 292; Fiedeldey v. Diserens, 26 Ohio St., 312; Miller v. Bank, 46 Ohio St., 427; Baker v. Fetters, 16 Ohio St., 596; Dutcher v. Hobby, 22 Am. St. Rep., 444; Timmerman v. Howell, 1 Circ. Dec., 342; 2 C. C. R. 27; Frische v. Kramer, 16 Ohio, 126; Smith v. Brittain, 42 Am. Dec., 175; Hudgin v. Hudgin, 52 Am. Dec., 124; McGee v. Wallis, 34 Am. Rep., 484; Wehrle v. Wehrle, 39 Ohio St., 365; Barr v. Hatch, 3 Ohio, 527; Howard v. North, 51 Am. Dec., 769; Stone v. Darnell, 78 Am. Dec., 582; Bentley v. Long, 47 Am. Dec., 523; 24 Am. & Eng. Enc. Law, 262; Ocobock v. Baker, 66 Am. St. Rep., 520; Musgrave v. Dickson, 51 Am. St. Rep., 765; Stelle v. Carroll, 12 Pet., 203; Clark v. Potter, 32 Ohio St., 49.
   Spear, J.

The action below was brought July 28, 1899, by plaintiff in error, Augusta N. Jewett, against Cora B. Feldheiser, defendant in error, for dower, and the disposition of the case depends upon the application of the proper rule of law to the facts found by the circuit court, which, while somewhat voluminous, may be epitomized as follows:

Augusta N. Jewett is the widow of Adams Jewett, deceased, who died January 19, 1899, and who, at the date hereinafter named, was the owner of the land in which dower is claimed. Cora B. Feldheiser is now the owner and was at the commencement of the action below, having inherited the same from her father who purchased it at the.judicial sale hereinafter mentioned.

At the July term, 1875, of the common pleas of Mercer, a suit was pending wherein English, Miller & Company were plaintiffs and Adams Jewett, Augusta N. Jewett, Claypool & Wilson, and Wilkinson & Evans were defendants, the object of which was to foreclose a mortgage held by plaintiffs upon the land in suit, which had been executed by Adams Jewett and Augusta N. Jewett, the latter releasing her dower. Claypool & Wilson and Wilkinson & Evans were the holders of like mortgages. Claypool & Wilson answered, but the other defendants were in default. The court thereupon found the amount of $1,214.18 due the plaintiffs; that the same was' a lien upon the lands described, and thereupon rendered judgment that the “plaintiffs recover of the defendant, Adams Jewett, the sum of $1,214.18, the sum found due as aforesaid, and also their costs taxed.” A like finding and judgment was had in favor of Claypool & Wilson, mortgagees. It was further ordered and adjudged that in case the said defendant failed for ten days to pay the several sums so found due that an order of sale issue to the sheriff “commanding him to cause the lands and tenements in the petition described to be appraised, advertised and sold according to law, and apply the proceeds of said sale in satisfaction of the sums so found due with costs.” No further proceedings seem to have been had in the case, and no execution or order of sale was ever issued.'

On June 5, 1875, the firm of Mender son & Fr oilman, creditors of Adams Jewett, having a judgment which was a lien upon his lands, filed in the common pleas a petition to marshal liens, and caused to be made parties defendant Adams Jewett, the husband, and the present plaintiff in error, his wife; also the said English, Miller & Company, Claypool & Wilson, and Wilkinson & Evans, mortgagees, and certain others who were judgment creditors. Such further proceedings were had on the petition of the plaintiffs that the real estate was sold by the sheriff September 11, 1875, under an order of sale issued in the case. At this time all the defendants were in default for answer. On September 14, 1875, the defendants English, Miller & Company, and Claypool & Wilson filed answers, each pleading the mortgage, but it does not appear that either pleaded the adjudication against Adams Jewett hereinbefore recited. November 8 following, Wilkinson & Evans, mortgagees, answered setting up thei-r mortgage. Neither defendant caused the wife .to be made party to the answer and cross-petition, nor did either cause the issue or service of summons upon her, nor had she any notice of any kind of their answers and cross-petitions unless the service of summons upon her by the plaintiffs, Menderson & Frohman, was such notice. The wife had knowledge that the lands were sold and supposed the proceeds were distributed, but had been advised and believed that her dower interest was not affected by the sale. A decree for English, Miller & Company, on their mortgage followed finding the amount due them with costs, and that the same was a lien from.February 22, 1875. A like decree was also rendered for Claypool & Wilson on their mortgage, and for Wilkinson & Evans finding the amount due them; that their mortgage became a lien March 26, 1875, and rendering a judgment in their favor and against Adams Jewett for the sum found. But no decree was taken respecting the claim of either one against Augusta N. Jewett, nor was she mentioned in either decree.

