author: Davis, J.

text:
    Tussing et al., Commissioners, et al. v. King.

      County ditches — Power of county commissioners to vacate — Proceedings necessary before order to vacate — Cannot impair acquired private rights of persons — Section 4499, Rev. Stat.

    In a proceeding before the county commissioners, under Revised Statutes, section 4499, before an order can be made, declaring a ditch to be vacated and abandoned and its location and establishment to be held for naught, the commissioners must first find and determine whether any persons have acquired any private rights by reason of the location and establishment of such ditch, and, if any such exist, whether such vacation would interfere with or impair such rights; -and such order cannot be made if it would interfere with or impair such private rights.
    (Decided June 4, 1901.)
    Error to the Circuit Court of Hancock county.
    Under favor of Revised Statutes, section 4499, the commissioners of Hancock county made an order vacating’ a ditch known as the Old Open Nimrod Bright ditch, No. 38. The commissioners refused to receive notice of appeal, and refused to receive and file a bond for appeal, and overruled a motion to vacate their said order and proceedings. The defendant in error in this case thereupon filed a petition in the court of common pleas praying for an injunction against the commissioners and others who were interested in the order vacating the ditch. The issues were made up upon this petition, and upon hearing in the common pleas court a perpetual injunction was granted as prayed for by the plaintiff below. Upon appeal to the circuit court the same order and judgment were made in that court,and thereupon at the request and on the motion of the defendants that the court state its findings of fact and conclusions of law separately, the court found as follows:
    First — That said plaintiff, Robert Q. King, at the commencement of the action, .was and still is, aqd for thirty years prior thereto had been the owner and seized in fee of the 320 acres of land described in his said petition, situated in Biglick township, Hancock county, Ohio. That about twenty-eight years before the commencement of the suit, the ditch described in said petition, known as the Old Open Nimrod Bright ditch, No. 38, was located and constructed by the county commissioners and has ever since been maintained through plaintiff’s land; that during said time plaintiff has been assessed and paid for the location and maintenance of said ditch about $2,500.00; that during all said time plaintiff’s said lands and other lands in the vicinity have been and are wholly dependent upon said ditch for drainage and that private rights said plaintiff has acquired by reason of the location and establishment of said ditch which will be interfered with and impaired by the vacation of said ditch.
    Second — That in the year 1895 and 1896, certain parties owning lands along said ditch filed their petition with the county commissioners for the deepening and widening of said ditch, and such proceedings were had, and by a vote of the majority of said land owners the said ditch was deepened and the tile laid in the bottom thereof through a large portion of the distance, and for a part of the way through plaintiff’s land outside of the line of the ditch, but the ditch was not vacated or ordered filled up, but was left open through which and into which the water was drained.
    Third — That said plaintiff consented that the ditch should be deepened and a tile laid in the bottom of fche ditch upon the condition only that the ditch should remain open for the drainage of his lands.
    Fourth — That afterwards, and on the seventh day of August, 1897, under the provisions of section 4499 of the Revised Statutes of Ohio, said defendants filed their petition with said county commissioners praying for the vacation of said Nimrod Bright ditch, No. 38, throughout its entire length, and such proceedings were had by and before said commissioners. That on the thirty-first day of August, 1897, they made the following findings: And having duly considered the matter we do find and determine that said ditch is no longer of use as an open ditch to the persons interested and will not be conducive to public health, convenience, and welfare, as an open ditch, and made their order vacating said ditch and ordered the same to be vacated and abandoned without first finding that such vacation would not interfere with or impair the private rights of plaintiff therein, and without regard to, or taking into consideration plaintiff’s vested rights or interest or the effect upon his land. That said plaintiff then was a resident of the city of Springfield in Clark county, Ohio, but his son acting as his agent and representative resided upon and cultivated said land; that neither plaintiff nor .his said agent had any knowledge whatever of the filing of said petition or of the proceedings and no notice thereof other than by publication in a newspaper published and of general circulation in said Hancock county, Ohio, until after the order of vacation was made and entered on the journal; that on the sixth day of September, 1897, and as soon as he obtained information of said proceedings, plaintiff appeared before said county commissioners with his attorney and filed notice in writing of his intention to appeal said cause to the probate court of said county, and tendered a bond iri the sum of $500.00, conditioned according to law, and with good and sufficient surety for such appeal, bút the commissioners refused to receive, entertain or consider said motion or application, or to receive said bond, -stating to plaintiff and his counsel that he had no right of appeal from their said order under the statute; that thereupon plaintiff offered to file and tendered to said commissioners his motion in due form of law to vacate their said order and proceedings for the reason and upon the grounds that said commissioners had no jurisdiction or right to make said order or vacate said ditch, or deprive plaintiff of his said vested right and interest therein and to its maintenance, but the said commissioners refused to receive or entertain or consider said motion and refused to vacate or modify their said order.
    Fifth — That about the year 1897 defendant, M. E. Ewing, and others owning lands next west of and below the lands of plaintiff, placed a dam in said open Nimrod Bright ditch, No. 38, and 'entirely filled the channel thereof for a distance of over sixty feet, so as to prevent the flow of water in said ditch and flooded the same back upon the lands of plaintiff. The said fill oi- dam has been entirely removed by order of this court in a former case and said defendants are not obstructing or threatening to- fill or obstruct said open ditch.
    Sixth — That no adequate provision has been made for the drainage of plaintiff’s land or to take the place or answer the purpose of said open ditch No. 38, or to carry off the water from his said lands, in times of heavy rains and high waters. Upon said findings of fact the court find as its conclusions of law that the. said, county commissioners have no right, power or jurisdiction to make said order of vacation or to vacate said ditch, and that their said proceedings and order were wholly without authority of law and void, that said plaintiff has no remedy at law for the protection of his said rights in and to the maintenance of said ditch.
    ■ It is therefore considered, ordered and adjudged that the proceedings and order of said county commissioners vacating said Old Open Nimrod Bright, No.38, be and the same hereby are declared illegal and void and the said order is hereby set aside, vacated and held for naught, and the said county commissioners and other defendants are hereby perpetually enjoined from in any wise interfering under said order with the vested rights of the said plaintiff in said ditch, etc.
    Error is prosecuted here to reverse the judgments of the courts below.

      Nickerson & Bright; Charles E. Jordan and Boss & Kinder, for plaintiffs in error.

      J. A. & E. V. Bope, for defendant in error.
   Davis, J.

It is the contention of the plaintiffs in error that the order made by the county commissioners did not affect any private rights of the defendant in error; and that it went no farther than to release or destroy the public interest in the ditch, and thereby to cancel the obligation to maintain it. The claim of the defendant in error, plaintiff below, is that by reason of the facts which are disclosed in the findings of the circuit court, he has acquired certain vested rights in the ditch, which are distinct from the public interest therein; and that the finding by the commissioners that the ditch “is no longer of use to the persons interested and will not he conducive to the public health and welfare as an open ditch,” and the order that the same shall be vacated and abandoned, constitute an unlawful interference with, and impairment of, the private rights which the defendant in error had acquired by reason of the location and establishment of such ditch. Two reasons are assigned in support of this claim by the defendant in error; but it is necessary to consider only one of them.

Assuming the validity of section 4499 of the Revised Statutes, and passing by questions as to the sufficiency of the notice given and the refusal by the commissioners to receive notice and bond for appeal, we come to the pivotal question in the case, that is, whether the commissioners are. required, by the provisions of section 4499, to inquire and find whether the vacation and abandonment of the ditch would interfere with private rights acquired by the location and establishment of the ditch, before proceeding to grant the prayer of the petition. It is urged in behalf of the plaintiffs in error that when the commissioners are satisfied that the ditch has ceased to be of public utility, and the public health, convenience or welfare no longer demand the maintenance thereof, the inquiry should stop there; and that the last clause of the section is merely a saving clause, preserving to the individual his private rights, notwithstanding the discontinuance of the public interest in the ditch. It is obvious, however, that if that part of the section preceding the clause relating to private rights, authorizes the abandonment of the public interest only, a clause saving private rights is unnecessary; because such private rights would remain intact without • such, legislation. McQuigg et al. v. Cullins, 56 Ohio St., 649, 654. When we look closely to the language of this clause, with the purpose of ascertaining, if possible, the object of the legislature in inserting it, it is first of all apparent that it is absolutely prohibitive of any interference with, or impairment of, private rights acquired by reason of the location and establishment of the ditch. If the language does not mean this, it means nothing. An order by the commissioners vacating and abandoning the ditch and declaring “its location and establishment to be held for naught,” is necessarily, in some degree, an interference with, and impairment of, rights “acquired by reason of the location and establishment of such ditch.” It follows, therefore, that although the commissioners may be of the opinion that the ditch has ceased to be of public utility, and that the public health, convenience or welfare no longer demands the maintenance thereof; yet if persons have acquired private rights by reason of the location and establishment of such ditch, they are prohibited from making an order declaring that the ditch shall be vacated and abandoned,' and that its location and establishment shall be held for naught. This implies an inquiry as to the existence of such private rights, before the making of such an order, and such inquiry is necessary to the exercise of the jurisdiction to make an order upon the petition. Such an inquiry, if made in this case, is not disclosed in the record. The circuit court has found that the defendant in error has private rights which he acquired by reason of the location and establishment of this ditch, that the ditch has.existed long enough to be “in all respects considered and treated as a natural water course,” as provided by section 4500 of the Revised Statutes, that the ditch was necessary to the drainage of the lands of the defendant in error, and that said lands were wholly dependent thereon for drainaga He was, therefore, entitled to have an injunction as prayed. The judgment of the circuit court and that of the common pleas, are

Affirmed.

