author: Crew, J.

text:
    The State ex rel. Sheets, Attorney General, v. The Aetna Life Insurance Co.

      ■Life insurance company incorporated in another state—Indemnifying employers against loss or damage from personal injury—May transact business in Ohio, when—Section 3396, Revised Statutes —Comity of states—Conñict of laws.

    3. A life insurance company incorporated and organized under the laws of another state and authorized by its charter to engage in the business of “indemnifying employers against loss or damage for personal injury or death resulting from accidents to employes or persons other than employes,” may, upon complying with the statutory requirements regulating deposits by foreign corporations, be licensed and permitted, under favor of section 3596, Revised Statutes, to engage in and transact such employers’ liability insurance in this state.
    '.2. In the absence of any statute in Ohio prohibiting life insurance companies from doing an employers’ liability insurance in this state, and the business itself being by statute expressly authorized ; a life insurance company incorporated and organized under the laws of a sister stale and empowered by its charter to en gage in the business of employers’ liability insurance, may, by the comity that prevails between the states, be licensed and permitted to transact such business in this state, although our statute has not in express terms conferred upon domestic life insurance companies authority to engage in or transact that particular kind of insurance.
    (No. 8194
    Decided January 5, 1904.)
    Quo Warranto.
    The petition in this case was filed in this court by the attorney general, and is as follows:
    “Now comes J. M. Sheets, who is the duly elected, qualified and acting attorney general of the state of Ohio, and gives the court to be informed and to understand that the defendant, The Aetna Life Insurance Go., is a corporation organized under and by "virtue of the laws of Connecticut, for the purpose of transacting the business of life insurance, and is and. has been for many years last past, engaged in said-business of life insurance. For more than ten years-last past, said defendant has been and is now duly authorized to engage in the business of life insurance-within the state of Ohio, and during all of said time-has been and still is actively engaged in the transaction of said business of life insurance within this, state.
    “Prior to the twenty-fourth day of June, 1902, said defendant procured an amendment to its charter,, whereby it was authorized to engage in the business of ‘indemnifying employers against loss or damage-for personal injury or death resulting from accidents to employes or persons other than employes/ which said business is commonly termed ‘employers’ liability insurance.’ The said defendant thereupon deposited with the superintendent of insurance of the state of Ohio, securities to the amount of fifty thousand dollars ($50,000), as provided by section 36416, Revised Statutes of Ohio, and made application to him fora license to engage in the said business of employers’ liability insurance within the state of Ohio. • Said superintendent of insurance thereupon, to-wit, on the-twenty-fourth day of June, 1902, issued to said defendant a license, purporting to authorize it to engage-in the said business of employers’ liability insurance.
    “Thereupon the said defendant assumed the right, and is now actively engaged in the transaction of said business of indemnifying employers against loss, or damage for personal injury or death resulting from accidents to employes or persons other than employes, within this state.
    “Wherefore plaintiff says that by reason of the fact that the defendant is duly authorized and empowered. to engage in the business of life insurance within the-state of Ohio, and is now and has been for more than ten years last past actively engaged in said business, of life insurance within this state, it has no authority under the laws of Ohio to engage in said business of indemnifying employers against loss or damage for personal injury or death resulting from accidents to-employes or persons other than employes. But on the contrary, the said defendant is prohibited by the laws, of the state of Ohio from engaging in said business.
    “Wherefore the plaintiff prays the judgment of this, court that the defendant be ousted and wholly prohibited from carrying on the said business of indemnifying employers against loss or damage for personal injury or death resulting from accidents to-employes or persons other than employes, within this, state, and asks such further and other relief as the nature of the case may require.”
    To this petition the defendant filed the following-demurrer: “Comes now the Aetna Life Insurance Co., defendant herein, and demurs to the petition for the reason that the facts stated therein are not sufficient to constitute a cause of action against this defendant.”
    The questions for consideration in this case are-those arising upon this demurrer.

      Mr. J. M. Sheets, attorney general, for plaintiff,, cited and commented upon the following authorities r

      State ex rel. v. Ackerman, 51 Ohio St., 163; State ex rel. v. Reimund, 45 Ohio St., 214; State ex rel. v. Stock Co., 38 Ohio St., 347; State ex rel. v. Life Ins. Co., 47 Ohio St., 167; State v. Moore, 38 Ohio St., 7; State v. Moore, 39 Ohio St., 486; State v. Moore, 42 Ohio St., 103; State v. Life Ins. Co., 47 Ohio St., 167; State v. Life Ins. Co., 58 Ohio St., 1; State ex rel. v. Insurance Co., 49 Ohio St., 440; secs. 3587, 3596, 3604, 3641, 36415, Rev. Stat

      Messrs. Paxton & Warrington; Messrs. Gordon, Granger & DeWitt• and Messrs. Booth, Keating & Peters, for defendant, cited and commented upon the following authorities:

      Woodbury v. Berry, 18 Ohio St., 456; Slingluff v. Weaver, 66 Ohio St., 621; Corwin v. Benham, 2 Ohio St., 43; Stetson v. Bank, 2 Ohio St., 175; Morris v. Williams, 39 Ohio St., 558; Employers’ Assurance Corp. v. Merrill, 155 Mass., 404; Comstock v. Cover, 35 Ill., 470; People v. Rose, 174 Ill., 310; People v. Fidelity Co., 153 Ill., 25; 23 Am. & Eng. Ency. Law, 340; Chesnut v. Shane, 16 Ohio, 599; State ex rel. v. Reinmund, 45 Ohio St., 217; Rev. Stat., Mass., vol. 2, p. 518; 64 O. L., 160; 69 O. L., 142; 70 O. L., 149; secs. 289, 3587, 3596, 3641, 3641b, 3670, Rev. Stat.
   Crew, J.

It is admitted in this case that the defendant, The Aetna Life Insurance Co., is a corporation duly organized under the laws of the state of Connecticut. That by its charter and the amendment, thereto, it is authorized and empowered to take insurance risks on life and against accidents to persons, and to engage in the business of “indemnifying employers against loss or damage for personal injury or death, resulting from accidents, to employes or persons other than employes;” and it. affirmatively appears from the allegations of relator’s petition, that for more than ten years last past said defendant company has been transacting in this state the business of life insurance; that on June 24, 1902, said company having complied with the statutory requirements regulating foreign corporations, doing an employers’ liability insurance in this state, there was issued to it. by the superintendent of insurance of the state of Ohio, a license authorizing and empowering it to engage in such insurance in this state, and that since said, twenty-fourth day of June, 1902, said defendant company has been and now is carrying on, within this state, said business of employers’ liability insurance. . No question is made as to the charter powers of the defendant company; these are conceded, but it is, contended by the relator that said company being a life insurance company, and being now actively engaged in transacting the business of life insurance in the State of Ohio, may not therefore lawfully be licensed or permitted to carry on or continue the business of employers’ liability insurance within this state. In support of this contention it is argued: 1. That the statutes of Ohio do not authorize life insurance companies to transact both a life and employers’ liability insurance. 2. That a corporation formed under the laws of another state and transacting the business of insurance in Ohio, is only permitted to engage in such kind of insurance in this state as a domestic corporation is authorized to transact. We shall consider these propositions in the order named.

Section 3596, Revised Statutes, prescribes and defines the kind of business that may be done and the character of risks that may be taken by a company or corporation organized or incorporated under the laws of another state and engaged in transacting the business of life insurance in this state. That section, so far as its provisions are pertinent to the present inquiry, reads as follows: “* * ■* No company * * * organized or. incorporated by act of .congress, or under the laws of this or any other state of the United States, or by any foreign government, transacting the business of life insurance in this. state, shall be permitted or allowed to take any other kind of risks, except those connected with, or appertaining: to making insurance on life or against accidents to persons, * * * .” This section substantially in its present form, was first enacted in 1888. Prior thereto life insurance companies, whether foreign or domestic, doing business in this state, were not authorized to take any other kind of risks than those-connected with or appertaining to making insurance on life. By the amendment of March 27, 1888, the authority of such, companies was so far enlarged and extended as to permit and allow them not only to make insurance on life, but to permit them to take: risks and make insurance connected with or appertaining to accidents to persons. This section was again amended May 2, 1902 (95 O. L., 355),,. when it took its present form, but no change or modification was made thereby as to the right of the companies, therein named to insure against accidents to- persons.

