author: Williams, J.

text:
    Myers v. Croswell.

      Landlord and tenant — Parol lease of several parcels — Statute of frauds— Part performance.

    Where, by the terms of a verbal agreement to lease several parcels of land, the lessee is to have the possession of one of the parcels immediately, but not of either of the others until a specified future time, and a designated portion of the crops to be raised on each parcel, when ready for market, is to be delivered to the lessor as the rent therefor, possession taken by the lessee of the parcel to which he is so immediately entitled under the agreement, is not such part performance as will take the contract out of the statute of frauds as to those parcels whereof he did not take possession, and to the possession of which he was not then entitled by the contract; and the refusal of the lessor to deliver their possession, will not make him liable in damages to the lessee.
    (Decided February 21, 1888.)
    Error to the Circuit Court of Clermont County.
    The original action was commenced before a justice of the peace, where Croswell recovered a judgment against Myers, from which, the latter appealed to the court of common pleas. There Croswell filed his petition alleging that in August, 1882, the defendant (Myers) entered into a parol agreement with him “ to rent and to farm-let unto the plaintiff about twenty-four acres of his farm, being the following parts of his said farm, to’wit: The tenant house and lot and garden ground attached thereto, with a lot of about one-half acre of land near to said house and lot, and all the outbuildings, corn-cribs, etc., appurtaining to said house and lot, all of which said premises were on that portion of 'said defendant’s farm which adjoined the village of Cedrón; and also about twenty-two acres of land to be cultivated in wheat, corn and tobacco, that is to say, about nine acres thereof in wheat, about eight acres thereof in corn, and about five acres thereof in tobacco. That about four acres of said land which was to be cultivated in corn, lies contiguous to the above described house and lot, garden and half-acre tract. The remaining portion of the said eight acres of land, which by the terms of said contract, was to be cultivated in corn, together with the wheat land and tobacco land, do not lie contiguous to the above described premises, but are situate upon another part of said defendant’s farm, to-wit: The eastern part thereof; the wheat land, and about two acres of the remaining portion of said corn land, lie contiguous to each other, but the tobacco land and the residue of the said corn land, are contiguous to each other, but not contiguous to any other portion of said lands so rented. The term of said lease for all of said premises, was to commence on the 1st of March, A. D. 1883, and continue for the period of one year. The possession of all of said premises (except the wheat land) was to be given to the plaintiff on the first day of March, A. D. 1883, but by the terms of said contract the plaintiff was to have said wheat land for the purpose of plowing and sowing the same in wheat. The defendant agreeing in said contract to furnish the seed for sowing the- said wheat land. And the plaintiff in consideration of the covenants and agreement of the defendant aforesaid, then contracted and agreed with the defendant to furnish the team and farming utensils, and to do all the labor, and to farm said wheat, corn and tobacco land, in a good farmer like manner, and to reap, harvest and prepare the same for market, and to give the defendant one-half thereof, ready for market.
    The petition then states:
    “That on or about the first day of December, A. D. 1882, and prior to the time the plaintiff was to have possession of the remaining portion of said premises, and in the light and understanding of the facts, that the plaintiff was to have possession of the remainder of said premises on the first day of March, 1883, by the terms of said contract, the defendant did, as part performance of said contract, and in view of and in connection therewith, at his own instance, direct and consent to the plaintiff entering upon and taking possession of a portion of said premises above described, to-wit: The corn-crib, formerly used as a store-house, situate and described as above. The plaintiff says that he has partly performed said contract upon his part, and has at all times been ready and willing to fully and completely do and perform all the stipulations of said contract. Yet the defendant regardless of his contract, and in violation thereof, has failed, neglected, and refused to fully perform all his part of said contract, in that he has refused to allow said plaintiff to enter upon, farm and enjoy said tobacc.o land, corn land, and the said house and lot, garden thereto attached, half acre lot, etc., and all portions and parts of said premises so as aforesaid leased, except said wheat land and corn-crib, or store-house aforesaid. To the damage of the plaintiff in the sum of $300.”
    The defendant demurred to the petition, one ground of the demurrer being, as therein stated, that “ the alleged contract set forth in said petition is within the statute of frauds and void as shown upon the face of the petition.” The demurrer was overruled by the court, and the defendant answered, denying the averments of the petition, and pleading the statute of frauds, as a second defense.
    The case was tried to a jury, and the verdict being against the defendant, he filed his motion for a new trial, which was overruled and judgment entered on the verdict. A bill of exceptions was duly taken setting out what the evidence tended to prove and certain portions of the charge of the court, which it is not necessary here to further notice. The judgment of the common pleas was affirmed by the circuit court, and Myers prosecutes error to this court.

      Young & Wegener and P. J. Nichols, for plaintiffs in error.

      Frazier & Poudebush, for defendants in error.
   Williams, J.

The decision of one question, arising upon the demurrer, will dispose of the case; and that is, whether the contract stated in the petition is within the statute of frauds and peijuries ? The provisions of that statute so far as they relate to this question are embraced in sections 4193 and 4199 of the Revised Statutes, which are as follows: Section 4198. No lease, estate,or interest, either of freehold or term of years or any uncertain interest of, in or out of lands, tenements or hereditaments, shall be assigned or granted except by deed or note in writing signed by the party so assigning or granting the same, or his agent thereunto lawfully authorized by writing, or by act and operation of law.” “ Section 4199. No action shall be brought whereby to charge * * * any person upon any contract or sale of lands, tenements or hereditaments or any interest in or concerning of them * * * unless the agreement upon which such action is brought or some memorandum or note thereof, is in writing and signed by the party to be be charged therewith, or by some other person thereunto by him or her lawfully authorized.”

The contract between the parties, it is admitted by the petition, was verbal only; and being one for the granting of a lease of lands and tenements, and for their use, occupancy and enjoyment, which is an interest in lands and tenements, it came within the prohibitive provisions of both sections, and either properly interposed constitutes a bar to an action founded upon it, unless it' is taken out of their operation by the part performance alleged in the petition.

This question is properly presented by the demurrer, for though, by demurring, the defendant admits the verbal agreement set up in the petition, he is nevertheless entitled to the protection of the statute, having claimed such protection in his demurrer, which will in this respect be treated like an answer. 7 Wait’s Action and Def. 55; Randall v. Howard, 2 Black (U. S.) 585; Howard v. Brower, 37 Ohio St. 402.

Whatever objection may be urged against the doctrine of part performance of contracts within the statute of frauds, or be said of its tendency to promote frauds, or of the necessity for courts to make a stand against further encroachments on the statute, it is too well settled to be now open to dispute, that certain acts done in the part performance of verbal contracts for the sale of lands, may operate to take them out of the statute, and generally possession of the land delivered and received under and in pursuance of the contract amounts to such part performance. But it is equally well settled that to have that effect, the possession must be connected with and in consequence of the contract; it must be in pursuance to its terms and in part execution of them. In other words the possession must pursue and substantiate the contract.

In Phillips v. Thompson, 1 John Ch. 131, 149, Chancellor Kent says: It is well settled that if a party sets up part performance to take a parol agreement out of the statute, he must show acts unequivocally referring to, and resulting from that agreement, such as the party would not have done unless on account of that very agreement and with a direct view to its performance. There must be no equivocation or uncertainty in the case.”