No execution or order of sale was ever issued on any of the judgments, orders or decrees, other than on the decree issued to Menderson & Frohman, June, 1875, under which the land was sold. No payment was made on any of the judgments since December, 1875, and at the time the action for dower was commenced more than twenty-one yeárs had elapsed since the judgments,- orders and decrees were entered. From the proceeds of the sale the English, Miller & Company mortgage was paid in full; a small balance remained due to Claypool & Wilson and to Wilkinson & Evans. The mortgages were canceled of record by order of the court of common pleas. Plaintiff did not redeem or attempt to redeem the mortgages.

The answer in the case at bar, after stating the facts, the material portions of which have been given, contains two averments which deserve special notice because the proper disposition of the points made will dispose of the case. One is that, in the action of English, Miller & Company against Adams Jewett et al., those plaintiffs and Claypool & Wilson “duly obtained by the consideration of said court, an order foreclosing said Adams Jewett’s and plaintiff’s equity of redemption in and to said lands in the petition described.” Another is that plaintiff is estopped from claiming dower in the lands; and then follows a prayer that plaintiff’s petition be dismissed and that defendant may be subrogated to all the rights of the lienholders whose claims were paid from the purchase money realized at the sale.

It is true that in the findings of fact there is a statement that the mortgages mentioned were foreclosed in that action, but the same finding states that no execution nor order of sale was ever issued in that case, and then is given a copy of what is. stated to be the only entry, judgment, order or decree made, and that entry embraces the facts hereinbefore stated Showing the form of the judgment and that it in no way purports or attempts to adjudicate any right in the' land of Augusta N. Jewett. It is contended that, .-though the word “defendant” is used in the decree, the term necessarily means defendants, which would include the wife. The singular will be held to in-elude the plural where the sense requires it (section 23, Revised Statutes), but we think that construction not admissible here. The judgment in each instance is against Adams Jewett alone; “recover of the defendant Adams Jewett” is the language; and then follows the order that in case “the said defendant fail for ten days” to pay, etc., an order issue to the sheriff commanding him to cause the lands to be sold according to law. Whether or not a given proceeding results in foreclosure is, we’ presume, a mixed question of law and fact, and if the facts given show that there was no foreclosure, the finding that there was must be treated as a mere conclusion of law. This is admittedly a decree of foreclosure as to the husband, but how can it be claimed to be such as to the wife? But if this were otherwise it would hardly aid defendant’s contention. In considering the case at bar we are concerned ’only with the legal effect of the proceedings in the case instituted by Menderson & Frohman. In that suit neither English; Miller &. Co. nor Claypool & Wilson, mortgagees, declared upon their judgments, but the finding as to each is that “they pleaded their mortgage.” The question, therefore, whether or not their mortgage, or any of them had been previously foreclosed was not in the case. Nor is it of consequence that they might have raised that issue. The question is not what issue the parties might have tendered, but what issue they did in fact tender. It follows, therefore, that the first allegation of the answer is an immaterial averment.

