author: Nash, J.

text:
    Railway Co. v. Leech.
    A section boss on a railroad and his crew took a hand-car to go from Keed’s mill to a switch about one-half mile east, where they would go from the main track upon a second track on their way to work. A passenger train which should have passed that point one hour and a half before was behind time. It overtook, and running into the handcar, killed one of the section-men. The foreman did not know and had no reason to believe that the train had not passed and did not send to or go to the telegraph office, which was one mile distant, to ascertain about the passenger train. The deceased did not know of the whereabouts of the belated train, although he had the same opportunity of knowing as the foreman. There was no carelessness in the running of the train. Held: That the railroad company could not be required to respond in damages to the representatives of the deceased, as he voluntarily and without protest mounted and rode upon the hand-ear.
    Ebkob to the District Court of Jefferson County.
    This action was brought in the court of common pleas of Jefferson county against the railway company to recover damages on account of the death of George Davis. He was killed on the morning of May 1, 1880, while he was riding upon a hand-car on the company’s road between Reed’s Mill and Smithfield Station, by the car being run into by one of the company’s passenger trains, No. 7. Davis had been employed for seven or eight days prior to the accident as a section hand on the road, and one Samuel Loftus was the section foreman. The section upon which Loftus’ crew worked was about five miles in length and extended eastward from Reed’s Mill. There was no telegraph office at Reed’s Mill, but there was one at Smithfield, one mile east. At seven o’clock on the morning of the 1st of May, 1880, Loftus and his crew, including Davis, started east from Reed’s Mill on the hand-car for their work which was about one mile and a half distant. About one-half mile east of the starting point there was a switch at which a second track commenced. It was the purpose of the party to run the half mile and then go upon the second track. To do this would require about three minutes. According to the time-table of the railroad company a passenger train from the west, No. 5, was due at Reed’s Mill at seven o’clock and thirteen minutes on that morning, and train No. 7, which caused the accident, should have-passed that point at five o’clock and thirty minutes. The fact that No. 7 was behind time and had not yet passed was not known to Loftus nor to any one of-his crew. The hand-car was always kept at night at Reed’s Mill. Loftus lived near this place, and about 800 yards from the railroad track. Davis, the 'deceased person, lived about one mile and a half west of Reed’s Mill and very near to the railroad track. On the morning of the accident he walked along and near the railroad track to where the hand-car was kept. Loftus, the section foreman, did not go or send to the telegraph office before starting the hand-car to ascertain whether No. 7 had passed. In riding upon the car Loftus was in front, with his face to the east. The other men stood behind him working the machinery to propel the car. No one was directed by Loftus to keep a look-out for approaching trains from the west. No one in fact was on the watch for’such trains. No. 7 was not discovered by the men on the ear until it was within a short distance of them. All jumped and escaped except Davis, who was caught and killed. It is not claimed that there was any carelessness upon the part of those running the train. The road had frequent curves, and at the point where the accident occurred, looking westward an approaching train could not be seen at a greater distance than three hundred yards. The hand-car had not reached the switch when it was overtaken by No. 7. Davis had the same knowledge as to the time trains passed upon the road that Loftus had. Both supposed that No. 7 had passed, and in such case knew that they would have time to reach the switch before the arrival of No. 5. He knew that there was no telegraph office at Reed’s Mill. He entered upon the hand-car voluntarily, without objection and without inquiry as to whether a messenger had been sent to the telegraph office to ascer' tain in regard to the condition of the track or the trains.
    The judgment in the court of common pleas was against the railway company, and this judgment wras affirmed by the district court.

      J. Dunbar, for plaintiff in error.

      Wm. R. Says, for defendant in error.

      Respondent Superior — Railroad Co. v. Keary, 3 O. S. R., 201; Railroad Co. v. Divinney, 17 Id., 197; Railroad Co. v. Lavalley, 36 Id., 221; Railroad Co. v. Stevens, 20 Id., 415. Two classes of dangers surround employees, seen and unseen. Liability in such cases. 2 Thompson on Negligence, 980; Wharton on Negligence, §§ 206 to 212; Wood on Master and Servant, §§ 349, 354, 359, 376. Negligent ignorance equivalent to knowledge. Wood on Master and Servant, §§ 347, 348, 386 ; 2 Thompson on Negligence, 994-5. Master’s duty to servant. Wood on Master and Servant, §§ 329, 334, 358; 2 Thompson on Negligence, 982 to 996; 31 O. S. R., 293; Dick v. Railway Co., 38 Id., 389, and cases there cited. Loftus failed in his duty. He took no precaution whatever for the safety of Davis.
   Nash, J.

The evidence shows that the deceased had lived near Reed’s Mill for several years, and had the same opportunity to know, in regard to the situation on the morning of the accident as the foreman, Loftus, and the other members of his crew. It does not appear that he rode upon the hand-ear by any command or coercion from his superior. The car was provided for the convenience of the men in getting to their work. The men mounted the car without objection, the deceased as willingly as the others. So far as anything appears, all were ready to take the risk from delayed trains without the delay of sending to the telegraph office, one mile away, which would have protected them. There was no negligence in the running of the train after the discovery of the hand-car, and if a lookout had been kept by the men on the hand-car, it does not appear that the accident would have been prevented on account of the frequent and sharp curves in the road. As the deceased voluntarily and without objection assumed the risks his representatives cannot recover.

Judgment reversed.


source: Caselaw Access Project

author: Granger, C. J.

license: Public Domain

text:
    Day, Williams & Co. v. Railroad Company.
    A railway company entitled by contract to a deed for a definite strip of ground for a right of way, completed its track along said strip, near its center, and was in actual possession and use of said track: Meld— Such possession included so much ground (not adversely held by another), upon either side of said track, as was reasonably necessary for the convenient use and maintenance of the railway, in the customary mode, and was constructive notice, to a subsequent purchaser, of the actual equitable title of the railway. McKenzie v. Perrill, 15 Ohio St., 162, and Williams v. Sprigg, 6 Id., 585, followed and approved.
    Error to the District Court of Portage County.
    By contract dated July 18th, 1864, Marvin Kent agreed to convey to Edward L. Day, Charles T. Williams and Edward P. Williams, composing the firm of Day, Williams & Co., “that lot of land and the buildings and improvements thereon known as the Franklin Glass Works, situate in the township of Franklin, Portage county, Ohio, bounded and described as'follows: Beginning on the west side of Canal street at a point where a continuation of the south side of Mill street, in the town of Franklin, intersects the same ; thence west along the line of a continuation of the south side of said Mill street to the east line of the Ohio and Pennsylvania Canal; thence following the east line of said canal in a southerly direction to a point where a line drawn from the south-west corner of said land, owned by - Smith, on the county road from Ravenna to Stow Corners to the south-east corner of the stone wheel house of Kent’s grist mill, situate on the west side of Cuyahoga river, in said Franklin, would intersect said east line of said canal; thence easterly following the line from the mill to Smith’s land referred to, to the west side of Canal street in said town of Franklin; thence northerly along the line of said Canal street to place of beginning, subject to all legal highways and the rights of the Atlantic & Great Western Railway Company as per contract between said company and M. Kent, G. W. Wells and C. H. Kent.”
    Day negotiated the purchase. When he saw, in the draft of the proposed contract, the clause making the conveyance subject to the contract rights of said railway company, he asked Kent “ where that contract was.” Kent replied, “ In the railroad office.” Day- went to the office and asked Acting Secretary Brainard to let him see the contract. It was handed to him. It read thus:
    “This agreement entered into this 31st day of January, A. D. 1855, between the Atlantic and Great Western Railroad Company, of the first part, and George W. Wells, Charles H. Kent and Marvin Kent, of the second part, witnesseth:
    “ That, for the right of way for said company’s road, (a description and plat of which is hereto attached and made part of this agreement), and also for all damages resulting to the glass factory of said second party, by compelling them to remove any buildings on said roadway, or by inconvenience to said factory, or otherwise, said first party agrees to pay to said second party the sum of eight thousand dollars, in manner following, to wit: One thousand dollars in cash, on demand, and seven thousand dollars in real estate at cash value, said real estate to be selected by said second party, the conveyance of said real estate to be made to said second party when -the right of way, above referred to, is conveyed to said first party, which is to be done when demanded.
    “ Said first party further agrees to plank their track as soon as the same shall be laid down along by the factory of said second party, convenient for trains to pass over.
    “Atlantic & Great Western Railroad Company,
    “By B. F. Roberts, Agent.