'Minshall, O. J., Burket, Spear and Shauck, JJ., concur.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Langmede v. Weaver et al.

      Valid execution of lease of land for development of gas and oil— For term exceeding three years — Attestation of two subscribing witnesses essential — Lease with one witness conveys no interest — Though admitted to record — Bights of third parties taking subsequent to such record — Import of allegations in petition seeking reformation of such lease — Instrument held legally executed in second conveyance of owner, when.

    1. The attestation of two subscribing witnesses to the signature of the lessor, is as essential to the valid execution of a leáse of land for the development of oil and gas, for a term exceeding three years, as it is to the execution of a lease for a like term for any other purpose.
    2. An instrument purporting to be a lease for operating land for natural gas and petroleum for a term exceeding three years, having but one attesting witness, conveys no interest in the land, is not entitled to record, and derives no efficacy from its admission to record.
    3. Where possession has not been taken under such an instrument, it will not be reformed in equity, nor enforced, against a third person who acquires the title to the land by conveyance from the owner, nor against his tenant in possession, though both took subsequent to the record of such defective instrument, and with knowledge thereof.

      4. Allegations in a petition seeking the reformation of suck an instrument, that tke land was conveyed by tke owner to suck "third person who thereby acquired the title, and that his tenant entered upon and holds possession under him, fairly imports that the conveyance was by deed legally executed, and that the possession of the tenant is lawfully "held:
    (Decided June 4, 1901.)
    Error to the Circuit Court of Perry county.
    Action to reform a lease of oil lands by supplying the signature of a witness who was present at its execution but did not subscribe his name thereto, and correcting a misdescription of the premises; and to enjoin a lessee under a subsequent purchaser from operating the lands for oil. Demurrer to petition sustained, and final judgment for the defendants. Judgment affirmed by circuit court. Affirmed.
    The original action was brought by L. D. Langmede against George Weaver- and others, in the common pleas of Perry county, where final judgment was rendered against the plaintiff! who then appealed to the circuit court. In the latter court the cause was finally heard and determined -on the following amended petition:
    “L. D. Langmede, plaintiff, v. George Weaver, Joseph Weaver, Henry Weaver, C. H. Ross; William H. Weaver, William Esselstein and Agnes Esselstein and Rebecca J. Devore, defendants. Amended petition.
    For his cause of action herein plaintiff says:
    That on the nineteenth day of February 1892, one Morgan Devore who was then the owner in fee of the following described real estate, to-wit: all that certain tract of land situated in Monroe township, Perry county, Ohio, bounded and described as follows, to-wit: Being the northeast quarter of the the southwest quarter of section ten (10) township twelve (12) range fourteen (14) Perry county, Ohio, containing forty (40) acres more or less; also the west half of the northwest quarter of the southeast quarter of said section, containing thirty-nine (39) acres more or less; also the west half of the northwest quarter of the southeast quarter of said section containing twenty-seven (27) acres inore or less; also the northwest quarter of the northfeast quarter of section (15) township and range aforesaid, containing forty (40) acres more or less; all of said lands being in section ten (10) and fifteen (15) township twelve (12), range fourteen (14), Perry county, Ohio; by an instrument in writing by him duly executed intended to and did grant to one C. H. Ross, his heirs and assigns, the petroleum oil and gas underlaying said lands, with the exclusive right to enter upon and occupy said lands to drill and operate for said petroleum oil and gas, and the right to take and remove said oil and gas therefrom, and the right to sublet and subdivide said land for the purposes aforesaid, and to use water from said lands (except from wells then thereon) sufficient to conduct said drilling and operating thereon, the right of way over and upon said premises to the place of operating, and the exclusive right to lay thereon pipes thereon to convey oil and gas, steam and water, and right to remove any machinery or fixtures placed thereon by said C. ’H. Ross, his heirs or assigns, together with certain other rights and privileges in said instrument specified. All of which said rights and privileges so granted were to continue in and to said C. H. Ross, his heirs and assigns, for the period of five years from said date, and as much longer as oil or gas should be found upon said premises in paying quantities. Said rights and privileges were intended to be and were so granted for and in consideration of one dollar by said C. II. Ross, to said Morgan Devore then and there paid, the receipt whereof is by said Morgan Devore in and by said instrument, duly acknowledged, and also in consideration of certain covenants and agreements upon the part of said O. H. Ross, for and on behalf of himself, his heirs and assigns, in said, instrument contained. All of which said covenants and agreements together with all conditions of said grant and instrument upon the part of said C. H.Ross, to be complied with and performed, have been duly complied with and performed. Said instrument intended by said parties thereto to be executed by said Morgan Devore with all the formalities required by the laws of Ohio, in the execution of the deed conveying real estate, and the same wms accordingly duly executed and acknowledged before a notary public whose certificate of acknowledgment in due form of law, wms and is attached thereto. Said instrument wras signed by said Morgan Devore and wms delivered by him to said C. II. Ross, in the presence of two persons competent to be witnesses thereto, both of w'hom said parties to said instrument desired and intended to subscribe the same, as attesting witnesses, but by oversight and mistake of both parties to said instrument and of one of said witness, to-wlt: (one wlio did not sign) but one of said witnesses attested the execution and delivery of said instrument by subscribing thereto. Said instrumeu I; was on the 10th day of December, A. D. 1892,filed for record with the recorder of Perry county, Ohio, and wras on the 23rd day of December, 1892, duly recorded in Lease Book l,at page 87 of the Lease record of said county. On the 7th day of December, A. D. 1892, for a full and valuable consideration to him paid by the plaintiff, said C. H. Ross assigned and transferred to the plaintiff by writing indorsed on the back of said lease, all his right, title - and interest therein and thereto, and in and to the lands and property therein described; and said plaintiff ever since said 7th day of December, 1892, has been and still is the owner of all the rights and interest in ándito said land andproperty granted and conveyed by said instrument, and all that was intended to be granted and conveyed thereby as aforesaid by said Morgan Devore, to said C. H. Ross, his heirs and assigns. By the terms of said instrument said C. H. Ross agreed for himself, his heirs arid assigns, to complete a well for oil or gas upon said first above described parcel of said real estate within four months from the date of said instrument, unavoidable, accidents and delays excepted, and failing so to do to pay to said Morgan Devore, his heirs and assigns, the sum of $1.00 per year for each acre contained in said first above described tract of said real estate, until a well should be completed thereon. Plaintiff says that said Ross during his said ownership of said instrument and the rights and interest thereby conveyed paid said sum of $1.00 per acre per year for all the time after the expiration of four months from the date of said lease, and since said assignment thereof to plaintiff he has made said annual payment for all the periods since that date, and that said instrument is in full force and effect in law, and plaintiff is the owner thereof and entitled to all the rights and' privileges thereby intended to be granted and conveyed, and thereby granted and conveyed.
    Plaintiff says that the description of said lands contained in said instrument is not in the precise words of the description thereof hereinbefore given, but the same lands hereinbefore described were by the parties to said instrument intended to be and were described therein, and that any uncertainties or inaccuracies in said description, as set forth in said instrument, are due to the mutual mistake of said parties thereto. The said lands are described in said instrument in the words and figures following, to-wit: all that certain tract of land situated in Monroe township, Perry county and state of Ohio, bounded and described as follows, to-wit: the northeast of the southwest quarter of section ten containing seventy (70) acres more or less. Also the balance of the land owned by the party of the first part as described below, the southwest of the southeast quarter, containing (39) acres, the west of the northeast quarter containing (27) acres, the northwest of the northeast quarter containing (40) acres, the above land laying in section ten (10) and fifteen (15) amounting in all to (176) acres. That it is provided in said instrument with respect to all of said land other than said seventy acres above described, that said«C. H. Ross, his heirs and assigns, should have the same rights and interests therein and with respect thereto as are provided, as aforesaid with respect to said 70 acres, if said C. H. Ross, his heirs or assigns should want the same. Plaintiff says that said C. H. Ross at all times, while the owner of said instrument, and of the rights, privileges and interest thereby granted and conveyed, did want, and elected to have and hold the said remainder of said premises other than said 70 acres upon the terms and conditions aforesaid; and plaintiff ever since he became the owner of said instrument, and of the rights and privileges and interests thereby granted and conveyed, has desired and has elected to hold the remainder of said premises upon the terms and conditions aforesaid.
    Plaintiff further says that the above named defendants George Weaver, Joseph Weaver, William H. Weaver and Henry Weaver, have entered upon said premises, without the knowledge or consent of plaintiff and have drilled thereon a well for oil and gas, and are now proceeding to equip said well with tubing, casing, tanks, etc., for the purpose of taking petroleum oil from said premises, and threatens to and will, unless restrained by'this court enter into and upon said real estate and take oil therefrom and continue to take oil therefrom, and continue to operate the same for oil and gas, and take and remove the same in violation of plaintiff’s right therein, without any right or authority so to do, and this plaintiff says that if said defendants are permitted to enter upon said premises and to take and remove said oil and gas, as they threaten to and are about to do, and are permitted to operate said premises for oil and gas, that said plaintiff will suffer irreparable injury by reason thereof. That said injury will be a continuous one; that he would be obliged to prosecute a separate suit for each separate trespass upon said premises, as aforesaid, that said defendants or either of them have no considerable lot of property liable to be taken upon execution upon any judgment that, plaintiff can obtain against them for damages; that said damages would be largely in excess of all property of defendants liable to be so taken, and no sufficient relief could be obtained thereby, that this plaintiff has no adequate remedy at law, and unless said defendants are restrained by an order of this court from entering upon said promises, said plaintiff will suffer irreparable and continuing injury thereby.

