text:
    Weber Loper & Co. v. Paxton et al.

      Life Insurance — Ey married woman on the life of her husband — Policy— Premiums — Sections 3628 and 3629, Revised Statutes, construed — Creditors of deceased husband — What rights, toproceeds of policy, may have.

    1. A policy of insurance purporting on its face to have been effected by a married woman, on the life of her husband, wherein the company, in ■ consideration of an annual premium duly paid by the wife and of like annual premiums to be paid by her during the continuance of the policy, or until ten full premiums have been paid, agrees to insure the life of the husband for the sole use of the wife, to be paid her at his decease, and if not living then to her children for their use, is prima facie, the sole property of the wife, and as such is not affected by section 3628 of the Revised Statutes.
    2. The fact that the premiums have been paid by the husband is not sufficient, of itself, to overcome the legal effect of the terms of the contract.
    3. Where creditors of the husband seek to obtain satisfaction of their claims from the proceeds of such policy, they must establish, not only that the husband was insolvent at the time of his decease, but that such payments, or some of them, were made in fraud of the rights of existing creditors. Such fraud will not be presumed from the fact that, during the time of the payment of premiums the insured made an assignment for the benefit of creditors, it appearing further, that he thereafter settled with all his creditors and continued business until his decease twelve years after the assignment and seven years after the payment of the last premium, and that existing debts were all incurred a few weeks before his decease.
    (Decided March 31, 1891.)
    Error to the Superior Court of Cincinnati.
    The defendants in error, Paxton & Warrington, holding part of the proceeds of a policy of insurance on the life of Ferdinand Brown, deceased, brought the same into court, and required his executrix, his creditors, and his children by a deceased wife (Sophia), to interplead. The money was claimed by the plaintiffs in error and others, who were creditors. The executrix (the widow) made default. Answer was filed by the children making claim to the money under the terms of the policy, and setting up the statute of limitations against the claims of creditors. The superior court awarded the fund to the children.
    It is shown by the bill of exceptions that the policy was issued to Sophia Brown (the wife), the premiums to be paid by her, for the sole use of said Sophia, and in case she should not be living at the time of the husband’s decease, then to her children, for their use. The policy was on the ten annual premium plan.. It was dated November 20, 1868, was in amount $10,000, the annual premium being $712.50. The premiums were all paid by the husband.
    Sophia Brown died in the year 1878. Ferdinand Brown died in 1885.
    In the year 1872, or in 1878, Brown made an assignment. He then compromised and settled with all his creditors, and then went on in business as a member of a solvent firm, and alone thereafter until his death. His estate is insolvent. The existing debts were all incurred a few weeks before his death.

      John M. Fitzgerald, for plaintiff in error.
    Section 3628 seems to be perfectly plain. It is difficult to conceive how language could be less ambiguous. It says nothing about insolvency or debts or creditors; it lays down a law of descent; it says just how much a man may secure, by way of life insurance, to his widow and children, to the exclusion of creditors and others, just as it fixes dower, allows for a year’s residence in the homestead, provides for a year’s support, and grants certain other rights and privileges.
    The court below said that the reason and history of this law precluded the interpretation which we contend for.
    Now this is a law of prohibition. What did it intend to provide against? Why, it was intended to prevent just what has been attempted in this case and in part accomplished.
    I will state the facts, part of which are of record and part of which are not, but I state this as an illustration of what is possible under any other interpretation of the law.

      Here was a man in such circumstances that, as the record shows, he was compelled to make an assignment for the benefit of his creditors during the time these premiums were being paid — about the middle of the term of ten years. He makes some arrangement with his creditors, and goes into business with his son. He continues to borrow from Peter to pay Paul, and pays to the insurance company the whole $7,125, the last payment being made in 1877. In the meantime the wife died, and he married another. (This is not in the record.) He insures his life in 1879 for $10,000 more for her benefit, and pays $715 per year in premium on that policy; he also goes into two mutual associations, and pays dues to them. In 1885, the last of March or first of April, he dies suddenly, leaving to his family life insurance to the amount of $24,000, which cost $13,000 or $14,000 by way of premiums, and his estate, after the payment of $2,500 to the widow as a year’s allowance, amounts to $5,700 with which to pay costs of administration, and about $9,000 of other debts.
    These are facts which illustrate what the general assembly intended to provide against. And hence section 3628 was not limited or restricted to any particular state of case, but was made to apply generally as a law of descent and of distribution. Shall the court change it by enlargement or limitation to make it conform to what it thinks the legislature ought to have done ? This is what the court below did, and 1 repeat, this is judicial legislation, in which the court is not justified in indulging.
    We feel greatly relieved in this discussion by the recently published decision of this court in the case of Cross v. Armstrong, 44 Ohio St. 613, which states our case much better than we could hope to do.
    We claim that this is not a question of solvency or insolvency, and that were there no creditors, the personal representative of the deceased would be entitled to the fund.

      Judson Harmon, for defendants in error.
    I. Even if Brown had insured his own life, making the policy payable to his wife or children, so as to bring the case within the Revised Statutes, section 8628, the judgment should be affirmed for the following reasons:
    1. The amount of such insurance which creditors may not reach is expressly measured by annual premiums. “ The amount of premiums annually paid on such policy shall not exceed the sum of one hundred and fifty dollars. In case of payment in excess, the amount to be paid the beneficiaries is such portion of the insurance as $ 150 ‘ will bear to the whole premium.’ It is manifest that the measure so fixed is ordinary annual premiums. Any other might work gross injustice.”
    It is well settled that this action is in the nature of an exemption law, and therefore entitled to a liberal construction. Cole v. Marple, 98 Ill. 58; Fearn v. Wood, 65 Ala. 35; which cases both arose under statutes almost identical with ours.
    2. The creditors have no right as such to reach the fund under section 3628. On the contrary it is expressly provided that the excess, if any, shall be paid “ to the representatives of the deceased,” of course for ordinary distribution after payment of expenses, widows’ allowance. I know of no law or principle which authorizes a creditor to sue for an asset of the estate, even in a representative suit, which this is not and does not profess to be. A creditor could require the administrator ■ to proceed and remove her, and hold her liable on her bond if she should fail or refuse.
    3. But section 3628 was not intended to and does not apply to a case like this where the premiums were all paid years before the death of the insured, while he was entirely solvent, as we should be bound to presume in the absence of evidence, even if it were not shown as it is here indirectly but clearly, and long before any of the debts existing at his death were incurred, without any suggestion of intent to defraud future creditors. Pollis v. Robinson, 73 Mo. 201; Baron v. Brummer, 100 N. Y. 372.
    II. But this policy comes under the provisions of section 3629, not under those of section 3628. The first part of the former and the latter were originally parts of the same act. For a discussion of the history and effect of this legislation see U. C. Life Ins. Co. v. Eckert, 6 Am. Law Rec. 452.
    It is well settled that there is a wide difference between cases where the husband contracts with an insurance company for insurance on his own life in consideration of premiums to be paid by himself, making the proceeds, however, payable to his wife, and cases where the wife insures her interest in her husband’s life for premiums to be paid by her. In the former case the husband creates a right in the nature of a chose in action, which belongs to him, and which, beyond the limit fixed, he may not dispose of to the prejudice of his creditors. In the latter case the wife creates the right, and it belongs to her. The husband’s creditors have no claim whatever upon it, unless the husband, to their prejudice, diverts his money into it in the way of premiums. Manhattan Life Insurance Co. v. Smith, 44 Ohio St. 156; Washington Central Bk. v. Hume, 128 U. S. 195.
    The right of creditors beinglimited by section 3629 to “an amount equal to the premiums paid thereon with interest, subject however to the statute of limitations,” the statute having been expressly pleaded, and the right being clearly barred, the judgment should be affirmed. This act was copied from that of Massachusetts, and this is the ruling there. Ingalls v. N. E. Mutual Life Insurance Co., 27 Fed Rep. 249.
    It has always been the policy of Ohio to uphold gifts to and provisions for wives by husbands where they were made during his solvency and without any intention to defraud present or future creditors. Creed v. Lancaster Bk., 1 Ohio St. 1; Eckel v. Renner, 41 Ohio St. 232; Child v. Graham, 7 W. L. B. 43.
    The questions above discussed have never been decided by this court. In fact this law appears to have been involved in only two cases. Fraternity Mutual Insurance Co. v. Applegate, 7 Ohio St. 292; and Cross v. Armstrong, 44 Ohio St. 613.
   Spear, J.

Do the facts bring the case within section 3628 or within section 3629, of the Revised Statutes? If within the latter section, is a case made which entitles the creditors to relief ?