The possession must be taken under and by virtue of the contract, and not be a mere continuation of the state of things which previously existed, nor an anticipation of a right which is yet to come, and which in point of fact is not given until a subsequent period. Aitkins v. Young, 12 Pa. St. 15.

In Pomeroy on the Specific Performance of Contracts, the rule is thus stated: u The possession must be definite and exclusive ; it must unequivocally show what land is possessed, and that it is possessed by the purchaser exclusively and not concurrently with the vendor; it must, in short, indicate the commencement of a new interest in the estate.” Sec. 121.

The same author further says that “ a plaintiff cannot, in the face of the statute prove a verbal contract by parol evidence and then show that it has been partly performed. This course of proceeding would be a virtual repeal of the statute. He must first prove acts done by himself or on his behalf which point unmistakably to a contract between himself and the defendant, which cannot, in the ordinary course of human conduct be accounted for in any other manner than as having been done in pursuance of a contract, and which would not have been done without an existing contract; and although these acts of part performance cannot of themselves indicate all the terms of the agreement sought to be enforced, they must be consistent with it and in conformity with its provisions when these shall have been shown by the subsequent parol evidence. It‘follows from this invariable rule, that acts which do not unmistakably point to a contract existing between the parties, or which can be reasonably accounted for in some other manner than as having been done in pursuance of a contract do not constitute a part performance sufficient in any case to take it out of the operation of the statute, even though a verbal agreement has actually been made between the parties.” Sec. 108.

In this state it has been held that “ if possession be relied upon it must be clearly referable to the contract, and be delivered and held in performance of it. Possession must give the contract life, and if they can possibly be separated the parol agreement perishes under the operation of the statute. Hence if the possession can be referred to any other source than the parol contract which it is claimed to support, even to the wrongful act of the party in possession or to a different contract the statute applies. Armstrong v. Kattenhorn, 11 Ohio 272.

"We are now led to the inquiry, what acts done by the plaintiff, or in his behalf, in the part performance of the verbal agreement, which, under the rules of law already noticed, save it from the operation of the statute, are alleged in his petition ? Does it disclose any acts of part performance unequivocally referring to and resulting from that agreement; any definite and exclusive possession of the lands included in the contract, delivered and held in performance of the contract ? The only facts on the subject stated in the petition are, that about the first of December, 1882, the defendant “ did direct and consent to the plaintiff entering upon and taking possession ” of the corn-crib situate on the premises; and that the defendant refused to allow said plaintiff to enter upon, farm and enjoy said tobacco land, corn land and the said house and lot, the garden thereto attached, half acre lot, etc., and all portions and parts- of said premises so as aforesaid leased, except said wheat land and corn-crib.” But it is not averred that the plaintiff entered upon or took possession of the corn-crib in pursuance of the defendant’s consent or direction, or otherwise; or that he entered upon, or farmed, or enjoyed, or otherwise possessed the wheat land. It is true, an inference that the plaintiff entered into possession of the corn-crib, may be drawn from the fact alleged that the plaintiff consented he might do so; and another, that because the plaintiff did not refuse to allow the defendant to enter upon, farm, and enjoy the wheat lands, the plaintiff in fact did so j but neither of the facts inferred necessarily follow from those averred.- The allegation that the plaintiff partly performed the contract on his part, does not aid the petition, because there may be part performance which does not take the agreement o.ut of the operation of the statute; and unless the petition states such specific acts of part performance, as within the rules of law already adverted to, have the effect of taking the case out of the statute, it is subject to demurrer on that ground. These acts should be stated in issuable form, and not be left to inference and argument. It is difficult to see what issue upon this subject would be presented by a denial of the averments of the petition. It is not alleged that the plaintiff entered upon the possession of any part of the premises, but only that the defendant consented he might, and did not refuse to allow- him. to do so. A denial, therefore, of these averments would not raise an issue as to the fact of the plaintiff’s possession, but only as to the defendant’s consent and permission.

But if it be conceded that the allegations of the petitmn may, under the prevailing liberal rules of pleading, be held sufficiently, though indefinitely, to state that the plaintiff went into the possession of that portion of the land he was to cultivate in wheat, in the fall of 1882, and also took the possession of the corn-crib in December, 1882, the question still remains, did their possession take out of the statute the agreement' for the lease of the other parcels, of which, by its terms, the plaintiff was not to have possession until the following March? It is insisted by the plaintiff that such is its effect, because the the contract is entire, and in such case the actual possession of one of the tracts embraced in the contract relieves it from the operation of the statute as to the other parcels. The case of Smith v. Underdunck, 1 Sandf. Ch. R. 579, is much relied on in support of this claim. In* that case the contract was for the sale of two parcels of land and certain personal property for a gross price; both parcels of land to be conveyed at the same time and by the same deed. The vendor was to furnish his attorney with a proper description of each tract, to enable him to prepare such conveyance. He furnished the description of one parcel but for some reason did not of the other. The attorney prepared the deed for the one parcel according to the description furnished him, and when the parties met, and it was made known that the other parcel was not included in the deed, it was suggested that inasmuch as the description in the deed already prepared was very long, it would be more convenient to deliver the deed as prepared, and as soon as the description of the other parcel could be obtained convey that by separate deed. This was agreed to for the convenience of the vendor and his attorney. In part performance of the contract the vendor delivered the deed, the vendee paid the entire consideration for both tracts of land and the personal preperty, and went into the actual possession of the tract conveyed, and also claimed to be in the possession of the other parcel. His bill averred that he went into possession of the whole property embraced in the agreement and ever since retained the same. Upon this state of case the Vice-Chancellor said: “ When the case of Lord v. Underdunck, founded on the contract in question, was before me (August 7th, 1843), my impression was, that independent of the possession of the 800 acres, there was enough in the case to make it clear of the statute. I have no doubt upon the subject now. The contract was entire and indivisible, for the sale of all the lands in Hancock, and the personal property, for $5,300. In part performance, a conveyance was executed and delivered for all except the 800 acres, and possession of all but that parcel taken and retained by the purchaser. (I leave out of view at present the possession of the 800 acres). And the payment of the whole price was made to the seller. These acts were sufficient to relieve the contract from the operation of the statute. I find no authority which requires the buyer to take possession of all the lands sold in order to make such a part performance as will establish a parol agreement for their sale. The reason assigned for giving this effect to the act of taking possession is as applicable to entering into a part of the lands sold, as it is to an entry into the possession of the whole. 2 Story’s Eq. Jur. 66, sec. 761. Rut I am satisfied that the averment in the bill in regard to the possession of the 800 acres is sufficient to connect it with the contract. It is alleged that Miles Smith took possession by virtue of the agreement, and that Underdunck and his heirs had no possession of any part of it since * * *. The taking possession, as stated in the bill, was such an act as could be done with no other view than that of the agreement being performed: Sugden on Vend., 10 ed. 199 (141); and it was expressly by virtue of the agreement. The assent of Underdunck is inferable from the execution of the deed of the other lands, which entitled Smith to the possession of those; and from the averment that Smith went into the posssession of the whole at the same time. If I am right in this inference, the case upon the possession of the 800 acres is not impugned by any of the authorities cited by the defendant’s counsel.”