    “ George W. Wells,
    “Charles H. Kent.
    “ January 31, 1855.”
    No description, or plat, was then attached to the contract. In the upper left hand margin of the paper were two very small holes, not larger than an ordinary pin would make. Brainard told Day that they had no other contract, and that he knew nothing of any plat; that if one had been made the engineers would probably have it. Day made no inquiry of the engineers, but brought Marvin Kent into the railroad company’s office. Day thus testified as to what ensued:
    “ I showed him the paper and told him what Mr. Brainard had said, and Mr. Brainard also repeated to him what he had said to me ; it was in the nature of conversation. I asked Mr. Kent if this was all the paper there was. He said it was all the contract there was. I told him, as I had told Mr. Brainard before, that I wanted to know what the rights of the company were there before I purchased. I asked Mr. Brainard before this whether this paper represented all the rights that the company had. Pie said it represented all they had except what they were actually occupying — used language to that effect, and almost those words, I think, and that also was repeated to Mr. Kent. I don’t know that at that moment he made any reply to it, except in a general way to say that this was the paper that defined all their rights in the premises; but afterward, as we went out, Mr. Kent said, ‘ You can see what they have got here.’ When I asked him what their rights were, he says, ‘ You can see what they have got’ — used that expression.” At that time there were no buildings on said premises within twenty-three feet of the center of the main track on one side, or within twenty-two feet of said center line on the other side, except an old frame lime house about 16 feet by 24, of little value. This extended about four feet within the forty-five feet strip.
    Day asked and obtained permission to submit to his counsel the paper dated January 31,1855. His counsel advised that the railway company could hold only so much ground as was then covered by their tracks. Relying upon this he and*his partners executed the contract of purchase'; paid IIO^ST-^q as purchase money, and received from Kent and wife a general warranty deed dated March 3d, A. D. 1868. This deed conveyed the premises “ subject to the rights of the Atlantic & Great Western Railway Company as per contract between said company and M. Kent, G. W. Wells, and C. H. Kent, bearing date January 31, 1855.”
    Kent had not signed the paper shown to Day by Brainard because he was then president of the railway company, but he had verbally authorized his brother and Wells to make the agreement. Kent told Brainard of this on the day Brainard showed him the contract. He had also signed a duplicate of said paper which remained in his possession, but Day had no knowledge of that fact. Kent was also president of the railway company when he negotiated with and sold to Day, Williams & Co., but he expressly referred Day to the office of the railway company for information as to its rights, and made no statement on behalf of the company. Neither Brainard nor Kent attempted to indicate, or point out, to Day the limits of the right of way. Day asked no one to do so.
    In 1863 the railway company completed a main track across the land in question. A switch track was partially completed before Day was there in 1864. The cross ties in these tracks were nine feet long; the cars for passengers required some inches more than eleven feet for a passage. On the land was rock through which cuts had been made for the two tracks varying from two to six feet in depth. Day, Williams & Co. went into possession in July, 1864, and quarried the remaining rock down to, and in some places below, the level of the tracks; using it for building purposes, and also for making glass. To this the railway company made no objection. It laid other tracks, to enable it to readily ship from and to Day, Williams & Co. That firm constructed additional buildings. The Atlantic and Great Western Railway Company became insolvent and, in due process of law, the New York, Pennsylvania and Ohio Railroad Company succeeded to all of its rights.
    According to Marvin Kent’s testimony, D. C. Shepherd, engineer of the A. & G. W. Railway Company made the first plat of the right of way in question, at the time the contract of 1855 was made, or soon after: “ he surveyed the ground out and platted it and ordered the pot house removed and the snider ovens, that were in the right of way.” This removal was done before 1863. This first plat showed a right of way fifty (50) feet wide. This plat was lost, but a map of the village of Kent, made in November, 1855, showed the right of way as indicated , by it. At some time prior to 1864, the width of the right of way was reduced to forty-five feet; — the centre line remaining the same; and the consideration to be paid was reduced to 17500. A new plat was then made, showing the reduced width, and its description was written out. Neither plat, nor description, was in Brainard’s office, or under his control, or known to him, when Day called at his office in July, 1864. Brainard then told pay that if there was a plat and description they would be in the engineer’s office. Day made no inquiry there. As the railway company did not complete its payment for the right of way until after Day and .his partners had received their deed, Kent did not make the deed for the right of way until 1865, or later. Day and his partners, with the knowledge of the railway company, erected additional substantial buildings so that they, in places, extended more than two feet within the forty-five feet strip, and the railway company has never attempted to enforce their removal.
    In A. D. 1881, the railway company attempted to extend one of the side tracks, which had been laid alongside of one of the buildings of Day, Williams & Co., so as to connect at its other end, with the main track. This was within the forty-five feet strip, but outside of the spaces occupied by the track, and side track of 1864. Day, Williams & Co. sought, by civil action, to enjoin this extension. The common pleas granted their prayer. On appeal, the district court refused an injunction and gave judgment in favor of the railroad company. Day, Williams & Co. ask a reversal of this judgment..

      Myron A. Norris, Greo. T. Bowden and W. W. Boynton, for plaintiff in error.

      L. A. Bussell, for defendant in error.
   Granger, C. J.

We are satisfied with the finding and decree of the district court. Although no description, or plat, was actually attached to the copy of the contract of 1855, when handed to Day, that copy recited that such papers were attached to it; and pin holes in its upper left hand margin indicated how the attachment had been made. Day was told-that Brainard knew of no plat, or description ; and was referred to the engineer’s office. He was not told that Brainard had any knowledge of the contract when made; he appeared to Day solely as the incumbent of an office containing the files in which the paper was found. "We find no evidence tending to show any misrep-, resentation, or any intent to deceive Day. They told him, —as did the paper, — that the railway company had bought a right of way across said premises, and that he could see what they had got. He could see a space about fifty feet wide; through it, near the centre, ran the main track complete ; also a side track partly completed. No building trenched upon this space except about four feet of the worn-out frame lime house. It is not probable that either Kent or Brainard imagined that Day would understand these words, “ you can see what they have got,” as referring only to the ground covered by the cross-ties, or included between the sides of the rock cut. Necessarily a right of way includes more space than is covered by the cross-ties. The cars require more than that for their passage; the track needs drains; ties and rails decay or wear out; the old ones must be removed, and new ones must take their places. Pending such work the material must lie alongside the track, beyond the drain. Workmen must have passage way to and fro, outside of drains. The possession by the railway company included not only the ground covered by the cross-ties, and within the walls of the cuts, but also so much of the vacant ground on both sides of the tracks, as was reasonably necessary for operating aiid maintaining the railway in the customary mode. The possessor of a dwelling house also possesses its curtilage; the operator of a factory holds also the means of ingress and egress, and such adjacent ground within the same premises as is required for deposit of material, or waste. The holder of a farm possesses not only the ground covered by the farm buildings or cultivated by his plows, but the pastures and the woodland of the farm.

The second * paragraph of the syllabus in Williams v. Sprigg, 6 Ohio St., 585, holds thus: “ Constructive notice of a prior equity, arising from the use and occupation of land, must, to charge a subsequent purchaser, be communicated by such acts as can be readily seen and understood— by something so tangible in form as to induce inquiry about the ownership and extent of the right thus to occupy.” Under this doctrine, if Day had learned nothing from either Brainard or Kent, the use of the track as laid, (there being no evidence of possession hostile to the railway except the buildings themselves,) would have been notice to him that the company held a right of way for their railway in those premises. His mistake was in supposing it notice only of a right to keep the two tracks there. In law, such “ right of way ” included, as already shown, the free use of so much ground upon both sides of those tracks as was required for the convenient and customary use and maintenance of the railway, not exceeding the space plainly in possession of the factory owners by their buildings and appurtenances.

In addition to this notice, Day was expressly told that it was a right of way valued at four-ninths of the entire premises and calling for the removal of buildings by the factory owners ; that its limits were defined by a plat, and that the railway civil engineers were the proper, and probable, custodians of the plat. Placing upon the facts the construction most liberal towards Day, that can reasonably be applied, — those facts, as known to him, showed that the limits of the right of way were somewhere between the outer ends of the cross-ties and the walls of the factories. He was content to complete his purchase without asking where those limits were.

The fact that the railway company did not prevent Day, Williams & Co. from quarrying and using the stone lying in the rocky bed of the right of way, could not, and did not, deprive it of any right in the remaining rock, or in the way.

' The extension of the track complained of will not interfere with any structure that stood on the land in July, 1864, or that has been built since. The railway company has made no attempt to interfere with any of the erections of Day, Williams & Co; and, so far as the record shows, has no wish or intent to do so. The judgment of the district court is therefore

Affirmed.


author: By the Court.

text:
    Goodwin v. Commissioners of Van Wert County.
    Error to the District Court of Van Wert County.

      I. N. Alexander and J. L. Price, for plaintiff in error.

      Saltzgaber & Glenn, for defendant in error.
   By the Court.

On May 29, 1877, a petition under Sec. 2, act of April 12, 1871, 60 Ohio Laws, 60, as amended April 11, 1876, 73 Ohio Laws, 181, was filed with the county auditor. It asked the commissioners to establish a duly described ditch having a long northern arm, a short eastern arm, and a short connecting channel. The petitioners complied with all the requirements of the statutes. On September 6, 1877, the commissioners decided to construct the eastern arm alone, and continued the proceeding for the apportionment of the part to be constructed. Pending exceptions to the apportionment, the commissioners, on May 28, 1878, set aside the order of September 6, 1877, as irregularly made, and ordered due notice to all parties in interest that, on July 23, 1878, they would hear, and determine upon, the petition. On that day G., A., and E., three land owners, filed a protest against participation by one of the commissioners in the hearing, because he owned land through which the ditch, if made, would run. By a vote of two “ayes” and one “no” the board decided to make the whole ditch as prayed for. The commissioner objected to voted “ aye.” Between September 6 and May 28, a new member had entered the board.

On August 14, 1878, G., A. and E., each perfected an appeal from said decision to the probate court. That court consolidated the three appeals, and tried them, by jury, as one case. The verdict found that “ the proposed ditches will be conducive to the public health, convenience and welfare,” and that “ the route thereof is practicable.” The judgment taxed the costs against the appellants. The common pleas and district courts affirmed the judgment.

Held: 1. The order, of September 6, 1877, was unauthorized by law. The commissioners did not err in setting it aside and proceeding as if it had never been made.

2. The ownership of land .crossed by the ditch did not disqualify the commissioner from participating in the order made May 28, 1878.

3. The change in the board was immaterial.

4. As each appeal raised the same public question, i. e. “ whether it will be conducive to the public health and welfare to cause said ditch to be established?” the consolidation' of the three appeals was right.

Judgment affirmed.


text:
    Hulett v. Fairbanks.
    Motion to attach Harvey J. Nettleton for contempt.