Is the plaintiff estopped by the proceedings in the case of Menderson & Frohman v. Jewett et al. ? These plaintiffs were judgment creditors only. They had no claim of any sort against the wife. The object of their suit, as the finding declares, was “to marshal liens.” Mrs. Jewett’s interest was not a lien upon but a right in the land, upon which the plaintiffs’ judgment was not a lien. Hence, the plaintiffs having no claim upon her and she no lien to marshal, Mrs. Jewett was not a necessary party, nor even a proper party to their petition. Nor does the petition make any claim against her. The only mention of her is that she “is the wife of Adams Jewett and has together with her said husband executed mortgages to some of said defendants on portions of said real estate,” but to whom, or in what amount, or upon what portions, or whether anything remained due, is not averred, nor is any relief against her sought. It is difficult to see how, upon that petition, the court could have jurisdiction to foreclose the mortgages on the dower right simply because the mortgagee parties had liens on the premises sought to be sold. Spoors v. Coen, 44 Ohio St., 497. No one but a mortgagee could invoke the aid of the court to foreclose on the dower interest. Lewis v. Smith, 9 N. Y., 502. Manifestly, upon such pleading there could be no valid judgment rendered by the court against the wife affecting her inchoate dower in the land; nor was any such judgment attempted to be rendered. The court proceeds to find the amount due the plaintiffs, Menderson & Frohman, and that their judgment is a lien on the land. Then follow like findings and judgments in favor of other judgment creditors, and then an order that the sheriff proceed to cause the lands to be appraised, advertised, and sold according to law, and bring the proceeds into court to await its further order. A “sale according to law” would seem to be such a sale as the plaintiffs, and the other judgment creditor defendants, had the right to demand. That means a sale of the interest their debtor had in the land. How could it mean anything more than that? Had the proceedings stopped there, or with a distribution among those judgment creditors, would any one claim that the interest of the wife in the land had been in the least affected? Surely not. It is urged that, inasmuch as there is no provision of statute for appraising lands subject to any lien or possible incumbrance but the appraisal is required always to be at its true value in money that any sale in a proceeding in which the wife is a party must necessarily include her inchoate dower right. This view entirely ignores the settled rule of law that a judgment creditor of the husband only has no claim upon the wife’s dower interest and cannot, by any process, subject it to his debt. 1 Scribner on Dower, 553. If this conclusion is correct and the sale actually made embraced only the husband’s interest in the land, it follows that the wife had no interest in the proceeds, arising from the sale, and had no duty to perform respecting the matter of distribution. Her interest in the land not having been sold why might she not with entire confidence rely on the advice given her by counsel and rest in the belief “that her dower interest Was not affected by said sale?” What would have been the effect upon her interests if the mortgage creditors, who were in default at the time the sheriff’s sale was made, had, upon filing their answers, caused summons to issue against her and thus required her to answer their claims, and especially had they demanded a resale including the dower right, we need not inquire for no such steps were taken. We thinlr it vain to urge that the wife had notice of the claims of the mortgagees, as set forth in their answers and cross-petitions, simply because of the summons issued by the plaintiff, and that her dower right was necessarily involved and thus foreclosed. At the time the Henderson & Frohman judgment was taken, and at the time of the sale, there was no pleading which made any case against her, or which she was required to answer. Furthermore, if she was not a necessary party in the Henderson & Frohman suit, as we have found, or a real party in interest, upon what principle was she bound to take notice of the demands of other persons who, although they had been made parties, had set up no claim against her? We know of none. Waiving the question whether the answers and cross-petitions embraced “matters in question'in the petition,” the fact remains that no judgment or decree was at any time taken affecting the question of dower. Findings and judgments against the husband in the case in which English, Hiller & Company were plaintiffs were had on the several mortgages, •but none against the wife, or touching her dower right. But if this be not a sufficient answer, the further fact remains that no sale, or attempt at sale, was made upon those judgments. In short she was not barred of her dower right by the decree in favor of the judgment creditors because they had no claim upon that right; nor by the sale by the sheriff or his deed because he could not sell or convey more than the judgment creditors had to sell; nor by the judgments in favor of the mortgagees on their answers and cross-petitions because she was not included in such judgments, and further, because a sale of the land had already been made which did not embrace her inchoate dower. In substance the only matter remaining undisposed of was an order for distribution of the money. And, as we have already seen, the wife was not interested in that issue because her property had in no manner helped to swell the fund. What might be done with the money was no concern of hers. She could not, therefore, be estopped by reason of anything that she did or failed to do with respect to that matter and her silence could not be construed as a giving away of her rights. The rule of caveat emptor applied to the purchaser at the sale. It was for him to see what title he might acquire by the sheriff’s deed. Mechanics’ S. & B. L. Ass’n v. O’Conner, 29 Ohio St., 651.

Nor was there any duty incumbent upon the plain-. tiff to redeem the mortgages. The statute of limitations barred them before the beginning of her suit for dower. The same fact stands in the way of subrogation. There is now no claim existing to which subrogation can attach. But, in addition^ to this, the purchaser was in no sense in privity with the mortgages. He bought at a sale upon a decree which did not undertake to affect the mortgages. Barker v. Parker, 17 Mass., 564. Nor does the statute as to subrogation aid the claim. It is- provided by section 5410, that: “If, upon the sale of property on execution, the title of the purchaser is invalid by reason of a defect in the proceedings, the purchaser may be subrogated,” etc. Here the proceedings are regular. The sheriff’s deed conveyed all the judgment creditors had to sell.

The case at bar is much like Taylor v. Fowler, 18 Ohio, 567, and the principle there decided is directly applicable. That decision is put upon this ground: “If the defendant had been a purchaser under the decree of foreclosure, he would so far have connected himself with the mortgage as to have protection against the dower claim; but, inasmuch as he was a purchaser under an ordinary judgment, he is in no way connected with the mortgage, and can derive no protection from it.” The precise situation is not present in any reported case in this state, but our conclusion is consistent not only with the case above cited but with the holding in the following cases to which attention is here directed, viz.: Carter v. Goodin, 3 Ohio St., 76; Kitzmiller v. Van Rensselaer, 10 Ohio St., 63; McArthur v. Franklin, 15 Ohio St., 485, and McArthur v. Franklin, 16 Ohio St., 193; Parmenter v. Binkley, 28 Ohio St., 32; Ketchum v. Shaw, 28 Ohio St., 503; Mandel v. McClave, 46 Ohio St., 407.

It follows that the judgment below denying dower to the plaintiff was erroneous. It will be reversed and the cause remanded.

Reversed.

Burket, O. J., Davis, Shauck, Price and Crew, JJ., concur.


author: Burket, C. J.

text:
    The St. Marys Machine Co. v. The National Supply Co. et al.

      Mortgagee of broken chattel mortgage — Becomes owner of property — Section 8$06a, Revised Statutes — Lien of laborer— Section 6855, Revised Statutes — Preferred claims — “Trust fund” for general creditors, defined — Mortgage rights.