In Miller v. Ball, 64 N. Y. 286, it was held that where a parol contract for the sale of lands is silent as to the possession and the vendee has paid the entire consideration, and fully performed on his part, and all that remains for the vendor to do is to give a deed, in the absence of any evidence to the contrary, there is an implied agreement that the vendee may at once take possession and have the use of the land. In the opinion of the court in that case it is said: “ After the plaintiff had paid the full consideration, in reliance upon the promise of the defendant to give him the title to the land, there was an implied consent, on the part of the defendant, that he might take possession as owner. It cannot be inferred that defendant meant to retain the money and at the same time retain control of the land from the only person interested in the use and protection of the same. It may be stated as a general rule that in all cases where the contract for the sale of land is silent as to the possession, the land being vacant and the vendee has paid the entire consideration, and fully performed on his part and all that remains for the vendor to do is to give the deed, there must be an implied agreement or license that the vendee may.at once take possession and use the land.” The contract in the case of Smith v. Underdunck, supra, was silent as to the possession; the vendee paid the entire consideration for both the parcels of land and fully performed the contract on his part in regard to both, and all that was left for the vendor to do was to execute and deliver the deed for one of the parcels in the fulfillment of his promise to the vendee. The vendee was therefore entitled under his contract to the present possession of both parcels, and taking actual possession of one, gave him constructive possession of the other. Both the actual possession of the one and the constructive possession of the other were in pursuance of the agreement, in execution of the same, and strictly, according to its terms; and it deserves to be noticed that prominence is given to this consideration by the vice-chancellor in the decision of that case. The real principle to be deduced from that decision is, that where there is a present right of possession of several parcels of land under a parol contract for their purchase for a gross sum, fully paid, the actual possession of one parcel delivered and taken under the contract is equivalent to the possession of all, and therefore sufficient part performance of the contract to exclude it from the operation of the statute of frauds. So understood, that decision is in harmony with the current of authority on the subject and we recognize its entire soundness. But the case made by the petition now under consideration is not within its reason or principle in any particular.

Here was not an entire contract for a gross price, fully paid, under which the plaintiff was entitled to the immediate possession of each of the parcels of land included in it; but embraced in one contract specific agreements for separate parcels, with the present right to the possession of one only, the right to the possession of the others being by the express terms of the contract postponed to a future time. The consideration is not a gross sum for all, but a separate and different consideration is agreed upon for each parcel, and the possession and use of each is necessary for the creation of the consideration for that particular parcel only, and has no connection with the consideration for the others. The commencement and duration of the terms of the tenancy, the periods of performance, and payment of the rent are different; and the performance of the agreement concerning the one parcel is in no way made dependent upon that relating to the others. The plaintiff went into the possession of the parcel to which under the agreement he was entitled, but did not of the other parcels, and could not at that time do so under the contract; for by its terms the right to their possession had not then accrued, and to have then taken the possession of them would have been in violation of the agreement, instead of its part performance. 'In such case the actual possession of the one parcel into which the plaintiff so rightfully entered, could not be indicative of the commencement of a new estate in the others, evince and substantiate the contract in relation to them, nor in any sense be a possession of them under the contract, or equivalent thereto. If a party has, by terms of his contract a right to take possession, his taking possession of one of the things comprised in the contract will by construction of law amount to the possession of all; but if he is not entitled to take possession he can only obtain possession of that which he actually lays hold of. Fletcher v. Henley, 5 Ch. Div. 812. In Smith v. Underdunck, supra, the entirety of the consideration for the two parcels of land and its full payment were important, because they established the right of the vendee to the simultaneous possession of each parcel. Both these circumstances are lacking in the present case, and the contract is entire only in the particular that the several agreements concerning the different parcels of land were made at the same time; in all else it is severable. Loomis v. Eagle Bank of Rochester, 10 Ohio St. 327.

The case of Buckmaster v. Harrop, 7 Ves. Jr. 341, bears close anology to this one in all essential features. In that case Finney by his agent, on the 23rd of August, 1800, purchased four parcels of land at an auction sale, for different prices aggregating 3119 l. “ By the conditions of the sale the purchaser was to have possession of lot 3 immediately, and of the' other lots at Michaelmas next; paying the remainder of his purchase-money upon the execution of the conveyance on or before the 29th of September. Finney soon afterward gave the amount of the auction duty to his attorney to be paid to Wright (the auctioneer), directing him to take the proper receipt. He also sold the crops of hay, grass and oats then growing on the premises comprised in lot 3 for 501, to a person who afterwards took possession of the premises in that lot. Finney died before the 501 became due, and before the conveyances were executed.” His heirs at law filed a bill for specific performance of the contract of sale claiming that the part payment of the purchase-money and the possession of lot 3 was such part performance as took the contract out of the statute of frauds not only as to it, but also as to all the other parcels purchased. But specific performance was denied, and it was held that if possession of lot 3 was sufficient to take the contract as to it out of the statute, it could not have that effect as to the other lots.

We find no authority or sound principle to support the proposition that the possession of the parcel of land taken by the plaintiff, in pursuance of the contract, constituted constructive possession of the other parcels to which, by the positive provisions of the contract, there was no existing right of possession in him, and the possession of which he distinctly avers in his petition the defendant refused to deliver to him, or otherwise amounted to such part performance as took the agreement out of the statute of frauds as to those parcels whereof he had no possession. The contract propounded by the plaintiff, as well as the averments of his petition, negative such possession, and the defendant’s consent thereto, both of which are essential to that part performance requisite to establish and give validity to the agreement. In regard to the possession of the corn-crib, it may be remarked in addition to what has been said; that it appears such possession was not taken under the contract, nor in part performance of it, but on the contrary was an act outside of the contract, and merely in anticipation of a right to accrue under the contract at a future time.

Judgment of the circuit coutrt and court of common pleas reversed, and cause remanded with instructions to sustain the demurrer and for further proceedings.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Board of Education v. The State.

      School and school districts — Separate schools for colored children — Revised Statutes, secs. 4008, 4013.
    (Decided February 28, 1888)
    Error to the Circuit Court of Butler County.
    The original action was a proceeding in mandamus by which the relator sought to compel the board of education of the village of Oxford, to admit his children to a common school within the district where he resided, from which, as he averred, they had been wrongfully excluded by the board. At the final hearing the court made a finding of facts, from which it appears that the children of the. relator belong to the colored race, and were excluded by the board under a resolution requiring all colored children to attend a separate school that had theretofore been established for them in the district •, that the board acted in good faith, and upon what it deemed to be for the best interests of education in the district; and, upon its finding, awarded a peremptory writ, to reverse which judgment this proceeding is prosecuted.

      Thomas Millihin, Alex. F. Hume and Palmer W. Smith, for plaintiff in error.

      Morey, Andrews & Morey, for defendant in error.

      The Board of Education of College Hill v. The State of Ohio ex rel. Wilson Hunter, on error to the Circuit Court of Hamilton County, was argued with this case. Attorneys for plaintiff in error, Davidson & Hertenstein; for defendant in error, Eugene Wambaugh.

   By the Court.

The power to establish and maintain separate schools for colored children was conferred on boards of education by section 4008, and not by section 4013 of the Revised Statutes. Whilst under the latter section power is conferred on boards of education to make such assignments of the youth of their respective districts, to the schools established by them, as will, in their opinion, best promote the interest of education in their districts, such power cannot be exercised with reference to the race or color of the youth; and section 4008 having been repealed by the act of the general assembly passed February 22, 1887 (84 Ohio L. 34), separate schools for colored children have been abolished, and no regulation can be made under section 4013, that does not apply to all children irrespective of race or color.