      Defendants claim the right to enter upon said lands and operate for oil and gas as aforesaid under an instrument executed since the execution and recording of said instrument hereinbefore referred to and- described, and by a person who has acquired the ownership of a part of said land since plaintiff’s said instrument was executed and recorded as aforesaid; and plaintiff says that said defendants and those under whom they claim had both actual and constructive notice of said instrument so executed by said Morgan Devore as aforesaid, and of the right, title and interest thereby granted and conveyed to said C. H. Eoss, his heirs and assigns, and of the said rights, title and interest thereby intended to be conveyed by said Morgan Devore, to said C. H. Ross, his heirs and assigns, and of the fact that any errors, inaccuracies in the description of said lands or any part thereof in said instrument were due to the mutual mistake of said Morgan Devore and said C. H. Ross, and of the fact that the omission of one of said witnesses to subscribe said instrument as an attesting witness was due to the said oversight and mistake of said parties to said instrument and said witness, and that it was intended by them to be so subscribed by said witness; and of the fact that said C. H. Ross, and plaintiff have desired and elected to hold, occupy and operate not only said seventy acres first herein above described but all of said lands, upon the terms and conditions in said instruments set forth, and of all other facts hereinbefore set forth. Since giving said lease to said Ross said Morgan Devore has departed this life, and upon bis decease said Rebecca J. Devore became the owner of said lands by descent from him. She subsequently conveyed the same to William Esselstein and the defendants, George H. Weaver, Henry Weaver and William H. Weaver, claim under said William Esselstein and Ms wife, Agnes Esselstein.
    Wherefore plaintiff prays that a temporary restraining order be allowed, restraining said defendants and each of them from, entering upon or operating said premises for oil and gas, and from taking and removing said product from said premises, and that upon the final hearing of this cause said injuction may be made perpetual; that said instrument may be reformed so far as necessary to make it conform to the intentions and effect the purposes of the parties thereto as above set forth; that defendants may be required to account and pay for the oil and gas taken by them from said premises, and for all other and further relief to which plaintiff may be entitled by reason of the premises.”
    A general demurrer to this pleading was sustained by the circuit court, and plaintiff not desiring to amend or further plead, judgment was rendered against him, from which he has prosecuted error to this court.

      John Poe and Donahue & Spencer, for plaintiff in error, cited the following authorities:

      White v. Denman, 16 Ohio, 59; Van Thoniley v. Peters, 26 Ohio St., 471; Section 4106-57, Rev. Stat.; Walsh v. Ringer, 2 Ohio, 327; Cunningham v. Harper, Wright, 366; Hay v. Storrs, Wright, 711; Stahl v. Van Vleck, 53 Ohio St., 136; Broom’s Maxims, 33; Sedgwick on Stat. & Con. Law, 313; Harrison v. Leach, 4 W. Va., 383; Collins v. Buckeye State Ins. Co., 17 Ohio St., 215; White v. Denman 1 Ohio St., 110; Maher v. Hibernia Ins. Co., 67 N. Y., 283; Welles v. Yates, 44 N. Y., 525; Finch v. Hollinger, 47 Ia., 173; Stevens v. Murton, 6 Oregon, 193; McLaughlin v. Ihmsen,, 85 Pa. St., 364; Tryon v. Munson, 77 Pa. St., 250; Westervelt v. Voorhis, 42 N. J. Eq., 179; Hoes v. Boyer, 108 Ind., 494; Building Assc’n v. Clark, 43 Ohio St., 427; Ohio Life Ins. Co. v. Ledyard, 8 Ala., 866; Center v. Bank, 27 Ala., 743; 2 Jones on Real Prop. & Conv., Sec. 1380; Sutherland on Stat. Con., Sec. 290; Keech v. Railway Co., 17 Md., 32; Davis v. Commonwealth, 17 Gratt., 617; Wilbur v. Crane, 13 Pick., 284; Glover v. Alcott, 11 Mich., 470; Dwar. on St., 695; 1 Kent’s Com., 464; Bush v. Brainard, 1 Cow., 78; Gibson v. Jenney, 15 Mass., 205; Burnside v. Whitney, 21 N. Y., 148; Shaw v. Railroad Co., 101 U. S., 557; State v. Norton, 23 N. J. Eq., 33; Smith v. Argall, 6 Hall, 479; Burnham v. Sumner, 50 Miss., 517; Fisher v. Bidwell, 27 Conn., 363; Dewey v. Goodenough, 56 Barb., 54; Baum v. Mullen, 47 N. Y., 577; McManus v. Gavin, 77 N. Y., 36; Thompson v. Weller, 85 Ill., 197; Veith v. McMurphy, 26 Neb., 341; Connihan v. Thompson, 111 Mass., 270; Bloom v. Noggle, 4 Ohio St., 45; King v. Wilson, 6 Beav., 124; Winne v. Reynolds, 6 Paige Ch., 408; Bowler v. Electric Light Co., 10 Dec. (Re.) 582 (22 B., 136); Stroble v. Smith, 8 Watts, 280; Wilkins v. Anderson, 11 Pa. St., 399; Ingram v. Hartz, 48 Pa. St., 380; Southard v. Perry, 21 Ia., 488; Moran v. Palmer, 13 Mich., 367; Pool v. Breese, 104 Ill., 594; Test v. Larsh, 76 Ind., 452; Moore v. Roberts, 64 Wis., 538; Sewell v. Herbert., 37 La. Ann., 155; Sherman v. McKeon, 38 N. Y., 266; Carll v. Oakley, 97 N. Y., 633; Embry v. Palmer, 107 U. S., 38; Lee v. Templeton, 73 Ind., 315; Stoddard v. Cutcompt, 41 Ia., 329; Succession of Monnette, 26 La., 26; Watson v. Watwon, 128 Mass., 152; Kinzie v. Wixon, 39 Mich., 384; Steinbach v. Relief Ins. Co.,
      77 N. Y., 498; Scholey v. Rew, 90 U. S. (23 Wall.), 331; Erwin v. Shuey, 8 Ohio St., 509; Stacey v. Barker, 1 S. M. & M. Ch., 112; Gallatian v. Cunningham, 8 Cow., 361; Jones on Mortgages, Sec. 1465; Starr v. Anderson, 19 Conn., 338; Maple v. Kussart, 53 Pa. St., 348; 2 Jones on Real Prop. & Conv., Sec. 1499; La Farge Fire Ins. Co. v. Bell, 22 Barb., 54; Vredenburgh v. Burnet, 31 N. J. Eq., 229; Sheffey v. Bank, 33 Fed. Rep., 315; Johnston v. Canby, 29 Md., 211; Hill v. McNichol, 76 Me., 314; Smallwood v. Lewin, 15 N. J. Eq., 60; Marston v. Swett, 66 N. Y., 206; Taylor v. Patterson, 5 Oregon, 121; Pettit v. Hamlyn, 43 Wis., 314; Hubbell v. Courtney, 5 S. Car., 87; McDonald v. Mission View Homestead Assc’n, 51 Cal., 210; Bank v. Kinner, 1 Utah, 100; Walsh v. Kattenburgh, 8 Minn., 127; Ecker v. McAllister, 45 Md., 290; Mullaly v. Holden, 132 Mass., 583; Whitney Arms Co. v. Barlow, 63 N. Y., 62; Rider Life Raft Co. v. Roach, 97 N. Y., 378; Sutherland on Con. of Stat., Sec., 300; Aldridge v. Williams, 44 U. S. (3 How.), 9; United States v. Railroad Co., 91 U. S., 72; Sutherland on Con. of Stat., Secs. 331, 332; Reg v. Watford, 9 Q. B., 635; Bradbury v. Wagenhorst, 54 Pa. St., 180; Tuxbury’s Appeal, 67 Me., 267; State v. Buchanan, Wright, 233; Allen v. Parish, 3 Ohio, 107, Tracy v. Card, 2 Ohio St., 431; Terrill v. Auchauer, 14 Ohio St., 80; Hays v. Lewis, 28 Ohio St., 326; Sloan v. Hubbard, 34 Ohio St., 583; Hauck v. State, 45 Ohio St., 439; Doll v. State, 45 Ohio St., 445; Trustees v. White, 48 Ohio St., 577; Dodge v. Gridley, 10 Ohio, 173; Northern Bank v. Roosa, 13 Ohio, 334: Hirn v. State, 1 Ohio St., 15; Jones v. Carr, 16 Ohio St., 420; State v. Franklin Co., 20 Ohio St., 421; Malone v. Toledo, 34 Ohio St., 541; State v. Railway, 37 Ohio St., 157; Stansell v. Rob
      erts, 13 Ohio, 148; Building Association v. Clark, 43 Ohio St., 427; State v. Blake, 2 Ohio St., 147; Brower v. Hunt, 18 Ohio St., 311; State v. McGregor, 44 Ohio St., 628; Jones on Mortgages, Sec. 481; Barr v. Hatch, 3 Ohio, 527; Williams v. Sprigg, 6 Ohio St., 585; Abbott v. Bosworth, 36 Ohio St., 605; N. W. Ohio Nat. Gas Co. v. Tiffin, 59 Ohio St., 420; Allegheny Oil Co. v. Snyder, 45 W. L. B., 53; 12 Ohio Fed. Dec. 220.