    1. After condition broken, the mortgagee under a chattel mortgage, is the owner of the property covered by the mortgage, and the mortgagor has only a right of redemption.
    2. Where a receiver is appointed and takes possession of chattels covered by a chattel mortgage after condition broken, as provided in Section 3206a, Revised Statutes, such chattels, to the extent that the same may be required to satisfy the mortgage, are the property of the mortgagee, and not the mortgagor.
    3. The “trust fund” mentioned in said section, is the fund which would be left for general creditors under Section 6355, Revised Statutes, in the absence of labor claims, and out of that general fund labor claims must be paid, whether the proceeding be under said section 3206a or under section 6355.
    (Decided June 16, 1903.)
    Error to the Circuit Court of Allen county.
    The facts in this case involve the rights of several mortgagees under chattel mortgages from L. E. Bloomfield, a contractor, engaged in drilling oil wells, in which business he owned and used drilling tools, machinery, horses, wagons and harness, but was not the owner of any real estate. He gave chattel mortgages to different parties on this property, some of them covering the same property, and all of which were properly executed and filed and kept alive so as to be valid liens upon the property covered by the several mortgages.
    On February 8, 1901, the National Supply Co., one of said , mortgagees, began its action in the court of common pleas of Allen county against said L. E. Bloomfield, making the several chattel mortgagees defendants, and in that action the court appointed receivers who qualified, and under the order of the court took possession of all of the property of Mr. Bloomfield, including the property covered by said chattel mortgages, and converted all the property into money, and brought the same into court for distribution. Said chattel mortgages were all past due when said action was commenced.
    By consent of all parties the taxes and expenses, including the compensation of the receivers, were paid out of the fund realized upon the sale of the personal property.
    Many claims for labor performed for Mr. Bloomfield in his said business within three months before said receivers were appointed, were filed, and allowed, and thereupon a contest arose upon distribution between said mortgagees and said labor claims. The cause came to the circuit court on appeal, and was there heard and determined.
    There was no contest as to the amount due to each mortgagee, or to each laborer, the sole question being as to priorities, the fund not being sufficient to pay all.. .
    The circuit court held that the amount due on the labor claims should be first paid in full, and should be deducted pro rata from the fund arising from the sale of the property covered by the several mortgages without reference to the question of priority of such mortgages as among themselves, and that the remainder thus left to each mortgagee under his mortgage should be paid to him. In the case of the St. Marys Machine Company this holding resulted as follows: Amount found due this company was fl,-315.57. Net amount realized on sale of property covered by its chattel mortgage $955.19. Amount deducted from that sum and paid over to labor claims $435.75, leaving a balance of $519.44 to be paid over to the company. The other mortgagees were treated in the same manner, the only difference being as to amounts. The mortgagees saved proper exceptions, and brought the case here, seeking to reverse "the judgment of the circuit court, and asking for judgment in their favor upon the findings of fact made by that court.

      Mr. D. F. Mooney and Messrs. Richie, Leland & Roby, for plaintiff in error.

      Mr. Ira G. Taber, for The National Supply Co.

      Messrs. Gable & Parmenter, for I. B. Post.

      Messrs. Ridenour & Halfhill, for Hilliard and Clark, defendants.

      Mr. I. R. Longsworth, for labor claimants other than Clark and Hilliard.
   Burket, C. J.

The solution of the controversy between the parties, depends upon a proper construction of Section 3206», Revised Statutes. That section is as follows:

“Laborers and employes of any persons, association of persons or corporation, whether such employment be at agriculture, mining, manufacture or other manual labor, shall have a lien upon the real property of their employers for their wages, which is hereby declared 'to be superior to the following liens taken or attaching during the existence of such unpaid labor claims, to-wit: Liens of attachment, liens of mortgages given or taken at a time of actual insoh vency of the debtor, or with a view of preferring creditors or to. secure a pre-existing debt, and superior to all claims for homestead or other exemptions, except under section fifty-four hundred and thirty; and in all cases where property of an employer is placed in the hands of an assignee, receiver or trustee, claims due for labor performed within the period of three months prior to the time such assignee, receiver or trustee is appointed, shall first be paid out of the trust fund, in preference to all other claims against such employer, except claims for taxes and the costs of administering the trust. The lien herein provided shall be deemed to be waived by the laborer or employe, as to any portion of such labor, unless within thirty days from the expiration of three months from the performance of such portion he shall file with the recorder of the county where the labor was performed, an itemized statement verified by affidavit of the amount, kind and value of the labor performed within said period, with all credits and off-sets, and the amount then due him therefor, which verified statement when so filed, shall be recorded in a book kept for the purpose, and shall become and operate as a lien upon the real property of the employer without any specific description thereof, for the period of one year from and after the filing thereof, and if an action is brought to enforce the lien within that time, it shall continue in force until finally adjudicated; and the proceedings to enforce such lien shall be the same as in other cases of lien, against the owner of the property and all other persons interested; provided, that if several persons have or obtain liens under the provisions of this section, against the property of the same employer, they shall have no priority among themselves, but shall be paid pro rata, nor shall they have priority over those obtaining liens under sections thirty-one hundred and eighty-four, thirty-one hundred and eighty-five, thirty-one hundred and eighty-six, thirty-one hundred and eighty-seven of this chapter, but the persons obtaining liens under said sections thirty-one hundred and eighty-four, thirty-one hundred and eighty-five, thirty-one hundred and eighty-six, and thirty-one hundred and eighty-seven shall have priority as provided therein.”