We think the first question is answered by a reference to the face of the policy itself. Section 3628 applies where the insurance is effected by the person whose life is insured, for the benefit of his widow and children, or either. This policy, upon its face, appears to have been procured, not by the husband, but by the wife. The fact that the husband paid the premiums tends to indicate that the insurance was procured by him, but, standing alone, does not overcome the legal effect of the terms of the contract itself. There is an essential difference between a case where a husband contracts with an insurance company for insurance on his own life in consideration of premiums to be paid by himself, the loss to be payable to the wife, as in Cross v. Armstrong, 44 Ohio St. 613, and a case where the wife insures her interest in her husband’s life, the premiums to be paid by her, as in Manhattan Life Ins. Co. v. Smith, same volume, 156. In the one case the policy is a chose in action which belongs to the husband, and which, beyond the limit fixed by section 3628, he may not dispose of to the prejudice of creditors and those entitled to share in his personal estate on distribution. In the other, although the premiums may have been paid by the husband, the contract is the wife’s separate property, upon which the husband’s creditors have no claim, unless it appear that the payment of premiums by him has had the effect to withdraw funds to which the creditors were entitled. As to creditors whose claims existed when such payments were made fraud might be presumed; as to subsequent creditors it would be necessary to show that there was fraudulent intent. Washington Central Bank v. Hume, 128 U. S. 195.

Section 3629 provides a rule for the second class of cases. Under that section a wife may, in her own name, cause to be insured the life of her husband, for her sole use and that of her children, and if she survive him the amount of the insurance shall be payable to her, if not then to the children for her or their sole use, free from the claim of the representatives of the husband, or any of his creditors ; but if a policy be procured by any person with intent to defraud his creditors, an amount equal to the premiums paid, with interest, shall inure to the benefit of his creditors, subject to the statute of limitations.

To enable creditors to maintain a claim to any portion of the proceeds of such a policy it must be shown not only that the premiums were paid by the husband, and that he was insolvent at the túne of his decease, but that such payments, or some of them, were in fraud of the rights of creditors. If this is established the creditors, if they move in time, may recover the amount so fraudulently paid, with interest. Union Central Life Ins. Co. v. Eckert, 6 Am. Law Rec. 452.

The assignment for benefit of creditors made by Brown in 1872 or 1878 would show an embarrassed, possibly an insolvent, condition at that time. But he settled with all his then creditors, and for all that appears to the contrary, may havé paid all in full. None of that class is here complaining. It is not shown that the payments, or any of them, were made with the intent to defraud creditors, or that, in fact, they had that effect. If they were not so fraudulent then1 it was his right to bestow his entire bounty upon the wife and children, and it is now their right, or the right of the survivors, to enjoy the proceeds of it.

A decision of the question of the statute of limitations is not necessary to a disposition of the case, and we do not consider that question.

Judgment affirmed.


source: Caselaw Access Project

author: Williams, C. J.

license: Public Domain

text:
    Railroad Company v. Village of Belle Centre.

      Probate Courts — Jurisdiction—Records of import absolute verity-^-Eminent Domain — When property appropriated for a public use cannot betaken for another — When it may be — Municipal Corporations— Railway Companies.