      Boynton & Hale, Tinker & Alvord and Henry McKinney, for the motion.

      Burrows & Bosworth, T. Hall, Estep, Dickey & Squire, contra.
   By the Court.

On the tenth day of June, A. d. 1884, the supreme court commission reversed a judgment of the district court of Lake county, and proceeding to render the judgment that said district court should have rendered, ordered and adjudged that, within ten days from that date, Harvey J. Nettleton, one of the defendants in error, should make and deliver to the plaintiffs in error a certain deed. A special mandate was duly sent to said district court for execution thereon. Nettleton refused, and still refuses, to deliver the deed. The supreme court commission is now asked to punish him as for a contempt.

Held: Under sec. 6726, Revised Statutes, the duty of enforcing the judgment of this court is imposed upon the said district court.

Motion overruled.


text:
    First National Bank v. Cornell et al.
    Error to the District Court of Greene County.

      Little Shearer, for plaintiff in error.

      8E. H. Munger and J. A. McMahon, for defendants in error.
   By the Court.

After objection made by the bank, the trial court allowed the plaintiffs to testify to an oral contract for a deposit, and interest thereon, made by them at the bank, in business hours, with the defendant’s cashier, who died before the trial.

Held: Sections 5241 and 5242, Rev. Stats., enumerate as the classes of persons whose death shall affect the competency of others as witnesses, parties, assignors, executors, administrators, guardians, trustees, heirs, devisees, legatees, partners and joint contractors. All these are principals. The omission of agents, a class whose members equal, if they do not exceed, all the others combined, was evidently intentional. To so construe the last clause of paragraph 8, sec. 5242, as to add agents to said enumerated classes, would be judicial legislation. Cochran v. Almack, 39 Ohio St., 314, and Steinberger v. Hanna, 42 Id., 305, approved and followed.

Judgment affirmed.


text:
    Bugh v. Sturgeon.
    Error to the District Court of Pickaway County.

      Page, Abernethy $ Folsom, for plaintiff in error.

      A. T. Walling and C. Curtain, for defendant in error.
   By the Court.

B. and S. each owned a lot of land bordering upon Hargus Creek, the stream forming the boundary line between their respective premises. B. filed her petition in the court of common pleas against S. et al., in which there was a joinder of two separate and independent causes of action. The first cause of action was for trespass, and alleged that the defendants unlawfully broke and entered the plaintiff’s said premises, and pulled up stakes and trees, and carried away stone and gravel, and diverted the channel of the stream from its natural bed in and through the lands of the plaintiff, etc., to the plaintiff’s damage one hundred dollars, for which she claimed judgment. The second cause of action adopted all the allegations of the first cause of action, and in addition thereto recited new matter, and prayed for an injunction. The answer, in a separate defense, raised an issue of fact as to the first cause of action, which either party had a right to have tried by a jury. The answer asked for no. equitable relief, which, if granted, would have been a bar to the action of trespass. There was an agreement between the parties to the action to refer certain matters in dispute to a referee, but there was not a reference of all issues ; and it was not disclosed by the record that the plaintiff waived or abandoned her claim for damages under her first cause of action, or that there was any agreement between the parties in regard to the issues joined on said first cause of action, or that such issues were ever referred by consent or otherwise. The report of the referee was confirmed, and made the order of the court in the case. The plaintiff appealed to the district court, and her appeal was dismissed, on the ground that the ease was not one in which either party was entitled by law to an appeal. Held: That the district court did not err. Ladd v. James et al., 10 Ohio St., 437, followed and approved.

Judgment of the district court affirmed.


author: Martin, J.

text:
    Baker v. Kinsey.
    Kinsey, the endorsee of Blystone, the payee of a promissory note, sued Baker, the maker. The defenses were that Kinsey did not own the note, and that a certain joint judgment in favor of Baker against one Itummel and Blystone was an equitable set-off founded on the insolvency of the judgment debtors continuous since the transfer to Kinsey. On the trial testimony touching both defenses was admitted, and the court instructed the jury to set off the judgment. Held:

    1. The instruction is erroneous. The jury should have been instructed to pass on the weight of the testimony, first as to Kinsey’s ownership, and if they found in his favor then as to the existence of the insolvency as stated, and if they found that in Baker’s favor to set off the judgment.
    2. The maker of a separate note, in suit, who holds an overdue joint note made by the plaintiff and another who are both insolvent, may, in equity, set off the joint demand.
    8. The holder of a promissory note who took it after maturity holds it subject to every objection, including equitable set-off, to which it was subject in the hands of his assignor.
    4. A joint judgment on a joint and several promissory note exhausts the creditor’s incidental right of election, and extinguishes the note, which as to him is to be held as having always been joint.
    5. The merger of a debt into judgment is not so perfect in equity as to preclude the judgment creditor from resorting to the original demand and the relations of the parties to it, for the purpose of enabling him to disclose and assert an equitable set-off.
    Ekrob to tbe District Court of Richland County.
    On the 1st day of April, 1873, Baker gave his promissory note to one,Blystone for $500, payable two years after date. On the same day one Rummell, and Blystone as his surety, gave to Baker their three promissory notes, two of which were for $200 each, and the other for $125, payable respectively on the 1st day of October, in the "years 1874, 1875 and 1876. Baker at the March term of the Richland common pleas, 1879, obtained judgment on the three notes against both makers, in which it is certified that Blystone was surety on the notes.
    The original action below was upon the note for $500 brought against Baker by Kinsey, an alleged endorsee of the same after maturity. One defense was a denial of Kinsey’s ownership by indorsement or otherwise. Another defense was an equitable set-off of enough of Baker’s judgment above referred to, to satisfy the note. This defense was founded on the averment (disputed in the reply) that Kinsey, Rummell and Blystone were each before the alleged transfer of the note, and have been ever since insolvent, and that the judgment is unpaid and uncolleetable.
    At the September term, 1881, the case was tried to a jury, resulting in a general verdict for Baker.
    On the trial Kinsey introduced testimony tending to maintain his ownership in the note, and rested. Baker then introduced testimony tending to maintain his defenses. Before his testimony was all introduced the parties at the suggestion of the court refrained from offering further testimony. Subsequent proceedings on the trial are detailed in the bill of exceptions as follows:
    “ Thereupon the court suggested to the parties that under the pleadings in the case and the law of the case as the court should give it to the jury, further evidence was immaterial, but that the court would permit any further evidence that was competent if parties desired it. Thereupon no further testimony was given, and the above is all the evidence that was given to the jury on the trial of this case.
    “Thereupon attorneys for the plaintiff requested the court to give the following instructions in charge to said jury;
    “We ask the court to instruct the jury this, that the joint and several notes mentioned in said defendant’s answer are not the proper subject matter of set-off against the note sued upon in this action, and is not a proper set-off or defense against the plaintiff.
    “ Which instruction said court refused to give in charge to said jury, to which refusal to give said instructions to said jury the plaintiff at the time excepted.
    “ Thereupon attorneys for the plaintiff requested the court to give the following instruction in charge to said jury:
    “We ask the court to charge the jury that the judgment set up in the second division of defendant’s answer is not a proper set-off in favor of defendant against the plaintiff, Carr Kinsey, in this action, and that the merger of said three notes in said judgment is a waiver of the defendant’s right to have or use the said judgment as a set-off in this action.
    “Which instructions said court refused to give in charge to said jury, to which refusal to give said instructions to said jury the plaintiff at the time excepted.
    ' “ Thereupon the plaintiff requested the court to charge the jury in writing, and thereupon said court delivered to said jury the following charge in writing, to wit:
    “ This action is brought upon the promissory note described in the petition of the plaintiff.
    “ The defendant for defense and set-off, in the second defense and division of his answer, describes and sets forth by copy three several promissory notes which he avers have been reduced to judgment, and I instruct you as matter of law, that the amount due and unpaid upon the judgment obtained on these three notes is to be considered by you as a valid set-off and defense to the note upon which this suit is brought.”
    The above is all the charge given to the jury, and said plaintiff at the time excepted thereto.
    “ And said plaintiff having filed a motion for a new trial, and the court having overruled said motion for a new trial, the said plaintiff excepted to the said ruling of said court on the- said motion for a new trial and to the judgment thereon rendered, and pray the court here to sign and seal this, his bill of exceptions, and order the same to be made a part of the record in this case. All of which is done and ordered as said plaintiff has prayed for.”
    • Yarious assignments of error were presented in the district court including errors in the charge of the court and in overruling a motion for a new trial.
    The district court reversed the judgment of the common pleas for error in not submitting to the jury the question as to whether the plaintiff was the owner of the note, and in failing to charge the jury on that subject. The present proceeding in error is brought to reverse the judgment of the district court.

      Pritchard Wolfe, for plaintiff in error.
    The right to set-off was not lost by a merger of the notes in a judgment. Myer v. Hewitt,. 16 Ohio, 453; Boos v. Ewing, 17 Ohio, 522; Corwin v. Collett, 16 Ohio St., 394; Bell v. Tenny, 29 Ohio St., 242; Clarke v. Rowling, 3 Comst., 215; Rawley v. Hooker, 21 Ind., 144; Waterson on Set-off. §§ 387, 359, 363; Simpson v. Hart, 14 Johns, 75 ; Brown v. Hendrickson, 39 N. J. L., 241; Diehl v. Friester, 37 Ohio St., 473; Rev. Stats., §§ 3173, 4993, 5071, 5076, 5077. In equity there are many exceptions to the technical rule that joint and separate debts cannot be set off against each other. Sarchet v. Sarchet, 2 Ohio St., 320; Wagner v. Stocking, 22 Ohio St., 297; Bank v. Heminggray, 31 Ohio St., 168; 34 Ohio St., 381; 3 Story’s Eq. Jur., §§ 1437, 1437a, 14375, and cases cited. And-insolvency is a sufficient ground for such exception. Lindsey v. Jackson, 2 Paige, 581, and cases cited ; Brewer v. Norcross, 17 N. J. Eq., 219; Smith v. Felton, 43 N. Y., 419.