Judgment affirmed.


author: Dickman, J.

text:
    Railroad Company v. Hinsdale.

      Railroad corporation — Conditional subscription to stock — Whether sale of road transfers subscriptions — Remised Statutes, secs. 3300, 3409.
    li. subscribed lor a number of shares of the capital stock of a railroad company, the subscription being made payable on the order of the directors, in installments, and to be paid when the road was completed. The company being unable, from lack of means, to complete the construction of its proposed line of road, duly executed its deed purporting to sell and transfer its road-bed, right-of-way, subscriptions, and other property to another railroad company, which latter company completed the construction of the road, and was afterwards consolidated with another railroad company. Held:

    1. That neither section 3300 nor section 3409 of the Revised Statutes conferred authority to sell and transfer the stock subscription of H.; and no ownership in the subscription passed to the company grantee, by virtue of the deed.
    2. That the subscription of H. was conditional, and the company grantee did not, by performing the condition precedent named in the subscription, fix and make absolute the liability of the subscriber.
    (Decided March 13, 1888.)
    Error to the Circuit Court of Wood County.
    In the year 1876, the Toledo & Grand Rapids Railroad Company) a corporation organized under the laws of Ohio, was constructing a line of railroad from Toledo to Grand Rapids in Wood County, Ohio.
    George P. Hinsdale, the defendant in error, and other parties residing along the line of railroad, subscribed to its capital stock. The following is a copy of his subscription :

      “ We, the undersigned, agree to take and pay for the number of shares of the capital stock of the Toledo & Grand Rapids Railroad Company, set opposite to our respective names, each share being fifty (50) dollars and payable on the order of the directors in installments of not more than ten per cent, every thirty days. It is understood that the above-named road is to be a narrow guage railroad, and that said railroad is to cross the river at Grand Rapids.
    “ G. P. Hinsdale, 30 shares.............................. $1,500.00

      “ (To be paid when the road is completed.) ”
    In the year 1881, the Toledo & Grand Rapids Railroad Company executed a deed of its road-bed and other property, to the Toledo, Delphos & Burlington Railroad Company, a corporation organized under the laws ofOhio. The Toledo, Delphos & Burlington Railroad Company thereafter consolidated with the plaintiff in error, the Toledo, Cincinnati & St. Louis Railroad Company, a corporation organized under the laws of Ohio.
    The Toledo, Cincinnati & St. Louis Railroad Company, claiming to be the owner of all subscriptions to the capital stock of the Toledo & Grand Rapids Railroad Company, filed its petition in the court of common pleas of Wood county, in the month of April, 1882, against the defendant in error, on his stock subscription, praying judgment for the sum of fifteen hundred dollars,with interest thereon. The defendant — George P. Hinsdale — answered, setting up a number of defenses, which were denied in the plaintiff’s reply.
    The cause was submitted to the court without the intervention of a jury, a jury being waived by both parties. At the request of the plaintiff, a special finding of facts and conclusions of law were made and stated by the court as follows :

      “ This cause coming on for hearing on the petition of the plaintiff, the answer of the defendant, the reply of the plaintiff, and the evidence — on consideration whereof the court finds:

      “ First. — That the Toledo, Cincinnati & St. Louis Railroad Company, The Toledo, Delphos & Burlington Railroad Company, and the Toledo & Grand Rapids Railroad Company, are corporations duly organized under the laws of Ohio, and that the Toledo, Cincinnati & St. Louis Railroad Company is the successor of and owner by consolidation of the Toledo, Delphos & Burlington Railroad, and of all the rights, credits, subscriptions to capital stock, franchises and property of all kinds, which belonged to and constituted the said road.

      “ Second. — That at a meeting of the directors of the Toledo & Grand Rapids Railroad Company, a contract for the sale of the corporation known as the Toledo & Grand Rapids Railroad Company, its franchise as a corporation, its road-bed, rolling-stock, choses in action, subscriptions and personal property of every description to the said Toledo, Delphos- & Burlington Railroad Company, whose lines of road were continuous and connected and not competing with the line of road of the said Toledo & Grand Rapids Railroad, for a valuable consideration was submitted to and approved by said directors, and the president and secretary of said Toledo &' Grand Rapids Railroad Company authorized to sign the same.

      “ Third. — That at a meeting of the directors of the said Toledo, Delphos & Burlington Railroad Company, the said contract was submitted to and approved by said directors, and the president and secretary of said Toledo, Delphos & Burlington Railroad Company, were authorized to sign the said contract.
    “ Fourth. — That for the purpose of ratifying and perfecting said contract of sale and purchase, a meeting of the stockholders of the said Toledo & Grand Rapids Railroad Company, and of the said Toledo, Delphos & Burlington Railroad Company, was called by the directors of each of said companies on thirty (30) days’ notice to each stockholder at such time' and place, and in such manner as is provided for the annual meetings of the said companies, and the holder of at least two-thirds of the stock of each of said companies in person or by proxy at each of said meetings assented to said contract of sale and purchase.
    “ Fifth. — That the said Toledo & Grand Rapids Railroad Company, at the date therein named and in pursuance of said contract, executed and delivered to the said Toledo, Delphos & Burlington Railroad Company, its certain deed, of which the following is a copy :

      “ ‘ Know all men by these presents, that, whereas the Toledo & Grand Rapids Railroad Company, a corporation duly incorporated under the general laws of the state of Ohio, are the owners of a road-bed and right-of-way for a railroad and other property in the county of Lucas and state of Ohio, which, from lack of means, it is unable to complete the construction of its proposed line of road thereon, and is desirous of selling the same.
    And whereas, at a meeting of the board of Directors of Toledo & Grand Rapids Railroad Company, called for the purpose, held at the office of said company, at Toledo, Ohio, on the 4th day of March, A. D. 1881, the president submitted the following proposed contract between the Toledo & Grand Rapids Railroad Company and the Toledo, Delphos & Burlington Railroad Company, to-wit:

      “ ‘ Contract of sale and purchase by and between the Toledo & Grand Rapids Railroad Company, a corporation incorporated under the general laws of Ohio, party of the first part, and the Toledo & Burlington Railroad Company, a corporation of the states of Ohio and Indiana, entered into under the corporate seals of the said corporations by the directors thereof.
    “ ‘ Whereas, by the laws of the state of Ohio, railroad companies owning in whole or in part road bed and right-of-way within the state of Ohio, which, from lack of means or other cause, is unable to complete the construction of its proposed line thereon, may sell, assign and transfer the same to any other company incorported under the laws of the state of Ohio, and whereas by the laws of the said state of Ohio, any railroad company may lease or purchase any part of or all of a railroad, constructed by another company, if the lines of road of such companies are continuous' and connecting and not competing, upon such terms and conditions as may be agreed upon between the companies.
    “‘Now, therefore, the Toledo & Grand Rapids Railroad Company, a corporation as aforesaid, owning a road-bed and right-of-way within the county of Lucas and the state of Ohio, which, from lack of means, is unable to complete the construction of its proposed line, and having an indebtedness of over $250,000, which it is unable to pay or arrange for, does hereby sell, transfer and assign to the Toledo, Delphos & Burlington Railroad Company, subject to the ratification and confirmation of the same by the stockholders of the said Toledo & Grand Rapids Railroad Company, all of its roadbed, right-of-way, materials for construction, machinery and all property of the said Toledo & Grand Rapids Railroad Company, including debts, dues, demands, choses in action, contracts, leases, subscriptions and local aid and property of every description, name and nature, in or to which the said Toledo & Grand- Rapids Railroad Company may possess any right or title, and all property, real and personal, and mixed, together with all rights, privileges and easements, as fully as the same now are or may- be possessed by the said Toledo & Grand Rapids Railroad Company, for the sum of $265,477.86, payable as hereinafter provided, and agrees that upon the ratification and confirmation of this contract of sale by the stockholders of the said Toledo & Grand Rapids Railroad Company, it will execute and deliver to the said Toledo," Delphos & Burlington Railroad Company, such conveyance or conveyances as shall fully vest the title to said property in the Toledo, Delphos & Burlington Railroad Company.
    “(The Toledo, Delphos & Burlington Railroad Company, a corporation as aforesaid, agrees to purchase the said roadbed, right-of-way, materials for construction, and all- properties of every description, name and nature, including debts, dues, demands, choses in action,contracts, leases, subscriptions and local aid in and to which the said Toledo & Grand Rapids Railroad Company may possess any right or title, with all of its rights, privileges and easements, subject to the ratification of such purchase by the stockholders of the said Toledo, Delphos & Burlington Railroad Company, for the sum of $265,-477.86, due to the Toledo, Delphos & Burlington Railroad, upon a note dated January 1st, 1881, made by the Toledo & Grand Rapids Railroad Company, and bearing 6 per cent, interest from date, to be part of said purchase money.

      “ ‘ The Toledo, Delphos & Burlington Railroad Company will further, as part of said consideration of said sale, assume and pay all the indebtedness of the Toledo & Grand Rapids Railroad Company, now existing, of every kind and nature, and further, in consideration of said sale and transfer, agrees to issue to the stockholders of the party of the first part, one share of the stock of the Toledo, Delphos & Burlington Railroad, for each and every share of the stock of the party of the first part legally held by the stockholders and surrendered to the Toledo, Delphos & Burlington Railroad Company, to the subscribers of the stock of the party of the first part, which remains unpaid, when the contracts of subscription and for local aid are fully complied with.
    ifiIn witness whereof the directors of the said Toledo & Grand Rapids Railroad Company have caused the corporate seal of said company to be hereto affixed, and this contract to be signed by the president and secretary of said company, and the directors of the Toledo, Delphos & Burlington Railroad Company have caused the corporate seal of said company to be hereto affixed and this contract to be signed by the president and secretary of said company (this contract being signed in duplicate.)
    “ (This contract was signed by the president and secretary of each company, and the corporate seal of each company was thereto affixed.)
    “ And, whereas, at said meeting of said board of directors, ^on said 4th day of March, A. D. 1881, the following resolutions were adopted:
    “ * Resolved, That whereas this company is indebted to the Toledo, Delphos & Burlington Railroad Company in the sum of |265,477.86, for which they have given their note on demand, dated January 1st, 1881, with interest at 6 per cent, per annum, are unable to raise the necessary money wherewith to pay the-same and are unable to complete their said road, therefore be it
    “ ‘ Resolved, That the contract of sale and purchase of the property, franchise, etc., of this company to the Toledo, Delphos & Burlington Railroad Company, this day submitted, be, and the same is hereby adopted, and the president and secretary of this company are directed to sign and attach the corporate seal of this company.
    “Upon the call of the roll, the following members of the board voted aye: J. M. Corse, Geo. Wm. Ballou, Jas. Irvine, "W. J. Craig, and Sam. Thomas, and, whereas, at said meeting, of said board of directors, on said 4th day of March, A. D. 1881, the following resolution was adopted:
    “ ‘ Resolved, That the contract of sale and purchase this day entered into by and between the Toledo & Grand Rapids Railroad Company, and the Toledo, Delphos & Burlington Railroad Company, be submitted to the stockholders of the Toledo & Grand Rapids Railroad Company at a meeting to be held at the general office of the Toledo, Delphos & Burlington Railroad Company at Toledo, Ohio, on April 12th, 1881, and the secretary is hereby authorized to give notice thereof by publication and printed notice to the stockholders as required by statute. And, whereas, in compliance with said resolution, a notice of a meeting of the stockholders of the said Toledo & Grand Rapids Railroad Company, was called and published in accordance with the statute in such cases made and provided in the Toledo Bee, a newspaper printed and in general circulation in the county of Lucas, and state of Ohio, in which said road bed, and right-of-way are situated, for the period of thirty days, prior to April 12th, A. L. 1881.

      “ And, whereas, at said meeting of the stockholders, of the said Toledo & Grand Rapids Railroad Company, held at Toledo, Ohio, at the office of said company, in pursuance of said notice, on the 12th day of April, A. I). 1881, the president of said stockholders’ meeting read and submitted to the said stockholders, a statement as to the condition of said company and the following resolution was adopted by a unanhnous vote :

      Resolved, That whereas the Toledo & Grand Rapids Railroad Company is the owner of a road bed and right-of-way within the county of Lucas ahd state of Ohio, which, from lack of means, it is unable to complete the construction of its proposed lines, and haying an indebtedness of over $250,000, which it is unable to pay or arrange for, be it resolved, That the said Toledo & Grand Rapids Railroad Company is unable to complete its said line of road from lack of means, and that Toledo & Grand Rapids Railroad Company will sell, assign and transfer to the Toledo, Lelphos & Burlington Railroad Company all of its road bed, right-of-way, materials for construction, machinery, and all of its property, including debts, dues, demands, choses in action, conttacts, leases, subscriptions and local aid and property of every description, name and nature, in or to which the said Toledo & Grand Rapids Railroad Company may possess any right or title, for the sum of $265,477.86 cash.

      “ And, whereas, at said meeting of the stockholders of said Toledo & Grand Rapids Railroad Company, on April 12th, 1881, after the adoption of said resolution, the president submitted the contract of a sale passed by the board of directors of the said Toledo & Grand Rapids Railroad Company on March 4th, A. L. 1881, heretofore recited, for adoption and ratification of the same by the stockholders, by the votes thereof, and there was voted at said meeting by said stockholders five hundred and sixty-four shares of said stock of said Toledo & Grand Rapids Railroad Company, of .which number five hundred and sixty-four shares of stock of said Toledo & Grand Rapids Railroad Company, which were more than two thirds of the capital stock of said Company, represented at said meeting were cast for the ratification and confirmation of said contract of sale so entered into between the board of directors of the Toledo & Grand Rapids Railroad Company and the Toledo, Delphos & Burlington Railroad Company, and for the sale of said road bed, right-of-way and appurtenances of said Toledo & Grand Rapids Railroad Company to the said Toledo, Delphos & Burlington Railroad Company, and, whereas, at the said meeting of said stockholders of the Toledo & Grand Rapids Railroad Company, .after the casting of said votes the following resolution was adopted:

      Resolved, That the president of the Toledo & Grand Rapids Railroad Company is hereby directed to execute, and deliver to the Toledo, Delphos^ & Burlington Railroad Company a good and sufficient deed for the road bed, right of way, materials, machinery and all other railroad and other property of the Toledo & Grand Rapids Railroad Company, so as to fully and completely vest the title in the Toledo, Delphos & Burlington Railroad Company.
    Now, therefore, the Toledo & Grand Rapids Railroad Company, in pursuance of said various resolutions of said board of directors and said resolutions and contract of said stockholders and in consideration of $265,477.86 paid and to be paid by the Toledo, Delphos & Burlington Railroad Company as heretofore provided, does hereby bargain, sell and convey, and by these presents have bargained, sold and conveyed unto the Toledo, Delphos & Burlington Railroad Company the following property, situate in the county of Lucas, and state of Ohio, all of its road bed, right-of-way, Aaterials for construction, machinery and all property of the said Toledo & Grand Rapids Railroad Company, including debts, dues, demands, choses in action, contracts, leases, subscriptions and local aid and property of every description, name and nature, in or to which the said Toledo & Grand Rapids Railroad Company may possess any right or title, and all property, real and personal and mixed, together with all rights, privileges and easements, as fully as the same now are or may be possessed by said Toledo & Grand Eapids Eailroad Company, to have and to hold the same unto the only proper use of said Toledo,.Delphos & Burlington Eailroad Company and its successors and assigns forever.
    In witness whereof, the Toledo & Grand Eapids Eailroad Company, by John M. Corse, its president, duly authorized thereunto, has hereunto set its hand and corporate seal, attested by H. Z. Eaton, secretary, this 12th day of April, A. D. 1881.’”
    (This deed was duly signed, sealed and acknowledged.)

      “ Sixth. — Defendant signed and delivered the subscription set forth in plaintiff’s petition and amended petition as there alleged, and agreed to pay the money therein named on the condition therein set forth.

      “Seventh. — That said Toledo & Grand Eapids Eailroad Company and plaintiff, before the commencement of this action, performed all the conditions in said contract of subscription called for on their part, and prior to the commencement of this action made demand of defendant for the amount due on said subscription, and in open court tendered to defendant the stock called foi; by said subscription.

      “ Eighth. — That the said subscription is a part of the personal property included and described in the said deed.
    “ Ninth. — That the plaintiff, at the time of the commencement of said action, was controlling and managing the several lines of railway described in the petition and amended petition, and since the said deed was delivered has held the possession of said The Toledo & Grand Eapids Eailroad, the said subscription and other property, real and personal, described in said deed.

      “ Tenth. — That the above special finding of facts and conclusions of law were made and stated by the court at the request of the plaintiff.” the deed above recited was void for all purposes; and ad-
    And thereupon the court found as a conclusion of law, that judged that the defendant go hence without day, and recover fi;om the plaintiff his costs expended.
    To which conclusion of law and judgment, the plaintiff then and there excepted; and moved the court for judgment in its favor on the special findings, which motion the court overruled, and to which ruling the plaintiff excepted.
    The court thereupon ordered the finding, judgment and exceptions to be made a part of the record, which was done accordingly.
    The circuit court, on petition in error by the plaintiff, affirmed the judgment of the court of common pleas; and the Toledo, Cincinnati and St. Louis Railroad Company, plaintiff in error, now asks that the judgment of the circuit court, and judgment of the court of common pleas, may be reversed.

      Harvey Scribner, of Scribner, Hurd & Scribner, for plaintiff in error:
    1. Does the deed set out in the record purport to convey the franchise of the The Toledo & Grand Rapids Railroad Company as a corporation, and if it does, is the deed therefore void as to the subscription to stock ?
    2. Did the Toledo & Grand Rapids Railroad Company have legal authority to sell its stock subscriptions ?
    Counsel for the defense practically abandoned the first proposition in their argument before the circuit court. I will, therefore, simply submit the authorities holding, first, that the corporate franchise can be transferred, and, second, if it cannot, including it with other property to be conveyed does not invalidate the deed as to that property that is legally capable of being transferred. Morgan v. Lousiana, 93 U. S. 217; State v. Sherman, 22 Ohio St. 428; Knox County v. Nichols, 14 Ohio St. 260; Pullan v. Cin. & C. A. L. R. Co., 4 Biss. 35; Pierce v. Emery, 32 N. H. 484; Joy v. Jackson & M. Plank Road Co., 11 Mich. 172, 173; Eldridge v. Smith, 34 Vt. 484; Pierce, R. R. 496, 503; Morawetz Priv. Corp. 542.
    The Toledo & Grand Rapids Railroad Company had legal authority to sell and transfer its stock subscriptions. Section 3289, Revised Statutes; Downie v. Hoover, 12 Wis. 174; Morris v. Cheney, 51 Ill. 451; Smith v. Hollett, 34 Ind. 519.
    Sections 3300 to 3304 and 3409 to 3414, inclusive, of the Revised Statutes, by a fair construction, authorize the transfer of not only the railroad, to-wit, the iron and road-bed, but also its rolling-stock, subscriptions and other property connected therewith.
    Section 3302, providing for the relief of stockholders refusing assent to the sale, was in force at the date of its subscription, and were available to the defendants. Their contract of subscription must be construed as having been made with reference to this act, by which they are bound as fully as if its provisions had been copied into their contract of subscription. Mansfield, Coldw. & L. M. R. Co. v. Brown, 26 Ohio St. 223.
    Unquestionably the statute contemplated the sale of the entire railroad property, real and personal. Certainly it had in view the stock and stock subscriptions; otherwise why the special provisions for the protection of such stockholders (which includes subscribers to stock) as should refuse their assent to the sale.
    The method provided by statute for carrying a stockholder in an ordinary railway corporation into a consolidated company, subject to the right of the stockholder to withdraw upon certain conditions .if he shall so elect, is not limited to an actual stockholder as contradistinguished from a stock subscriber. Mansfield, Coldw. & L. M. R. Co. v. Brown, 26 Ohio St. 223; Mansfield, Coldw. & L. M. R. Co. v. Stout, 26 Ohio St. 241.

      James E. Tyler, for defendant in error.
    The Toledo & Grand Rapids Railroad, to which the subcription was made, never was a party to any contract of consolidation. The Toledo, Dclphos & Burlington Railroad was the corporate name of the first consolidated company, and the plaintiff, by consolidation, is the successor of that company. It follows, then, that whatever rights, if any, the Toledo, Delphos & Burlington Company obtained against the defendant, belonged to the plaintiff, and nothing more.
    The statute providing for consolidation provides how a stockholder may be transferred, with all his rights and liabilities as such, to the succeeding company, Revised Statutes sections 3379 to 3384, inclusive. But under section 3388 such stockholder, if he refuse to be transferred to the new organization, may withdraw and be paid the value of his stock.
    There is little doubt that if the statute regulating consolidation of railroad companies had been invoked and followed, and the Toledo & Grand Rapids Company made a party thereto, the defendant, if he were in the situation of a stockholder, would be bound, if notified thereof, by the contracts of consoldiation, and their legal consequences. But such is not the case at bar. Here a sale of the Toledo & Grand Rapids Railroad was attempted under sections 3296, 3298, 3299 et seq., Revised Statutes, and mot a consolidation.