While the language of this section is that of regulation and restriction rather than of affirmative grant, nevertheless-, the language therein employed, by clearest implication, -recognizes the right and would seem to confer upon and invest companies of the character of the defendant company, with full authority to make insurance and take risks in- any wise connected with or appertaining to accidents- to persons; otherwise, the legislature'would not have undertaken to designate and define the character- of accidental risks that might be taken by such companies. Whether then the defendant company is clothed with authority to engage in the business of employers’ liability insurance within this state, depends upon whether or not that particular kind of insurance is embraced and included in the authority so given and permitted, to make insurance and take risks connected with and appertaining to accidents to persons. If it is, then admittedly the defendant, in making such insurance, was and is, acting clearly within the scope of its delegated powers. That this kind of insurance, employers’ liability insurance, may from its very nature appropriately be classified with and peculiarly belongs to, what is commonly known and designated as accident insurance must, we think, be. conceded, inasmuch as such insurance has for its primary purpose indemnification against the effects of accidents resulting in bodily injury or death. It is said by Barker, J., in Employers’ Assurance Corporation v. Merrill, 155 Mass., 406: “In one sense, there can be no doubt that an employers’ liability policy is accident insurance. Such policies cover accidents to others than the assured, but the assured must stand in such a relation to the person accidentally injured or killed as to be legally liable for the result of the accident and it is only an accident causing bodily injury or death which creates a right to the insurance.” But it is argued by relator that this character of insurance is not within the provisions of section 3596, and could not have been within the contemplation of the legislature, at the time section 3596 was enacted, for the reason, as claimed, that such insurance was then unknown in this state. This statement is challenged by counsel for defendant who assert that employers’ liability insurance was not only known, but was extensively written in Ohio for several years prior to the enactment of this statute. Whatever the fact may be as to this, if the language employed in section 3596 is sufficiently comprehensive in character to include such insurance, then under the established rules of construction, it must be held to authorize and permit it. In Endlich on the Interpretation of Statutes, sec. 112, the rule is stated thus: “Except in some few cases where a statute has fallen under the principle of excessively strict construction the language of a statute is generally extended to new things which were not known and could not have been contemplated by the legislature when it was passed. This occurs, when the act deals with a genus, and the thing which afterwards comes into existence is a species of it” And this rule of statutory extension has been recognized and followed by this court in numerous cases. In Corwin v. Benham, 2 Ohio St., 43, Ranney, J., says:

“I am aware that the usual import of words is sometimes to be restricted, when it would otherwise obviously extend beyond the subject-matter and spirit of the whole enactment. But this cannot be done, because the legislature did not foresee or contemplate every case upon which it might operate.

“The wisest legislators would fall far short of such foresight If within the language,, it must appear clearly to the court that the case would have been excluded from its operation if foreseen.”

And in Stetson v. Bank, 2 Ohio St., 175, speaking of this rule, it is said: “Falling within the positive provisions of the law, it is not enough to exclude this case from its operation, to say it was not contemplated when the law was enacted. We must be able to see' some reason to suppose it would have been excluded in positive terms, if it had occurred to the minds of the assembly at the time.” To the same effect are Goshorn v. Purcell, 11 Ohio St., 649; Morris v. Wil liams, 39 Ohio St., 558; and Railway Co. v. Telegraph Assn., 48 Ohio St., 423.

A further reason assigned by relator why foreign life insurance companies may not be permitted to do an employers’ liability insurance in this state is, that by section 36416, Revised Statutes, insurance companies other than life, have been specially authorized and empowered to transact this kind of business in Ohio, thereby it is argued, manifesting a legislative intent to limit and restrict the transaction of such insurance business in this state, to companies other than life. If we are right in the conclusions- above reached, this contention is sufficiently answered by the fact that employers’ liability insurance is included in the provisions of section 3596, permitting insurance against accidents; and the right of life insurance companies to make such insurance is in no wise affected or modified by the provisions of said section 36416, which was subsequently enacted.

There can be no doubt as to the power of the legislature to prescribe the. terms and conditions upon which foreign corporations may be admitted to do business in this state, or of its right to define the kind of business that may be done by such corporations. It was held in Western Union Tel. Co. v. Mayer, 28 Ohio St., 521, that: “Foreign- corporations can. exercise none of their franchises or powers within this state, except by comity or legislative consent. That consent may be upon such terms and conditions as the general assembly under its legislativé power may impose.” However, a consideration of the legislation in Ohio touching the rights of life, and life and accident insurance companies, organized under the laws of another state and doing business in this state, will show that it has not been, and is . not, the policy of our law to discourage or prohibit such companies from engaging in or doing an accident insurance business in this state; nor can there be found any statutory inhibition whereby the right of such companies to insure against accidents, is limited or restricted to risks by accident to the person assured, but on the contrary the right conferred is to take such risks as are in anywise connected with or appertaining to accident to persons. It follows, therefore, that so long as the defendant company confines itself to insurance against accidents to persons, and its contract is one to indemnify the assured against loss by accidental injury to a person in whom the assured has an insurable interest because legally liable for the results of such accident, that such risk is clearly one “connected with and appertaining to accidents to persons,” and is therefore within the legitimate scope of the power and authority possessed by such company by virtue of section 3596, Revised Statutes.

The conclusion above reached, viz.: that under favor of section 3596, life insurance companies may rightfully be licensed and permitted to transact within this state the business of employers’ liability insurance, is sufficient to determine the only question presented in this case, and renders unnecessary a consideration of relator’s second proposition. However, referring to the claim made upon this proposition,- we may say: that inasmuch as the business of employers’ liability insurance is not unauthorized or prohibited in Ohio, but such business is expressly recognized and permitted by our statutes, Ave incline to the view that in the absence of affirmative statutory provisión prohibiting life insurance companies from' engaging in such business, that a life insurance company organized under the laws of a sister state and authorized by its charter to write employers’ liability insurance, may by the law of comity be licensed and permitted to write such -insurance in this state upon complying with the requirements of the statutes of this state as to deposits, Ate., even though the right to transact that particular kind of insurance may not have been exercised by, or conferred upon domestic life insurance companies by positive statutory grant. If the business is within the charter powers of such foreign company, it is enough that such business is not prohibited in this state, is not obnoxious to the policy of our laws and is not against the interests of our citizens. It is said by the supreme court of Illinois in People v. The Fidelity and Casualty Co., 153 Ill., 25: “The rule is, that where there is no positive prohibitive statute, the presumption, under the law of comity that prevails between the- states of the Union, is that the state permits a corporation organized in a sister state to do any act authorized by its charter or the law under which it is created, except when it is manifest that such act is obnoxious to the policy of the law of this state.”

Again, in Colwell v. Springs Co., 100 U. S., 55, it is said:, “If the policy of the state or territory does not permit the business of the foreign corporation in its limits, * * it must be expressed in some affirmative way; it cannot be inferred from the fact that its legislature has made no provision for the formation ■of similar corporations,” etc. The . views thus expressed are in harmony with our laws and in accord with the recognized policy of this state. As said in argument by counsel for defendant in this case, “it is not the piolicy of this state to repel or discourage solvent, reputable foreign corporations from doing business within its borders, and the courts will not anxiously seek an excuse in the statutes to drive them out.”

We are of the opinion that the facts stated in the. petition in this case are not sufficient in law, to entitle the relator to the relief and judgment therein asked. The demurrer of defendant is therefore sustained and the petition of relator dismissed.

Judgment accordingly.

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


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    Moorman v. Schmidt et al.

      Action against partnership—Plaintiff claims he furnished money to partnership for purchase of lands—Plaintiff to have an equitable lien on said lands until money advanced is refunded—Petition contains no; allegation of promise to refund—Question of proper summons —• Amendment to petition — Pleadings — Judgment against one of the partners.