      Tussing & Kelly; J. A. Ivers and H. D. Cocieran, for defendant in error, cited the following authorities:
    Bryan on Petroleum & Natural Gas, 40, Sec. 19; Hirth v. Graham, 50 Ohio St., 57; Kelley v. Ohio Oil Co., 57 Ohio St., 317; Barringer & Adams, Law of Mines and Mining, 30 and 74; Woodland Oil Co. v. Crawford, 55 Ohio St., 161; Harris v. Ohio Oil Co., 57 Ohio St., 118; N. W. Ohio Nat. Gas Co. v. Browning, 8 C.D. 188 (15 R. 84); Strang v. Beach, 11 Ohio St., 283; Dodd v. Bartholomew, 44 Ohio St., 171; Hitesman v. Donnel, 40 Ohio St., 287; Kerr on Fraud and Mistake, (1st Ed.) 44; Williams v. Sprigg, 6 Ohio St., 585; Courcier v. Graham, 1 Ohio, 330; Patterson v. Pease, 5 Ohio, 190; Richardson v. Bates, 8 Ohio St., 257; Wilkins v. Irvine, 33 Ohio St., 138; White v. Denman, 1 Ohio St., 111; Erwin v. Shuey, etc., 8 Ohio St., 509; 20 Ency. Law, 600, Sec. 1, note 1; Carter v. Champion, 21 Am. Dec., 695; Pringle v. Dunn, 19 Am. Rep., 772; Strang v. Beach, 11 Ohio St., 283; Gasely v. Society, 13 Ohio St., 144, 20 Ency. Law, 555; Mayham v. Coombs, 14 Ohio, 128; Bloom v. Noggle, 4 Ohio St., 45; Van Thorniley v. Peters, 26 Ohio St., 471; White v. Denman, 16 Ohio, 59; Doherty v. Stimmel, 40 Ohio St., 294; Betz v. Snyder, 48 Ohio St., 492; Bundy v. Iron Co., 38 Ohio St., 300, 312; Amick v. Woodworth, 58 Ohio St., 86; Betz v. Snyder, 48 Ohio St., 492; Dodd v. Bartholomew, 44 Ohio St., 171; Straman v. Rechtine, 58 Ohio St., 443; Bryan on Petroleum and Natural Gas, p. 40, Sec. 19; Atkinson v. Dailey, 2 Ohio, 212; 13 Ency. Law, 538; Wilson v. Chalfant, 15 Ohio, 248; Woods Statute on Frauds, 34; 1 Washburn on Real Prop., (4th ed.) 628; Woodland Oil Co. v. Crawford, 55 Ohio St., 161.
   Williams, J.

The alleged lease which is the ■ foundation of the plaintiff’s action was for a term of five years or more. Its execution by the lessor was attested by but one witness, and there are imperfections in the description of the land. The instrument, in that form, was recorded in the lease record of the proper county, but neither the lessee nor the assignee entered into the possession of the land thereunder. Subsequent to its record, one of the defendants, with notice thereof and of the plaintiff’s claim thereunder, acquired title to the land by conveyance from the owner, and gave the other defendants, having like notice, a lease of the land for the development of natural gas and oil under which they held possession at the commencement of the action. The object of the suit is to obtain the reformation of the plaintiff’s so called lease by correcting the defects referred to, and then to have it enforced against the defendants. Notwithstanding these defects are alleged in the petition as the basis of the reformation sought, it is claimed in argument by counsel for the plaintiff that witnesses to the signature of the lessor are not essential to the valid execution of a lease to operate lands for natural gas and oil, though for a term exceeding three years, and, therefore,, the instrument under which he claims is a valid lease conveying a legal estate in the lands, which needs no reformation in that respect. This claim is made on the ground that such leases are not within the purview of' section 4106 of the Revised Statutes, which requires that “a lease of any estate or interest in real property shall be signed by the lessor, and such signing shall be acknowledged by the lessor in the presence of two witnesses who shall attest the signing and subscribe their names to the attestation, and shall be acknowledged by the lessor” before a proper officer therein designated. The argument advanced in support of this contention is that, as the production of natural gas and petroleum by the methods now employed was unknown when this statute was enacted, leases of lands for such purposes were not then within the contemplation of the legislature, and not intended to be included in its provisions. There are other new uses in which real property has been employed since that statute was first enacted, uses unknoAvn at that time, and still others are likely to arise from time to' time in the future. The regulations prescribed by the statute for the legal execution of leases were adopted on account of the nature of the property conveyed by them, and not with respect to the character of the uses which the lessee might design to make of it. Hence, the statute was made general, so as to include, according to its express terms, leases “of any estate or interest in real property,” without regard to the nature of the lessee’s occupation or use of the same. Leases of lands for the development of natural gas and oil are not taken out of the operation of this statute, nor its requirements for their legal execution dispensed with, by the provisions of section 4132». That section relates to the record of such leases, and the consequences of the failure to have them recorded, but contains no provision concérning their execution. The term “lease” is used in the section in its legal sense of an instrument demising real property for a limited term upon a reserved rental, executed in conformity with the general laAV on the subject. The section being silent as to the mode of execution of such leases, their execution is controlled by, and must be in accordance with the requirements of, section 4106. Atkinson v. Dailey, 2 Ohio, 213. So that, the attestation by two subscribing witnesses to the signature of the lessor, is as essential to thé valid execution of a lease of land for the development of oil or gas,, for a term exceeding three years, as it is to the execution of a lease for a like term for any other purpose.

The defectively executed instrument on which the plaintiff founds his action is, therefore, not a lease, and has no effect or operation as such. At most it is but a contract for a lease, which, whatever other rights and obligations it may create as between the parties to it, conveyed" no estate or interest in the land, and was not entitled to record. To give effect to it as a lease for a shorter term, or as a license, would be at variance with its express covenants and conditions, and the making of a new contract with different terms to which the parties never assented. No possession was taken under it, and it acquired no force or virtue by its entry of record which it did not possess before; nor were the rights of the plaintiff, in any way, thereby enlarged. A mortgage having but one attesting witness, or otherwise defective in execution, which has been entered of record, it has been repeatedly held by this court, is not better than ©ne properly executed that has not been recorded; and the rights of the mortgagee, as against third persons, under the former, are no greater than under the latter. In White v. Denman, 16 Ohio, 59, it was held that a mortgage with but one subscribing witness, though entered of record, could not be reformed in equity so as to defeat a subsequent judgment lien. The now well settled doctrine on the subject, which is equally applicable to leases of the character here in question, is stated by Birchard, C. J., in the opinion in that case, as follows: “This instrument was not executed agreebly to the requisition of the statute, having but one subscribing witness, and therefore, without reformation, was ineffectual to pass any interest in the land. It could not take effect as a conveyance in any sense. As between the original parties to it, there is no difficulty in making the instrument effect the intended object; for equity would regard that as done which the parties agree to do. They intended it should operate as a valid incumbrance, and so far as they are concerned, it must be treated as a sufficient mortgage. But can it be so held, against intermediate judgment liens, to the prejudice of rights acquired by third parties? To this point we must therefore turn our inquiry. It cannot for a moment be maintained, that any legal estate was passed to the mortgagee by this defective conveyance. Mayham v. Coombs, 14 Ohio, 428, and Stansell v. Roberts, 13 Ohio, 148, are authorities to show that it could, as a mortgage, have no effect without recording under the statute, and the authorities are abundant to prove, that a defectively executed deed derives no efficacy from being placed on record. Lessee of Johnston v. Haines, 2 Ohio, 55, is directly to the point. From this it results, that at the time of the rendition of all the judgments subsequent to the date of the defective mortgage, and prior to the filing of complainant’s bill, the claim of complainant did not affect the legal title, and did not create any equity in the land. The complainant cannot, therefore, be regarded as a purchaser of the interest then subsisting in the debtor. The most favorable light in which he can be viewed, in reference to judgment liens of third parties, is that of a party entitled by contract to have a legal lien upon the property for the security of his debt. His misfortune (perhaps his fault) is, that before he succeeded in completing his right by securing a valid lien, others more fortunate, by operation of law, have obtained vested interests in the disputed premises which interfere with him. We cannot aid him in correcting the error, which a little care would have prevented, by thrusting aside those who have equal equity, and the better legal claim. The complainant cannot be preferred to the judgment creditors, without establishing a precedent that will in effect give more efficiency, in a numerous class of cases, to a negligently executed and defective mortgage, than to one in all respects executed in compliance with law.” This decision was approved in Erwin v. Shuey, 8 Ohio St., 509, where it was held that: “An instrument intended for a mortgage, but defective because not under seal, though otherwise duly executed and recorded, creates no lien in favor of the intended mortgagee as against an assignee under a general assignment subsequently made for the benefit of creditors, although the assignee had full notice of such inténded mortgage.” In Van Thorniley v. Peters, 26 Ohio St., 471, 474, in holding that the. reformation of a recorded mortgage which had but one witness would not displace the lien of a judgment rendered between the date of the execution and reformation of the mortgage, it is declared to have been settled by the former decisions of the court, that: “An unrecorded mortgage, or a defectively executed mortgage, whether recorded or not, does not vest in the mortgagee any interest in the premises, either legal or equitable, as against subsequent purchasers or judgment creditors of the mortgagor.” It was held in Straman v. Rechtine, 58 Ohio St., 443, that a recorded mortgage which had not been properly acknowledged, was, after the decease of the mortgagor, subordinate to the rights of the general creditors of his estate, and that its subsequent reformation could not affect their rights. Speaking of the effect of the record of such a mortgage, Burket, J., said: “The mortgage not having been acknowledged, it Avas defective and was not entitled to record, and the record thereof was a nullity, and was notice to no one, and bound no one.” And see Betz v. Snyder, 48 Ohio St., 492.