    Under the conditions of the contract of subscription the Toledo & Grand Rapids Company could at no time have called on the defendant for an installment upon his contract, or enforced its payment. It was never a chose in action in the hands of the Toledo & Grand Rapids Company. That company never had anything in the contract it could sell or transfer. Philadelphia & W. C. R. Co. v. Hickman, 28 Pa. St. 318; Jewett v. Lawrenceburgh & U. M. R. Co., 10 Ind. 539; Evansville, I. & C. S. L. R. Co. v. Shearer, 10 Ind. 244; Shearer v. E. I. & C. S. L. R. Co., 12 Ind. 452; McMillan v. Maysville & L. R. Co., 15 B. Mon. 218; Chamberlain v. Painesville & H. R. Co., 15 Ohio St. 225; Ashtabula & N. L. R. Co. v. Smith, 15 Ohio St. 328.
    The statute authorizes only the lease or purchase of a road already constructed, not merely in process of construction. Section 3380. Mansfield, Coldw. & L. M. R. Co. v. Stout, 26 Ohio St. 258.
    No one disputes the statutory right of a railroad comjsany to “ acquire and convey such real and personal property as may be necessary to carry into effect the object of the corporation but this property, real or personal, must be acquired strictly in the manner prescribed by statute as applied to the contract with the subscriber. It cannot be unlawfully appropriated.
    The mere fact that a deed has been made by the president of the Toledo & Grand Rapids Railroad Company to, and accepted by, the president of the Toledo, Delphos & Burlington Railroad Company is of no moment unless made strictly in accordance with the statutes. The president cannot sell even the ties of a railroad unless by virtue of statutory authority given him in accordance with law. Walworth County Bank v. Farm. L. & T. Co., 14 Wis. 325; Kean v. Johnson, 1 Stockton, 401; Upson County R. Co. v. Sharman, 37 Ga. 644.
    We are not obliged to 'accept any stock except that which we subscribed for, and when one subscribes to, the stock of an organized corporation, the same rules govern as in other contracts, and the company has no power to change or alter the character of stock subscribed for. James v. C., H. & D. R. Co., 6 Am. L. Reg. (old. ser.) 718; James v. C. H. & D. R. Co., 2 Dis. 261, 277, 278; Cov. & Cin. Bridge Co. v. Sargent, 1 Cin. Sup. Court Rep. 354.
    Again, “as to conditions precedent we see no objection to a subscriber inserting such as he may choose.” “ As to whether conditions subsequent are not to be considered mere stipulations — quaere.” Chamberlain v. Painesville & H. R. Co., 15 Ohio St. 225.
   Dickman, J.

The Toledo, Delphos & Burlington Railroad Company, having become incorporated with the Toledo, Cincinnati & St. Louis Railroad Company by consolidation, all the rights, privileges and franchises, and all the property,, real, personal and mixed, of the former company, were transferred to and vested in the latter company. But it is claimed, that before the consolidation, the Toledo, Delphos & Burlington Railroad Company acquired by purchase ail the road-bed, right-of-way, material for construction, and all property of every description, of the Toledo & Grand Rapids Railroad Company — including debts, dues, demands, dioses in action, contracts, and subscriptions to capital stock — in or to which the last-named company, at the time of such purchase, had any right or title. Whatever right of action, therefore, if any, the plaintiff may have against George P. Hinsdale, the defendant, must be derived through the Toledo, Delphos & Burlington Railroad Company, by virtue of the consolidation; and it is evident, that if no right of action was acquired by that company against the defendant, on his subscription to the stock of the Toledo & Grand Rapids Railroad Company, the plaintiff can maintain no action thereon.

. We are led then at the outset to inquire, whether the deed from the Toledo & Grand Rapids Railroad Company to the Toledo, Delphos <& Burlington Railroad Company, operated to vest in the grantee the ownership of the defendant’s unpaid contract of subscription, and authorized the purchasing company to make absolute the liability of the subscriber, by completing the unfinished road from Toledo to Grand Rapids. By the contract of subscription, the defendant agreed to take and pay for thirty shares of the capital stock of the Toledo & Grand Rapids Railroad Company at fifty dollars per share, payable on the order of the directors in installments of not more than ten per cent, every thirty days, to be paid when the road is completed,” the road to be a narrow guage railroad, and to cross the river at Grand Rapids.

The subscription was conditional, a condition precedent to the subscriber’s liability being the completion of the road.

The subscription was to be paid when the road is completed ” — when put in a condition for regular business. Tower v. Detroit, Lansing & Lake Michigan R. R. Co., 34 Mich. 328. Until the road was completed, the subscription could not become absolute, and take full effect as a stock subscription. It was only an offer to become a shareholder, and until the condition should be performed, the relation of the subscriber to the company as a stockholder would not arise. “ The performance of the stipulated conditions,” says Morawetz, “ is necessary to an acceptance of the offer to become a shareholder; and before the conditions have been performed the subscriber does not,,by virtue of his subscription, become a member of the company at all. It follows that he does not, until then, become entitled to the privileges nor subject to any of the liabilities attaching to the status of a shareholder.” Private Corporations, § 78. It is not insisted that there is any objection to the subscriber inserting such conditions precedent as he may choose; and by statute, the directors of a railroad company may receive subscriptions to its capital stock, dependent upon the completion of the whole or any part of its road.”

Not being able, from lack of means, to perform the condition of the defendant’s subscription, by completing the construction of its proposed line of road, the Toledo & Grand Rapids Company, at the time of the sale of its road-bed and other property, had no claim against the defendant which it could then enforce; and by the sale,the company put it beyond its own power ever to complete its road, and render the defendant liable to it on his subscription. The company still retained its corporate capacity, character and franchise, but its road-bed, right of-way, and material for construction, being sold and conveyed in payment of an indebtedness to the grantee of over $265,000, any certificate of stock issued by it would have been of questionable value.

It is contended, however, that because of its inability to finish its road, the company was authorized to sell the same to another corporation that could complete it, and by thus performing the condition of the defendant’s subscription, fix' his liability. Subscriptions, it is true, are expressly embraced in the terms of the deed of transfer, but in the statutes authorizing the purchase of railroads, and the sale of road-beds, rights-of-way and other railroad property, we do not find authority conferred upon one company to sell and transfer to another company its conditional stock subscriptions.

But authority is invoked outside the statute, and it is said that power in a railroad company to contract, implies the power to sell and transfer obligations and securities taken by it in the prosecution of the object of its creation; and that such power to sell and transfer is an attribute of its corporate capacity, suitable to its purpose and business, and is believed to exist independent of statutory authority. When the, Toledo, Delphos & Burlington Company' made the purchase from the Toledo & Grand Rapids Company, no liability of the defendant on his conditional subscription had matured; there was no legal debt due from him to the grantor, to be sold and transferred to the purchasing company. But without regard tó that consideration, it is a sound rule, that in the absence of express authority from the state, a railroad company cannot make a valid sale of its road or of its property essential to the operation or construction of its road, for the purpose of delegating the performance of its public duties to another company. And in Thomas v. Railroad Company, 101 U. S. 71, 82, Miller, J., says: “We take the general doctrine to be in this country, though there may be exceptional cases and some authorities to the contrary, that the powers of corporations organized under legislative statutes are such and such only as those statutes confer; that the charter of a corporation is the measure of its powers, and that the enumeration of those powers implies the exclusion of all others.” The question therefore presents itself, to what extent the authority of a railroad corporation to sell and transfer its conditional stock subscriptions, may be found in the statutes governing the case under consideration.