    1. The prohate courts of this state are courts of record, competent to decide on their own jurisdiction, and exercise it to final judgment; and their records import absolute verity.
    2. The statute regulating proceedings instituted in the probate court by municipal corporations to appropriate real property for an authorized public use, confers on that court, power to decide when the service on the defendants is complete, and the parties are in court; and its decision on these questions cannot be collaterally inquired into.
    3. Where the record in such proceeding, shows that the court, after hearing the evidence, found that the defendants therein were duly notified according to law, of the time, place, and purpose of the application, a defendant on whom no service was had otherwise than by publication, will not be permitted, in a collateral proceeding, to draw in question the jurisdiction of the court, by proving that at the commencement, and during the pendency of the proceeding, he was a-resident of the state.
    4. It is a well established rule, that property already appropriated, in the proper exercise of the power of eminent domain, cannot be taken for another public use which will wholly defeat or supersede the former use, unless power to make such second appropriation be granted expressly, or by necessary implication.
    5. But land held by a eoi-poration, whether acquired by purchase or appropriation, which is not employed in, nor needed for the proper exercise of its corporate franchises, is not within the reason or operation of the rule.
    6. Municipal corporations, under the power conferred by section 2232, of the Revised Statutes, are authorized to appropriate for necessary public offices, or a prison, land of a railroad company, which is not needed, or used in the operation of its road, or the conduct of its business.
    (Decided March 31, 1891.)
    Error to the Circuit Court of Logan county.
    On the 30th of September, 1881, The Cincinnati, Sandusky & Cleveland Railroad Company, Edward Mains, and J. C. Mains, commenced their action in the Court of Common Pleas of Logan county, against the Village of Belle Centre, to enjoin the defendant from taking possession of certain real estate within its limits, under a proceeding theretofore had in the probate court, for the appropriation of the premises for the purposes of public offices and a prison for the village. The allegations and prayer of the petition are as follows:
    “ The said village of Belle Centre is a municipal corporation organized under the laws of Ohio, and situate in said Logan county. The Cincinnati, Sandusky & Cleveland Railroad Company is, and for ten years last past has been, a corporation organized under the laws of Ohio, owning the line of railroad and the real estate hereafter mentioned.
    In the year 1832, The Mad River & Lake Erie Railroad Company was created by and organized as a corporation under a special act of the legislature of Ohio, with full power and authority to construct a railroad from the city of Sandusky to the city of Springfield, in said state, and to acquire title to and hold all real estate requisite or convenient for right-of-way, depots, stations, side-tracks, turntables, etc., for the construction and convenient operation of said road.
    On the 12th day of June, 1846, Robert Mitchell and Robert D. Hemphill, being the owners of lot No. 4. in said village of Belle Centre, of which they were the proprietors, proposed to the said The Mad River & Lake Erie Railroad Company, to convey to it the said lot No. 4 in consideration that said company would locate and construct its line of railroad through and across the said village, and through, across, and upon said lot; which proposition the said company then accepted, and then located and constructed its line of road through and across the said village, and upon and across the said lot. In consideration thereof, the said Mitchell and Hemphill then conveyed to the said The Mad River & Lake Erie Railroad Company the said lot No. 4, as a place of depot forever. A copy of the deed therefor is in the record of the proceedings hereinafter mentioned. The said The Mad River & Lake Erie Railroad Company then accepted said lot and erected thereon a depot building with appurtenances for the operation of the said road, which ever since has been and now is maintained thereon.
    By judicial sale and reorganization under the laws of Ohio, and conveyances under the same, the title to all the said line of road, its real estate, right-of-way, and equipments, including said lot No. 4, passed to and is now vested in the said The Cincinnati, Sandusky & Cleveland Railroad Company.
    The village of Belle Centre, on the 6th day of August, 1881, filed in the Probate Court of Logan county, its application to condemn and appropriate for village offices and prison, a portion of the said lot No. 4. A copy of which application is hereto attached, marked ‘B,’ and made part of this petition.
    The plaintiff, said railroad company, was served with no process of notice of said application- as required by law; the only pretended notice being a newspaper publication, of which a copy is hereto attached, marked ‘C,’ and made part of this petition. On the said portion of lot sought to be appropriated a building and structure then was and still is standing, of which the said Edward H. Mains and J. C. Mains were and are joint owners each of the one undivided third part, and upon whom no notice whatever of the said application and proceeding was ever served, or caused to be served, by the said village or otherwise.
    Plaintiffs say that said portion of lot so sought to be appropriated was then and is part of said lot No. 4, upon which said depot buildings are standing and occupied, the said Edward H. Mains and J. C. Mains occupying said portion temporarily for a mere temporary purpose.
    On the 27th day of August, 1881, the said probate court wrongfully, and without any authority or jurisdiction, illegally made an order of appropriation authorizing and empowering the said village to enter upon and take possession of the said portion of lot No. 4, and erect and maintain thereon village offices and a prison on payment to the plaintiff, said railroad company, of $284.16 compensation for said portion of lot, and to one Charles Mains $100 for said structure. Under said illegal and pretended order, the said village is threatening to enter upon and take possession of said portion of said lot and said structure, and erect and maintain thereon village offices and a prison, and in addition thereto to erect and maintain thereon business rooms to be occupied as stores for general commercial business and trade; all of which it will do without authority, under said illegal order, to the great and irreparable damage of the plaintiffs severally, unless restrained by order of injunction from this court.
    The plaintiffs say, that the said portion of lot is neither indispensable nor necessary for the construction of said village offices and prison; that there are many other lots and parcels of land iii said village, severally suitable and convenient for such offices and prison, which the defendant can procure at reasonable price either by purchase or judicial appropriation.
    The plaintiffs say, that the said village is not, nor is its council, clothed with authority or power to condemn or appropriate said part of said lot; that said probate court had no authority or jurisdiction to entertain or hear said application, or to authorize proceedings under the same to condemn or appropriate any part of said lot for said purposes; that all its said proceedings are and will be null and void; but if permitted, will be a cloud upon, and may ripen into an occupancy inconsistent with plaintiff’s rights and title, and work the entire forfeiture thereof. During all the months of July and August, 1881, the said corporation plaintiff had and maintained its general office and place of business in the city of Sandusky, in the state of Ohio, constantly in charge of its proper officers, agents and clerks, and had and maintained its full organization and proper officers under the laws of and within said state, during all said time, and is not nor was a foreign corporation at any time.
    The plaintiffs, and each of them, therefore pray, that the said village, its agents and officers, may be restrained and perpetually enjoined from asserting any estate or exercising any right, under said order of appropriation, and from taking or maintaining possession of said part of lot No. 4; that the said order and judgment of appropriation be annulled; and that in the mean time a provisional injunction be allowed restraining them therefrom until the final hearing and for other proper relief. ”
    At the commencement of the action, a temporary injunction was allowed as prayed for in the petition, and afterwards, on the 5th of October, 1881, the plaintiffs filed the following supplemental petition, and obtained thereon, a further temporary injunction according to its prayer, viz.:
    “ The plaintiffs say that on the 30th day of September, 1881, they obtained an injunction and filed their petition in the above entitled cause restraining the said village, its officers and agents from erecting or maintaining any building or structure on the southeasterly part of lot No. 4 in said village, and from interfering with or molesting the structure now thereon standing. They now. eome and file this their supplemental petition against George Young, mayor of said village, Jefferson Wright, Lyman Dow, William Sicke, et al., members of the council of said village, and Thomas Nelson, Thomas Livingston and M. A. Smith, Jr., and aver against them, all and singular, the matters and facts alleged and averred in their said original petition as fully as if the same were herein set forth at large. They further aver that the said Nelson, Livingston and Smith wrongfully claiming to act under some pretended authority or contract derived from or had with the mayor and council of said village are contemptuously disregarding and violating the said order of injunction, and are now engaged in molesting and disturbing the said structure mentioned in the said original petition, and are digging and excavating the soil of part of said lot wrongfully, and are erecting thereon a structure as described and mentioned in their said original petition in violation of the court’s injunction and without any legal authority or right, and in contemptuous disregard of the authority and order of the said judge, and the court allowing said injunction, which, if permitted to continue will work an irreparable injury to these plaintiffs.
    They therefore pray that the said mayor of said village, and members of said village council, Thomas Nelson, Thomas Livingston, and M. A. Smith be made defendants, and be enjoined and restrained from further proceeding in the said digging, excavation, erection and molestation, on or about the part of said lot until the final hearing of their said original petition or until the further orders of the court; and from doing any of the acts which the said village is now restrained from doing by the said injunction.”
    The original defendant answered as follows:
    “Now comes said defendant and for answer to the petition and supplemental petition of plaintiff, denies each and every allegation therein contained excepting the allegation that defendant is a municipal corporation organized under the laws of Ohio, and situate in said county of Logan, and excepting the allegation that said defendant on the 6th day of August, 1881, filed in the probate court of said county its application to appropriate a portion of the real estate described in plaintiff’s petition.
    Defendant, for a further defense, says: 1. That part of said lot No. 4, in said village, sought to be appropriated for the purpose in the petition mentioned has never been and is not now used by said The Cincinnati, Sandusky & Cleveland Railroad Company or any other railroad company for depot purposes.
    That the depot building upon said lot is at the distance of 125 feet from the part of said lot sought to be appropriated as aforesaid: a plat of said lot and its surroundings is hereto attached marked ‘ A ’ and made part of this answer.
    That on the intervening space of 125 feet between 'said depot buildings and the part of said lot sought to be appropriated, there has for several years been, and now is, a building occupied with business rooms not in any way connected with the business of carrying on said railroad, and the part of said lot so sought to be appropriated has never been used, and will not be used by said railroad company in carrying on its business, and is not, and never will become necessary for the purpose of the business of said railroad company.
    That there is a structure standing on the part of said lot No. 4 sought to be appropriated, but the same was ere.cted since the plaintiffs had notice of the intention of said village to make its application for the appropriation of the same, and said structure was erected for the purpose and with the intent and design of preventing said defendant from making the said appropriation. That in said proceeding for appropriation, the said structure was valued at one hundred dollars, and the owners thereof refused to remove the same, and said defendant was compelled to take the same and pay said sum of |100 therefor, and proposes to permit to be used temporality, merely for business, only so much of said structure as for the present is not necessary to be used for the purposes for which the same was appropriated.
    That long before the beginning of this suit, defendant, after having paid into court the amount of compensation and damages assessed in said proceeding in the probate court of said county, in pursuance of the order of said probate court, took possession of said structure and the portion of said lot appropriated as aforesaid, and ever since has been, and now is in possession thereof. That prior to the commencement of this action, the village counsel of said village appointed a building committee, with full power to contract for the erection of the structure mentioned, and that on the 29th day of September, 1881, and prior to the bringing of this«suit, said committe made contracts for the erection and completion of said structure, all of which has been done; none of which contractors ever have been served with notice of any injunction having been allowed herein, and defendant says that after said contracts were awarded, it had no power to prevent them from completing their contracts as aforesaid.
    Defendant further says that said The Cincinnati, San-dusky & Cleveland Railroad Company was property and legally served with notice of the intended application of defendant to appropriate a part of said lot as aforesaid, as well' as all other necessary parties thereto.
    That said The Cincinnati, Sandusky & Cleveland Railroad Company appeared in said probate court by its attorneys and made and argued motions and examined witnesses during the trial of said proceeding.
    That the part of said lot No. 4 sought to be appropriated and was therein appropriated consisted of a strip of ground 25 feet front by 50 feet, out of the south corner thereof.
    That if any wrong has been committed against plaintiff in said proceedings, plaintiffs have a complete and adequate remedy at law.
    Defendants further say that said lot so appropriated as aforesaid is necessary for the construction of said village prison and offices.
    Wherefore defendant asks that said injunction may be dissolved and said defendants restored to all things they have lost by reason thereof.”
    The plaintiffs did not reply. Upon the issues joined by these pleadings, the case was tried in the court of common pleas, where the plaintiff prevailed ; and the defendant appealed. The circuit heard the cause at its September term, 1887, and separately stated its conclusions of fact and law as follows:
    “ 1. The court find that the allegations of the defendant’s answer relative to the condemnation proceedings, therein mentioned, as having taken place in the probate court of said county, are true, that record of said proceedings was submitted to the court by the defendant, and the court declined and refused to hear any other evidence in the case except as set forth in the record of said probate court in said condemnation proceedings.
    “ 2. Upon the said record, the court refusing to hear any other evidence, they find that said condemnation proceedings were regular; and that said plaintiff, The Cincinnati, Sandusky & Cleveland Railroad Company, was a party thereto, and upon the facts so found the court finds the equity of the case to be with the defendants ; it is therefore considered and adjudged by the court that the injunction heretofore allowed herein be, and the same is dissolved, and that the defendants be restored to all things lost by reason thereof. It is therefore considered that the defendant, the village of Belle Centre, Logan county, Ohio, recover of the plaintiff, The Cincinnati, Sandusky & Cleveland Railroad Company, their costs expended, taxed at f-.”
    A motion for a new trial was filed in due time, which was overruled by the court. Exceptions to the ruling were taken by the plaintiff, the railroad company, and a bill of exceptions was allowed, from which it appears, that “it was agreed by the parties that the several allegations of the plaintiff’s petition in regard to The Mad River & Lake Erie Railroad Company, and the conveyance to it of the said lot No. 4, the terms, conditions and purpose of said conveyance; the building, operation and maintenance of said line of road, and the occupancy of said lot No. 4 for depot purposes were severally true. It was further agreed that in the year 1866, by judicial reorganization, and the sale and transfer of said line of railroad and of said lot No. 4, the said The Cincinnati, Sandusky & Cleveland Railroad Company became the successor to the said The Mad River & Lake Erie Railroad Company, and then became and has thence hitherto continued to be the owner of said line of railroad, with all the rights of its said predecessor, including its rights to and ownership of said lot No. 4, with the depot building thereon standing, which it has continuously maintained and operated ever since. It was further agreed that since the commencement of this action the said temporary lease of the other plaintiffs in the petition mentioned has expired, and that the said The Cincinnati, Sandusky & Cleveland Railroad Company alone prosecutes this action. The plaintiff, the said railroad company, to further maintain the issues on its part offered as evidence the deed to the said The Mad River & Lake Erie Railroad Company for the said lot No. 4, a copy of which is hereto attached marked “ A,” and made part of this bill of exceptions, and also offered other competent evidence, oral and record, tending to prove the allegations of the petition on its part, but the court refused to hear or consider the same or any evidence in support of the petition, other than the record of the condemnation proceeding before the probate court in the pleadings mentioned, and directed the defendant to first introduce the record of said condemnation proceeding, to all which ruling and refusal to admit evidence the said The Cincinnati, Sandusky & Cleveland Railroad Company by its counsel then excepted. The defendant then to maintain the issue on the part of said village offered and read in evidence the record of the said probate court, and of the said condemnation proceeding had therein, a transcript and copy of which marked “ B,” is hereto attached and made part of this bill of exceptions.”
    The deed from Hemphill and others to The Mad River & Lake Erie Railroad Company, describes lot No. 4, referred to, as “being 535 feet front on the railroad and 200 feet back.” Such portions of the record of the probate court to which reference is made in the bill of exceptions and judgment of the court, as may be deemed important in the decision of the case, will be noticed in the opinion. The proceeding in error here is to reverse the judgment of the circuit court.