      Thomas McBride, for defendant in error.
    The notes were merged in the judgment. Smiley v. Dewey, 17 Ohio, 156 ; Myers v. Hewitt, 16 Ohio, 453; Corwin v. Collett, 10 Ohio St., 289. The judgment being joint could not be set off. Sarchet v. Sarchet, 2 Ohio, 320; Wagner v. Stocking, 22 Ohio St., 297.
   Martin, J.

Two issues were submitted to the jury, viz.: whether Kinsey owned the note, and whether Baker could set off his judgment. In the charge nothing was said about the first issue. And the only instruction given was that the jury should consider the judgment a valid offset against the note. This was the entire charge, and is obviously faulty. It virtually assumes that due proof of Kinsey’s ownership had been made. It also assumes that proof had been made of extrinsic facts to constitute the judgment a set-off. For it was not of itself a set-off. It was joint and rendered after the transfer of the note ; and either circumstance distinguished it from a legal set-off. These assumptions withdrew from the jury any consideration of the testimony, and devolved on them the merely clerical duty of an arithmetical calculation. It is true that Kinsey cannot complain of the assumption that he was owner of the note, if the jury understood and received it as a fact. The verdict does not find an amount due Kinsey, nor an amount set off — a finding quite as requisite under the statute (§ 5329 Rev. Stat.), where the set-off exceeds the debt as where it does not. The verdict is general — “We the jury do find for the defendant.” And the judgment is equally general. Either is more nearly responsive to the issue on the ownership of the note than to that on the set-off. Baker’s counsel earnestly contend that under the testimony the note belonged to Mrs. Kinsey, with whose means it was purchased- from Blystone. May not the jury through misapprehension of the charge have taken that view in arriving at the verdict ? The issue as to the set-off had been settled by rulings on demurrers to the answer and reply, and. the only material controversy was as to the insolvency of Rummell and Blystone. The extraneous fact of their insolvency as alleged in the answer having been adjudged sufficient to raise an equitable right of set-off, the testimony touching it should have been submitted to the jury under proper instructions. It seems to us that the virtual decision of that question of fact by the court was an invasion of the province of the jury, and a manifest error. -From these views it follows that the .judgment of reversal must be affirmed.

But as the case will be for re-trial in the common pleas, it is proper to inquire whether the issue as to an equitable set-off is well made; in other words, whether the alleged insolvency of Rummell and Blystone, if proved, would entitle Baker to set' off his judgment. Blystone transferred the note in suit to Kinsey after it was due. Kinsey took it subject to every equity and defense, including set-off, to which it was subject in the hands of Blystone. Was it at that time subject to a legal offset in favor of Baker ?

At law a joint debt cannot be set off against a separate debt. We may admit that the separate promise of the surety, Blystone, was a- legal set-off at Baker’s election. Baker, however, seeks to make this election after judgment. He is too late. In taking the judgment he exercised his right of election for his own advantage. The judgment .exhausted his right and extinguished the notes, which as to bim must be held to have been always joint and therefore no legal offset. But were the joint notes an equitable set-off ?

The situation was this : Baker was in danger of losing his entire debt for which the three notes were given, on account of the insolvency of the makers. At the same time he was in danger of being compelled to pay the debt due to one of those makers. The injustice of allowing this is manifest, and gives rise to an equity in his favor to insist on a set-off, notwithstanding he has no such right at law. Pond v. Smith, 4 Conn., 297.

Prior to the Code system a court of chancery enforced the right. Under the Code (§ 5071 Rev. Stat.), defenses legal and equitable are preserved. And § 5076 Rev. Stat. provides for making a new party, if necessary, to a final decision upon a set-off, if, owing to the insolvency or non-residence of the plaintiff, or other cause, the defendant will be in danger of losing his claim unless permitted to use it as a set-off. This provision refers exclusively to an equitable set-off, and seems to recognize the precise equity we are considering.

It remains to determine whether the technical merger of the notes into the judgment is so perfect as to preclude Baker from resorting to the original cause of action for the purpose of enabling him to disclose and protect his right. We think that such controlling effect should not be given to the doctrine.

In Clark v. Rowling, 3 Comst., 216, the decision was based on the principle that the demand on which a judgment is rendered is not so complete as that courts may not look behind the judgment to see upon what it is founded, and to protect the equitable rights connected with the original relation of the parties. To the same effect are Wyman v. Mitchell, 1 Cow., 316 ; Raymond v. Merchant, 3 Id., 147 ; Betts v. Bagley, 12 Pick., 572; Rawley v. Hooker, 21 Ind., 144. The case of Clark v. Rowling, supra, was this: In February, 1845, Clark brought a creditor’s bill against Rowling to obtain satisfaction of a judgment rendered in May, 1843, on promissory notes. Rowling answered that in December, 1842, he had duly applied, by petition in the proper court, for the benefit of the bankrupt act of 1841; that he was adjudged a bankrupt, and that in July, 1843, he was discharged from all debts owing by him at the date of his application. There was no opportunity to plead the discharge because judgment was taken before it was granted. It was contended for Clark that the notes were- merged in the judgment, which is a new debt not in existence at the time of the application, and therefore not affected by the discharge. But the court held that the discharge was available as a defense, notwithstanding the technical merger of the notes.

In the light of these adjudications we are of opinion that Baker is entitled, in equity, to set off his debt,-notwithstanding it is in judgment.

Judgment affirmed.


author: McCauley, J.

text:
    Bentley v. Barton.
    Where the United States appropriated section number sixteen in every township * * * for the use of schools in such township, and vésted the same in the legislature of the state “in trust for the use aforesaid, and for no other use, intent, or purpose whatever,” in an action by a country treasurer against a lessee of such lands, who held a lease for ninety-nine years, renewable forever, whose lands were taxed under section 2733, Rev. Stats, as the property of the lessee, to enforce the payment of the taxes so assessed, Held :

    1. That in the absence of a provision in the terms of acceptance of such lands by the state, that they should be forever free from taxation, they are taxable after sale or lease by the state, as other lands in the state.
    2. That section 2733 Revised Statutes, provided for the taxation of such lands held under such lease as the property of the lessee.
    Error to the District Court of Columbiana County.
    The plaintiff in error, William G. Bentley, treasurer of Columbiana. county, brought his action against Henry Barton, defendant in error, alleging that there stood charged on the duplicate of taxes for that county for the year 1880, the sum of $9.23 against eighty-three acres of land in section sixteen of Elkrun township, in the name of Henry Barton, and prayed that in case said taxes were not paid by a day to be fixed by the court, the lands should be sold to satisfy such taxes.
    The defendant answered: that the tract of land described in the petition in'this case, is a part of section sixteen, in Elkrun township, Columbiana county, Ohio; that said section sixteen was, by act of the congress of the United States, set aside for the use of schools in said township ; that said section, so set aside, was accepted by the people of Ohio for the use and support of schools in said township, the title thereof being vested in the legislature of said state, in trust for said purpose; that, in pursuance of the several acts of the legislature-of said state, ordering and authorizing the leasing of said section sixteen, the township trustees of said original surveyed township of Elkrun, on the 28th day of April, 1821, by a written lease, duly executed, acknowledged and delivered, leased to Alexander Rodgers, the northeast quarter of said section sixteen, of which the tract described in petition is a part, at the. rate of six per cent, on the appraised value thereof, said appraised value being six dollars ($6.00) per acre, to be paid into the treasury of the school funds of the money arising from said section sixteen, for the use of the inhabitants of said township for school purposes, for the full term and period of ninety-nine years from said date of said lease, renewable forever, subject to a re-valuation of said real estate at the end of thirty-three years from said date of said lease, and at the end of each thirty-three years during said term of said lease, according to the true intent and meaning of the act of the legislature ordering and authorizing said lease; that said Alexander Rodgers accepted said lease of said real estate, and under it entered into possession of the same; that said Alexander Rodgers and his grantees and assigns have ever since continued in possession of said real estate, and have fully paid said rental and performed their part under said lease; that the defendant is a grantee and assignee of said Alexander Rodgers, holding possession of said tract, in the petition described, under and by virtue of said lease; that the rental of six per cent, on the valuation, and re-valuation, has been and still is paid into the school funds of said township, and has been and still is wholly and exclusively applied for the use and support of the schools of said township for the free education of the school youth therein without charge; that said real estate described in the petition in this case, is exempt from taxation, and has been, and is wrongfully placed on the tax duplicate of said county, and has been and is wrongfully taxed thereon; that said taxes sued for in the petition in this case are general taxes for state, county, township, and other purposes, and that there is nothing lawfully due from the defendant to the treasurer of said county, or to said county, for taxes on said tract of land.
    To this answer the plaintiff demurred generally. The court sustained the demurrer, and thereupon gave judgment for the plaintiff. This judgment was reversed by the district court. A petition in error is brought here to reverse the judgment of the district court.