These cases, and others that might be cited, have indisputably established the principle that, a recorded mortgage Avhich lacks some requisite of legal execution, is not available for any purpose against a third person Avho subsequently acquires the title to, or an interest in, or a lien upon the property, and that, notice by him at the time, either actual or constructive, or both, however complete it may be, of the existence and record of such mortgage, imparts no Amine or efficacy to it. 'Phis seems necessarily to result from the statute Avhich requires all mortgages of real property to be recorded, and gives them effect only from the time they are delivered to the proper officer for record. It is obviously necessary, in order to obtainthateffect, that the instrument so delivered for record, shall be a mortgage, that is, an instrument having the requisites of a mortgage executed as such instruments are required by law to be executed; for, if not so executed, it is not a mortgage, and does not become effective. Section 4112a of the Revised Statutes, requires that “all leases” of land for the development of natural gas or petroleum, “shall be recorded in the lease record in the office of the recorder of the proper county,” and “no such lease shall have any force or validity until the same is filed for record as aforesaid, except as between the parties thereto,” unless the person claiming thereunder is in actual and open possession of the land. This provision, it was held, in Gas Co. v. Tiffin, 59 Ohio St., 420, took such leases out of the operation of sections 4112 and 4134, and itself furnished the rule governing the registry of su ch instruments, and the effect upon their validity of the failure of registration. This provision, in that respect, it was there shown, is not substantially different from that relating to the registry of real estate mortgages and the consequences of omission to place them on record. As there said, the provision “is not less positive in its requirement that oil and gass leases shall be recorded as therein provided,” than is the statute with respect to the record of mortgages; and that, it “is even more explicit in its declaration that until properly filed for record they shall be without any force or effect except as between the parties to them, unless the person claiming thereunder is in the actual and open possession of the lands.” In vieAV of this substantial identity of these statutory regulations, the rule that had long obtained in cases of unrecorded mortgages was applied, in that case, to an unrecorded lease for operating lands for natural gas and oil; and it was accordingly held that, until such a lease is filed for record as required by section 4112®, it “is without any effect, either at law or in .equity, as against a subsequent lessee, or licensee, or other third person acquiring an interest in, or lien on the land, although he took with notice of such prior unrecorded lease or license, unless the person claiming thereunder was, at the time, in the actual possession of the land.” The analogy holds good throughout; and, for the same reason, the rule that defeats the operation of defectively executed mortgages that find their way on record, is applicable to leases of this nature lacking , legal execution, that are placed upon record.

In the argument some stress has been placed on the presence, in section 4133, of the phrase “executed agreeably to the provisions of this chapter,” and its absence from section 4112®. But it has not the importance which counsel have attributed to it. The “lease,” the record of which is required by the latter section, is an instrument having all the legal requisites of a lease, as well in its mode of execution, as in its terms and conditions; and unless it possesses those qualities, whatever else it may be, it is not a lease having the right of record, and its entry thereon accomplishes nothing. There can be no valid record of an invalid instrument.

The further claim is made in argument that the petition does not show the defendant Esselstein acquired the legal title to the land, nor that the other defendants obtained a valid lease from Mm. The allegations of the petition in these respects are, in substance, that the “owner” of the land “conveyed” the same to the defendant Esselstein, and the other defendants entered into its possession and are operating the same for oil and gas, under an instrument executed to them by Esselstein who had acquired its ownership. Since the ownership of land can only be conveyed by deed made in conformity with the law, the term “conveyed,” used in reference to the transfer of lands by the owner to another person, fairly imports that the conveyance is by a legally executed deed which transfers the whole title. To convey real estate, is to transfer the legal title to it from the owner to another by an appropriate instrument. Abendroth v. Greenwich, 29 Conn., 365. Land is conveyed only when the title to it passes. Fairfax v. Lewis, 11 Leigh (Va.), 248. A conveyance is a deed which passes or conveys land from one person to another. Brown v. Fitz, 13 N. H., 285. Jacobs, L. D. The Century dictionary defines the word “convey,” to mean in law, “to pass title by deed;” and the word “title” to mean the “ownership, absolute ownership, the unincumbered fee.” So that, the petition sufficiently shows,’ that Essel stein acquired the title to the land by legal conveyance, and that the possession of his tenants was lawfully held. Certainly, if there were imperfections in the defendáis’ title, or other facts which gave the plaintiff a superiority of right, their existence should have been pleaded in the petition.

Counsel for the plaintiff have cited the case of the Allegheny Oil Co. v. Snyder, 45 W. L. B., 53; as sustaining Ms claim to the relief demanded. The instrument there involved purports to be a lease for a term of two years, and as long thereafter as oil or gas should be found in paying quantitites; and it contained the provision that, if no well should be drilled on the land within two years from its date, is should be null and void unless the lessee should pay for further delay, a rental of one dollar per acre, at or before tbe expiration of each year thereafter. The execution of the instrument was attested by but one subscribing witness, and it was so recorded. After it was recorded, but before possession was taken under it, the lessor executed to another person having notice thereof, a lease of the same lands which the court finds was duly acknowledged and recorded; and possession was taken and held thereunder by the second lessee. The court gave priority" to the first lease, holding it was superior to the second, and sustained an injunction against operating the land for oil or gas under the latter. Whether the first lease should be construed to be for a definite term of two years only, and the stipulation for its continuance thereafter upon payment of the annual rental, which was entirely at the lessee’s option, as equivalent to an agreement for a renewal of the lease for a year at a time, if the lessee should choose to exercise his option, the court does not consider nor determine. If that is its proper construction, upon which we express no opinion, it might be held to come within a class of leases referred to in section 4112 of the Revised Statutes, to the valid execution of which sub-, scribing witnesses are unnecessary. The decision, however, treating the first lease as defective in its execution for lack of proper attestation, is placed entirely on the ground that, being a good contract for a lease, it created an equity in favor of the lessee which should prevail over the subsequently validly executed and recorded lease, because the latter was taken with notice of the existence and record of the former one, which, was accordingly given priority. We are unable to concur in that view. It rests wholly upon the application, to oil and gas leases, of the rule that obtained in equity with respect to purchasers with notice, before the enactment of our recording statutes, and which has been preserved to a limited extent by section 4134; and the only cases cited in its support, were either governed by the provision now contained in that section, or arose before the adoption of the recording act. It was established by the decision in Gas Co. v. Tiffin, supra, as has already been shown, that leases for the production of gas or oil were taken out of the operation of that section, and consequently out of the equity rule referred to, by the provisions of section 4112a, and that, withou/t a proper record of a prior lease of that kind or actual possession of the premises under it, it is nugatory and ineffectual for any purpose, both at law and in equity, as against a subsequent lessee or other third person dealing with the land, notwithstanding he had, at the time actual notice of the prior lease. And it is the purpose of the decision in the present case to establish, that a defectively executed lease of the character in question, which has been placed upon record, is in the same category as if it were unrecorded, and is equally without effect against subsequent lessees and purchasers. As we have attempted to show, it can make no difference in principle, nor according to the authorities, whether the want of a proper record results from the defective execution of the instrument, by reason of which it is not entitled to record though enterd thereon, or from the voluntary withholding of a properly executed lease from the record. In the case cited by plaintiff’s counsel, this question does not appear to have been presented to, or considered by the court, nor the Ohio cases upon the question called to its attention. However that may be, we are satisfied that, under our statutes, and the former decisions of this court, the facts stated in the petition of the plaintiff do not entitle him to the relief sought, and the demurrer was properly sustained.

Judgment affirmed.

Minshall. C. J., Burkkt. Spear, _ Shauck and Davis, JJ., concur.


author: Minsharr, C. J.

text:
    Brigel et al. v. Creed. Same v. Same.

      Suit to foreclose lien on stock of corporation as pledge — ’¡father party entitled to jury — Separate suits for judgment on the note — Order of sale of pledge — Ufóte merged in judgment on ■ pledge — Consolidation of action — Section 5120, Rev. Star.— Duty of surety as to demand — Section 5419, Rev. Stat.

    1. In a suit to foreclose a lien upon stock in an incorporated company created by pledge and for an order of sale, neither party is entitled by law to a jury trial.
    2. Where a suit was brought to foreclose the lien upon certain stock in an incorporated company created by pledge, and, at the same time, a separate suit was commenced in the same court for a judgment on the note; there was a finding made of the amount due in the first suit and an order of sale, and execution awarded for any balance remaining due: Held, that the note thereby became merged in the finding and judgment first entered, and that no judgment could thereafter be taken upon the note in the second suit.
    3: The purpose of section 5120, Revised Statutes, providing for • the consolidation of actions, is the saving of costs to the parties; and no error can be assigned on the refusal of the court to order consolidation, unless it appears that costs were thereby unnecessarily created and taxed to the defendant.
    4. A surety, who would avail himself oí the provision of the statute (section 5419), authorizing him to be certified as such in the record of the judgment, must make his demand at the time the judgment is entered.
    (Decided June 4, 1901.)

      Error to the Superior Court of Cincinnati.

      Willard B. Stier and J. R. Sayler, for plaintiffs in error, cited the following authorities:

      Brack v. Gaa, 3 Circ. Dec., 594 (6 R., 580); Buckner v. Mear, 26 Ohio St., 514; Sallady v. Webb, 1 Circ. Dec., 638; 2 C. C., 553; Ladd v. James, 10 Ohio St., 438; Hall v. Young, 29 S. C., 64; Brundridge v. Goodlove, 30 Ohio St., 374; Scott v. Hewett, 3 Circ. Dec., 635; 7 C. C., 5; Maxwell v. Insurance Co., 77 N. W., 681; 57 Neb., 207; Blaco v. State, 78 N. W., 1056; Van Etten v. Kosters, 48 Neb., 152; Packard v. Kinzie Ave. Heights Co., 81 N. W., 488; Holliday v. Brown, 50 N. W., 1042; Allcard v. Skinner, 36 L. R. Ch. Div., 145; 1 Spence Eq., 509; Morley v. Loughman, 1 Ch. Div. (1893), 736; Hugein v. Basely, 14 Vesey, 273; Ross v. Conway, 92 Cal., 632; Gibson v. Jeyes, 6 Ves., 278; Dent v. Bennett, 4 Mylne & C., 277; Appeal of Darlington, 147 Pa. St., 624; 1 Story Eq. Jur., Sec. 307; Cowee v. Cornell, 75 N. Y., 100; Todd v. Grove, 33 Md., 191; Waterman on Spec. Performance, Secs. 313, 380, 323; Evans’ Agency, 295, 256; 49 Mass., 150; Jennings v. McConnell, 17 Ill., 148; Hawley v. Cramer, 4 Cow., 717; Evans v. Ellis, 5 Den., 640; Howell v. Ranson, 11 Paige, 538; Matter of Post, 3 Edw., 369; Howlett v. Martin, 3 Dec. (Re.), 113 (3 W. L. G., 266).