      W. A. West, for plaintiff in error.
    I. The question of law involved in this case may be briefly stated, to wit: Has the general power conferred upon a municipal corporation, by section 2232 of the Revised Statutes, “to appropriate, enter upon, and hold” real estate within its corporate limits, for the purposes therein enumerated, also clothed it with power “ to appropriate, enter upon, and hold ” property already dedicated to'another public use?
    In this country most of the railway charters, (as is the case here,) contain a power to the company to acquire lands by agreement with the owner. In such case it has been held the rights of the company are the same as where they take their land under their compulsory powers, and is the same as taking lands in invitum. So far as the merits of the present case are concerned, the land, though held by purchase, must be held in the same light as if it had been originally acquired by the railroad in the exercise of the compulsory power vested in it by the act of its incorporation, to appropriate private property to a public use. In either event, whether the land be acquired by purchase, or by its vested right of emi

      nent domain, it is held by the company, dedicated to that public use, in view of which its power to take or acquire title to land, whether bj^ purchase or appropriation, was alone conferred. 1 Redfield on Railways, 234 and n.: Whitcomb v. Vermont Cent. Railw., 25 Vt. 49, 69; 1 Redfield, 234, n., and cases there cited; 1 Potter on Corporations, 220, n. 5; In re, N. Y. & H. R. Co., 46 N. Y. 546; Buf. & N. Y. R. Co. v. Brainard, 9 N Y. 100; Olcott v. Supervisors, 16 Wall. 678; Bonaparte v. C. & A. R. Co., Bald. 205; Bradley v. N. Y. & N. H. R. Co., 21 Conn. 294; Brown v. Beatty, 34 Miss. 227; Swan v. Williams, 2 Mich. 427; Giesy v. C. W. & Z. R. R. Co., 4 Ohio St. 308; Moorehead v. L. M. R. R. Co., 17 Ohio 340; Eldridge v. Smith, 34 Vt. 484; N. Y. & H. R. Co. v. Kipp, 46 N. Y. 546; State v. Mansfield, 3 Zabr. 510; Phil. W. & B. R. Co. v. Williams, 54 Pa. St. 103; Protzman v. Ind. R. R., 9 Ind. 467; Lacy’s R. R. Digest, 179; Maghee v. C. & A. R. R., 45 N. Y. 514; P. Ft. W. & C. R. R. v. Rose, 24 Ohio St. 219; 1 Redfield on Railw. 261, 262; Ib. 261, 262, n. 1; In re N. Y. & H. R. Ry., 46 N. Y. 546; 24 Ohio St., supra, 219, 230; Richards v. Scarborough Public Market Co., 23 Eng. L. and Eq. 343; 1 Redfield on Railways, 409; London & Birm. R. R. Co. v. Grand Junction Canal Co., 1 Eng. Railway Cas. 224; 1 Redfield on Railways, 351, n. 3; N. Y. & H. Railw. v. Kipp, 46 N. Y. 546; Stock & Darlington R. R. v. Brown, 6 Jur., (N. S.) 1168; North Missouri R. R. v. Lackland, 25 Mo. 515; Same v. Gott, Ib. 540; Lundon v. Midland R. R. Co., 34 L. J. Ch. 276; State v. Boston, Concord Montreal R. R., 25 Vt. 433.
    But we are not confined merely to the analogy of these judicial decisions to determine that a public corporation, clothed by the legislature with power to appropriate lands, which may be deemed necessary, to a particular public use, is properly made the proper judge of what quantity of ground will best subserve the interest and purposes of such use, if the corporation making the purchase or appropriation act in good faith. This conclusion is confirmed by the judicial construction of the statutes of Ohio, conferring upon corporations the express power to acquire, by appropriation, lands intended for a particular public use. The Iron R. R. Co. v. The City of Ironton, 19 Ohio St. 299.
    II. There can be no question but that the railroad company acquired the title to said lot No. 4 in good faith “ as and for a place of depot forever.” They purchased it for depot purposes. But land acquired by a railroad company by purchase, is as much subject to the. public use, as if acquired by appropriation, as we have shown. Both are equally and alike dedicated to the public use. The question is therefore presented: Is there any power lodged by statute, either expressly or by necessary implication, in the village of Belle Centre, to appropriate this land, already dedicated to a particular public use, to another and conflicting public use, to wit: For village offices and a prison? We do not question nor deny the sovereign right of the legislature to confer such power upon a municipal coporation, but the inquiry is, has it so vested it with power? The right of eminent domain, extending over all the property in the state, is limited simply by the boundaries of the sovereignty. It is not affected by the character of the owner, whether an individual, a municipal corporation, a railroad corporation, or even the federal government. But the exercise of this right by any power less than the sovereignty, must be conferred thereon by legislative grant. It is a question of conferred power.
    If the power to appropriate by the village property already appropriated by a railroad to the particular and authorized uses of a depot, under authority of law, is lodged by the legislature in a municipal corporation, it is conferred by one or both of sections 2282 and 2233, of the Revised Statutes of Ohio. Miami R. R. v. City of Dayton, 23 Ohio St. 510; Harback v. Toledo, 11 Ohio St. 219-228; 1 Potter on Corp., 221; Dillon on Municipal Corp., 467, 468, 469; Toledo & Wabash R. R. v. Daniels et al., 16 Ohio St 396; 20 Ohio St. 496-508; Broom’s Legal Maxims, 7th ed., 650, 652.
    Sections 2233, above quoted, must, under the rules cited, be strictly construed. It confers the power of eminent domain over the lands and tracks of railroads for one single purpose only, and that merely conditional — that its exercise shall not interfere or be inconsistent with its use by the com* pany, etc. The power thus conferred for one single purpose by express language, necessarily excludes the power for any other purpose, and especially for purposes absolutely inconsistent with any use by the railroad company of the property sought to be appropriated. Matter of Boston & Albany R. R., 53 N. Y. 574-5; 1 Potter on Corp. 237,238, n. 17; Hickok v. Hine, 23 Ohio St. 523; Springfield v. Conn. R. R. Co., 4 Cush. 63; Appeal of Pittsburgh Railroad Co., 122 Pa. St. 511; Appeal of Sharon Railroad Co., id. 533; B. & O. R. R. Co. v. Bellaire, 4 Law Bull. 201; Mills on Eminent Domain, chap. 5, secs. 45 and 46; Prospect Park etc. R. R. Co. v. Williamson, 91 N. Y. 552; 14 Amer. and Eng. R. R. Cases, 34; A. & F. Ry. Co. v. A. & W. R. R. Co., 75 Virg. 780; 10 Amer. and Eng. R. R. Cases, 23, 31; Albany North R. R. Co. v. Brownell et al., 24 N. Y. 345; West River Bridge Co. v. Dix, 6 How. U. S. R. 507; The Iron R. R. v. The City of Ironton, 19 Ohio St. 305.
    That our remedy in this case is by injunction I cite the following: 24 N. Y., 345; 1 High on Injunctions, 231.

      McLau,ghlin $ Bow, for defendant in error.
    The probate courts of this state are, in the fullest sense, courts of record. They belong to the class whose records import absolute verity. They are competent to decide on their own jurisdiction, whether that be of the person or of the subject matter, and exercise it to final judgment. They are given jurisdiction to as fully try and determine the rights of parties in proceedings of condemnation as the court of common pleas. See Shroyer v. Richman, 16 Ohio St. 455; 3 Ohio St. 500; 8 Ohio St. 27, 39; Revised Statutes, sections 2252, 2254; Dillon on Corporations, section 611.
    The probate court had jurisdiction, not only of the subject matter, but also of the person of the plaintiff in error. The records show that it made the motion, not merely to the jurisdiction of the person of the plaintiff, but also as to the subject matter. It appeared, examined witnesses, and had the cause continued. The company did not appear for the
      sole purpose of objecting to the service, but the motion involved the merits of the action. They objected to the jurisdiction over the subject matter. Smith v. Hoover, 39 Ohio St. 249; Elliott v. Lawhead, 43 Ohio St. 171; Handy v. Insurance Company, 37 Ohio St. 366; Holm v. Marshal, 29 Ohio St. 611; section 5043, Revised Statutes; section 5048 Revised Statutes, par. 2.
    The probate court having had jurisdiction both of the person and of the subject matter, plaintiff in error had a complete remedy at law in the proceeding it now seeks to enjoin; it cannot therefore maintain this action. Geisy v. The Railroad Company, 4 Ohio St. 308; A. & O. Railroad v. Sullivan, 5 Ohio St. 276; Atkinson v. Railroad Company, 15 Ohio St. 21; Swan’s Pleadings and Precedents, 257; Story on Equity, 875.
    The question of the necessity of said strip for the use of plaintiff in error was one that the probate court had jurisdiction to determine in said application. L. M. & C. Railroad v. City of Dayton, 23 Ohio St. 518; Iron R. R. Co. v. The City of Ironton, 19 Ohio St. 299.
    This strip of ground not having been acquired by plaintiff by appropriation, and not being necessary for its use, it is subject to appropriation for the purposes described in the proceedings for condemnation, whether consistent with the original grant or not. Little Miami & Columbus R. R. Co. v. City of Dayton, 23 Ohio St. 510; Iron R. R. Co. v. City of Ironton, 19 Ohio St. 299; 6 Am. and Eng. Encyc. of Law, par. 6, 535, and cases therein cited; 6 Howard, 506; 26 Pickering, 360; I. W. L. J. 251-275; Walker and Bates’ Digest, 414, par. 56, 57; L. S. & M. S. R. R. v. The N. Y. C. & St. L. R. R., p. 167, Ohio Law Journal, vol. 2, No. 11; 2 Abbott’s Digest, 376.
    Plaintiff further claims that this ground having once been dedicated to a public use, cannot be appropriated by the Village of Belle Centre to the uses sought, without express or by necessary implied authority. Section 2232, Revised Statutes, gives full power. This authority is broad, it is not limited to real estate owned by individual persons, neither is it confined to lands that have nolf been dedicated to public uses. Vol. 70, O. L. 175.