    S. commenced an action in the court of common pleas against J. R. and E. M. as partners, doing business under the firm name of Moorman Brothers, alleging as his cause of action that said firm is the owner of certain lands in Wyandot county, Ohio, describing them, and that he furnished the money with which to purchase said lands, with an agreement and understanding with the firm that he should have an equitable lien on said lands until the money so furnished should be refunded and fully paid to him; but the petition contains no allegation of a promise by either partner to refund or pay the plaintiff any part of said , money, nor does it pray for a personal judgment against the firm or either of its members. The prayer is for the marshaling of liens and an order of sale. A summons for J. R. was issued and served upon him, fixing the twentieth day of April, 1901, as answer day, but which was not indorsed with any. amount claimed to be due. On the sixteenth day of April, 1901, without leave of court, and without notice to J. R., or his counsel, the plaintiff filed an amendment to his petition, stating the exact amount of money he furnished said firm for the purchase of the lands, and praying for a personal judgment against the partnership and each of its members. J. R. did not answer or ■ demur, or in any manner enter his . appearance in the action. On the third day of June, 1901, the court ordered a sale of the-lands and also rendered a personal judgment against J. R. for the amount set out in the amendment to the petition. Held: That the amendment was not legally before the court as a part of. the plaintiff’s petition, and that the personal judgment against J. R. is erroneous.
    (No. 7964
    Decided January 5, 1904.)
    Error to the Circuit Court of Wyandot county.
    On the second day of February, 1901, the defendant-in error, George F. Schmidt, filed in the court of common pleas of Wyandot county, his petition, naming’ therein ás defendants, James R. Moorman, now plaintiff in error, and Eli Moorman, partners doing business under the firm name of Moorman Brothers, and. Levi H. Troup and May Foster.
    As the averments of the petition and an amendment, filed thereto, are important to the determination of the questions involved, a copy of the petition and amendment are made part of this statement as follows,' omitting the description of the real estate:
    “George Schmidt,
    Plaintiff,
    vs.
    “James R. Moorman and Eli Moorman, partners doing business under the firm name of Moorman Brothers,
    Levi H. Troup and May Foster,
    Defendants.
    “PETITION.
    “Filed Feb. 2, 1901.
    “The plaintiff says that the defendants, James E. Moorman and Eli H. Moorman, are partners doing - business under the firm name and style of MoormanBrothers, and that said partnership was organized under the laws of the state of Ohio.
    “And that the said partnership firm of Moorm.au .'Brothers are the owners of the. following described ■real estate situate in the county of Wyandot and state •of Ohio, to-wit: (Here folloAvs a description of the real estate.)
    “And the plaintiff says that the said real estate was bought with the said partnership’s money and for its use, and that it always has been actually used in said jpartnership business, although the legal title thereto :is in one of the partners’ name, to-wit, the defendant, James R. Moorman, and he has always and still is holding the same as the trustee for said partnership rfirm.
    “And the plaintiff further says that all of the money ■used by said firm in the purchase of said premises was ■furnished by the plaintiff, and that said premises was ^purchased with the plaintiff’s money with the agreement and understanding with the plaintiff that he, the plaintiff, should have and hold an equitable lien upon ssuch premises until the purchase money so furnished hy him should be refunded and fully paid to him.
    “The plaintiff says that said money was furnished 'by him to the said Moorman Brothers in different ¡amounts and at different times, and that there is interest due and unpaid upon the amounts so furnished ’by him, so that the plaintiff is not in possession of sufficient facts to determine the exact amount due to him, but he says that said amount so furnished by him to said partnership firm is the sum of fourteen thousand dollars and more.
    “And the plaintiff further says that said partnership firm of Moorman Brothers was formerly located' in the village of Carey, in said county of Wyandot, ■ and carried on the business oí manufacturing boat oars, said manufactory being carried on upon the premises herein described. And that the said partnership 'firm for one year and more last past have ceased to do business or to manufacture any of the . goods theretofore manufactured on said premises and have removed their business therefrom and out of the jurisdiction of this court and ont of the state of ■Ohio, and have abandoned said premises for manufacturing purposes, and the said premises is now ' being used for no purpose whatever, so that the value • of said premises is continually being lessened, and the '-claim of the plaintiff is being materially injured, and there is great danger that his said claim may be lost, there being no other property of said partnership ■firm known to this plaintiff withiu the jurisdiction of this court or in the state of Ohio. And said firm have allowed said property to.be sold for the taxes 'due thereon. And that the defendant, Henry F. Graves, • and May Foster and Levi H. Troup, claim ■ to have some lien or interest in said property adverse to that of the plaintiff. And he asks that said parties be required to set forth the nature of their said asserted liens and claims or be forever, barred, and that ■ the Court will take into account the amount due from the said defendants, Moorman Brothers, to the plaintiff, that the said amount so found due will be de- ■ dared to be a lien on said property, that the liens against the same be marshaled and determined .by the court, and that said property may be sold to satisfy the claim so found due to the plaintiff, and that in the meantime a receiver be appointed by the court to take charge of said property during the pendency • of this cause, and for all further and proper relief in ithe premises.”

      On the nineteenth day of March, 1901, a summons-for James R. Moorman, plaintiff in error, was issued to the sheriff of Lucas county, fixing the twentieth day of April, 1901, as answer day. This summons was served by leaving a certified copy thereof, with the indorsements thereon, at his usual place of residence. Neither the original summons nor the copy contained any indorsement of the amount due, or that a personal judgment would be demanded.
    On the sixteenth day of April, 1901, the plaintiff, without leave of court, and without notice to plaintiff in error, filed the following as an amendment to his. petition:
    “The plaintiff for his amendment to his petition herein says that the amount due to him from the said defendants,-' James R. ' Moorman and Eli Moorman, and the partnership firm of Moorman Brothers is the-sum of $13,906.60, that the same has been due to him from said defendants since the said first day of December, A. D. 1899, and in addition to the prayer as set forth in his petition in this cause he prays that he may have judgment against said defendants for said sum of $13,906.60, with interest from the first day of' December, A. D.'l899.”
    The plaintiff in error did not answer or otherwise-appear in the case, either in person or by counsel.
    The defendants, Henry F. Graves, May Foster and Levi H. Troup, were creditors of the firm of Moorman Brothers, and they answered and set up their claims and liens on the real estate. Alonzo Emerine was made a party as having an interest in said real estate. But these creditors and Emerine have no interest- in the controversy in this court.
    A receiver was appointed for the real estate, and it. was sold by order of court and proceeds distributed..

      On the same day the order of sale was made, to-wit: On the third day of June, 1901, the record shows that the cause came on to he heard on the petition and the amendment thereto and the evidence; and the court found that all-the defendants, except Moorman Brothers and Eli S. Moorman, had been duly served with summons, and that Moorman Brothers and Eli Moor-man had Avaived the issuance and service of summons and entered'their appearance; and the court further found that James R. Moorman, Eli S. Moorman and Moorman Brothers, wore in default for answer or demurrer; and further found that there was due to the plaintiff from James R. Moorman, Eli S. Moor-man and Moorman Brothers, the sum of $15,158.20, and rendered judgment against them for said sum. Afterwards, the plaintiff in error James R. Moorman, prosecuted error in the circuit court to reverse the personal judgment so rendered against him, but that court affirmed the judgment, and he prosecutes error in this court to obtain a reversal of the judgments of both courts.

      Messrs. Seney & Johnson, for plaintiff in error, cited and commented upon the following authorities:

      Southward v. Jamison, 66 Ohio St., 310; 1 Bates’ Pl. & Prac., 165; Knox County Bank v. Lloyd, 18 Ohio St., 353; Larimore v. Wells, 29 Ohio St., 13; Railway v. Wilson, 31 Ohio St., 555; Rolling Stock Co. v. Railway, 34 Ohio St., 450; Railway Co. v. Walker, 45 Ohio St., 577; Pomeroy Remedies & Remedial Rights, par. 517; Ohitty’s Pl., vol. —, 301, 350; Denison University v. Manning, 65 Ohio St., 138; Eureka F. & M. Ins. Co. v. Baldwin, 62 Ohio St., 368; Maholm v. Marshall, 29 Ohio St., 611; Larimer v. Clemmer, 31 Ohio St., 499; secs. 5037, 5057-1, 5057-2 (old number-5060-3), 5060 (old number), 5086, 5111, 5114, Rev. Stat.

      Mr. M. B. Smith; Messrs. Carey & Barker and Messrs. Chittenden é Chittenden, for defendants in error, cited and commented upon the following authorities :

      Hoffman v. Gordon, 15 Ohio St., 218; Benninger v. Hess, 41 Ohio St., 69; Sibila v. Bahney, 34 Ohio St., 399; Larimer v. Clemmer, 31 Ohio St., 499; Hawkins v. Lasley, 40 Ohio St., 39; secs. 5011, 5114, 5370, Rev. Stat.
   Price, J.

It is our unanimous opinion that, the-circuit court erred in affirming the judgment of the-court of common pleas, and for this opinion several reasons may be assigned.

1. The petition upon which summons was issued' and served on the plaintiff in error does not state a. case for personal judgment against him. While the-names of James R. Moorman and Eli Moorman appear in the style of the case, as partners doing business under the firm name of Moorman Brothers, theaverments of the petition are directed specifically against the firm, and in none of them is there alleged any primary liability of the individuals composing-the partnership.

The first allegation is that James R. and Eli H. Moorman are partners doing business under the firm name and style of Moorman Brothers, and that the partnership under that name are the owners of the-real estate described in the petition.

The next allegation is that the real estate was purchased with partnership money and for its use, and. that it had always been used in the partnership busi.-ness, although the legal title thereto was in James R.. Moorman, who held such title as trustee for the firm..

The plaintiff then says that he furnished all the money used in the purchase of the real estate, witht the agreement and understanding that he should have an equitable lien' on the premises until the purchase-money so furnished should be refunded to him. He then avers that the money was furnished by him at. different times, and in different amounts, on which' interest is due, but that he is not in possession of sufficient facts to determine the exact amount due him, but that the amount so furnished is the sum off |14,000 or more.