As there was no real estate in this case, the only part of the section here applicable is the following: “And in all cases where property of an employer is placed in the hands of an assignee, receiver or trustee,’ claims due for labor performed within the period of three months prior to the time such assignee, receiver or trustee is appointed, shall be first paid out of the trust fund, in preference to all other claims against such employer, except claims for taxes and the cost of administering the trust.”

As the amount found due the St. Marys Machine Co. was greater than the value of the mortgaged property, as shown by the amount for which it sold, the property covered by the mortgage was the property of the Machine Company, and not the property of Mr. Bloomfield. All he had was a right of redemption, by payment of the debt. Sayler v. Simpson, 45 Ohio St., 141, 150. This is a property right, but not property itself, within the purview of this section. It was therefore not the property of the employer, Mr. Bloomfield, but the property of the Machine Company, that came into the hands of the receivers in this case, and according to the holding of this court in Hughes v. Bank, 61 Ohio St., 386,' it could not be subjected to the payment of labor claims under this section.

Again, said section provides that such labor claims “shall be first paid out of the trust fund, in preference to all other claims,” etc.. “Trust funds,” under this section, must be the same, whether the estate is in the hands of an assignee, receiver or trustee, and in all such cases the fund for distribution among creditors generally, is known as a trust fund, because the person in charge of the estate, holds the fund in trust for all who can show themselves to be beneficiaries under the general law of the land, and not entitled as owners in whole or part, by virtue of a special property or particular lien. As to such the receiver holds ■the property or its proceeds not in the sense of a trust fund, but under a special obligation to restore it to its owner.

The correctness of the foregoing holding is strengthened by a reference to Section 6355, Revised Statutes, which is in pari materia with said section 3206a, and both sections must be read and construed together. Section 6355 is as follows:

“All taxes of every description assessed against the assignor upon any personal property held-by him before his assignment, shall be paid by the assignee or trustee out of the proceeds of the property assigned in preference to any other claims against the assignor, and every person who shall have performed any labor as an operative in the service of the assignor, shall he entitled to receive out of the trust funds, before the payment of the other creditors the full amount of the wages due to such person for such labor performed within twelve months preceding the assignment not exceeding three hundred dollars. But the foregoing provisions shall not prejudice or in any- way affect securities given or liens obtained in good faith, for value, but judgments by confession on warrants of attorney rendered within two months prior to such assignment, or securities given within such time to create a preference among creditors or to secure a preexisting debt other than upon real estate for the purchase money thereof, shall be of no force or validity as against such claims for labor to the extent above provided, in case of assignment.”

This section provides for the distribution of the assets of the estate of an insolvent in cases of assignments for the benefit of creditors, and provides for the payment of labor claims of operatives in the service of the assignor, for labor performed within twelve months, not exceeding three hundred dollars, but such labor claims cannot prevail over securities given or liens obtained in good faith for value. From this it is clear that the fund out of which such labor claims can be paid in cases of assignees or trustees in insolvency, is the general fund remaining after the payment of all securities and liens obtained in good faith for value. This general fund corresponds to, and is the same as, the “trust fund” mentioned in said section 3206», and each of said funds is what remains after the payment of the valid securities and liens against the property in the hands of the assignee or trustee; and to the extent of such securities and liens, construing both sections together, the property in the hands of the assignee or trustee is not regarded as the property of the employer, but as the property of the owner of the security or lien, and as being so connected with the property of the employer or assignor as to require the whole to be administered by the assignee or trustee, rendering to the owner of the securities and liens, the proceeds of their property, and distributing by order of the probate court the remainder among the general creditors, subject to the rights of labor claims. Under the one section a labor claim includes all labor within twelve months, not exceeding three hundred dollars, and in the other the period is only three months with no limitation as to amount. In this regard there seems to be some conflict, but in any particular case the laborer should be allowed to invoke the provision most favorable to himself.

Said section 6355 applies only to assignees and trustees, while the other section, applies to assignees, trustees and receivers; but when the section is properly construed as to assignees and trustees, the same construction must be applied to receivers, because in said section 3206a. all three stand upon exactly the same footing.

This section of the statute has been differently construed by the circuit court in several cases, and while the true construction may not be clear at a glance; after mature deliberation, and a full examination of the principles involved, the above construction seems to be clearly warranted, and when so construed the section is constitutional. With this construction of the section the other questions, so ably argued by counsel, become unimportant, and are not here considered.