      West West, for plaintiff in error, in reply.
    1. The grant of the power of eminent domain to a corporation in general language, without words of special legislative intent as to the property on which it may be exercised, will be construed and interpreted to exclude all property which, before its exercise, shall have been acquired or appropriated for, or dedicated to, another and different inconsistent public use.
    Where a corporation to which the power of eminent domain is so granted in general language, without words of special legislative intent, invokes the jurisdiction of the probate court for its exercise, all propert3r which previously thereto shall have been acquired or appropriated for, or dedicated to, another and different inconsistent public use, will be deemed and held to be excluded from the purview of the grant, and consequently excluded from the jurisdiction of the court.
    Where such court assumes to exercise jurisdiction, under a grant of the power of eminent domain in general language, to declare the appropriation of property previously acquired or appropriated for, or dedicated to, another and different inconsistent public use, its judgment of appropriation is eoram non judiee and void. Pennsylvania Company’s Appeal, 93 Pa. St. 150.
    Authority given in general terms is, consequently, presumptively not sufficient to authorize the taking for an inconsistent use, of property already devoted to a-public use, and necessary for the purpose for which it is devoted. This rule has been frequently applied where one private corporation, as a railroad company, seeks to condemn property of another, in use for a public purpose.
    The right to exercise the power of eminent domain must, then, be conferred by clear and express terms, or by necessary implication. And an application does not arise except from the language of the legislative act, or from its being shown, by an application of the act to the subject-matter, to be a necessary condition to the beneficial enjoyment and efficient exercise of the power expressly granted, and then only to the extent of the necessity. Hickok et al. v. Hine 23 Ohio St. 523; The Appeal of Sharon Railway Co., 9 American St. Reports, 133.
    II. What is jurisdiction? Sheldon v. Newton, 3 Ohio St. 494.
   Williams, C. J.

The probate courts of this state, are empowered by the constitution, in addition to their jurisdiction in probate and testamentary matters, and others expressly enumerated, to take such other jurisdiction as may be provided by law. Constitution, section 8, article 4. They have been given general jurisdiction to make inquests of the amount of compensation to be made to owners of real estate, when appropriated by any corporation legally authorized to make such appropriation. Revised Statutes, section 524. The purposes for which municipal corporations may appropriate real property, are defined, and the mode of procedure in such cases prescribed, by chapter 3, division 7, title 12, of the Revised Statutes.

When it is deemed necessary by the municipal corporation to appropriate any real property within its limits, for any of the authorized purposes, and the council shall by proper resolution declare the intention to make the appropriation, an application may be made to the probate court, and prosecuted therein to final judgment. The notice to the owners whose property is sought to be appropriated, the manner of service of the same, the empaneling of the jury, the conduct of the trial, the verdict and judgment, are all provided for, and regulated by the statute. When the assessment of the compensation has been made by the jury, the court shall make such order for its payment or deposit, as may seem proper, designating the time and place of payment or deposit, the persons entitled to receive payment, and the proportions payable to each; and the court may require adverse claimants of any part of the money or property, to interplead, and fully determine their rights in the same proceeding. The court may also direct the time and manner in which possession of the property condemned shall be taken or delivered, and may, if necessary, enforce the order for the possession. No doubts that arise concerning the ownership of the property, or the interests of the parties therein, shall cause any delay in the proceeding, or in taking possession of the property. But in such cases, the court shall require a deposit of the compensation allowed; and in all cases, as soon as the compensation shall be paid, or secured by a deposit under the order of the court, possession of the property may be taken, and the public work or improvement progress. Provision is also made for prosecuting error, as in other cases, by any party aggrieved; and also for appeal. The circuit court found that the proceedings had in the probate court on the application of the defendant here, were regular; and the record shows them to be so. It is clear, therefore, that if the probate court had jurisdiction of the parties, and of the property involved, its judgment established the right of the village to enter upon and hold the property thus appropriated, and to subject it to the proposed uses ; and must necessarily operate to defeat the plaintiffs action. For, such a judgment, until reversed, is final and conclusive between the parties, and cannot be collaterally impeached. This we do not understand to be seriously controverted. The contention of the plaintiff, here, is, that the probate court, in the appropriation proceedings, acquired no jurisdiction, either over it, or its property; and the judgment, therefore, constituted no barrier to the relief sought by the plaintiff in the court below. And, it is not doubted, that unless the probate court had jurisdiction over both the property and the parties, its judgment is void, and may be collaterally assailed. The inquiry then is, was there a want of jurisdiction in either particular?

1. The claim of the plaintiff in error, with respect to the want of jurisdiction over its person, as alleged in the petition, is, that during the pendency of the proceeding in the probate court, it was a resident corporation, maintaining its general office and place of business in this state, and that it was not served with notice of the application, otherwise than by publication.

The statute, section 2237, provides that notice of the time and place of the application, “shall be given personally in the ordinary manner of serving legal process, to all the owners or agents of the owners of the property sought to be appropriated, resident in the state, whose place of residence is known; and to all others, by publishing the substance of the application, with a statement of the time and place at which it is to be made, for three weeks next preceding the time of the application, in some newspaper of general circulation in the county.”

The record of the probate court shows that the plaintiff in error was made a party defendant to the application, and, when the time for making the application was fixed, the court ordered that the defendants be duly notified thereof; and, that an affidavit in due form, was filed, for service by publication upon the plaintiff here, stating that it had no officer or agent upon whom personal service could be made; and also, that notice, in conformity to the statute, was published in accordance with its requirements, in such cases, and due proof of publication made. It further shows, that when the application was made, the court, “after hearing the evidence, being satisfied that.the owners, and those claiming to own said real estate, have been notified according to law, of the time, place and purpose of the application, and that the necessary statutory steps before making the same have been had,” ordered a jury to be drawn, and proceeded with the case.

The averments of the plaintiff’s petition were controverted by the answer. And it appears from the bill of exceptions, that on the trial in the circuit court, the plaintiff offered evidence tending to prove the allegations of its petition, but the court refused to hear any evidence other than the record of the condemnation proceedings. The question is thus raised, whether it was competent, in that collateral proceeding, to contradict the record of the probate court, by showing that the plaintiff in error was a resident corporation, having in this state officers or agents upon whom personal service might have been obtained, and that therefore, it was not legally served by publication.

In Hammond v. Davenport, 16 Ohio St. 177, it was held, that defendants on whom no service of process was had, otherwise than by publication, will not be allowed, in a collateral proceeding, to draw in question the jurisdiction of the court rendering the decree, by proving that at the commencement, and during the pendency of the proceeding, they were residents of the state. And see Callen v. Ellison, 13 Ohio St. 446. And the question here, is, whether that rule is applicable to probate courts in proceedings of the kind we are considering. It seems well settled, that the probate courts of the state are courts of record, competent to decide on their own jurisdiction, and exercise it to final judgment; and that their records import absolute verity. Shroyer v. Richmond, 16 Ohio St. 455. The class of tribunals to which they belong, and the character of their jurisdiction, are aptly pointed out in the opinion of the court in the ease just cited, in the following language: “ True, it (the probate court) is a court of limited jurisdiction, and it is equally true, that the jurisdiction of each of the courts of the state is expressly limited, either by the constitution or by statute. But, as was said in the case of Sheldon v. Newton, 3 Ohio St. 494, ‘ the distinction is not between courts of general and those of limited jurisdiction, but between courts of record, that are' so constituted as to be competent to decide on their own jurisdiction, and to exercise it to a final judgment, without setting forth the facts and evidence on which it is rendered, and whose records, when made, import absolute verity; and those of an inferior grade, whose decisions are not, of themselves, evidence, and whose judgments can be looked through for the facts and evidence which are necessary to sustain them. Orphans’ courts, and courts of probate, when constituted courts of record, have uniformly been held of the former description,’ and the authorities cited in that case fully sustain these positions.”

The statute regulating these appropriation proceedings, expressly confers upon the probate court power to decide when the service is complete, and the parties are in court. Its decision upon those questions cannot, we think, be collaterally inquired into; and the circuit court committed no error in refusing to hear evidence offered for that purpose. Besides, it is shown by the record of the probate court, that the plaintiff in error, at the time and place fixed for making the application as designated in the published notice* filed its motion in that court to dismiss the proceeding and deny the application, for the reason, among others, that the court had no jurisdiction of the subject-matter. The motion was argued by counsel for the parties, and overruled by the court. This effected the appearance, and gave the court jurisdiction of the plaintiff in error. Elliot v. Lawhead, 43 Ohio St. 171.