It is further alleged that the firm business had been: located and carried on at Carey, Wyandot county, which consisted in the manufacturing of boat oars on. . the premises described, but that the partnership had. ceased business for a year or more, and that the firm: had removed its business out of the jurisdiction of the-court, and has abandoned the premises for manufacturing purposes, which depreciated the same in value,, and that the partnership has no other known property within the jurisdiction of the court The appointment of a receiver is prayed for and a statement, of the account taken with Moorman Brothers as to-the money furnished by the plaintiff for the purchase-of the real estate, and that the sum so ascertained be-declared a lien thereon, the liens marshaled and order' of sale issued.

There is no prayer for judgment against the firm or' either of its members. The foregoing is the character' of the petition the plaintiff in error was summoned to answer. It is destitute of á promise even of the-firm to pay the plaintiff any sum of money; and it is. surely destitute of any promise of either partner tos repay any part of the money furnished, unless such promise may be implied from the fact, that plaintiff furnished the means to purchase the lands. But he says the means of purchase were furnished with an agreement and understanding that he should have a lien on the premises purchased therewith, and to perfect such lien is the gist of his petition.

It seems quite clear, that while there may be an ultimate liability against the members of the firm as individuals, to be established- in a proper proceeding after the real estate is exhausted, there is no case stated for . a personal judgment, because the individual members are not charged with any contract or promise to pay, without which, they cannot be held as primarily liable.

It is not even alleged that the money was furnished by plaintiff at the instance and request of the firm or either of its members, and so construing his petition, the plaintiff does not pray for personal judgment. He did not then know how much money he had furnished.

2. But the record reminds us that an amendment was filed to the petition. It is true an amendment was filed. What is it,? The plaintiff, after filing his petition, ascertained in some way the amount he had furnished to buy the land, and by the amendment, he ■states the sum at $13,906.60, which he says is “due to him from the defendants, James R. Moorman and Eli Moorman, and the partnership firm of Moorman Brothers; that the.same has been due him from said defendants since said first day of December, 1899, and in addition to the prayer as set forth in his petition in this cause, he prays that he may have judgment against said defendants for said sum of $13,906.60, with interest from the first day of December, 1899.”

There are no facts in this amendment to show how •or why said amount is due from James R. and Eli Moorman. That there is such amount due from them to plaintiff is but the opinion of the plaintiff without any facts stated for its support. The code provision for simple pleadings'in actions founded on book accounts and instruments for the unconditional payment of money only, does not apply to the plaintiff’s cause of action, because it is not within that class. Hence, more must be plead than a mere conclusion, that a certain sum is due from defendants to the plaintiff. He must set out sufficient facts to show that a liability exists which can be enforced by the court. . The amendment contains no such facts, and is of no aid to the petition, except that a definite sum has been arrived at. Knox County Bank v. Lloyd’s Admrs., 18 Ohio St., 353; Larimore v. Wells, 29 Ohio St., 13; Railroad v. Wilson, 31 Ohio St., 555.

However, the above is not the full history of this amendment. It was filed without leave of court, and four days before James R. Moorman was required to answer.

Section 5111, Revised Statutes, provides: “That plaintiff may amend his petition without leave, at any time before the answer is filed,, without prejudice to the proceeding; but notice of such amendment shall be served upon the defendant, or his attorney; and the defendant shall have the same time to answer or demur thereto as to the original petition.”

No notice of the amendment was served upon the plaintiff in error, or his counsel, nor did he at any time, answer or demur, or in any manner appear in the case. No summons issued, on the amendment. It never was legally before the court, because it did not become a legitimate pleading. The plaintiff was not entitled to any relief upon it, and its prayer should have been disregarded. It should have been stricken from the files.

Counsel for defendant in error regard the claims of plaintiff in error as purely technical, and say the case was heard on the evidence and the court found the amount due from a consideration of the evidence which would cure the defective petition.

• We think, the hearing the case on evidence would give no new authority to render a personal .judgment. The summons served on plaintiff in error contained no indorsement of any amount claimed to be due. The petition does not contain facts which warrant a personal judgment against plaintiff in error, and none is prayed for. The so-called amendment was illegally on file and therefore constituted no part of the pleading.

It would seem, therefore, that a personal judgment rendered on a petition which states no case for the same and which asks no personal judgment, is certainly erroneous.

The judgments of the circuit court and o,f the court of common pleas are reversed and the cause is remanded to the court of common pleas for such proceedings as may be authorized by law.

Judgment reversed.

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

Shauck, J., concurs in the judgment.


author: Shatjck, J.

text:
    Kinner et al. v. The Lake Shore & Michigan Southern Railway Co.

      Maxim: H’e who comes into equity must come with clean hands— Meaning of—Sale of railway tickets with return coupons— Tickets nontransferable—Purchasers of such tickets for purpose of reselling them—May be enjoined by - the railway, when.

    1. The maxim, “He who comes into equity must come with clean hands,” requires only that the plaintiff must not be guilty ot reprehensible conduct with respect to the subject-matter of his suit.
    2. A railroad company having sold tickets with return coupons to a large number of persons who desired to attend a convention, the tickets, by their terms, being nontransferable and the purchasers being required on returning to show their identity as the original purchasers, the contract resting upon a substantial reduction in the price of carriage, is entitled to an injunction against persons acquiring the return portions of such tickets from the original purchasers and selling them to others to be used by them in violation of the terms of such contract; and the maxim referred to will not justify a denial of that relief because the plaintiff had agreed with other carriers with respect to the reduction of rates and the conditions of tickets for such occasion.
    (No. 7994
    January 5, 1904.)
    Error to the Circuit Court of Cuyahoga county.
    The railway company filed its petition in the court of common pleas September 10, 1901, against Kinner and numerous others, for an injunction, alleging facts of which the following is a condensed statement: The company is a common carrier of passengers, operating a line of railroad between Chicago, Illinois, and Buffalo, New York, passing through the city of Cleveland, Ohio, and making numerous connections with other roads, reaching all parts of the United States. The Grand Army of the Republic is a patriotic organization which, for a number of years, had been accustomed to hold national encampments, that for the year 1901 being fixed at Cleveland, Ohio, and in progress at the time of filing the petition. Some months prior to the meeting of the encampment officials of the Grand Army and a committee of citizens of Cleveland, desirous of securing a large attendance at said encampment, entered into an arrangement with said company, and it agreed with said committee and with the companies operating the connecting lines to make special low rates from different points, on. its line and connecting lines for tickets to and from Cleveland, such tickets not to be transferable, and to be limited to the time of the meeting of said encampment, the original purchasers to identify themselves by subscribing their names whenever required for the purpose of identification, and tickets containing such conditions were sold in great numbers by said companies to persons visiting said encampment, the purchasers expressly agreeing, in consideration of such reduced fare, to comply with all of said conditions, and such agreement being indicated by the terms of the ticket. The defendants (scalpers) were engaged in obtaining from persons who had traveled to Cleveland on such tickets the return portions thereof and selling them to other persons at a price far below the fare which said company was accustomed to charge and legally entitled to receive, so that the purchasers of such return portions of said tickets might, by falsely personating the original purchasers, practice fraud and deception upon the company, to its great detriment and from which it would be unable to protect itself. The defendants were financially insolvent arid were engaged in said traffic in tickets with full knowledge of the- terms of said tickets and of the fraud and deception to be so practiced upon the company.
    The answer contains certain denials of allegations of the company, and alleged that the business of carrying passengers for hire had for a long time been conducted qn a competitive basis, and that great reduction of fare upon such occasions as that referred to in the petition had been made, the reductions inuring to the benefit of all persons traveling over the competing lines, but that said companies had entered into a combination known as the Central Passenger Association, the combination being formed by about twenty railroad companies, including the plaintiff, and for the sole purpose of suppressing competition, in contravention of the laws of the United States and of the state of Ohio; that the forms of tickets containing the conditions set forth in the petition were fixed and agreed upon by said combination for the accomplishment of such illegal purpose, and that by .reason thereof the company Avas not entitled to the injunction for which it prayed.
    These allegations of the answer were denied m the reply. On the trial evidence was offered by the defendants tending to sustain their allegations respecting the organization and action of the Central Passenger Association, and the plaintiff’s membership thereof. This evidence was excluded. The injunction, having been granted as prayed for, with judgment for costs, a petition in error was filed in the circuit court, the exclusion of such evidence being the material assignment of error.
    The circuit court affirmed the judgment of the common pleas, and the reversal of both judgments is the object of the proceeding in error here.