      Lawrence Maxwell, Jr., for defendant in error, cited the following authorities:

      Black v. Boyd, 50 Ohio St., 46; Alsdorf v. Reed, 45 Ohio St., 653; Burckhardt v. Burckhardt, 36 Ohio St., 261; Buckner v. Mear, 26 Ohio St., 514; Elliott v. Elmore, 16 Ohio, 27.
   Minsharr, C. J.

These cases are considered together, not because the questions are identical, but because a motion was made to consolidate them and a refusal of the court to so order; and, also, to require the last one to be tried first, is insisted on as error. The first case was an action commenced in the superior court of Cincinnati by James D. Creed against Leo A. Brigel and Catharine, his wife, to foreclose his lien upon certain shares of stock in the Jackson Brewing Company, the stock having been pledged to secure the payment of a note of $15,000 signed by the defendants, given in part payment of the purchase price of the stock. A recovery was resisted on the ground that the note had been obtained by fraud and duress, was without consideration, and, also, on the ground that it had been altered. The defendants demanded a jury trial which was overruled and exception taken. The case was then tried to the court which found the issues in favor of the plaintiff; and that there was due the plaintiff the sum of $18,940.66, and ordered a sale of the stock, if not paid in ten days, and awarded execution for any balance that might remain after the application of the proceeds to the amount found due and costs. The defendant filed a motion for a new trial which was overruled. The case was taken on error. to the general term where the judgment was affirmed. The questions of fact having been decided in favor of the plaintiff below, there simply remains the question in this case whether the defendants were entitled to trial by jury. The question as to whether there should have been an order for the consolidation of the cases, and as tó whether Mrs. Brigel should have been certified as a surety in the judgment will be considered after we have disposed of the second case.

It seems well settled by the former decisions of this court that the defendants were not entitled to trial by jury in the case to foreclose the pledge of the stock. It was not a suit for a money judgment only. The object was to obtain an order for the sale of the stock and an application of the proceeds to the payment of the amount found due on the note. A judgment for money was not prayed for, nor was such a judgment rendered. It is true that execution was awarded for any balance that might remain due. This was in accordance with the usual practice in such cases. As a judgment it could not become a lien upon any other property of the defendants, or either of them, until a levy had been made. Black v. Boyd, 50 Ohio St., 50; Alsdorf v. Reed, 45 Id., 653; Burckhardt v. Burckhardt, 36 Id., 261.

In the second case the suit was upon the note alone to recover a judgment for the amount due. The defendants made the same defenses as in the suit to fore' close the lien on the stock, want of consideration, fraud and duress, and that the note had been altered after its execution and delivery. The plaintiff in reply set up the adjudication in the former suit. The case was tried to a jury. The plaintiff offered in evidence the note and the record in the former case and rested. The defendants offered evidence tending to support the allegations of their answers, which was rejected by the court against objection of theplaintiff, and by direction of the court a verdict wasrenderedin favor of the plaintiff for the amount claimed, to all which the defendants excepted. In this we think there was error. The defendant in error relies upon the case of Fanning v. Insurance Co., 37 Ohio St., 344. In that case the suit was upon a note different from the one involved in the former adjudication. In the former suit the note had been given for stock in the company. In the second suit the note had been given for interest on the former note and an assessment that had been made on the stock for loss in business. The same defenses were made in each case. The plaintiff without having plead the same in reply, offered the record of the former adjudication. The court held that it should have been pleaded; and that whilst it would have been conclusive if pleaded, it was not so without having been pleaded. But here the note is the same in both suits; and the former record proved too much for the maintenance of the plaintiff’s right of action. It not only shows that the issues made by the answer of the defendants have been determined against them, but that the note on which the suit is prosecuted has been merged in a former judgment and that the plaintiff has therefore no cause of action. The necessary effect of a judgment is to extinguish the cause of action on which it is based, otherwise there would be no end of suits and judgments on the same cause of action. “If there is any principle of the lawr settled beyond all question, it is this, that where a. cause _of action in the language of the law, transit in ram judicatum, and the judgment thereafter remains in full force and unreversed, the original cause of action is merged and gone forever.” United States v. Leffler, 11 Peters, 100, 101; Brown’s Legal Maxims, 330. A suit may be brought upon a judgment, but not upon the former cause of action, whilst the judgment remains in force. If the judgment in this case were left to stand, the defendants, unless equity should interfere, would be compelled to' discharge the judgment in the former suit as well as in this one. In Spence v. Insurance Co., 40 Ohio St., 518, it was held that the pendency of an action of foreclosure is not a bar to an action upon the note lor a judgment. This may be true. Until a judgment has been rendered there is no merger of the cause of action. The effect of a finding of the amount due and an order of sale in a foreclosure suit with an award of execution for any balance was not determined nor presented in that suit. In Doyle v. West, 60 Ohio St., 438, it is said that “The finding of the amount due is a necessary predicate to an order of sale in a foreclosure suit, and the finding is a judicial determination of the amount due,” and it was further observed that “It would be somewhat anomalous if, after the amount due on a note secured by mortgage, had been, on issue taken, heard and determined in a foreclosure suit, afterwards a suit might be brought on the notes, and the whole question again litigated,” and it was there held that a suit might be brought on the finding to recover the amount. This consists with our present holding. When the second suit is o.n the previous judicial determination of the amount, and not on the note, the consequence of two judgments on the same cause of action is avoided— the first b'eing merged in the latter. We are then of the opinion that the judgment in the suit on the note alone should be reversed, and the petition dismissed, at the costs of the plaintiff below created after the taking of the decree and order of sale in the first suit.

• As to the claim that the court erred in refusing to order a consolidation of the two actions, it may be observed (1) that section 5120, Revised Statutes, providing for consolidation, is intended simply to save costs, and not to give to either party any advantage in the prosecution of either action; and (2), in this case no error to the prejudice of the plaintiff in error has been committed, since the judgment in the last case has been reversed and petition dismissed. And, finally, as to the claim that the court erréd in not causing the defendant, Mrs. Brigel, to be certified as a surety in the judgment, it may be observed (1), that the order for the sale of the stock and its application to the debt, before the issuance of an execution for any balance, substantially secures to her the benefits of this provision of the statute; and it does not appear but that the stock is of greater value than the amount of the debt. In order to reverse or modify for this reason, it should be made to appear that it will not pay the debt; and (2) it does not appear'affirmatively that she-is a surety and made application to be certified as such at the time the judgment was entered, as the statute requires.

Judgment in the first ease affirmed; and the second ease, reversed.

Williams, Burkbt, Sukab, Davis and Shauck. JJ., concur.


author: By the Court :

text:
    The State of Ohio v. Stouffer.

      Father not absolved from care of minor child — Because divorced wife has custody — Effect of father’s refusal to support such child — Bection SVfi-2, Rev. Btat.

    The father is not absolved from his obligation to support his minor child under sixteen years of age, because his divorced . ■ wife, having its custody, has provided it with sufficient support; and his refusal or neglect, after demand, to furnish the child with proper support, he being able to do so, renders him amenable to the provisions of section 3140-2 of the Revised Statutes.
    (Decided June 4, 1901.)
    Exceptions by the Prosecuting Attorney to the ruling of the Court of Common Pleas of Putnam county.
    At the November term, 1900, of the court of common pleas of Putnam county, John Stouffer was placed on trial upon an indictment charging him with neglect and failure to support his minor child under sixteen years of age. At the close of the state’s evidence, the court, on motion of the defendant, instructed the jury to return a verdict of acquittal, which ivas accordingly done. To that ruling of the court the prosecutor took exception, and a bill of exceptions showing all the. evidence was duly taken, which on leave granted has been filed in this court, for determination upon the question raised.

      G. M. Bisser, prosecuting attorney, for the state.

      John P. Badly, appointed by the court of common pleas, contra. _-
   By the Court :

The statute upon which the indictment is founded,, section 3140-2, provides that: “The father, or when charged by law with the maintainance thereof, the mother, of a legitimate or illegitimate child or children under sixteen years of age, living in this state, who being able, either by reason of having means, or by personal services, labor or earnings, shall neglect or refuse to provide such child or children with necessary and proper home, care, food and clothing, shall be deemed guilty of a felony,” and on conviction be punished as therein provided.' The evidence given on the trial by the state, which is all set out in the bill of exceptions, shows that the defendant was the father of the child named in the indictment, and its mother who had obtained a divorce from him had been given its custody by the court, but no alimony; that the defendant was able to furnish the child the support required by the statute, but refused,. after demand by the wife, to do so. It also shows that up to the time of such demand and the finding of the indictment the mother and her parents had supplied the child with a comfortable home, and necessary food and clothing, and it was updn that ground, and that alone, that the court directed an acquittal. We think the court erred in that ruling. It was plainly the duty of the defendant to support the child; and the fact that the divorced wife, and her parents, had prior to the indictment kept the child from want, did not absolve him from his obligation in that regard. A refusal or neglect to provide the required support after demand was made upon him to do so, rendered him amenable to the provisions of the criminal statute.