2. But the claim is made that the probate court had no jurisdiction over the property, because no power has been conferred on municipal corporations to appropriate property owned by a railroad company, for the uses for which the property was sought.

This claim is based upon two propositions: First, that the property was already devoted to a public use, viz., that of the railroad company, and could not be taken for another and different public use, under the general power possessed by the defendant to appropriate real property for such use; and, second, that the express grant of power, by section 2233 of the Revised Statutes, to municipal corporations, to appropriate property owned by a railroad company, for the purpose of opening or extending streets or alleys, under the limitations therein contained, by implication, excludes the power of appropriation of such property, for any other purpose.

If it be true that the defendant was without lawful authority to appropriate the property for the proposed uses, the judgment of the probate court, of course, could confer none. If, on the other hand, the defendant was clothed with the necessary power, the judgment of the court was not open to collateral attack, but could only be reviewed on error, or appeal. In support of the first proposition, it is argued, that the railroad company was the exclusive judge of what lands were necessary for its purposes; and, that the land in question, having been acquired for a depot, and thus devoted to a public use, could not be taken by the defendant for the uses proposed, because the power to so take it, is not expressly granted by the statute, nor necessarily implied from the terms of the grant. The statute, in general language, expressly authorizes any city or village, “ to enter upon and hold real estate within its corporate limits,” for “necessary offices,” and for “prisons.” Revised Statutes, section 2282. No limitation on the power is found in the statute, either with respect to the ownership, or the uses made of the property. Under a statute, which, in equally general language, conferred power upon cities and incorporated villages, to enter upon and take land for the purpose of opening and extending streets and allej's, it was held in L. M. & C. & X. R. R. Co. v. Dayton, 23 Ohio St. 510, that they were authorized to appropriate to those uses, lands which were the subject of the franchises of railroad companies ; provided the second use for which the land was taken was, in the circumstances of the particular case, reasonably consistent with the former use. The court say in that case, that the terms of the grant are “ sufficiently broad, prima facie, to confer the requisite authority, and there is in such case nothing in the nature of the use to which the land has been appropriated bj'- the railroad company, or in that to which it is proposed to subject it bj'- the second appropriation, which requires us, upon the presumed intention of the legislature, to ingraft upon the general terms of the grant an exception which will prohibit such crossing.” According to the rule established by that decision, whether municipal corporations, under the power conferred by section 2232 of the Revised Statutes, can appropriate lands owned by a railroad company, within their limits, for any of the specified uses, must depend upon the circumstances of each case ; the criterion in all cases, being, whether such appropriation is reasonably consistent with the use to which the property has been subjected by the railroad company. And whether it is so consistent, may, in each case, become a question of fact.

Though it is not so shown by the bill of exceptions, it may be supposed that it was to this point the plaintiff, on the trial in the circuit court, offered evidence. The nature of the evidence is not disclosed. And under the pleadings, its precise character is not readily conjectured. The lot is described in the 'deed, referred to in the petition, as “ being 535 feet front on the railroad, and 200 feet back.” That portion of it which the defendant sought to appropriate, is 25 feet by 50 feet in dimensions. And, while it is averred in the petition that a depot building has been erected and is maintained on the lot, it is not alleged that any part of the building is on the portion wanted by the defendant. Nor, is it averred that any of that part of the lot is occupied or used for railroad purposes, or that it is in any way necessary for the use or operation of the plaintiff’s road, or the conduct of its business. The answer alleges, that the depot building is 125 feet distant from that part of the lot embraced in the condemnation proceeding; that on the intervening space, there is, and for years has been, a building occupied for business rooms, in no way connected with the business of the railroad company; and, that the portion of the lot which the defendant was seeking to appropriate, has never been needed, or used, or occupied for any railroad purpose, and never will be by the plaintiff. The plaintiff not having replied, these allegations of the answer stand admitted. Proof in their stipport was unnecessary, and proof against them inadmissible. It is not suggested that the proof offered was for any other purpose.

Was the defendant, under these circumstances, destitute of power to appropriate the property so conditioned? It may be true, that a railroad corporation is, in the first instance, the exclusive judge of what lands are necessary for its purposes, and of the quantity of land so needed; and that it may acquire the same by condemnation. But the rightful exercise of its power of eminent domain, is limited to the appropriation of such lands as are reasonably necessary for its legitimate uses. Whatever, beyond that, is so acquired, must result from erroneous judgment, or a wilful abuse of the power. What reason can there be for exempting such excess, when not employed, nor in any way reasonbly necessary, in the proper exercise of its corporate franchises, from appropriation for a needed public use ? There appears to be none. The power of eminent domain, is the right to make private property “ subservient to the public welfare,” without the owner’s consent. It resides in the sovereign, and rests upon public necessity. And though it may be delegated to, or exercised through instrumentalities like corporations, it can never be rightfully exercised beyond the public necessity. Giesey v. R. R. Co., 4 Ohio St. 308. All property, however held, is necessarily subject to the legitimate exercise of the power. It seems to be a well established rule, however, that property already appropriated, in the proper exercise of the power of eminent domain, cannot be taken for another public use which will wholly defeat or supersede the former use, unless the power to make such second appropriation be given expressly or by necessary implication. Railroad Company v. Dayton, supra. But land held by a corporation, whether acquired by purchase or appropriation, which is not employed in, nor needed for the proper exercise of its corporate franchises, is not within the reason or operation of the rule. The admissions of the pleadings, in the case before us, show that the property appropriated by defendant for the purpose of .the municipality, was of this character, and it was, therefore, we think, the proper subject of such appropriation.

The provision contained in section 2233, of the Revised Statutes, relating to the opening and extending of streets and alleys across railroad tracks, and lands held or owned by railroad companies, first became a part of the legislation of this state, by the passage of the act of April 28, 1873. That act did not contain the clause, limiting the appropriation for such purposes, to cases “ where such appropriation will not unnecessarily interfere with the reasonable use of such road, or land, by the railway company.” The original act, with this clause added, was carried into the Revised Statutes, as the section above named. Before the enactment of the statute, the case of the Railroad Company v. Dayton, supra; had been decided; by which it was established, that under a general power, like that granted by section 2232, municipal corporations were authorized to appropriate property held or owned by railroad companies, under substantially the same conditions now embodied in section 2233. This latter section did not, therefore, confer the power to appropriate railroad property. It was not necessary for that purpose. The power existed before that statute was enacted, and independently of it. The statute is, therefore, simply declaratory of what the law was at the time of its adoption, and was not designed to exclude the power then possessed by municipal corporations under the general grant.

Hence, we conclude,.that municipal corporations, under the power conferred by section 2232, of the Revised Statutes, are authorized to appropriate, for necessary public offices, or a prison, land of a railroad company, which is not needed or used in the operation of its road, or the conduct of its business ; and that the probate court had complete jurisdiction in the appropriation proceeding instituted bythe defendant, .and the plaintiff is concluded by its judgment.

The judgment of the circuit-court is affirmed.


author: Minshall, J.

text:
    Franklin v. Baker, Ex’r.

      Promissory notes — Alteration of — Burden of proof when pleaded as a defense.