      Messrs. Foran, MeTighe <& Baker and Mr: James It. Garfield, for plaintiffs in error, cited and commented upon the following authorities:

      Lyon v. Waldo, 36 Mich., 345; Roll v. Raguet, 4 Ohio, 400; U. S. v. Joint Traf. Assn., 171 U. S., 505; U. S. v. Trans-Missouri Freight Assn., 166 U. S., 290; Railroad Co. v. Frank, 110 Fed. Rep., 689; Nashville Ry. Co. v. McConnell, 82 Fed. Rep., 65; Act of Congress, July 2, 1890 (Anti-Trust Law), 26 U. S. Staff, 209; Tarbox v. State, 38 Ohio St., 581; Spangler v. City of Cleveland, 43 Ohio St., 526; Railway Co. v. Stock Yards Co., 6 Law. Rep. Ann., 855; Power’s Appeal, 125 Pa. St., 175; Higgins v. Higgins, 57 N. H., 224; Pomeroy’s Eq. Jur., sec. 427; Oscanyan v. Arms Co., 103 U. S., 261; Scranton Elec. Co.’s Appeal, 122 Pa. St., 154; Beach on Mod. Con., sec. 1443; sec. 4427, Rev. Stat.

      Messrs. Brewer, Cook & McGowan, for defendant in error, cited and commented upon the following authorities :

      Railway Co. v. McConnell, 82 Fed. Rep., 65; Lembeck v. Nye, 47 Ohio St., 336; Beach on Inj., secs. 523, 1129; Railway Co. v. Frank, 110 Fed. Rep., 689; Railway Co. v. Broom, Superior Court of Cincinnati, heard July 9, 1901; Railway Co. v. Beekman, case No. 23555, Supreme Court District of Columbia; Railway Age, September 6, 1901; Kinner v. Railway Co., 13-23 O. C. C., 294; Bull., May 5, 1902; Norton v. Blinn, 39 Ohio St., 145; Pomeroy’s Eq. Jur. (ed. 1881), par. 399; 11 Am. & Eng. Ency. Law (2 ed.) 164; Connolly v. Sewer Pipe Co., 184 U. S., 540; Harrison v. Refining Co., 116 Fed. Rep., 304; Bateman v. Fargason, 4 Fed. Rep., 32; Strait v. Harrow Co., 51 Fed. Rep., 819; Ely v. Niagara Co. Supervisors, 36 N. Y., 297; Bonsack Machine Co. v. Smith, 70 Fed. Rep., 383; The Charles E. Wisewall, 74 Fed. Rep., 802; Dennehy v. McNulta, 86 Fed. Rep., 825; Insurance Co. v. Clunie, 88 Fed. Rep., 160; Woodward v. Woodward, 41 N. J. Eq., 224; 4 Atl. Rep., 424; Steel & Wire Co. v. Wire Drawers, 90 Fed. Rep., 608; Bridge Co. v. City of Streator, 105 Fed Rep., 729; City of Chicago v. Stock Yards & T. Co., 164 Ill., 224; Mossier v. Jacobs, 66 Ill. App., 571; Gas Light Co. v. Coal Tar & Mfg. Co., 65 Md., 73; Lewis & Nelson’s Appeal, 67 Pa. St., 153; Distilling Co. v. Importing Co., 86 Wis., 352; Nester v. Brewing Co., 161 Pa. St., 473; Langdon v. Templeton, 66 Vt., 173; Wright v. Wright, 51 N. J. Eq., 475; Sylvester v. Jerome, 19 Col., 128; Foster v. Winchester, 92 Ala., 497; Goodwin v. Hart, 11 Tenn., 124; Ansley v. Wilson, 50 Ga., 418.
   Shatjck, J.

Whether the courts below should have denied relief to the railway company in obedience to the maxim that, “He who comes into equity must come with clean hands,” is the question presented by the record and discussed by counsel. The record does not show, nor did the rejected evidence tend to show, that the companies which formed the passenger association had pooled their earnings; and in the argument it is assumed that although each corppany issued its own tickets and retained the proceeds of their sale, an agreement among them to make a stipulated reduction in passenger fares below the usual and legal rates is illegal and contrary to public policy. Upon that assumption did the illegal contract bear such relation to the wrong whose prevention the company sought as to bar its resort to a court of equity, in view of the maxim invoked?

The maxim is more comprehensive in its results than is the kindred maxim that, “He who seeks equity must do equity.” The latter, in the cases to which it applies, defines conditions which should be annexed to a decree granting equitable relief, while that which is here invoked, in the cases to which it applies, denies to the plaintiff all relief; but so similar are they and the reasons upon which they stand in all the cases to which they apply that, in some of the earlier cases and commentaries on equity jurisprudence,' the entire-subject is treated as comprehended within the-maxim lastly stated. It is to be observed that the conditions which are annexed to the granting of equitable relief are always founded upon considerations, arising out of the subject of the suit and that a plaintiff, as a condition to equitable relief, is not required to do equity with respect to matters not involved in the subject of the suit. From the assumption that the companies composing the passenger association had entered into an unlawful combination in restraint of competition, it results that their conduct may be the subject of inquiry in the nature of a, quo warranto, and that courts of equity will also refuse to aid in the enforcement of the contract under which such combination is formed. And this suggests the extent of the operation of the maxim which is invoked by the plaintiffs in error. It denies all relief to a suitor, however well founded his claim to-equitable relief may otherwise be if, in granting the-relief which he. seeks, the court would be required, by implication even, to affirm the validity of an unlawful agreement or give its approval to inequitable conduct on his part. But a court of equity is not an avenger of wrongs committed at large by those who resort to it for relief, however careful it may be to-withhold, its approval from those which are involved, in the subject-matter of the suit and which prejudicially affect the rights of one against whom relief is-sought. ■ The numerous cases cited in the briefs show that in the application of the maxim urgecl by counsel for the plaintiffs in error, the courts have consistently-granted or refused relief by determining whether the-reprehensible conduct of plaintiff is related .to the subject of the suit, in the present case the railway company did not count upon the illegal contract, nor did it, in any manner, ask the court to approve the validity of that contract. The tickets against whose fraudulent use the injunction was granted were issued by the company in the usual course of the business for-which it was organized; the stipulations against their-transfer rested upon the consideration of a reduction, of .the rates of carriage; they contained no stipulation contrary to. any statute either of the United States or of the state of Ohio, or in contravention of public policy, nor was there anything in the conduct, of the company by whj.ch any right of the original defendants was prejudiced. The judgments below are, therefore, in accordance with the uniform test as to-the application of the maxim invoked.

Judgment affirmed.

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


author: Shaucic, J.

text:
    Lange v. Lange et al.

      Action for money—Not requiring decree for equitable relief—Appeal cannot be taken, when—Section 5226, Revised Statutes—Appeal from common pleas to circuit court.

    In an action for money, not requiring a decree granting some mode of equitable relief, an appeal cannot, under section 5226, Revised Statutes, be taken from the court of common pleas to the circuit court, although the determination of the rights of the parties may involve the application of principles which are of equitable origin and nature.
    (No. 8001
    Decided January 5, 1904.)
    Error to the Circuit Court of Montgomery county.
    Mrs. Lange brought an action in the court of common pleas against the grand lodge for the Sum of •$>2,000 alleged to be due her as the beneficiary named in its certificate upon the death of Frederick Lange, her deceased husband.. The lodge, admitting its liability in the sum claimed, brought the money into •court, taking appropriate steps to have a j’udicial determination of the adverse claims to the fund which had been made by Mrs. Lange and the plaintiff in error, William F. Lange, each of whom was the holder of a certificate under which a claim to the fund had been made. The claim of Mrs. Lange was founded on a certificate dated December 23,1893, that of William upon a certificate dated January 7,1897, both, as is alleged, issued under the rules of the order. She alleged that the certificate under which she claimed naming her as beneficiary was, by her husband, delivered to her at its date, and that it was ever afterward in her possession; and, that she, having no knowledge of any attempted substitution of another beneficiary, out of her own funds, paid the dues and assessments on account thereof from May, 1897, until the death of her husband, February 14, 1900. She further alleged that by the rules of the order the beneficiary could not be changed without the surrender of the previous certificate or the showing by affidavit that it was lost, or its production impossible; and that in fraud of her rights as beneficiary, William and •other members of the family, when her husband was ill and mentally incapable of transacting business, induced her to absent herself from his room for a time, and that Avhile she was absent they procured from him such affidavit, and the certificate under which he claimed Avas thereupon issued. In the court of common pleas, a jury being Avaived, the cause was tried upon the pleadings and the evidence, and a judgment was rendered in favor of Mrs. Lange. William thereupon took an appeal to the circuit court, which it dismissed upon the ground that the action was not appealable. The order of dismissal is assigned here as error.

      Messrs. McKemy & Belville and Messrs. Young & Young, for plaintiff in error, cited and commented upon the following authorities:
    1 Pomeroy’s Eq. Jur., sec. 181; The McAlpin Co. v. Finsterwald, 57 Ohio St., 556; Buckner v. Mear, 26 Ohio St., 514; Gill v. Pelkey, 54 Ohio St., 348; sec. 3631-11, Rev. Stat.