Exceptions sustained.

Minshall, C. •!., Williams, Burket, Spear, Shauck and Davis, JJ., concur.


author: Shauck, J.

text:
    Conwell et al. v. Sears, as Treasurer of Harrison County, Ohio. Lyle v. Sears, as Treasurer of Harrison County, Ohio, et al.

      Tax on liquor business — Section Jf364-9, ,Revised Statutes — Dow law — Law valid as against a municipal ordinance.

    The assessment upon the traffic in intoxicating liquors required by section 4364-9 of the Revised Statutes is legally and properly made upon that traffic, though it be carried on in violation of a municipal ordinance.
    (Decided June 25, 1901.)
    Error to the Circuit Court of Harrison county.
    The first of these actions ivas brought for the reversal of the judgment rendered by the circuit court enforcing a lien in favor of the county treasurer upon premises owned by Conwell for the amount of the tax assessed by the terms of the statute, commonly known as the Dow law, upon the traffic in intoxicating liquors carried on upon said premises by one Grimes, said premises being in the incorporated village of Cadiz where at the time of the sales there was an ordinance duly passed and published forbidding-such sales.
    The second action is for the reversal of a judgment of the circuit court denying to the plaintiff in error an injunction to restrain the'treasurer from making a levy upon his chattels to satisfy a like assessment on account of the traffic in intoxicating liquors carried on by him in the village of Scio where there was at the time a similar ordinance.

      James Moore; Albert O. Barnes, and John O. Dickerson, for plaintiff in error.
    Proposition: The Dow tax was intended by the legislature to be assessed upon the lawful traffic in intoxicating liquors and the place where the business was carried on and was not intended to be assessed for sales inhibited by the statutes or by municipal regulation. Prohibition of traffic by village.
    The incorporated village of Cadiz, Harrison county, Ohio, by ordinance duly passed prohibited the traffic in intoxicating liquors within its limits under the provisions of Sec. 11 of the Dow law.
    The latter part of Sec. 11 and the ordinance of the incorporated village of Cadiz, Harrison county, Ohio, both prohibit the traffic in intoxicating liquors under the meaning of the Dow law within its corporate limits. Legislature did not intend assessment on unlawful traffic.
    The plaintiffs in error claim that the legislature did not intend to assess the traffic in intoxicating liquors that is made penal by either statutes or ordinances and that the legislature did not intend to assess violations of the Dow law statutes or ordinances in pursuance of said Dow lawr, or if it did so the distribution of the proceeds would be under Sec. 9 o£ the Dow law act and five-tenths of the proceeds would go into the treasury of the village that does not allow the same to be sold legally therein. Sections 2781, 2782, Ex. by U. S. circuit court, N. D. of Ohio.
    The assessment by the auditor and the same was put on the liquor tax duplicate against the plaintiffs in error for the tax years other than the current year, under Secs. 2781 and 2782, of the Rev. Stat. of Ohio, without any notice to plaintiffs, and in fact the whole assessment was taking the plaintiff’s property without due process of law. 14th amendment to the constitution of the United States: Brinkerhoff v. Brumfield, Treas., 12 O. F. D. 000; 42 B. 150; Myers v. Shields, Treas., 8 O. F. D. 239; 61 Fed. Rep., 713; Gager v. Prouts, 48 Ohio St., 89, 110; State v.
      Crites, Ib. 460; Sec. 1071, Rev. Stat., Dana, In re, 6 Fed. Cas., 1140, No. 3554 (7 Ben. 1).
    On notice to taxpayers. San Mateo Co. v. Railroad Co., 13 Fed. Rep., 722.
    Auditor decided the legal question this court is now called upon to decide without any notice to plaintiffs in error.
    The auditor was disqualified by reason of the pecuniary interest in the matters decided by him. Dennis v. Grand Junction Canal, 3 H. L. Cases, 759; Queen v. Justices of Herfordshire, Q. B., 753; Railroad Co. v. Howard, 20 Mich., 18; Gregory v. Railroad, 4 Ohio St., 675; Cooley on Const. Limitations, 410, 411.
    The treasurer gave no notice to the taxpayer as required by Sec. 1087, Rev. Stat.
    Prohibitory ordinance construed the same as other laws. Lowden v. Cincinnati, 2 Disn., 203; Black on the Interpretation of Laws, page 8.
    Exclusive jurisdiction and power to legislate upon a given subject having been conferred by law upon municipal corporations, every intendment and presumption will be made in support of the act. 17 Am. & Eng. Enc. Law, 265.

      William T. Perry and D. A. Hollingsworth, for defendants in error.
    Counsel for plaintiff in error, in their brief, argue that the Dow tax is not intended to be assessed against the traffic in intoxicating liquors, when carried on in a city or village where the business is prohibited by a local option ordinance. But this contention, we submit, is not supported by any authority.
    No such exception is made in the statute. See. 4364-9. And such exception, if it be as claimed by counsel, would amount to a practical defeat of the law, especially in those cities and villages where pub-lie sentiment is not strong enough to enforce a prohibitory ordinance. All that would be necessary in such case would be to adopt the ordinance and then elect a mayor who would ignore it. In .this way both the Dow tax and the ordinance would be defeated. The legislature certainly did not intend such an anomaly. Stevenson v. Hunter, 5 Dec. 27; 2 N. P. 300; Youngblood v. Sexton, 32 Mich., 406; License Tax Cases, 5 Wal., 462.
    The Dow law is not a license law. Anderson v. Brewster, 44 Ohio St., 576. It does not make legal the sale of intoxicating liquors in any form not already authorized by law. The laws of the state forbid the sale to certain classes, such as minors, person's intoxicated or in the habit of getting intoxicated, and also on Sundays, election days, etc. Section 6942, Rev. Stat., makes it illegal, under penalty of fine and imprisonment, to keep a place where intoxicating liquors are so sold in violation of law.
    Now it will hardly be contended by counsel that a dealer, confining himself strictly to such illegal traffic, would be exempt from the Dow tax if he conducted his business as specified in Sec. 4364-16, Rev. Stat., defining the meaning of traffic in intoxicating liquors. Lax officers might not impose the penalties provided for such illegal sales, or he might pay his fines and yet do an extensive business. It would be a premium upon wrongdoing. We assume therefore that no one will contend that a dealer under such circumstances is exempt from the Dow tax, and yet the reason for such exemption is much stronger than in case of a local option ordinance. In one case the state itself prohibits the traffic absolutely, but in the other permission only is given to the municipal corporation to pass the ordinance.
   Shauck, J.

The findings of fact made by the court below are not to be reviewed here. The cases are thought to be entitled to report only upon the question arising out of the fact, established in both cases, that the traffic was carried on in violation of ordinances -passed by the municipal authorities forbidding the traffic. The provision of the statute for the assessment in question is found in section 4364-9 of the Revised Statutes. Without exception or limitation it provides for the assessment “upon the business of trafficking.” The only limitations upon the terms of the statute are found in the eleventh subdivision of the same section which provides for the remission of a portion of the assessment when the person against whom it is made voluntarily discontinues the business, and in the twentieth sub-division which provides for such' remission when there is a compulsory discontinuance of the business resulting from the exercise by municipal corporations of the power of prohibiting the traffic, which power is therein conferred. The reliance of counsel for the plaintiff in error is iipon this provision which is: “If any municipal corporation shall prohibit * * * places where intoxicating liquors are sold within the limits of such corporation, a ratable portion of the tax paid by the proprietors thereof for the unexpired portion of the year shall be returned to such proprietors.”

The question presented has not been determined by the lexicographers. Although these municipalities have by ordinance forbidden the traffic, they have not prevented it. But the historical development of our legislative policy upon the subject and the terms employed in the present statute indicate the sense in which the word “prohibit” is used in this section. For nearly half a century prior to the enactment of the present statute, a statute had forbidden throughout the state the sale of intoxicating liquors to be drank upon the premises where sold. During this time the forbidden, traffic grew much beyond the general growth of the state. It was, therefore, most obvious when the present statute was enacted that to make the traffic unlawful does not necessarily prevent it. A leading object of the present statute was to secure to the state the benefit of its experience. Accordingly by the first section the traffic is assessed in terms which admit of no exception. Full effect will be given to all the provisions of the statute if the word “prohibit” in the provision relied upon by counsel for plaintiffs in error is regarded as having its appropriate meaning of preventing. The object of the particular provision was to provide for an equitable remission of a portion of the assessment if the municipal authorities should exercise the power of passing an ordinance forbidding the places and also the power of enforcing the ordinance. The natural force of the language employed in this section is not inconsistent with that of the section which requires the traffic to be assessed wherever it may be carried on. We should not assume that the legislature intended to offer,a reward for the violation of local inhibitions in those numerous portions of the state where sentiment against the traffic is strong enough to secure their adoption, but conviction is not strong enough to secure their enforcement.

Judgments affirmed.

Minshall, C. J., Burket, Speak and Davis, JJ., concur.


text:
    Irwin et al. v. Lloyd, Trustee, etc.

      Assignment for creditors — Judgment against assignor not valid against assigned estate, when.