The judgment of the circuit court will be reversed, and cause remanded to that court with instructions to render a judgment of distribution, applying the net proceeds of the sale of the property covered by each chattel mortgage to the payment of the amount due upon such mortgage, preserving priorities where there are two or more chattel mortgages on the same property, and that the balance, if any, be applied upon the labor claims pro rata.

Judgment reversed, and judgment for plaintiff in error.

Spear, Davis, Shauck, Price and Crew, JJ., concur.


author: By the Court.

text:
    Cone and O’Dell v. Bright.

      Trial by jury — Section 5190, Revised Statutes — Presentation of written instructions — If requested by either party — Refusal by court cause for error — Court proceedings.

    On the trial of a cause to a jury, if a party thereto presents written instructions to the court on matters of law, and requests the same to be given to the jury before argument is commenced, as provided for in subdivision 5 of Section 5190, Revised Statutes, which is done, and such party, at the close of the general charge, asks the court to permit the jury to take the written instructions so given, in their retirement, or send the same to the jury during its deliberations, as provided for in subdivision 7 of said section, a refusal by the court to grant the request is. error, for which a judgment against the party making the request will be reversed.
    (Decided June 16, 1903.)
    Error to the Circuit Court of Hancock county.
    The defendant in error, John Bright, brought his action in the court of common pleas to recover of the plaintiffs in error a considerable sum of money which, he alleges, he lost to them during the month of February, 1899, while dealing in margins at their place of business conducted in Findlay, Ohio. He alleges •that the dealings with the defendants below were in 'their nature, wagers or bets, on the prices of commodities for sale in the markets at Chicago and other cities, and therefore in violation of the statutes of this state, which authorize a recovery hack from the owner of money lost on such wagers or bets.
    The plaintiffs in error denied all the allegations of the petition made against them respectively.
    The case was tried to a jury; numerous exceptions were taken on the introduction of plaintiff’s testimony by O’Dell, and at the close of the testimony, and before the beginning of arguments of counsel to the jury, the defendants, now plaintiffs in error, each requested the court to give certain written instructions in their behalf before the arguments commenced. The instructions presented by Cone were given as requested. Some of the- instructions asked by O’Dell were given before argument, and others were refused. There was no request that the general charge of the court should be reduced to writing and it was not a written charge. O’Dell excepted to the charge, and thereupon requested the court to send the special instructions which were given before argument to the jury room during their deliberations. This was objected to by the plaintiff on the ground “that the charge is not in writing, and the special instructions should not be sent to the jury unless a written charge be sent therewith.”
    The court sustained this view and refused to send the instructions so given to the jury, to which O’Dell excepted. Cone made no such request, and took no exceptions on the subject.
    The jury found against both Cone and O’Dell and assessed the recovery at $3,888.14. A motion for new trial was overruled and judgment was entered on the verdict. The circuit court affirmed the judgment, and error is prosecuted here, to reverse the judgments of both courts.