      Messrs. Rowe & Bhuey and Mr. John Bchuster, for defendants in error, cited and commented upon the following authorities:

      The McAlpin Co. v. Finsterwald, 57 Ohio St., 524; Covenant Mut. Ben. Assn. v. Baldwin, 49 Ill. App., 203; Lueder’s Exr. v. Insurance Co., 12 Fed. Rep., 465;
      Lawler v. Murphy, 58 Conn., 294; Maginnis v. Schwab, 24 Ohio St., 336; Warner v. Jaeger, 5 C. C. R., 16; Cross v. Armstrong, 44 Ohio St., 613; Pratt, Admr., v. Insurance Co., 5 C. C. R., 587; Gill v. Pelkey, 54 Ohio St. 348; Hankinson v. Page, 31 Fed. Rep., 184; Jackson v. N. W. Mut. Relief Assn., 73 Wis., 507; O’Brien v. Home Benefit Soc., 117 N. Y., 310; Earnshaw v. S. M. Aid Soc., 68 Md., 465; Burland v. N. F. B. Assn., 47 Mich., 424; Taylor v. N. T. R. Union, 94 Mo., 35; Protective Union v. Whitt, 36 Kan., 760; Life Assn. v. Lemke, 40 Kan., 142; Bentz v. N. W. Aid Assn., 40 Minn., 202; Herndon v. The Triple Alliance, 45 Mo. App., 424; Knights of Honor v. Abbott, 82 Ind., 1; Protective Union v. Lemke, 40 Kan., 760; Chapman v. Lee, 45 Ohio St., 356; Alsdorf v. Reed, 45 Ohio St., 653; Brundridge v. Goodlove, 30 Ohio St., 374; Ladd v. James, 10 Ohio St., 437; Dunn v. Kanmacher, 26 Ohio St., 497; Averill Coal Co. v. Verner, 22 Ohio St., 372; Gunsaullus, Admr., v. Pettit, Admr., 46 Ohio St., 27; Elkhart M. A. Assn. v. Houghton, 98 Ind., 149; S. C., 103 Ind., 286; Mut. Aid Assn. v. Riddle, 91 Ind., 84; Smith v. Covenant M. B. Assn., 24 Fed. Rep., 685; Bacon on Ben. Soc. and Life Ins. Co., sec. 453; secs. 3631-11, 3631-23, 5130, 5226, Rev. Stat.
   Shaucic, J.

The appeal was taken under the supposed favor of section 5226, Revised Statutes, which defines generally the actions which may be appealed from the court of common pleas to the circuit court, for a trial de novo. The section requires that a cause' to be so appealable must present three traits: it must be a civil action, it must be Avithin the original jurisdiction of the court of common pleas, and the right to' demand a jury upon the trial of the issues of fact in. that court must not exist. Whether the third of these; traits appears in the present case is the question with respect to which counsel differ. The determination of that question is not aided by the consideration that interpleader is equitable in its origin and nature. However uniformly it may appear that appealable • actions are equitable, the legislature has not used appropriate terms to make all equitable actions appeal-able. While the constitutional requirement that the right of trial by jury shall remain inviolate has been effective to continue that right in all cases which were \ triable to a jury at the time of the adoption of the constitution, it has not prevented, nor was it intended to ^ prevent, the extension of the right of trial by jury to cases which were not so triable at the time of the adop- 1 tion of the constitution; and every case included in ( such extension of the right of trial by jury is thereby / excluded from the category of cases appealable, how- , ever clearly it may appear that the rights of the par- * ties depend upon the application of principles which ( are of equitable origin and nature. Actions for » money only, founded upon the principles of contribution and subrogation, are examples of those which are noAV included within the provisions of section 5130, Revised Statutes, that, “issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial be waived, or a reference be ordered as hereinafter provided.” When, as in the present case, a party, admitting his indebtedness, resorts to a court for the purpose of procuring a judgment determining to which of tAvo or more claimants payment should be made, he does not tender any issue nor seek any relief not relating to the payment of money.

Conceding that one or more of the rival claimants may assert a right to the stake on grounds which call for equitable relief, do counsel for the plaintiff in error correctly assert that such grounds appear in Mrs. Lange’s allegations respecting the manner and. purpose of the procurement of the second certificate?' It is not alleged that any instrument had been procured from her which at law would, bar the assertion, of her claim as holder of the prior certificate, and. which she would therefore be entitled to have canceled, by the decree of a court of equity.- There was no-prayer for relief by any of the modes peculiar to-courts of equity, nor were there allegations of fact-making such relief necessary or appropriate. There-being no suit for equitable relief by either party, there Avas an “action for money only.” Whether a party,, plaintiff or defendant, tenders issues of fact not triable to a jury as of right, must always be determined by regarding, not the principles which the court is, required to consider and apply in determining the. rights of the parties, but what decree it is required, to enter upon its journal.

Judgment affirmed.

Burkict, C. J., Spear, Davis, Price and Creav, JJ.,, concur.


author: Davis, J.

text:
    The Montana Coal & Coke Co. v. The Cincinnati Coal & Coke Co. et al.

      Contract made in one state to be performed in another—Governed' by laws of latter—Promissory note made in Ohio payable in Kentucky—Indorsers in Kentucky and Pennsylvania—Law of' indorsement.

    1. A contract made in one state or country to be performed in another, is governed by the laws of the latter, which determine its. validity, obligation and effect. The Pittsburg, Cincinnati, Chicago & St. Louis Railway Co. v. Sheppard, 56 Ohio St., 68, and Kanaga v. Taylor, 7 Ohio St, 142, approved and followed.
    2. A promissory note for the payment to the payee of a certain sum' of money “payable at Northern Bank, Covington, Ky,” signed by the principal debtor in Ohio, and before delivery, which was in Ohio, signed in blank on the back by another party in Kentucky and by one in Pennsylvania, is a contract by all the parties, •thereto that the contract shall be performed in Kentucky; and as to its nature, validity, interpretation and obligation is governed by the laws of that state.
    (No. 7946
    Decided January 5, 1904.)
    Error to- the Circuit Court of Hamilton county. ■
    On February 1, 1896, the defendant in error, The-Cincinnati Coal & Coke Co., executed and delivered to the plaintiff in error, The Montana Coal & Coke Co.,, a promissory note of which the following is a copy:
    “$1,654.39. Cincinnati, Feb. 1, 1896.
    “Ninety days after date the Cinti. Coal & Coke Co.. promise to pay to the order of Montana Coal & Coke-Co. sixteen hundred fifty-four and thirty-nine onehundreth dollars, payable at Northern Bank, Covington, Ky., value received.
    “A. Montgomery,, Pres.
    “L. Stock, Sec’y & Treas.”

      On the back of said note appear the following indorsements :
    “A. Montgomery & Co. Marshall McDonald.”
    The consideration for the note was coal sold by the plaintiff in error to the defendant in error, The Cincinnati Coal & Coke Co., prior to its date. The Cincinnati Coal & Coke Co., Avhen the money was due, requested an extension of time for payment and the plaintiff in error agreed to extend the time for payment, provided that the Cincinnati Coal & Coke Co. would execute and deliver to the plaintiff a ninety-day note,, indorsed by A. Montgomery & Co. and Marshall McDonald; A. Montgomery & Co. did so indorse said note on the back thereof at Covington, Kentucky, prior to the delivery of the note to the plaintiff in error; the Cincinnati Coal & Coke Co. thereupon sent said note to Marshall McDonald, at Pittsburg, Pennsylvania, and he there indorsed his name on the back of said note after the indorsement of A. Montgomery & Co., and returned the said note to the Cincinnati Coal & Coke Co., at Cincinnati, Ohio, after which the Cincinnati Coal & Coke Co. delivered the note to the plaintiff in error, The Montana Coal & Coke Co., at Cincinnati, Ohio. The note, on default, was not protested, nor was notice of nonpayment given to Alexander Montgomery, the surviving partner of A. Montgomery & Co.; nor to Marshall McDonald or his legal representatives. The note was never discounted or negotiated at any bank in the state of Kentucky; no ■suit was instituted to compel the Cincinnati Coal & ■Coke Co. to pay the note in any court prior to this ■suit; each of the circuit courts of the state of Kentucky, being courts of general jurisdiction in all actions at law, held a term subsequent to May 1, 1896, at which an action might have been brought by the plaintiff in error to recover any sum that might have been due upon the note set out in the petition; the plaintiff, The Montana Coal & Coke Co., has always been the owner and holder of the note set forth in the petition.
    On the trial of this action in the court of common pleas of Hamilton county, the court held upon these facts, that the liability of Alexander Montgomery and Marshall McDonald was to be determined by the laws of the state of Kentucky; and that by the laws of that state said indorsers were to be regarded as assignors, merely, and were released from all liability to the payee of the note in suit, because the payee had failed to prosecute the maker to insolvency at the next term of the circuit court in that state after the maturity of the note. The petition of. the .plaintiff in error was, therefore, dismissed as to Montgomery and McDonald, and this judgment was affirmed on error to the circuit court of Hamilton county.