      R. W. Tayler, for plaintiff in error.

      J. W. & H. Morrison, for defendant in error.
   McCauley, J.

By section 7, of an act of congress approved April 30, 1802, entitled “An act to provide for the government of the territory northwest of the river Ohio,” 1 Chase Statutes, 70, it was provided: “That the following propositions be, and the' same are hereby offered to the convention of the eastern state of the said territory when formed, for their free acceptance or rejection; which, if accepted by the convention, shall be obligatory upon the United States. First. That the section number sixteen in every township * * * shall be granted to the inhabitants’ of such township for the use of schools.” This proposition was accepted by the convention assembled to form a constitution for the state of Ohio, with the modification thereof to be assented to by congress, that all lands appropriated for the use of schools shall be vested in the legislature of this state, in trust for said purpose. This modification was afterwards assented to by congress. Act of March 3, 1803, Chase Statute, 72.

The answer in the court below sets forth the nature of the defendant’s title and the mode provided by law for taxing the property. Section 2733, Rev. Stat., which is a re-enactment of a former statute, provides that:

“ Lands held under a lease for a term exceeding fourteen years, belonging to the state or to any religious, scientific, or benevolent society, or institution, whether incorporated or unincorporated, and school and ministerial lands, shall be considered, for all purposes of taxation, as the property of the persons so holding the same, and shall be assessed in their names.”

The defendant in error insists first, that under the statutes the taxation of his lands is not provided for; and second, that if the statutes do provide for the taxation of the land, they are unconstitutional and invalid. The lands of the defendant are school lands and held under a valid lease for ninety-nine years, renewable forever. This clearly brings the property within the provisions of section 2733 above. This section applies only to lands held under a lease, and describes two kinds of property, that belonging to the state or to any religious, scientific or benevolent society, and school and ministerial lands. It could not apply to school and ministerial lands belonging to the state, before the same had been leased or sold. It must therefore apply to lands, the legal title to which is in the state, but which have been leased for a term greater than fourteen years. The lands were properly assessed for taxes under this section, if they are taxable at all.

Are the lands taxable ? They were appropriated by the United States to the inhabitants of each township for the use of schools, and the title thereto was vested in the legislature of the state “for the use aforesaid, and for no other usé, intent or purpose,” and were accepted by the state “ upon the trust aforesaid.” The state, in accepting the lands upon this trust, impliedly agreed that they or the rents and profits or proceeds of the sale thereof, should be applied to the use of schools in the several townships; and in the absence of a provision in the terms of acceptance that they should be forever free from taxation, after the lands were leased or sold, and the proceeds applied to the use upon which they were held by the state, the trust by which they were affected was fully executed; and when the land became private property it was subject to taxation as any other private property in the state.

It is insisted that the taxation of these lands would appropriate them to a purpose other than the support of schools, -and the state being under the obligation not to appropriate them to any other purpose, the lands are not taxable. This argument is at fault in assuming that the taxation of the lands would appropriate them to a purpose other than the support of schools. The taxation of property is in no proper sense an appropriation of it to any purpose. In a general sense it is nothing more than the exercise of that attribute of sovereignty by which the state provides the means of self preservation. The trust upon which the lands were accepted did not affect them after, they were leased or sold by the state, but was thereby transferred to the fund arising from the lease or sale — directing and defining the only use or purpose to which such fund should be applied.

Judgment reversed.


text:
    Wardlow v. List.
    A material alteration in a note, made in accordance with an agreement between the maker and payee, does not avoid the note as to the maker, although the change was made sometime after the agreement and without knowledge on the part of the maker that the agreement had been made effective by the actual al leration of the note.

      Error to the District Court of Brown County.
    List, as the administrator of the estate of Elias L. Abbott, deceased, brought his action in the court of common pleas against Benjamin Wardlow, and his petition contained two causes of action. The single question now presented in the case arose on the first cause of action, which was founded upon a promissory note,- of which the following is a copy:
    $800.00 September 27, 1871.
    Twelve months after date I promise to pay to the order of E. L. Abbott the sum of three hundred dollars at the ______________________, with eight per cent, interest. Value received.
    Benjamin Wardlow.
    Wardlow in his answer averred that a material alteration of the note had been made.
    The court below, at the request of the defendant, found the following to be the facts: On November 3, 1873, a payment of $46 was made, and credited on the note. On the 3d of June, 1874, there was another payment of $30, for which credit was given. After a third payment of $183 had been made, but not credited on the note, Abbott went to Wardlow’s house, taking with him the note. He and Wardlow’s daughter then and there calculated how much was then due on the note, with interest at eight per cent. Wardlow was present, and Abbott told him that he would charge but eight per cent, interest. Abbott and Miss Wardlow did not agree in their computations of interest. Abbott left the note with Wardlow, so that- his son might review their figures and calculations. Wardlow retained possession of the note for more than one year, when, at the request of Abbott, he returned it to him.
    After this Wardlow’s wife went to Abbott’s house, and told him that she came to see whether the third payment had been credited upon the note, and whether he had fixed it so that they would have to pay but eight per cent. He then gave a credit of $193 on the note — the third payment —as of date of April 10, 1880, and told her he would change the note to eight per cent. He did not change the note while she was present. Afterwards the note, while in the possession of Abbott, was altered so as to bear eight per cent, interest instead of ten per cent. Mrs. Wardlow represented to Abbot that she was acting on behalf of her husband when she inquired about the credit and the change of the rate of interest. The court also found the fact to be that Wardlow did not authorize his wife to represent him, and that he did not know of the change until after Abbott’s death.
    On this cause of action the court of common pleas gave judgment in favor of Abbott’s administrator, but allowed interest only at the rate of six per cent. The district court affirmed this judgment.

      Thomas & Thomas, for plaintiff in’ error.

      J. H. Marshall and Moore Harding, for defendants in error.
   Nash, J.

The facts, as found by the court of common pleas, show that long before the alteration was made in the note, Abbott and Wardlow had agreed that the note should bear eight instead of ten per cent, interest. The note was changed so as to comply with this agreement. In making the change Abbott simply carried into effect the understanding existing between himself and Wardlow. It was competent for the maker and the payee of the note to so agree. The facts that Wardlow was not present when the change was made, and that he did not know that the note had been thus altered until after Abbott’s death are not material.

This is not such an alteration as has been held to avoid the note, as against the maker, in many ably considered cases in this staté.

Judgment affirmed.


author: Granger, O. J.

text:
    Jones v. Jones.
    1. Where a probate court appointed an executor, and, pursuant to a request in the will, dispensed with a bond, the four years provided for by Section 103, Act of March 23, 1840 (S. & 0., 585), began to run in his favor from the date of his qualification as executor.
    2. Where an executor pleaded as one defense, failure 'to sue within six months after presentation and rejection of the claim, and also as a separate defense, that the claims were “ not sued upon within the time allowed by law and were therefore barred,” having preceded said averment by a statement of facts showing the lapse of four years before suit, and evidence was before the jury tending to support the four years’ bar, it was error for the court to charge that the answer applied only to the bars of six months and six years.
    Ekror to the District Court of Trumbull County.
    The will of Truman Jones, deceased, was admitted to probate m Trumbull county, Ohio, on the 20th day of August, A. D. 1872. In it the testator designated James M. Jones to be executor, and expressed a wish that he might execute the same without giving bond. The court therefore, pursuant to the second Section of the Act of February 5,1847 (S. & C. 614), granted letters testamentary without bond; and James M. Jones immediately accepted said appointment and proceeded to settle the estate. His final account was filed on the 24th day of May, A. d. 1873, and the same was duly advertised according to law as his final settlement of said estate.
    On October 6, A. D. 1876, Harry W. Jones began suit against said executor in the court of common pleas of the county. His petition set out three causes of action based upon alleged contracts of the testator, and averred presentation of claims to, and rejection by, the executor on the 22d day of June, 1876. The executor’s answer read thus:
    Now comes the defendant, James M. Jones, executor of Truman Jones, deceased, and for answer to plaintiff’s several causes of action says, generally, that he admits that he was the executor of the estate of Truman Jones, deceased; that the will of said Jones was admitted to probate on the 20th day of August, 1872, and in pursuance of the provisions of said will, and on same day, this defendant took letters, advertised appointment, proceeded to settle up said estate, and did so settle and pay all claims against said estate, which were duly presented within the time allowed by law, and on the 24th day of May, 1878, did file with the court a final settlement and statement of his action, which was thereafter duly advertised as his final settlement according to law; and as a-—
    1st. First cause of defense to plaintiff’s several claims sued upon in this action, says that the same were not presented for allowance, or sued upon within the time allowed by law, and are therefore barred.
    2d. And as a second cause of defense to plaintiff’s several causes of action, defendant says that the claims for which this suit is brought, were presented to defendant as the executor of Truman Jones, deceased, for allowance or rejection, and were by him rejected on the 22d day of June, 1875, and more than six months before the commencement of this suit, and the time allowed by law in which to commence suit, had long since expired, and said actions are therefore barred.
    3d. And as a third cause of defense to plaintiff’s several causes of action, defendant says that if money was loaned and labor performed, more than six years has elapsed since the loaning of the money and the performing of the labor, and plaintiff’s several claims are barred by lapse of time.
    4th. And as a fourth cause of defense to plaintiff’s several causes of action, defendant denies the loaning of money alleged in plaintiff’s first and second causes of action, and the performing of the labor alleged in his third cause of action, and denies each and every other allegation contained in plaintiff’s petition not herein admitted, traversed or expressly denied.
    Without motion or demurrer, the plaintiff, by a reply denied “ each and every allegation in the answer of defendant contained.”