      Mr. Harlan F. Burket; Messrs. Shay & Gogan and Mr. George H. Phelps, for plaintiffs in error.
    There were a number of objections on behalf of W. J. O’Dell as to the admissibility of testimony in. the case as against him, all of which may be practically argued under the one head, namely; that there was no sufficient foundation laid by which O’Dei? coulc? be held responsible for tbe acts, declarations and conduct of the defendant, Cone.
    It is claimed on bebalf of O’Dell that tbe acts and declarations of Cone were admitted without any proof of agency or federation existing as between Cone and O’Dell. Under tbe rule laid down in Roberts v. Briscoe, 1 Circ. Dec., 323; 1 C: C. R., 577, followed and approved in Roberts v. Briscoe, 44 Ohio St., 596, all of this testimony so adduced, we claim, was clearly error.
    In tbe aforementioned cases tbe following was laid down as tbe rule: Acts and declarations of a conspirator are admissible only when it is proven: (1) That a conspiracy existed; and (2) That it was in furtherance of tbe conspiracy and under no other circumstances.
    It must be proven before such acts and declarations can be considered that they were done in furtherance of tbe common purpose, with common intent and with knowledge and consent. Patton v. State, 6 Ohio St., 467; Fouts v. State, 7 Ohio St., 471; Goins v. State, 46 Ohio St., 457; Clawson v. State, 14 Ohio St., 234; Ruffer v. State, 25 Ohio St., 474.
    But this mass of testimony was permitted to go to tbe jury against tbe protest of tbe defendant O’Dell, and without any limitation, qualification or consideration on tbe part of tbe court in its. charge or at tbe time tbe same was permitted to go to tbe jury.
    There was not a scintilla of testimony in tbe case showing that O’Dell at any time bad any knowledge, connection or dealings with Cone, or with bis acts in relation to tbe defendant Bright.
    It is claimed on bebalf of O’Dell that there was not a particle of evidence to warrant tbe case going to tbe jury as against him; that there was no proof that he engaged' in the unlawful enterprise; that there was not the slightest proof that he was the winner of any money whatsoever from Bright.
    Clearly under Section 4270, Revised Statutes, no recovery can be had except from the winner. It gives no right of action against anybody except the winner. It can not be claimed that the writings or statements attached as exhibits containing the names of W. J. O’Dell, or W. J. O’Dell & Co., furnished any evidence of any act or declaration by W. J. O’Dell and W. J. O’Dell & Co.
    There was no proof that W. J. O’Dell had any knowledge thereof, or the contents thereof, or that the same was ever brought to his knowledge for approval or disapproval, or that he had any knowledge of the existence of the same, and the court clearly should have excluded them as far as W. J. O’Dell or W. J. O’Dell & Co. were concerned, from the consideration of the jury, without such proof having been adduced.
    Upon what theory he is held liable we are at a loss to understand. Surely it must be proven that he had furthered the unlawful enterprise and was the winner of the money, before he can be held liable. The court erred, therefore, in not granting the motion of O’Dell to dismiss him, or render a judgment in his favor at the conclusion of the testimony.
    If the plaintiff entered into a solemn written agreement with Cone, which appeared upon the face to be a lawful transaction, and that written agreement was not changed or varied by any verbal agreement subsequently made by the parties where either party had the right to compel a performance of the contract at the time, or at any time subsequent thereto, it is not the privilege of the plaintiff below, after he has found that he had lost money in a lawful transaction to declare it a gambling transaction.
    However, that phase was eliminated from the jury by the refusal of the court to give this charge, and under the rule in the case of Kahn, Jr., v. Walton et al., 46 Ohio St., 195, this was error.
    We are not cognizant of any section of the code that prevents the defendant from demanding'a charge upon any matter of law at any time either before or after argument, or even after the court had charged the jury.
    It was the duty of the court, if the charge requested was good law, at least to give it in connection with, his general charge. If not in the language of the-charge requested, then in some other appropriate language sufficient to advise the jury of the law pertaining to the point in question.
    While the order of time may be regulated by statute we know of no statute or rule of law which denies to the defendant the right to have a charge given on matters of law to the jury at any time before fiuflT submission. Griffin v. State, 34 Ohio St., 304. This principle is clearly laid down in the case of Lytle v. Boyer, 33 Ohio St., 506.
    The court refused to give the special charges to the jury, that is, to allow them to go to the jury room because his charge was not made in writing. This was clearly error, and such error as for which the judgment should be reversed. The statute is entirely different from the code as decided in Griffin v. State, 34 Ohio St., 299; Blackburn v. State, 23 Ohio St, 147; Hardy v. Turney, 9 Ohio St., 400.
    Section 7 of 5190 is mandatory. All written charges and instructions shall be taken by the jurors in their retirement. This rale is clearly laid down in Caldwell v. Brown, 6 Circ. Dec., 694; 9 C. C. R., 691; Foy v. Street Railway, 6 Circ. Dec., 396; 10 C. C. R., 151.
    Clearly this was the denial of the substantial right guaranteed by statute, and surely is prejudicial in itself, and such error as for which the judgment must be reversed.
    To lay the foundation for a recovery under Section 4270, Revised Statutes, it must appear that the defendant by playing at some game, or by means of some bet or wager, won money from the plaintiff, and that such money was paid to, and received by the defendant as winnings upon such game, bet or wager. Vincent v. Taylor, 60 Ohio St., 309; Revised Statutes, Sec. 4270.
    The most that can be spelled out of the petition is, that -plaintiffs in error were brokers running a bucket shop in violation of the criminal statute; that defendant in error through their agency lost money in this transaction, but to whom he lost it and upon what wager, if any, nowhere appears, and much less is it alleged or pretended that the plaintiffs in error won this money, or that it was paid to them as winnings.
    Tnere is abundant authority for the proposition, that an action under section 4270, and kindred statutes, by whicn the loser of money in games and on wagers is authorized to recover such losses from the winner, will not lie against the broker who merely handles the money for his principal, no matter how illegal the business itself may be. Roulstone v. Moore, 10 Re., 275; 19 Bull., 387; White v. Barber, 123 U. S., 392; Higgins v. McCrea, 5 O. F. D. 497; 116 U. S., 671.

      Mr. James A. Bope; Mr. E. V. Bope and Mr. E. Y. Dunn, for defendants in error.
    We understand the rule to be that instructions to the jury before argument, under paragraph 5 of section 5190, Revised Statutes, must embody general rules, not only correct in the .abstract, but so covering the case as not to give a one-sided view to any particular theory of counsel or attach undue importance to particular items of evidence. Railway Co. v. Whidden, 13-23 O. C. C., 86.
    If this be the correct rule, then the court might well have refused these special requests, as they failed to comply with the rule, but by the provisions of that paragraph, the court had a right to give or refuse, and, therefore, it follows, we think, necessarily, that these special requests could not properly be given to the jury.
    Paragraph 7 of section 5190 provides that after the argument is concluded, the court shall charge the jury, but if either party, before the argument commences, requests that the charge shall be reduced to writing, this charge or instruction, when so reduced to writing, together with the written instructions, shall be taken by the jurors to the room. No request was made in the case at bar, either before argument or at any time, that the charge should be reduced to writing, nor does the record show that any such request was made. The charge was not reduced to writing, nor does the record show that it was, so that there was no charge which could have been taken by the jurors into the jury room, and conceding all the plaintiff in error claims, the special requests made before the argument could not be sent into the jury room, unless the written charge was sent with them.