    Where it is claimed by the defendant, in a suit upon a promissory note, or similar instrument, that the note has been altered since its execution, the burden is upon him to prove that it was so altered; the presumption being, in the absence of anything to the contrary, that any alteration appearing on the face of the paper, was made at or before the time of its execution.
    (Decided May 5, 1891.)
    Error to the Circuit Court of Licking county.
    The suit below was upon a promissory note for the sum of $2,100, claimed by the plaintiff to have been made and delivered him by the decedent D. M. Baker in his lifetime, on April 5, 1882. Credits amounting to $1,100 were allowed, leaving a balance of $1,000, for which with interest judgment was asked — the claim having been rejected by the executor. The defendant in his answer denied the execution and delivery of the note by the testator.
    On the trial the plaintiff, having produced evidence of the genuineness of the signature of the maker to the note, offered it in evidence, to which objection was made by the defendant, on the ground that it appeared to have been altered in the date, in the figures in the mai'gin of the note, and in the amount! for which it had been given; and that there was no evidence accounting for such changes. This objection was overruled, and the note admitted, to which the defendant excepted. No other evidence was offered by the plaintiff.
    And, therefore, the defendant having offered his evidence and rested, requested the court by his counsel to charge the jury:
    “ 1. That though the jury may find from the evidence that the signature of D. M. Baker on the note in question is his genuine signature, the plaintiff is not entitled to a verdict, if the jury further find from an inspection of the nóte, that there have been suspicious alterations as to the date and amount, or either, and that such alterations have not been explained to their satisfaction by plaintiff.
    “2. That the burden is upon the plaintiff to satisfjr the jury by a fair preponderance of the evidence not only that E>. M. Baker signed the note, but that the note when signed by him was in the same condition as to amount and date, as it now purports to be, and that without such proof the burden does not shift to the defendants to satisfy the jury that the alterations claimed were made after he signed the note and without his consent.”
    These requests being refused, the court thereupon charged the jury as follows:
    “This action is brought upon a promissory note for $2,100, mentioned in the petition. The defense is that D. M. Baker, the decedent, did not make or deliver the note. This defense involves three points: That D. M. Baker did not make the note, did not deliver it, that there was no consideration for it, and that it was altered. As to the consideration I charge you that the note, if made by Baker, implies a consideration. But it is not a good note unless it was delivered by Baker to Franklin, but if you find the note in the hands of Franklin, and it was made by Baker, you may presume it was delivered.
    “The first question is, did Baker sign the note? Upon that question the burden of proof is on the plaintiff, and he must satisfy you by a fair preponderance of evidence that Baker did sign the note. If he fails to satisfy you, your verdict will be for the defendant. Upon this question you can take into consideration the testimony of the experts, persons who by their experience in the comparison and observation of handwriting, are permitted to give their opinion whether the signature to the note in question is by the same hand as the signature to the deed and will, which have been proved to be the genuine signatures of Baker. With these opinions and the other evidence in the case, you are to say whether the same hand wrote all these signatures. You are to judge of the weight of the testimony of these experts. If you are not satisfied that they are right in their opinions, your verdict will be for the defendant. If you are so satisfied, you may go to the questions of alterations. These alterations, as claimed by defendant, are in the change of the date from April 4, 1879, to April 5, 1882, and in the body of the note, a change from ten dollars or twelve dollars to $2,100. If these changes were made they are material changes, and if Franklin, without the consent of Baker, made the alterations after the note was delivered, he has no right of action on this note. Has the note been altered? The figures at the left hand top of the note are-no part of the note, and a change in these figures is not material, but you may look at any alterations in those figures upon the question whether there was any alteration of the date or amount in the body of the note. Still the question is, have any alterations been made?
    “ Upon this question, the burden of proof is on the defendants to satisfy you that these claimed alterations were made after it was signed. You may look at the note to see whether any alterations have been made in either particular. If you find that there is no alteration, assuming that the signature of the note is the genuine signature of Baker, your verdict will be for plaintiff. If the note was altered, and the burden of proof of that, as I have said, is on the defendants, you will then inquire whether the alteration was before or after D. M. Baker signed the note. If you find it was altered after Baker signed the note, the burden of proof then will be upon the plaintiff to satisfy you that it was altered with the consent of Baker.
    “ If the note was signed after it was altered, it is a good note. If it was signed before it was altered and the maker consented to the alteration, it is a good note.”
    The defendant excepted to that part of the charge placing the burden on him to show that there was an alteration, and, if so, that it was made after the note was delivered. The jury found for the plaintiff in the sum of $1,225.77.
    A motion for a new trial was made on the ground, among other things, that the court misdirected the jury. The motion was overruled and judgment rendered for the plaintiff ; which, on error, the circuit court reversed, for the refusal of the court to charge as requested in the first request, and in the charge given on that subject.

      J. A. Flory and J. W. Owens, for plaintiff in error.

      The defendant beiow was not entitled to have the instruction given.
    1. Because it would have allowed the jury, by mere inspection of the note, to the exclusion of all the other evidence, to find that something was suspicious. The plaintiff was entitled to the benefit of all the evidence.
    2. Because to have submitted to an ordinary jury, in that way, whether an alleged appearance was suspicious, without also giving some future instruction, as to what erasures upon a printed form would be alterations, and what would or what would not be suspicious, would have been misleading and dangerous — it is not every erasure upon a printed blank that would be suspicious.
    3. Because defendant was not entitled to- have the court say to the jury that suspicious appearances, if there were any, must be explained by the plaintiff — that unless the plaintiff explained them, the verdict must be for defendant — to have so instructed the jury would have led them to believe that the explanation must be found in the testimony produced by the plaintiff. It is needless to say that it was sufficient for plaintiff if the explanation was found in the proof — from whichsoever side it came.
    4. To submit the question of suspicion, or not, to the jury, is also to submit to them whether the alleged alteration is a material one, for it could not be suspicious if not material; but it would have been error to submit to the jury the question of materiality. 2 Parsons on Contracts (4 ed.), 226; Hill v. Calvin, 4 How. Miss. 231; Bowers v. Jewell, 2 N. H. 543; Martendale v. Follett, 1 N. H. 95.
    The question, as to which side has the burden of showing or proving how or when an erasure or an interlineation or the like was made on a written instrument, is one of considerable importance to the profession and to parties. In this case it is peculiarly so, as the death of Baker has closed the mouths of both parties to the note. The question has not properly been settled, or regarded as settled in Ohio, and should of course be determined in the light of the business methods, the custom and usage of farmers, mercantile men, educated men and ignorant men, that are known to prevail. Particular attention is invited to the language of the Court in Wilson v. Hayes, 40 Minn. 531.
    The Supreme Court of the United States, in several cases, have held the law to be that, in the absence of any proof on the subject, a change, erasure or interlineation, was* made before the instrument was delivered. Little v. Herndon, 10 Wall. 26; approved in Hanrick v. Patrick, 119 U. S. 156; Printup v. Mitchell, 17 Ga. 558; Beman v. Rubel, 20 Vt. 205; 1 Phil. Ev. Cowen H. & E., notes top page 502, and note; Dailey v. Taylor, 11 Conn. 531; Hunt v. Gray, 10 Am. Rep. 232, 234; Slee v. Bloom, 10 Am. Dec. 273, note; 1 Geenleaf Ev., late ed., sec. 564, note; Crossman v. Crossman, 95 N. Y. 146-152; Huntington v. Fitch, 3 Ohio St. 445-450; Berry v. R. R., 26 Ohio St. 673; Wallace v. Jewell, 21 Ohio St. 163; Wilson v. Hayes, 40 Minn. 531.
    The bill of exceptions and record show that this instrument has not passed through any successive hands, but was still held by the payee. They also show that the alleged erasures and interlineations or the like, are not in either different ink or different handwriting from the other parts of the note. Therefore the reasons mentioned do not exist in this case, and the general rule that fraud or crime will not be presumed should apply. The following cases among many others support this claim. Gooch v. Bryant, 13 Me. 386; Beaman v. Russell, 20 Vt. 205; Cumberland Bank v. Hall, 1 Halst. 215; Clark v. Rogers, 2 Greene, 147; Rankin v. Blackwell, 2 John. Cas. 198; Bailey v. Taylor, 11 Conn. 531; Wilson v. Hayes, 40 Minn. 531; Stewart v. Preston, 1 Florida, 10; Thacker v. Booth, 6 S. W. Rep. 460; Gordon v. Robertson, 4 N. W. Rep. 193; Odel v. Gallup, 17 N. W. Rep. 502; Neil v. Case, 25 Kan. 510.

      Chas. H. Kibler, for defendant in error.
    The rule, contended for by plaintiff in error, would be an encouragement of the tampering with securities. Merrick v. Bowry, 4 Ohio St. 60, 71; Wallace v. Jewell, 21 Ohio St. 163, 172.

      The burden is on the party offering the instrument in evidence, or producing it, if it appears to have been altered, to explain the appearance. 1 Grreenleaf on Evidence, sec. 564. To the same effect are the following authorities: 3 Phillips on Evidence, 152; Huntington v. Fitch, 3 Ohio St. 445, 449, 450; Albe v. Road, 6 McLean, 106; Tilton v. Ins. Co., 7 Barb. Sup. Ct. 564; Wilde v. Amsley, 6 Cushing, 314; Simpson v. Stackhouse, 9 Barr, 186; 2 Parsons on Con., 722, 723; Byles on Bills, top pages 480 and 481, and note.
    See, also, upon the rule as to alterations of negotiable instruments: 1 American & Eng. Ency. of Law, 514, and authorities cited in Daniel on Neg. Inst., secs. 1417,1418; 2 Taylor on Ev., 1546, sec. 1819; Randolph on Com. Paper, sec, 1784; see 1 Am. & Eng. Ency. of Law, 512, subd. 4, and authorities cited.
    The defendant in error having claimed and asserted that there were suspicious alterations upon the note, it was either the duty of the court, upon inspection, to have settled the question, or it should have been left to the jury to determine it. The court did neither. Neil v. Case, 23 Kans. 510; Organ v. Osborn, 9 Bax. (Ten.) 459.
   Minshall, J.

The plaintiff, Franklin, brought suit upon a note claimed to have been made by D. M. Baker, deceased, for $2,100, dated April 5, 1882. The defendant denied the execution of the note. On the trial, the plaintiff having introduced proof of the genuineness of the maker’s signature, offered the note in evidence, which was admitted over the objection of the defendant. The plaintiff offered no other evidence. At the close of the evidence the defendant, claiming that the note had, as appeared from its face, been altered, asked the court to charge the jury, that if they find from an inspection of the note, that there has been suspicious alterations as to the date and amount, or either, and such alterations have not'been satisfactorily explained by the plaintiff, he is not entitled to a verdict. This the court refused, and thereupon charged the jury, that an alteration would not invalidate the note unless made after its execution, and- that for the' purpose of a defense, the burden was on the defendant to prove that it was so altered.