      At the trial evidence was admitted showing besides other facts, the will and its contents, its probate; the appointment of the executor without requiring a bond; his acceptance ; the due notice thereof; his settlement of the estate, and filing, etc., of his final account; that no assets had since come to his hands'; the presentation and rejection of the claims; the respective dates of these acts, and of the commencement of the suit, from which it appeared that the action was not brought within four years from the time when the executor accepted his appointment, and gave the statutory notice thereof. It also appeared in evidence that, if anything was due to the plaintiff, he had a right to present a claim therefor and demand payment at any time after the executor entered upon his office, and to sue at once upon rejection.
    The court charged the jury that there were only three defenses in said answer, to wit, the second, the third, and the fourth, and instructed them that they “ need not consider any other.” The verdict was for the plaintiff. Defendant’s motion for a new trial was overruled, and judgment entered on the verdict. A bill of exceptions duly taken, presented so much of the evidence as was pertinent to the defendant’s exceptions to the charge, and to the decision upon the motion. The district court reversed the judgment of the common pleas, and the plaintiff asks this court to reverse the decision of the district court.

      Thayer & Gilson, for plaintiff in error.

      George P. Hunter, for defendant in error.
   Granger, O. J.

Was the first defense, as stated, sufficient? Section 103 of the Act of March 23,1840 (S. & C., 585), reads thus:

“No executor or administrator,after having given notice of his appointment, as provided in the eighty-first section of this act, shall be held to answer to the suit of any creditor of the deceased, unless it be commenced within four years from the time of his giving bond as aforesaid, excepting in the cases hereinafter mentioned.”

The excepted cases are described in, and provided for, by sections 104,105,106, and 107 of said Act (S. & C., 586). The case before us is not one of them.

While, as a general rule, statutes .'of limitation are strictly construed, their practical wisdom is admitted; and their true intent and meaning, when ascertained according to established rules of interpretation, must be enforced whenever a pleader invokes their aid in sufficient form. The section before us is a part of what is popularly known as “the Administration Act.” Considering the controlling importance of a prompt settlement of the estate of a decedent, so that his creditors may be paid, and the shares of his heirs or legatees ascertained and distributed, the provisions that claimants against the estate shall prosecute their claims within so many months, or years, stand upon a footing somewhat different from the ordinary statute of limitations, behind whose bar the debtor himself may take refuge. Such provisions should be construed in furtherance of the main purpose and intent of the entire statute. It is plain that the General Assembly considered that four years, computed from the moment when the law created a responsible representative of the decedent, competent to allow or reject claims, and liable to suit upon rejected claims, was as much time as ought to be allowed for. any ordinary creditor to delay the distribution of an estate. This time is clearly, defined as four years. Of course this four years ought not to begin to run until the law has completed the creation of a responsible representative of the decedent. Under the act of 1840 the qualification of the executor, or administrator, was not completed until he had complied with the requirement that he should give a bond. It was natural therefore for the draftsman of section 103 to use the words “ from the time of his giving bond as aforesaid ” as synonymous with “the time of his appointment and qualification.” But on February 5, 1847, another act was passed (S. & O., 614) authorizing the court, in case of such a will as that of Truman Jones, to “grant letters testamentary without bond.” We cannot believe that the legislature intended to create two classes of executors: one subject to suit within four years, and the other unprotected except by the ordinary statute of limitations. The fair presumption is, that, as the act of the court of probate, dispensing with the bond, took the place of the bond itself, the qualification of the executor was completed by his acceptance; so also does that act of the court take the place of the giving of the bond, in determining when the four years shall start. Unless this construction be adopted, some strange and inconvenient results must follow.

Section 98 (S. & C., 584) provides that no executor or administrator shall be liable to the suit of a creditor of the deceased until after the expiration of eighteen months from the date of Ms administration bond, or the further time allowed by the court for the collection of the assets of the estate. Unless the words, “ the date of his administration bond” in this section be construed as meaning “the time when his qualification was completed,” no executor in whose case the court had dispensed with a bond, could ever be sued on a claim allowed by him, until eighteen months after a successful application to the court for an order requiring a bond, followed by the actual giving of such bond. Again, section 63 forbids an extension of time for the collection of funds of the estate beyond five years from the date of the administration bond. A literal construction would allow an indefinite extension in favor of such an executor as the one now before us.

All the provisions, however, become harmonious if the words referring to the time of giving bond, or to the date of the bond, be construed as a form intended to specify the time when the qualification of the executor was completed. The time remains the same. It is the time “ of the giving of the bond,” whether the bond be then actually given, or such giving is then dispensed with by the court.

But it is urged that the first defense as stated presented no fact; that it averred nothing but matter of law. If this was so, the court did not err in treating it as no defense.

The answer begins with a statement of the appointment and qualification of the executor on the 20th day of August, 1872, under a will admitted to probate on that day; that the executor advertised his appointment, settled the estate, paid its debts, and on May 24, 1878, filed his final account, which was duly advertised according to law. This preliminary statement should be treated as part and parcel of each of the defenses that follow it, so far as they are relevant thereto. The petition had stated that the claims had been presented to the executor on June 22,. 1876. It was unnecessary for the defendant to re-state any fact set up in the petition. Hence, taking that date furnished by the petition, the preliminary general statement in the answer, and the three lines specially designated “First cause of defense ” together, we have the following defense, to wit:

The qualification of the defendant as executor was completed on August 20, 1872; the plaintiff’s claims were such that he could have called for their allowance as due at any time after said date;_ he never presented them until June 22, 1876; he never sued upon them until October 6, 1876 ; and “the same were not presented for allowance, or sued upon within the time allowed by law, and are therefore barred.” It is true, a shorter statement would have been sufficient. Instead of giving dates that showed the lapse of more than four years, the pleader might have written that “ the action was not commenced within four years from the time,” etc.

Possibly.the statement of the appointment “in pursuance of the provisions of said will” may be so indefinite, that a motion to make the first defense definite and certain, ought to have been sustained if made. But no such motion was made. The trial proceeded as if the defense was sufficient until the charge of the court in effect struck it from the answer.

It is urged that, as the notice of appointment could be given within three months after August 20,1872, and the answer failed to state w7ien the notice was complete, the four years did not begin until November 20, 1872. But a reference to section 103 will show, that, although the giving of the notice within three months is necessary in order to start the running of the four years; whenever the notice was so made, the four years is to be computed as beginning at “the time of the giving of the bond.” In this case that time was the time of the appointment, and its acceptance by the executor. The answer averred that defendant “ took letters” on the same day (August 20, 1872.)

We are satisfied with the decision of the district court, and its judgment is affirmed.