      We think the testimony brings the rooms where these transactions were had clearly under the provision of section 6934a-l, and that the place where this gambling was done was a “bucket shop”; and also clearly within the provision of section 6934a-4, defining the words “bucket shop” and. “margin”; and therefore the action properly brought under the provision of section 4270.
    The petition in this case was modeled closely after the pleadings shown in case of Lester v. Buel, 49 Ohio St., 240, and the testimony warrants the verdict under the rules and intimations and opinions of the court in that case.
   By the Court.

While the record shows that Frank Cone, one of the defendants in the court of common pleas, joins O’Dell in the petition in error, it is quite evident that he has no ground of complaint. The.evidence against him was not only competent, but was sufficient in weight to justify the verdict against him. The court gave the special instructions he requested and he took no exception to the general charge. An affirmance of the judgment against him naturally follows.

The record as to O’Dell is not so clear. He interposed numerous objections to the evidence of the plaintiff, which consisted mostly of his own testimony, and struggled against its admission where the plaintiff testified to the statements and declarations of Cone, his codefendant. The reason wliich he presented and urged repeatedly against the admission-of such statements by Cone appears to be, that they were not made in the presence of O’Dell, and that it was not shown that they were jointly interested in the transaction through which the money.was lost, nor that there was a combination or conspiracy on their part to perpetrate the wrongs complained of.

In order to properly decide upon the competency of such evidence we have looked carefully into the record, and the result of our investigation is, that the facts against O’Dell are rather meager and frail. But there is some evidence coming from his own lips which, if true, indicates that at the close of the unfortunate investments of the plaintiff, O’Dell was personally interviewed and appealed to for some relief from the losses plaintiff had sustained, whereupon he informed the plaintiff that he had no. more goods to sell him, was out of the commodities in which plaintiff had been dealing, etc. This remark is significant as implying a knowledge of and connection with what had preceded, and his part in'it, and the statement, when coupled with a few other facts against him, furnishes some basis, although weak it is, for the finding of the jury and also for the refusal of the .court to rule out the evidence objected to.

The court gave certain instructions asked by O’Dell to be given before argument, and refused others; but we perceive no error in such refusal. Nor do we find reversible error in the general charge.

After this charge, O’Dell requested the court to send to the jury room during the deliberations of the jury, the special instructions given before the argument to the jury commenced. The court denied this request for the stated reason, that the general charge was not in writing. O’Dell excepted to the ruling of the court, and this exception presents the most substantial question in the case.

Subdivisions five and seven of Section 5190, Revised Statutes, provide:

“5. When the evidence is concluded, either partv may present written instructions to the court on matters of law, and request the same to he given to the jury, which instructions shall he given or refused by the court before the argument to the jury is commenced.”
“7. The court, after the argument is concluded, shall, before proceeding with other business, charge the jury; any charge shall be reduced to writing by the court, if either party, before the argument to the jury is commenced, request it; a charge or instruction, when so written and given, shall not be orally qualified, modified, or in any manner explained to the jury by the court; and all written charges and instructions shall be taken by the jurors in their retirement, and returned with their verdict into court, and shall remain on file with the papers of the case.”

The instructions referred to were, beyond doubt, in writing. They appear in the record, each one bearing its respective number, and only written instructions are recognized by subdivision five. They had a physical existence, for the court was asked to send them to the jury room. Therefore, had the court any discretion to refuse the request? We think not.

The purpose, in part at least, of having proper instructions given before argument, is that counsel for each party may know in advance of argument to the jury, what the law of the case is, on certain, or all the questions of law involved. They become a guide by which counsel may regulate and govern their arguments, and having this important part to play, they become a part of the papers of the case and they “shall be taken by the jurors in their retirement, and returned with their verdict into court, and shall remain on file with the papers of the case.”

These special instructions, oftentimes, cover about all questions in controversy, so that, when given to the jury, little, if any, further charge becomes necessary. And the fact that the general charge is not in writing does not release the court of the duty imposed by statute as to written instructions which have been presented and given before argument to the jury. The request of O’Dell directed the attention of the court to this duty, and the -refusal to perform it, is error for which the judgment as to O’Dell must be reversed.

The judgment as to Frank Cone is affirmed; but the judgment against W. J. O’Dell is reversed and the cause is remanded for further proceedings according to law.

Judgment against W. J. O’Dell reversed.

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