Whether the note has been changed at any time is not clearly apparent from the face of it. The only claim of the defendant is, that an apparent blurring indicates that the figures 5 and 82 in the date, “April 5, 1882,” have been changed from the figures 4 and 79, respectively; and that there are some indications that the amount, “twenty-one hundred,” written in the body of the note, has been changed from “ ten hundred ” or “ twelve hundred,” and that a corresponding change has been made in figures standing for the amount on the margin of the note. A photographic copy is inserted in the bill of exceptions; and from this it would be difficult to say whether it suggests any change to have been made in the note before or after its execution. But conformable to the charge of the court, and the view we take of the case, the note may appear on its face to have been changed at some time after it had been written, without affecting its validity. For if it appears to have been changed, then the question arises whether it was so changed after or before it was executed and delivered. If before, that would not affect its validity. Such changes are frequently made, more frequently now than when men of business had less skill, and employed others to do for them what they do now as a matter of every day’s practice for themselves. But if the change was made afterwards, and without the consent of the maker, the alteration constituted a crime, which the law never presumes in the absence of proof. The only presumption the law indulges in such cases is in favor of the honesty and good faith of what appears to have been done. Hence it was the duty of the jury to presume, until the contrary appeared, that any erasure or interlineation to be found on the note had been made before the note was executed, since that presumption not only consists with the integrity of the party who made it, but is conformable to human experience, at this day, of the connection between such changes to be found in promissory notes and other written instruments, and the time when they were made. Wilson v. Hayes, 40 Minn. 531, 536.

We do not see that the defendant’s request, the refusal of which is assigned for error, was any more proper than saying to the jury, that the burden is on the plaintiff in any case to explain an alteration in the paper sued on, where it is apparent that a change has been made. How can it be determined from a simple “inspection of the note,” that an alteration was made after the signature to it? It may satisfactorily show, as in the case of an erasure or interlineation, that it was changed after it had been written, but to assume that such change was made after the note was made and delivered, without any extrinsic proof, is to presume, without evidence, that the change was fraudulently made, when, as a matter of fact, the chances are more than equal, that it was made at or before the execution and delivery of the instrument, and to conform it to the intention of the parties.

The cases elsewhere are not uniform on the subject. Some hold that alterations apparent on the paper must be explained by the party producing it, and, in the absence of such explanation, it is presumed to have been made after the execution of the instrument, and so fraudulent. This it would seem was the earlier rule at common law as to deeds and similar instruments; but its inconvenience was such as to cause it to be abandoned as early as the time of Lord Coke. And the rule as to such instruments in England, and generally in this country, is, if nothing appears against the alteration, to presume that it was made at the time of making the deed, and not after. Bailey v. Taylor, 11 Con. 531, 534; Speake v. United States, 9 Cranch. 37; Wickes v. Caulk, 5 Harr. & Johns. 36; Hanrick v. Patrick, 119 U. S. 156, 172; Little v. Herndon, 10 Wall. 27, 31. In the latter case, cited with approval by Justice Mathews in the preceding case, Justice Nelson said: “In the absence of any proof on the subject the presumption is that the correction was made before the execution of the deed. In a recent case in the Queen’s Bench, Lord Campbell, Chief Justice, in delivering the opinion of the court, after referring to the note in Hargreve & Butler’s Coke Littleton, 2255, where the rule was asserted, observed: ‘ This doctrine seems to us to rest on principle. A deed cannot be altered after it has been executed, without a fraud or wrong; and the presumption is against fraud or wrong.’ ” Doe v. Catomore, 16 A. & E. 745.

In England a different rule has been adopted as to commercial paper; but, as clearly pointed out in Bailey v. Taylor, supra, and in Beaman v. Russell, 20 Vt. 205, this results from the provisions of their stamp act. There, as said by Hall, J., in the case last cited, “ Any material alteration of a bill, after it has issued, or, in other words, after it is in the hands of a party entitled to make a claim upon it, is held to make a new bill of it, rendering a new stamp necessary. Under the stamp act, any alteration.renders a bill void, that would make it invalid at common law; and it may be void under that act, though otherwise perfectly valid. For the consent to the alteration, by the party sought to be charged, makes the bill'valid at common law; but, under the statute, the consent of all the parties to the bill is of no importance. If the bill be altered after it issues, no matter by whom, it becomes another bill, and requires a new stamp in order to make it evidence.”

It is evident that decisions based upon considerations not applicable to our own country are entitled to- no weight as authority in its courts; and that the decisions of courts in this country in which those decisions have been simply followed as precedents, are entitled to no greater weight. And, an examination will show that they have been disregarded by courts of distinction about as often as they have been followed.

In Cumberland Bank v. Hall, 1 Halstead, 215, a new trial was awarded by the Supreme Court of New Jersey after a full argument, for the misdirection of the court on the trial, in charging the jury that the plaintiff was bound to account for an alteration on the note, and unless it was shown to have been made before the execution of the note, the law presumed it to have .been done afterwards.

So in Gooch v. Bryant, 13 Maine, 386, it was held that the alteration of a figure in the date of a note, proved only by inspection, is not of itself evidence, that the alteration was made after the signature and delivery. To hold otherwise, the court said, “would be a harsh construction; exposing the holder of a note, the date of which had been so altered, as to accelerate payment, or to increase the amount of interest, to a conviction of forgery, unless he could prove that it was done before the signature. It would be to establish guilt by a rule of law, when there would be at least an equal probability of innocence.”

In Odel v. Gallup, 62 Iowa, 253, it was held that the defendant in a suit on a promissory note, who alleges that it has been altered since its execution, has the burden of proof to establish the alteration. It is true that, in this case, the court entered into no discussion of the question and cited no authority to the point; and, for the reason probably, that it appeared too plain on principle to require it to do so.

In Neil v. Case, 25 Kan. 510, the court, without laying down any definite rule upon the subject, said, “ If there is neither intrinsic nor extrinsic evidence as to when the alteration was made, it is to be presumed, if any presumption is said to exist, that the alteration was made before, or at the time of the execution of the instrument.”

In Bailey v. Taylor, 11 Conn. 531, where the question was quite elaborately considered, the rule is stated as follows: “ Where there is an alteration in an instrument under which a party derives his title, apparently against the interest of that party, the law does not so far presume that it was improperly made, as to throw upon him the burden of accounting for it; but the jury are, from all the circumstances before them, to determine whether it was made before or after the execution of the instrument; and if after, whether it was with or without the assent of the adverse party ; and consequently, whether it rendered the instrument invalid or not.”

In Wilson v. Hayes, 40 Minn. 531, the question was considered by Mitchell, J., upon principle, and the conclusion reached, in a carefully prepared opinion, that there is no ground for any distinction as to the rule of evidence in regard to an alteration, between negotiable paper ánd other instruments; and he observes that the tendency of many of the late American authorities is to repudiate any such distinction. The judgment below was reversed, for the error of the court in saying to the jury, that the presumption was that an alteration apparent on the note, was made after its execution, and that the burden was on the plaintiff to remove this presumption.

See further: Printup v. Mitchell, 17 Ga. 558; Davis v. Jenney, 1 Met. 221; Gorden v. Robertson, 48 Wis. 493, 496; Rankin v. Blackwell, 2 John. Cases, 198.

The case of Huntington v. Fitch, 3 Ohio St. 445, is not in point. There the only question was as to the materiality of the change that had been made in the note, — the erasure of the name of the surety. The facts were not in dispute. The court simply held that the erasure of the name of the surety, at his request and with the permission of the payee, did not affect the rights of the principal, and so did not amount to such an alteration as would invalidate the note. The observations of the court may, conformable to a view taken by many courts at that day, indicate an opinion that the burden of explaining what are termed alterations of a suspicious character, is on the plaintiff. But no such question was before the court, and its remarks should be confined to the case it had under consideration.

The character of an alteration may be such as, in connection with other circumstances, would persuade the mind that it had been fraudulently made after the execution of the instrument. But no such inference should be drawn from an alteration standing alone, however apparent upon the face of the paper. There is no sounder principle applied by the law to the affairs of men, than that which assumes what appears to have been done, was done with a proper motive and conformable to its requirements, until the contrary appears; and the reason is that the assumed fact is generally found to conform to the truth. It is true that we are without any definite statistics, but, the low estimate of our race entertained by the pessimist aside, we may safely trust our own observation and experience for the assertion, that ninety and nine alterations to be found on the face of written instruments were lawfully and properly made, for every one that had its origin in a fraudulent purpose. The law in its wisdom trusts much to the general honesty of men, indeed if human depravity were such that it could not — if honest men were the exception and rogues the rule, civil government would be impossible. Therefore the question as to when an alteration was made in a written instrument, is one of fact, to be determined from a consideration of all the circumstances; and where it is claimed to have been made for a fraudulent purpose, the burden of establishing the fact must, according to the reason and analogies of the law, be upon the party who asserts it.

It is argued that this is unfair to the representatives of a deceased maker of a note, whose mouth is closed by death, but we fail to perceive that the opposite rule would be any less so to the other party, whose mouth, as a witness, is also closed in such case.

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