text:
    Ohio ex rel. Holtz v. Commissioners of Henry County. Commissioners of Wood County v. Ohio, on the Relation of Louis E. Holtz.
    1. The act entitled “ an act to authorize the commissioners of the counties of Putnam, Wood and Henry to levy a tax to pay for certain fees therein named,” passed March 19, a. d. 3879, (76 Ohio Laws, 213) does not conflict with the constitution of the state.
    2. A claimant entitled to a payment under said act, whose account made out, attested, approved and certified, was duly presented to the county commissioners, and payment refused, is entitled, upon proper application, to a writ of mandamus to enforce payment.
    3. The commissioners of the county should pay one third of such claim, ■ although prior to the demand, they had, by paying more than one third of other claims, disbursed more than “one third part of all the fees and costs provided for ” in said act.
    Error to the District Court of Henry County.
    Error to the District Court of Wood County.
    The petition filed in the district court of Henry county read thus:
    “ The said relator represents that the said Lewis E. Holtz is now and for many years past has been, a citizen of. the state of Ohio, and of the county of Putnam; that heretofore, to wit, on the 8th day of October, A. D. 1872, he was duly elected to the office of county surveyor, in and for said county of Putnam and state of Ohio, and on the 6th day of January, 1873, duly entered on the duties of his said office, and continued therein discharging the duties of his said office, until the 3d day of January, 1876.
    That heretofore and on, to wit, the 15th day of October, A. D. 1873, one James Donald, with others, filed with the board of county commissioners of each of the counties of Putnam, Henry and Wood, in said state of Ohio, as authorized and required by law in such cases, a petition asking for the location and construction of a joint ditch, drain or water-course on and along a route commencing on the north line of Putnam county, Ohio, and running through portions of the counties of Henry and Wood to the Maumee river ; the said line as proposed in the said petition being over twenty miles in length, and designed to drain and materially benefit the lands lying adjoining the said proposed ditch in each of said counties of Putnam, Henry and Wood, the said ditch being known and designated on the records as the “ James Donald Ditch, or Ditch No. 88,” and at the same time the same James Donald, as principal petitioner, filed his bond with the auditor of Wood county, Ohio, with securities, to the acceptance of said auditor, in the sum of two hundred dollars ($200), conditioned to pay the costs, in case the said ditch should not be established by the said commissioners.
    “ That thereupon, due notice having been given of the filing of said petition and bond, the said commissioners of Putnam, Henry and Wood counties met in joint session at the town of Ottawa, Putnam county, Ohio, on the 9th day of June, A. D. 1874, and at said session proceeded to act on said petition as required of them by law, and at said session the said joint board of commissioners duly appointed your petitioner, Lewis E. Holtz, as surveyor and engineer, to go upon the line of said proposed ditch and to survey and level the same along the whole length thereof, to divide the same into suitable sections, make a computation of the number of cubic yards of earth to be removed from each section, estimate the cost of construction of the work, apportion the same to each parcel of land, specify the manner in which the work shall be done, the necessaiy floodgates, waterways, bridges and farm crossings to be made, together with such other suggestions as he should deem material for the proper construction of the said ditch, and to effect the most advantageous drainage of the land sought to be drained, and to make out and file with the several auditors of said oounties of Putnam, Henry and Wood each a plat and profile of the said ditch, together with a full report in detail, showing each and all the above specified facts, as soon as the said work could be done.
    “ That thereupon, in pursuance of said appointment and order of said joint board of commissioners in session as aforesaid, your petitioner proceeded to perform said work, and did go upon the line of the said ditch, and did survey and level the same as ordered, and as required by law regulating his duties in that regard, and made his report thereof in triplicate, showing in detail, and fully his proceedings and all the particulars hereinbefore enumerated, and filed his said reports so made in triplicate with the several auditors of the counties of Putnam, Henry and Wood, to wit, on or about the first day of December, A. D. 1874.
    “ That after the filing of said reports as above set forth, with the several auditors as aforesaid, notice therefor having been given to the several boards of commissioners as required in such cases, they met in joint session on the 7th day of January, A. D. 1875, at the town of Deshler, in Henry county, Ohio, to consider the said report, and thereupon ordered certain changes to be made in the manner of constructing the said ditch and in the size thereof, and ordered your petitioner, as such surveyor, to again go upon the line of the said ditch, make the said changes, and to prepare and file his supplemental report showing said changes, and embracing all the particulars relating thereto, as was contained in the original report so filed; and thereupon the said petitioner did go upon the said ditch and again survey the same, so far as necessary, in order to show said changes, and prepared his report thereof in triplicate as before, and filed the same with the said auditors as with said original report.
    “ That after the filing of the said supplemental report as aforesaid, the said commissioners again met in joint session, at the said town of Deshler, on to-wit, on or about the 23d day of February, A. D., 1875, to consider the said report and other matters pertaining to the said ditch.
    “ That at said joint session the said commissioners ordered still other and farther changes to be made, in size, length and manner of constructing said ditch, and again ordered your petitioner to go thereon as such surveyor, and to again make out and file as before, in triplicate, an additional amended and supplemental report, showing the said changes, additions and other things so ordered, and which was done as ordered, and the report thereof, in triplicate, was filed with the several county auditors as before stated.
    “That after the said second amended and supplemental report was so filed by your petitioner, the said commissioners again met in joint session at the said town of Deshler, on to-wit, the 7th day of April, A. D., 1875, to consider the said several reports, and their other duties, relating to the said ditch, as proposed to be located through the said counties as aforesaid, and thereupon, at the said joint session, the said commissioners, being of the opinion that the said report and the amendments thereto, so made by petitioner, were in all respects correct and in conformity to law, accepted the same as authorized by law in the premises, and the said report being so accepted the said commissioners proceeded to farther consider the question, as to the location of the said ditch, and being of opinion that the second section of the law, regulating their duties in the premises, as amended March 28, 1873 (70 Ohio Laws, 79), had not been complied with by the said petitioners, in that no bond had been given, as required by law, sufficient to cover the costs of the location of said proposed ditch, and notwithstanding their acceptance of the said reports as aforesaid, and without any fault or neglect of your petitioner, proceeded to, and did, dismiss the said petition and proceedings absolutely, and adjourned their said joint session without day, leaving your petitioner and others who had performed labor and expended money, without any means of recovering their costs and pay for labor done under the orders of the said joint board of commissioners, so made as aforesaid, save such as would have been afforded by the said bond, hereinbefore referred to, as given by said James Donald and others on filing the petition.
    “ That under the said order so appointing your petitioner as such surveyor, he had, in addition to the said labor performed, been compelled to pay, and had paid, large amounts of money for necessary expenses and assistance in said work, as will be more fully shown hereafter; that the said bond so given by the said James Donald and others when the said petition was filed, was only for the sum of $200, and the parties who executed the same, both principal and surety, were not responsible in law for the amount thereof, and the same could not be collected from them or either of them, and the costs made under the said petition were largely in excess of the amount of said bond.
    “ That by reason of the premises your petitioner was left without any provision in law for the payment of the amount allowed him by law for said services, and also his said expenses and money paid out for assistance as aforesaid; that the several boards of county commissioners, both in joint sessions and otherwise, claimed and asserted that they had by law no power or authority to pay the same, nor did they, nor any or either of them, ever allow to petitioner, all or any portion of said fees and expenses, nor has the same, or any part thereof, ever been paid by any person, or in any way, nor could the same, under the provisions of any law then enacted, have been collected from the said commissioners, nor the said auditor, nor any person whatever.

      “And your petitioner states further, that in order to secure to petitioner the legal fees allowed to him as such surveyor of said ditch by law for said services, together with all money paid out, expenses incurred therein by him, the legislature of the state of Ohio, on the 19th day of March, A. D. 1879, passed an act entitled “ An act to authorize the commissioners of the counties of Putnam, Henry and Wood to levy a tax to pay certain fees therein named,” which said act took effect on the 19th day of -March, A. d. 1879, (see 76 Ohio Laws, 213 and 214), and remains in full force and effect, and by which said act it was provided, among other things, that the said commissioners of the counties of Putnam, Henry and Wood, on the presentation of an account duly verified and approved, as provided in the second section of said act, by each or any one of the several persons in the said act named, were authorized and required to pay the said account to the said party, or his assigns-, or legal representatives, each of said counties paying its equal proportion thereof out of the general county funds of such county, and to reimburse itself for said payment the said several county commissioners shall, at their June session, 1879, levy a sufficient tax on all property liable to be taxed within such county so paying its said proportion.
    “ That in pursuance of the said law your petitioner proceeded to, and did, on the 11th day of April, A. d. 1879, make out an accurate and itemized account of all services by him rendered at the rate allowed by law therefor, all money by him advanced, by whom and to whom advanced, and expenses incurred in and about his said appointment and services on the said ditch as aforesaid, amounting to the sum of $806.37, duly verified by him as by said law required, and procured the same to be examined by the probate court of Putnam county, Ohio, being the county where petitioner resides, and the same was by said probate judge duly certified as required by said law; that the charges therein set forth were in accordance with the statutes in such cases made and provided, and thereupon on the 2d day of July, A. D. 1879, lie presented the said account, so verified by him and certified by said probate judge, to the board of commissioners of Henry county, Ohio, and asked that the same be allowed, and ordered to be paid by them, to the amount of the proportion or share which, by the said law, the said county of Henry would be required to pay, to wit, the one-third thereof, as by the said law required, a correct copy of which said account, duly verified, together with the said certificate of the said probate judge thereon, is hereto attached, marked “ A,” and by reference made part hereof.
    “Your petitioner says, that before the time when the said commissioners in joint session, as aforesaid, had so appointed him to survey the said ditch and make said reports, as hereinbefore set forth, a large amount of costs had been already made on said petition by other surveyors and parties in attempting to run the said line and make said reports, which was largely in excess of the amount of said bond so given by the said James Donald, said costs so made amounting, according to the best information of petitioner, to about the sum of $800.
    “ That the said commissioners of Henry county, when the said account was so presented to them, as above set forth, notwithstanding the said law and its requirements, and disregarding the same and their duty thereunder, without any fault or neglect whatever on the part of petitioner, and without any excuse or cause therefor, refused, and still refuse, to allow the said account to the amount of the one-third part thereof required to be paid by the said Henry county, and on their refusal as aforesaid, the auditor of said county is prevented from issuing his order, as by law he is required to do, for the said amount so due relator on the said account so presented, when allowed by said commissioners, notwithstanding the fact that there was, at the time the said account was so presented, sufficient money in the treasury of said county, applicable to the payment thereof, to have paid the said account in the amount due from said county.
    “And said petitioner says, that by reason of the facts, and the acts of the said commissioners, respondents herein, he is left wholly without remedy in the premises, unless it be afforded by this honorable court.
    “ And said petitioner therefore prays that a writ of mandamus may issue against the board of county commissioners of Henry county, Ohio, commanding them that they immediately proceed to allow the said account of petitioner, to the amount of the one-third part thereof, as by the terms of the said law, they are required to do, and that the said court do make such other and further orders in the premises as justice may require.”
    This petition was duly signed and verified, and a copy of the account was attached thereto. The aggregate sum due was $806.37, of which $268.79 was demanded of the defendants.
    The commissioners of Henry county answered. 1st. That the said respondents on the day of May, A. D. 1877, by an order issued by the auditor of said county of Henry, upon the treasurer of said countjq payable out of the county fund of said county, paid to L. L. Orwig, editor of the “Democratic Northwest,” a newspaper printed and published in said county of Henry, for printing and publishing notices of the said Joint County Ditch, known as the “ James Donald Ditch, or Ditch No. 88,” under and by direction of the joint board of commissioners of said counties of Putnam, Henry and Wood, the sum of $205.75; and that said respondents, on the 7th day of October, A. D., 1878, also paid to Henry Kolbe, civil engineer of Henry county, by like order, issued by the said auditor upon said treasurer, payable out of said county fund, for services rendered by him as such engineer, and for money advanced by him for assistance and expenses in running the line and making computations, plats and profiles of said Joint County Ditch, under and by direction of the said joint board of commissioners of said counties of Putnam, Henry and Wood, the further sum of $647.00, making in all the sum of $852.75 paid by said respondents on account of said Joint County Ditch.'