    A judgment obtained, after an assignment for tbe benefit of creditors, by a creditor against the assignor, is not a valid claim against the assigned estafé.
    (Decided June 25, 1901.)
    Error to the Circuit Court of Hamilton county.
    On or about June 21,1887, Edward L. Harper made an assignment for the benefit of his creditors. The assignee failed to qualify, and the defendant in error, Lloyd, was appointed trustee by the probate court of Hamilton county. On the 25th of May, 1894, the plaintiff in error presented to the trustee, for allowance, an account against the assignor, amounting to $423,574.71, which was on the same day rejected by the trustee. All the items of-the said account and the right to sue thereon had accrued to the plaintiff» in error more than six years before the assignment of Harper. On August 10, 1894, the plaintiffs in error entered suit against the trustee to compel the allowance of the said claim; and upon trial of that cause, on September 28, 1896, the petition of the plaintiffs was dismissed by the court because it was barred by the statute of limitations. The cause having been duly appealed to the circuit court, on the 25th day of February, 1898, the plaintiffs voluntarily and without the knowledge of the trustee dismissed said cause without prejudice.
    On October 15, 1896, the plaintiffs in error sue the assignor, Edward L. Harper, on the same account which had been rejected by the trustee; and on December 8, 1896, the court of common pleas gave judgment by default against Harper for $671,860.00, although the entire claim was barred by the statute of limitations. The trustee was not a party to this action. Thereafter, on August 9, 1897, a certified copy of said judgment against Harper was presented to the trustee for allowance, as a claim against Harper’s assigned estate, and was by the trustee rejected on the same day. On September 1, 1897, the plaintiffs in error sued the trustee in the court of common pleas of Hamilton county, to enforce the allowance of said judgment against Harper as a claim against the assigned estate, and on the hearing the petition was dismissed, on the ground that the judgment was not a valid claim against the assigned estate. An appeal was taken to the circuit court, and on the final hearing in that court, on amended petition and answer thereto, the petition was dismissed and judgment rendered in favor of Lloyd, trustee, for costs. Separate findings of fact and conclusions of law were stated by the circuit court, at the request of the plaintiffs in error, and they now seek to reverse the said judgment of the circuit court.

      Charles W. Baker, for plaintiffs in error.
    It is claimed that the original claim presented to Trustee Lloyd, rejected, we will assume, by him May 25,1894, cannot be successfully made the basis of this action, because suit was not begun to compel such an allowance until August 10, 1894, more than thirty days after such a disallowance.
    It is sufficient to say in answer to this that this court has held repeatedly, that it is not a good defense if the money due the claimant is still in the hands of the assignee. Owens v. Ramsdell, 33 Ohio St., 439; Carpenter v. Dick, 41 Ohio St., 295; Kelly v. Mills, 2 Dec., 265; 1 N. P., 382; Harper v. Lackey, 40 Ohio St., 602; Railroad v. Hine, 25 Ohio St., 629; Secs. 6352 and 6097 of the Probate Code.

      As held by this court the one contains a clause of limitation, while See. 6352 does not.
    It is claimed that the claim is barred by the statute of limitations. But here is a trustee holding money in his hands, belonging to my clients and claiming to hold it as trustee. We respectfully submit that the statute of limitations does not run as to him, and did not begin to run in his favor as against Irwin, Green & Company until April, 1894, when the first dividend was declared, and July, 1896, when the second dividend was declared. Trustee Lloyd’s trust is a continuing and subsisting trust, therefore the statute at least does not run until the time of the order directing him to pay the dividends. Newton v. Hammond, 38 Ohio St., 430; Piatt v. Longworth, 27 Ohio St., 159; Hillier v. Stewart, 26 Ohio St., 652; Oliver's Appeal, 101 Pa. St., 299; McCarthy v. McCarthy, 74 Ala., 546; Pulliam v. Pulliam, 10 Fed. Rep., 23; Prince v. Towns, 33 Fed. Rep., 161; Oliver v. Piatt, 44 U. S. (3 How.), 332; Lewis v. Hawkins, 64 U. S. (23 Wall.), 119.
    We submit that by virtue of Sec. 4991 we are not barred by the statute of limitations. Atcherly v. Dickinson, 34 Ohio St., 537; Bates v. Railroad, 12 Ohio St., 620.
    Even a voluntary non-suit gives a right to a new action. Houtz v. Shepard, 79 Mo., 141; Belden v. Slaughter House Co., 38 La. Ann., 391; Doyle v. Wade, 23 Fla., 90; Loan Soc. v. Hutchinson, 8 Pac. Rep., 627 [68 Cal., 52], see note, p. 628; Succession of Saunders, 37 La. Ann., 769.
    It appears in this case that Harper was an undiscovered principal. That- his- dealing through Wilshire, Wilshire, Eckert & Co., Benjamin H. Hopkins and J. W. Hoyt and keeping himself undiscovered, was a fraud upon Irwin, Green & Company, and they did not discover the fraud until October, 1892, the court so finds in its finding of facts, record, page 11.
    By Sec. 4982 the plaintiff had the right to maintain his action at any time within four years thereafter. Cummings v. Dougherty, 1 Dec., 231; 31 Bul., 140; Sec. 4991; Meisse v. McCoy, 17 Ohio St., 225; Bank v. McIntire, 40 Ohio St., 528; Long v. Mulford, 17 Ohio St., 485; Piatt v. Longworth, 27 Ohio St., 159.

      H. P. Lloyd, for defendant in error.
    (a.) Under the Revised Statutes of Ohio applicable to the subject of appeals, but one appeal is allowed (Secs. 5227 and 5228, Rev. Stat.). No provision is made for a second appeal. The words “without prejudice” may, therefore, be treated as surplus-age. 2 Enc. PL and Pr., 356.
    (b.) . Although the word “cause” is employed in the entry of dismissal instead of the word “appeal,” the circuit court could not dismiss anything more than what was before that court under its appellate jurisdiction, viz., the appeal. To sweep away the judgment below would have required a mandate to issue to the court of common pleas. No claim is made that any mandate was issued commanding any such thing to be done. This dismissal of the appeal, therefore, left the judgment below in favor of the defendant unimpaired and in full force.
    We find only two cases in which this court has had before it the question of the results following the disposition of an appeal in the appellate court. Hull v. Bell Bros. & Co., 54 Ohio St., 228; Myers v. Jenkins, 63 Ohio St., 101 (44 Bul., 212).

      In the case in question, No. 100,789, Hamilton county common pleas, the time within which to prosecute error from the judgment has also long since expired. Therefore, under thg ruling of this court, the same effect would undoubtedly be given to the judgment of the common pleas court, left in full force and unimpaired by the voluntary dismissal of the appeal in the circuit court, as though the case had been heard on appeal and decided adversely to the plaintiffs in error. The effect of the dismissal of the appeal was to remove the cloud which it temporarily while pending, cast upon the judgment below. When that shadow was removed the judgment remained unimpaired and in full force and effect. Herman on Estoppel and Res Adjudicata, Sec. 116, p. 122; McLind v. McGlann, 60 Ga., 244.
    Where any fact has been directly in issue and judicially passed upon it is res adjudicata, no matter what the nature of it, and can not be subsequently adjudicated. 21 Am. & Eng. Enc. Law, 252.
    Whenever a cause of action, in the language of the law, transit in rein adjudicatam, and the judgment thereupon remains in full force and unreversed, the original cause of action is merged and gone forever. Broom’s Legal Maxims, *p. 325, citing United States v. Leffler, 36 U. S. (11 Pet.), 91.
    On the second hearing the circuit court could consider only the cause of action which came from the common pleas, viz., the action for the allowance of the judgment against Edward L. Harper which was disallowed by this defendant. Elliott’s Appellate Proced., See. 470; Grant v. Ludlow’s Admr., 8 Ohio St., 1.

      This court has established the rule that no one can participate in the distribution of the proceeds derived from the assignment unless he proceeds in the way pointed out in section 6852 of the Revised Statutes of Ohio. Haskins v. Alcott, 13 Ohio St., 210; Lahm v. Johnston, 32 Ohio St., 590.
   Davis, J.

It has long been the settled law in this state that, although a creditor may maintain an action against a person who has assigned his property for the benefit of his creditors, and prosecute the same to judgment; yet he may not subject the assigned property to the payment of his claim, except in the manner and proportions prescribed in the statutes regulating the mode of administering assignments. Haskins v. Alcott, 13 Ohio St., 210, 214. Such a judgment may be satisfied out of property acquired by the assignor after the assignment; but the judgment, without regard to the debt on which it is founded, cannot be a claim against the assigned estate, because the statute prescribes that all claims shall first be presented to the assignee, or trustee, for allowance, and if rejected by him, that an action can then be maintained against the assignee, or trustee, to compel him to allow the same. No other judgment is authorized against the assignee or trustee. The presentation of the claim in the form of a judgment against the debtor and a demand that the assignee, or trustee, shall allow the judgment, will not meet the requirements of the statute. The trustee has the right, in the interest of all of the creditors, to scrutinize and resist the original claim as it existed at ,the time of the assignment, and no evasion of the statute, by putting the claim into judgment, by means of collusion between the creditor and the debtor, or otherwise, will defeat that right. Here the trustee had exercised his statutory privilege by rejecting the original claim, for the reason that it was barred by the statute of limitations. In this he was sustained by the judgment of the court of common pleas. Having appealed to the circuit court, the plaintiffs saw fit to dismiss their appeal without prejudice. Although not so in terms, this was in effect a final dismissal, because there could be no second appeal. The contention as to that claim thereafter was res adjudicaba as far as it concerned the assigned estate, represented by the trustee. A judgment against the assignor, in an action to which the trustee was not a party, and he is a necessary party to bind the assigned estate, could not be accepted by the trustee as a judgment binding the assigned estate, disregarding the original cause of action; and especially so when the contention had been adjudged in his favor in the mode prescribed by the statute. It follows that the judgment of the circuit court should be

Affirmed.

Minshall, C. J., Williams, Buri-cet, Spear and Siiauck, JJ., concur.