      Mr. Nathaniel Wright, for plaintiff in error.
    In the case at bar the indorsers, Alexander Montgomery and Marshall McDonald, have not clearly and literally expressed their intention as to what jurisdiction they were contracting with reference to. We must therefore look to the rules and principles which the law has established to discover their intention on. this point. According to these rules then, the debatable question is, what forum did the payee and the indorsers agree should furnish. the rule to test the liability of the indorsers to the payee?

    First. It is a principle too well established to ad: mit of argument that the interpretation, validity and effect of a contract is tó be determined by the law of the place where it is made, unless the parties otherwise- stipulate. Daniels on Neg. Inst., secs. 86.7, 869:

      Stanford v. Pruet, 27 Ga., 243; Cook v. Litchfield, 9 N. Y., 288; Lee v. Sellick, 33 N. Y., 615; Trabue v. Short, 5 Cold. (Tenn.), 293.
    Second. The place where a contract is made depends not upon the place where it is written, signed or dated, bnt upon the place where it is delivered, as consummating the bargain.
    Daniels on Neg. Inst., sec. 868; Briggs v. Latham, 36 Kan., 255; Young v. Harris, 14 B. Mon. (Ky.), 556; Lawrence v. Bassett, 5 Allen (Mass.), 140; Stanford v. Pruet, 27 Ga., 243; Gay v. Rainey, 89 Ill., 221 Stubbs v. Colt, 30 Fed. Rep., 419; Tilden v. Blair, 21 Wall., 241.
    The maker in express terms has stipulated to pay at maturity at the place of performance, to-wit, Covington, Kentucky. Have the indorsers made a like stipulation? The record fails 'to show that they have done so in express terms; it follows that the indorsers’ intention on the matter under discussion must be' inferred. The rule is that the presumption is inf favor of the lex loci contractus, unless the parties otherwise stipulate. Daniels on Neg. Inst., sec. 867.
    The indorsers have the same right to designate the forum which shall furnish the rule by which their liability is to be tested as the maker. If they do so, the court will respect their intention; if they do not,, the law presumes that they contract with reference to the law of the place of their contract. Hyde v. Goodnow, 3 N. Y., 270; Weil v. Lange, 6 Daly (N. Y.), 549; Staples v. Nott, 128 N. Y., 405; Bell v. Packard, 69 Me., 105.

      Mr. A. G. Shattuck, for defendant in error.
    Do not the parties—the maker, the indorsers before delivery, and the payee, too, by accepting the note—
      “otherwise stipulate” in the note in question, and say the place of performance shall be Kentucky, instead. of Ohio, the place of the contract?
    Unless there can be said to be two separate and distinct contracts in the case presented to the court, one executed by the maker of the note, The Cincinnati Coal & Coke Co., and another executed by Montgomery and McDonald, the blank indorsers, this admission destroys the force and effect of the entire argument of plaintiff in error.
    We maintain that there is only one contract, and there is no fact in the record that will tend to show that there was an intention even, much less a consummation, on the part of the blank indorsers to enter into any other contract than the contract of the maker. Pingrey on Sur. & Guar., secs. 36, 347; Cincinnati Court Index, Jan. 22, 1902.
    We maintain that this note is purely and unequivocally a Kentucky contract, and as to its nature, validity, interpretation and obligation is governed by Kentucky laws, lex loci solutionis. Dicey on Conflict of Laws, p. 570; 1 Daniels on Neg. Inst., p. 886; 1 Daniels on Neg. Inst., p. 898, sec. 879; Story on Conflict of Laws (8 ed.), sec. 242 (1) and sec. 280; 1 Brandt on Sur. & Guar. (2 ed.), sec. 144; Tiesdeman on Com. Paper, sec. 506; Randolph on Com. Paper, secs. 29, 31 and 39; Stevens v. Gregg, 89 Ky., 461; Kanaga v. Taylor, 7 Ohio St., 142; Knowlton v. Railway Co., 19 Ohio St, 263; Alexander v. Pennsylvania Co., 48 Ohio St, 623; Railway Co. v. Sheppard, 56 Ohio St, 68; Dyke v. Railway Co., 45 N. Y., 116; Stix v. Mathews, 63 Mo., 371; Williams v. Wade, 42 Mass., 82; Shoe & L. N. B. v. Wood, 142 Mass., 567; Bank v. Talbot; 154 Mass., 213; Andrews v. Pond, 38 U. S., 65; Scudder v. Bank, 91 U. S., 406; Ogden v. Saunders, 12 Wheat (U. S.), 213.
    1. By the laws of Kentucky, both Montgomery and McDonald, each of whom signed “his name upon the back of a promissory note,” because of the character of said indorsement, became liable and “shall be treated as assignors as to the parties holding it” ' General Statutes of Kentucky, sec. 481; Steinharter v. Wolfstein, 13 Rep. (Ky.), 871; Stafford v. Bruce, 12 Ky. Law Rep., 374; Thomas v. Taylor, 25 Ky., 217; Carlisle v. Chambers, 67 Ky., 268; Kracht v. Obst, 77 Ky., 34; Francis v. Gant, 80 Ky., 190; Citizens Nat. Bank v. Hubbert, 97 Ky., 768.
    2. By the laws of Kentucky both Montgomery and McDonald (or the latter’s legal representatives) were entitled to immediate notice of the nonpayment, of this note at maturity. No notice was given or attempted. They are each therefore absolutely released from all liability on said note. They were accommodation indorsers, which fact was known to plaintiff when it received the note. Slack v. Longshane, 8 Rep. (Ky.), 166; Risk v. Ridgeford, 15 Rep. (Ky.), 206; Taylor v. Bank, 23 Ky., 580; McClane v. Fitch, 43 Ky., 599; Chenowith v. Chamberlain, 45 Ky., 60; Piner v. Clary, 56.Ky., 664; Harmon v. Wilson, 62 Ky., 324; Bank v. Moreland, 96 Ky., 150; Bank v. Hays, 96 Ky., 365; Moreland v. Bank, 97 Ky., 211.
    3. Whether protest is required or not is governed "by the laws of the state where the same must be mada Story on Conf. of Laws (8 ed.), sec. 360; Tiedeman >on Com. Paper, sec. 509; 2 Parsons on Notes & Bills, 344; 1 Daniels on Neg. Inst., sec. 911; Woods Byles on N. & B., 404; Randolph on Com. Paper, sec. 52; Scudder v. Bank, 91 U. S., 412; Bank v. Gray, 2 Hill (N. Y.), 227; Ross v. Bedell, 5 Duer (N. Y.), 462; Carter v. Bank, 26 Tenn., 548.
    4. “Whatever constitutes a good defense by the law of the place where the contract is made or is to be performed, is equally good in every other place where the question is litigated.” 2 Kent, p. 459; Story on Conf. of Laws,- sec. 331; Hall v. Castello, 48 N. H. 179; Harrison v. Edwards, 12 Vt., 652; Conahan v. Smith, 2 Disn., 9; Dicey on Conf. of Laws, 726; 1 Daniels on Neg. Inst., sec. 889.
   Davis, J.

This court has already committed itself to the doctrine that “a contract made in one state or country to be performed in another, is governed by the laws of . the latter which determine its validity, obligation and effect.” The Pittsburgh, Cinncinnati, Chicago & St. Louis Railway Co. v. Sheppard, 56 Ohio St, 68; Kanaga v. Taylor, per Bowen, J., 7 Ohio St., 142. This rule is so well established upon reason and authority that it requires no discussion here. . The note which is the subject of controversy in. this case, was signed by one of the parties in Ohio, and before delivery by another in Kentucky and by another in Pennsylvania; but it was delivered to the agent of the payee in Ohio. The contract was within the control of the parties who are bound by it and did not become effective until it was delivered. Therefore, the loci contractus is Ohio. But the place of performance, the loci solutionis, is Kentucky; because the note is expressly made “payable at Northern Bank, Covington, Ky.” The plaintiff in error insists that this stipulation binds only the principal debtor, The Cincinnati Coal & Coke Co., which signed underneath the note and upon the face of it; and that the contract of the parties who signed in blank on the back of the note, although before its delivery, is like the engagement of an indorser, an independent contract which contains no stipulation as to the place of performance. Hence, it is argued, that as to these parties the case is controlled by the lex loci contractus, that is, the law of Ohio. From our point of view, Montgomery & Co., and McDonald were no.t indorsers in the regular way, and in the course of business as the owners or holders of the note. All of the defendants were, original parties to the note, having signed it before it came into the possession of the first owner, the payee. The facts are undisputed and the obvious deduction therefrom is that the parties to the note at the time of its utterance all understood, and meant to be governed by, its terms; for at the time Montgomery & Co. and McDonald put their signatures on the back of the note the stipulation that the money should be “payable at Northern Bank, Covington, Ky.,” was as much a part of the original contract as the promise to pay to the order of plaintiff the sum of money which is stated. There was, in short, no separate contract after the making of the note; but the note came to the payee signed by all of the defendants and with the place of performance- distinctly expressed. There was therefore no error in the judgments of the courts below, and the judgment of the circuit court is

Affirmed.