The statutory grant of authority for the purchase of a railroad, and for sale and transfer of the road-bed, right-of-way, and material owned by a company unable, through lack of means,-to complete the construction of its line of road, is found in sections 3300 and 3409 of the Revised Statutes. In determining whether under those sections, a railroad company has legal power and authority to sell and transfer to another railroad corporation, its contracts of subscription that are dependent on an unperformed condition precedent, if we look at the actual powers and purposes of the grant, it will, we think, be apparent that the power asserted is not incident to those granted, and not necessary to give effect thereto.

Section 3300 provides that “ any company may lease or purchase any part or all of a railroad constructed by another company, if the lines of road of such companies are continuous or connected, and not competing, upon such terms and conditions as may be agreed upon between the companies.” The railroad to be sold must be constructed, finished, completed. The Toledo & Grand Rapids Railroad, it is conceded, was not completed when sold, but was only in process of construction. The section neither expressly nor by implication provides for the purchase of any other property except a constructed railroad. In perfecting the purchase, it is provided by sections immediately following, that there shall be a meeting of stockholders of each of the companies, to signify their assent to the purchase; and any stockholder who refuses his assent, may be entitled to receive from the purchaser the average market value of his stock, on the surrender of the same. The language of the several sections refers in unequivocal terms to the purchase of a railroad, as well known and defined ; but we do not see that the authority to make such a purchase carries with it, as a necessary incident, authority to purchase conditional stock subscriptions. Due care is taken to recognize and guard the rights of stockholders, but under section 3298 of the Revised Statutes, “ no subscriber to the stock shall be entitled to any of the privileges of a stockholder until his subscription is fully paid, nor shall he, for any purpose, be deemed a stockholder until the happening of the contingency upon which the installments on his subscription are made dependent.”

Erom the language of the deed to the Toledo, Delphos & Burlington Company, it is to be inferred that it was the design of the grantor to sell its road bed and other property, more especially under the enabling provisions of section 3409 of the Revised Statutes. The deed sets forth that the company, from lack of means, is unable to complete the construction of its .proposed line of road, and is desirous of selling the same. Section 3409 reads as follows :

A company, owning in whole or in part any road-bed and right-of-way for a railroad within this state, including those acquired by purchase at judicial sale, which, from lack of means, or other cause, is unable to complete the construction of its proposed line of road thereon, may sell, assign, and transfer the same, or any part thereof, to any other company incorporated under the laws of this state, with authority to construct and operate a railroad over the same route, or any part thereof, which transfer shall include all work done upon such line of road, together with all material furnished therefor, not exempted by the terms of the grant, with all rights, privileges and easements, as fully as the same are or may be possessed by the company making the same, and shall, to the same extent, vest the title of and the right to enjoy the same in such grantee.” The four succeeding sections provide for the execution of the deed of transfer, in the manner provided by law for the conveyance of real estate; for a meeting of stockholders, and their ratification of the transfer; and for vesting in the grantee the title to the property transferred, together with the right to use, occupy and enjoy the same for the construction, maintenance and operation of .a railroad thereon.

According to the obvious meaning of these statutory provisions, there may be a sale and transfer of the road-bed and right-of-way, including work done upon and material furnished for the line of road, with all rights, privileges and easements strictly and directly connected with it, but not of such a contract of subscription as that made by the defendant. The words of the statute will apply rather to a conveyance of realty than to a transfer of other kinds of property. The title to the property sold is made to pass, with the right to use the property for the construction of a railroad thereon,” plainly indicating, that it is the road-bed and right-of-way for a railroad, of which a sale is contemplated, and not of conditional stock subscriptions. In authorizing and perfecting a sale under the statute of an unfinished road, it is observable that only those persons are consulted whose interests are designed to be embraced in the transfer, namely, stockholders in the legal sense, and not mere conditional subscribers to stock.

As we do not discover in the statute regulating the purchase of a constructed or completed railroad, or the sale of one unfinished, authority to sell and transfer conditional stock subscriptions, so, we find no provision that empowers a purchasing company to perform the conditions stipulated in the contract of subscriptions to capital stock, and, by so doing, fix and make absolute the liability of subscribers. If the Toledo, Delphos & Burlington Company succeeded to the interest of the Toledo & Grand Rapids Company in the subscription contract between itself and the defendant, it must have done so in a way, and by means prescribed by the statute for the sale and not for the consolidation of railroads. Arguments drawn from the statutes of consolidation, lose much of their force when applied to the case under consideration. It is true, that it has been held in Mansfield, Coldwater and Lake Michigan R. R. Co. v. Stout, 26 Ohio St. 241, that when railroad companies consolidate under the act of 1856, the new corporation thereby created may perform the conditions named in subscriptions to the capital stock of the original companies, and require the subsci'ibers to pay their installments. But that was a case of two roads consolidated, in which the new company, by virtue of the provisions of the statute, acquired the ownership and control of stock subscriptions, and all the property of every description, of each of the old companies. By section 3384, of the Revised Statutes, when the consolidation is consummated, “ all and singular, the rights, privileges and franchises of each of the companies, and all the property, real, personal and mixed, and debts due on account of subscriptions of stock, or other things in action, shall be deemed to be transferred to and vested in such new company, without further act or deed.” And as by the statute, all debts, liabilities, and duties of either of the consolidating companies thenceforth attach to the new company, it is proper that the new company should succeed to stock subscriptions, choses in action, and other property as a fund from which to discharge the obligations of the respective companies. But a company purchasing the road-bed and right-of-way for a railroad, owned by another company, does not thereby, in the absence of special agreement, assume the debts of the vendor, and does not require the assets of the latter with which to pay such debts.

When a railroad company sells its road-bed and right-of-way, because unable, from want of means, or other cause, to complete the construction of its proposed line of road thereon, no transfer, as enacted by section 3412 of the Revised Statutes, can be made against the dissent of any stockholder, expressly declared and filed in writing, without a guaranty from the grantee company, that it will cause to be issued to him certificates of its capital stock, equal in amount to his pro rata interest as a stockholder of the grantor, in the amount of which the property is sold. The defendant had no option to dissent or acquiesce in the sale. He was not a legal stockholder, and could have had no voice or standing in the meeting of stockholders, called by the president of the company to deliberate and pass upon the proposed sale ; and if he had refused his assent to the sale and transfer, he was not in a position to compel the grantee company to issue to him ft o rata certificates of its capital stock. Nor, as a conditional subscriber only, and without any of the privileges of a stockholder, was he in a position, upon a consummation of the sale and payment of any purchase-money, to demand a proportionate share of the amount realized. If the defendant did noi dissent, or had not the right to enter an effective dissent, the sale would progress to its consummation; but with no status as a stockholder in the Toledo & Grand Rapids. Railroad Company, and with no' statutory right to have stock assigned to him in the Toledo, Delphos & Burlington Railroad Company, we do not think it is within the meaning of the statute permitting the sale of the road-bed and right-of-way of an unfinished road, that the latter company, or the plaintiff by virtue of consolidation, should have a right of action against the defendant, on his unpaid contract of subscription. The sale and transfer of conditional stock subscriptions, do not therefore, as we think, come within the purview of section 84091 of the Revised Statutes; and in accordance with the aforegoing considerations, we have reached the conclusion that the judgments of the circuit court and court of common pleas should be affirmed.

Judgment accordingly,