      That said sum of $852.75 so paid by said respondents on account of said Joint County Ditch, was more than the one third part of the entire cost and expenses incurred in and about the proceedings in said Joint County Ditch.
    2d. That said act of the General Assembly of the state of Ohio, entitled “an act authorizing the commissioners of the counties of Putnam, Henry and Wood, to levy a tax to pay certain fees therein named,” and under which this proceeding is brought, is unconstitutional, in that the same is retroactive, and creates a new obligation in respect to a transaction already past.
    The first defense was demurred to, and a reply denied that said act was unconstitutional. At March Term, A. D. 1881, the district court of Henry county found “ upon the issues joined for said respondents,” and dismissed the application at the cost of the relator.
    To a like petition in the district court of Wood county, the county commissioners of that county answered.
    I. That said relator has a plain, adequate remedy in the usual and ordinary course of the law for the wrongs and grievances complained of in his said petition.
    II. That said joint board of county commissioners of the counties of Henry, Putnam and Wood never acquired jurisdiction over the subject matter of said Ditch No. 88, known as the “ James Donald Efitch,” because, as respondents aver, there was never any bond given or filed as required by law for the making of said improvement.
    III. That the labor performed and money expended by relator, and for which compensation is herein demanded did not in any manner benefit the property on the line of said proposed ditch, nor was the same of any benefit whatever, either directly or indirectly to the property or tax-payers of Wood county, Ohio.
    IY. That respondents are not liable to the said relator for the sum of money demanded in his petition or any part thereof. Neither is said county of Wood responsible to the ■ said relator therefor, nor would said respondents be justified in levying a tax on the property of said county to pay the same as is required and authorized by the act of the General Assembly of the State of Ohio, passed March 19,1879, (Ohio Laws, vol. 76, pp. 213-14), because respondents say they are informed by counsel, and so charge the fact to be, that said act is unconstitutional and therefore void.
    V. That said act of the General Assembly being of doubtful constitutionality, respondents believe they would not be justified thereunder in levying a tax upon the whole property of said county to pay the claim of the relator.
    Demurrers to the second and third defenses were filed, and a reply denied the averments touching the constitutionality of the act of 1879.
    At August Term A. D. 1882, the district court of Wood county found for the relator, and awarded a peremptory writ of mandamus as prayed for.
    The defeated party in each case filed a petition in error in the supreme court, and both cases were submitted upon the same briefs.

      Lewis B. Holtz and Swan & Barton, for Holtz.

      Tyler & Meehan, for the commissioners.
   Granger, C. J.

In Sessions v. Crunkilton, Treasurer of Defiance County, 20 Ohio St., 349, the supreme court held that the act of May 1, 1862, entitled “ an act to provide for locating, establishing and constructing ditches, drains and water courses in townships,” was not repugnant to the constitution; that “the construction of drains by townships in cases where the public health, convenience or welfare demands it, is within the meaning of police purposes; ” and that the power to levy assessments under that act was properly granted under the 7th section of the 10th article of the constitution.

That section applies also to county commissioners and similar boards, and therefore, under this decision, the act of April 12, 1871 (68 Ohio Laws, 60), is valid.

Such ditches are public improvements. The General Assembly has full power to provide for them. It is authorized to use local boards as convenient instrumentalities. So soon as tbe bond, with securities to the acceptance of the county auditor was filed, the county commissioners of the three counties were clothed with full jurisdiction of Donald’s petition. Section two, as amended by the act of March 28,1873 (70 Ohio Laws, 80), made it their duty, so soon as the auditor furnished to them a copy of the petition, to “ direct the county surveyor * * * to go upon the line,” and perform the duties specified in said section. While so acting, the surveyor was discharging a public duty under competent public authority. The public was under obligation to provide for his compensation. This the legislature undertook to do. It required a bond with securities approved by the auditor. If the commissioners should “fail to establish the ditch,” they could collect from the obligors “all expenses.” This would supply them with funds out of which to pay the surveyor and others properly employed by them under the petition. The general assembly could select the mode of obtaining the money. The county commissioners could make no payment out of any fund other than the one designated by law. If the auditor had made no mistake in fixing the amount of the bond, and' in determining as to the sufficiency of the securities, the commissioners would have had ample means out of which to pay their employees in this matter. The mode provided by the act of 1873 having failed to create such fund, the act of March 19, 1879 (76 Ohio Laws, 213), ordered payment, of one third of the expense, out of the “general .fund ” of each county, and authorized the county commissioners of each of the three counties to levy a tax “ on all the property liable to be taxed in their respective counties, sufficient in amount to reimburse said several general county funds for the sum so paid out on said claims.”

Counsel for the county commissioners claim that this act of 1879 is void because,—

1st. It is in derogation of sec. 2, art. 12, of the constitution.

2d. It is in conflict with the provisions of art. 2, sec. 28, which declares that “ the General Assembly shall have no power to pass retroactive laws,” etc., and,—

3d.' It is the exercise of judicial, and not legislative power. For it will be noticed that the statute is in the nature of a judgment of a court, finding and deciding the rights of relator.

We are unable to understand how this act is in derogation of section 2 of article 12. It makes no change whatever in the “ uniform rule ” of taxation fixed by the general statute regulating taxation. It directs the levy of the tax in accordance with said general statute.

Is it a retroactive law?

It is a law authorizing the levy of a tax to make good a deficiency. Under section 7 of article 10, the acts of 1868 and 1871, might have authorized a levy of the entire expense upon the general duplicate. Suppose a provision to that effect had been made in those acts, so limiting the per centage of the tax, that the sum collected was less than the expenses to be paid. Can there be doubt that the general assembly had full power, by another act, to authorize a levy to make good such deficiency ? Whatever doubt may exist touching the power to add to assessments made' upon abutting property under a law providing for an improvement, by a subsequent enactment, we think it-is plain that the legislature has full power to authorize levies, upon the general duplicate, to make good deficiencies of the kind above referred to. We think the case of The State v. Commissioners, 37 Ohio St., 526, sustains this position. The improvement being a public work, the employee, having discharged duties imposed upon him pursuant to a valid statute, became entitled to compensation from the county. The fact that the county, by reason of a mistake of one of its officers, had no power to collect the money from the petitioner for the ditch and his securities, did not affect the merits of the surveyor’s claim. The fact that, under the statutes in force while he did the work, no county official had authority to pay him any money not collected on the bond, did not affect the character of his claim. The facts remained that the public had employed him; that he had faithfully done his duty, and that the money was due to him from the county.

The defect was in the public machinery. No public agent had authority to take public money and pay the debt. The only “appropriation act” relating to the matter, designated, as the sole fund on which the county could draw, the proceeds of a collection of the bond. As nothing had been, or could be, collected thereon, that fund remained, and would remain empty — or perhaps we may say “ overdrawn.” The acts in force while the work was being done, having authorized the contract; the incurring of the obligation; the act of 1879 created no new obligation ; made no alteration in the contract, and imposed no additional burden upon abutting land owners. It only empowered the county commissioners to pay a public debt lawfully theretofore contracted, out of the general fund, and to levy a tax to reimburse that fund.

Was the act of 1879 an exercise of'judicial, and not legislative power?

It named the persons to be paid, but it did not determine what services either of them had rendered; nor the amounts to be paid to each. It designated the probate judge as the county official before whom proof should be made, and by whom the sum due to each claimant should be determined. It ordered the county commissioners to pay the claims as so determined by said Judge. In this we see no exercise of judicial power by the legislature.

Having obtained the decision, of the officer designated by law, in favor of the amount and validity of his claim, the refusal of the commissioners left the relator without an adequate and complete remedy, unless he was entitled to a writ of mandamus. A denial of the writ would deprive him of a material part of that to which the plain purport of the act entitled him. Robertson v. Perrysburg, 27 Ohio St., 102, so, in effect, holds.

As we understand the act, each holder of a claim, duly approved and certified by the probate judge of his county, was entitled to demand payment of one third of his claim from each county. Whatever right Henry county may have to call upon Putnam and Wood to reimburse her for paying their respective shares of the claims of Orwig and Kolbe, such payments by her did not affect the rights of the relator.

The judgment of the district court of Wood county is affirmed. That of the district court of Henry county is reversed, and a peremptory writ of mandamus awarded as prayed for in the petition.

Dickman, J., dissented.


text:
    Brent v. First.
    Error to the District Court of Knox County.

      A. B. Mclntire, W. C. Culbertson and S. J. Brent, for plaintiff in error.

      Critchfield & Graham and H. T. Porter, for defendant in error.
   By the Court.

In 1864, Henry First, then a resident of Knox county, Ohio, absconded, deserting his wife and four children, and nothing was ever heard of him in that community until he reappeared in 1880. In 1873, land in said county belonging to him, in common with others, was partitioned at suit of co-tenants, and his share of the proceeds came to the custody of Brent, the clerk of the common pleas. In 1879, with his wife’s assent, the probate court appointed Bennett administrator of W. H. First, supposing that to be the true name of the absentee, and he collected from Brent $174.21, the said proceeds of said partition. In October, 1880, First demanded said sum from Brent, and on his refusal to pay, brought suit.

Held: 1. In the absence of a showing to the contrary, the presumption from the facts stated, is that the money was paid to the wife, who was entitled to a year’s support, on the supposition that her husband was dead.

2. As she was entitled to support out of his property during his life, First’s conduct estops him from claiming that the payment to her was unauthorized.

Judgment reversed.


text:
    Martin v. Vandeveer.
    Error to the District Court of Butler County.

      Jordan & Bettman, for plaintiff in error.

      W. J. Gilmore, for defendant in error.
   By the Court.

The bill of exceptions presents all the evidence taken at the trial. The only conflict was occasioned by a claim of Vandeveer which was not made until the action had been pending six years; had been tried in the common pleas, and an appeal taken. The manifest weight of the evidence showed the following facts: Schwab’s deed to Vandeveer was delivered about 9 o’clock in the forenoon. Davis then held full title and possession. Later, on the same day, Davis’s deed to Schwab, and Schwab’s mortgage to Davis, were exchanged at the same moment. The mortgage was promptly entered for record.

Held: 1. The deed to Vandeveer passed no title when delivered.

2. Its covenant of warranty enured to Vandeveer so far only as title afterwards vested in Schwab; to wit, subject to the lien of the mortgage to Davis.

Judgment reversed.