Burket, C. J., Spear, Shauoic, P'rice and Crew, JJ., concur.


text:
    Richards, Receiver, etc., v. The Louis Lipp Co. and Richards, Receiver, etc., v. The American Fire Brick and Clay Co.

      Mutual protective association policy—Held in good faith as indemnity—Association estopped from denying recovery for loss on such policy—Because plaintiff did not sign constitution of association as member-—Assured also estopped to deny being a member of association—Because of failure to sign constitution —Sections 3686-3690, Revised Statutes.

    1. Where a policy has been issued by a mutual protective association which is organized and doing business under sections 3686-3690, Revised' Statutes, and said policy has been held in good faith as an indemnity, and premiums have been paid and received ' under it, such association is estopped from asserting by way of defense to an action to recover for a loss under said policy, that the plaintiff is not a member of the association because he has not signed the constitution of the association.-
    2. Where a policy has been issued in good faith by such association and has been received and held by the assured as an indemnity, upon the condition, set out in said policy, that such policy is made and accepted subject to the express agreement by. the assured that he will pay such further assessments, within thirty days from notice thereof, as might be made under the by-laws adopted for the government of said association, and in accordance with the laws of Ohio, the assured, in an action to recover assessments on such policy, is estopped to deny that he. is a member, of said association because he had not signed the constitution thereof.
    (Nos. 8390 and 8153
    Decided January 5, 1904.)
    No. 8390. Error to tbe Circuit Court of Hamilton county.
    No. 8153. Error to tbe Circuit Court of Tuscarawas county..
    Tbe-case against The Louis Lipp Co. was begun in tbe common pleas court of Hamilton county on a policy issued by the Aetna Fire Association, which was duly organized under sections 3686-3690, Revised Statutes of Ohio. The cause of action was a loss by fire sustained by the holder of a policy.. The plaintiff in error, defendant below, defended upon the ground that the policy was void for the reason that the constitution of said association was never signed by this policy holder. The plaintiff replied, setting up the issuing of the policy and the receiving and holding of the premium as a waiver of the signing of the constitution, and claimed an estoppel because of the waiver. The court of common pleas rendered judgment for the plaintiff, and that judgment was affirmed by the circuit court.
    The case of The American Fire Brick and Clay Co. was begun in the court of common pleas of Tuscarawas county, by the receiver of the Aetna Fire Association, to recover an assessment decreed by the court of common pleas of Hamilton county in the matter of the dissolution of said association. The petition sets out the ordinary allegations, showing the authority of the receiver to bring the action, setting up the decree of the court which made the assessment, stating that proper notice was given giving the time and amount in which the defendant was insured, and alleging that during the time when the policy was running the defendant held the same, and that one of the conditions of the policy was, that it was made and accepted subject to the express agreement by the assured that he would pay such further assessments within thirty days from notice thereof as might be made under the by-laws adopted for the government of said association, and in accordance with the laws of the state of Ohio; and alleging that by the accepting and holding of the policy aforesaid the defendant, The American Fire Brick and Clay Co., effected insurance in, and became, and continued to be, a member of said association between said dates, and in said amount, and received the contingent benefits arising; from said insurance, and thereby agreed to, and became liable for its proportion of all losses and expenses incurred by the association between said dates,, and to pay such assessments on the amount of the defendant’s policy as should be required by law and the-orders of the directors of the association. The defendant demurred to the petition. The demurrer was. sustained by the court of common pleas upon the ground that it was necessary for the assured, The-American Fire Brick and Clay Co., to sign the constitution of the association; otherwise that its policy would be void. The circuit court affirmed the judgment of the court of common pleas.

      Mr. Patterson A. Reece; Mr. Smith W. Bennett and. Mr. J. W. Yeagley, for plaintiff in error, cited and. commented upon the following authorities:

      State Mutual Fire Ins. Assn. v. Brinkley, 61 Ark., 1; Phenix Ins. Co. v. Pennsylvania R. Co., 134 Ind., 215; Pennypacker v. Insurance Co., 80 Ia., 56; Rogers v. Simmons, 155 Mass., 259; Ganser v. Fireman Fund Ins. Co., 34 Minn., 373; Oneida Bank v. Bank, 21 N. Y., 495; Insurance Co. v. McMillen, 24 Ohio St., 67; Dearborn Foundry Co. v. Augustine, 5 Wash., 67; Toledo Tie & Lumber Co. v. Thomas, 33 W. Va., 566; Trumbull Co. Mut. Fire Ins. Co. v. Horner, 17 Ohio, 407; Callender v. Railway Co., 11 Ohio St., 527 Goodin v. Evans, 18 Ohio St., 168; Lucas v. Greenville B. & S. Assn., 22 Ohio St., 339; Hays v.. Gas L. & C. Co., 29 Ohio St., 340; Clarke v. Thomas, 34 Ohio St., 62; Ehrman v. Insurance Co., 35 Ohio St., 337;
      Tone v. Columbus, 39 Ohio St., 281; Falkenbach v. Patterson, 43 Ohio St., 369; Dettra v. Kestner, 117 Pa. St., 566; Richards v. Swaim, 9 Ohio Dec., 76; s. c. 7 N. P., 68; Chubb v. Upton, 95 U. S., 669; Rundle v. Kennan, 48 N. W. Rep., 516; Doane v. Insurance Co., 11 Atl. Rep., 739; s. c. 43 N. J. Eq., 522; Hitchcock v. Galveston, 96 U. S., 341; Matt v. Protective Society, 70 Ia., 455; Kitzmiller v. Van Rensselaer, 10 Ohio St., 64; Holt v. Lamb, 17 Ohio St., 387; State ex rel. v. Fire Assn., 50 Ohio St., 149; secs. 3689, 3690, Rev. Stat.

      Messrs. Peck, Shafer & Peck and Messrs. Neely & Patrick, for defendants in error, cited and commented '■upon the following authorities:

      State Mutual Fire Assn. v. Stave & Heading Co., 61 Ark., 1; Phenix Ins. Co. v. Pennsylvania Co., 134 Ind., 215; Pennypacker v. Insurance Co., 80 Ia., 56; Rogers v. Simmons, 155 Mass., 269; Ganser v. Insurance Co., 34 Minn., 373; Oneida Bank v. Bank, 24 N. Y., 195; Insurance Co. v. McMillan, 24 Ohio St., 67; Ehrman v. Insurance Co., 35 Ohio St., 337; Hitchcock v. Galveston, 96 U. S., 341; Rundle v. Kennan, 48 N. W. Rep., 516; Dearborn Foundry Co. v. Augustine, 5 Wash., 67; Toledo Tie & Lumber Co. v. Thomas, 33 W. Va., 566; Trumbull Co. Mut. Ins. Co. v. Horner, 17 Ohio, 407; Callender v. Railway Co., 11 Ohio St., 527; Goodin v. Evans, 18 Ohio St., 168; Lucas v. Greenville B. & L. Assn., 22 Ohio St., 339; Hays v. Gas Light & C. Co., 29 Ohio St., 310; Clarke v. Thomas, 34 Ohio St., 62; Doane v. Insurance Co., 11 Atl. Rep., 739; s. c. 43 N. J. Eq.., 522; Tone v. Columbus, 39 Ohio St., 281; Falkenbach v. Patterson, 43 Ohio St., 369; Dettra v. Kestner, 147 Pa. St., 566; Richards v. Swaim, 9 Ohio Dec., 76; Chubb v. Upton,
      95 U. S., 669; Matt v. Protective Society, 70 Ia., 455; State ex rel. v. Fire Assn., 50 Ohio St., 145; Schurtz v. Colvin, 55 Ohio St., 274; 2 Bates’ Pleadings & Forms, 851; Pomeroy on Eq. Jur. (2 ed.), secs. 804, 805; DeBerry v. Wheeler, 49 Am. St., 538; Ensel v. Levy & Bro., 46 Ohio St., 255; 2 Herman on Estoppel & Res. Jud., sec. 1275, p. 1425; secs. 3686, 3687, 3688, 3689, 3690, Rev. Stat.
   Davis, J.

The Aetna Fire Association was duly organized under sections 3686-3690, Revised Statutes. 'The first of these cases is an action by the holder of a policy issued by this association, to recover for a loss sustained by fire. In the other cáse the cause of action set out in the petition is an assessment by the court of common pleas of Hamilton county in the matter of the dissolution of the said fire association. In both cases resistance is made to recovery, on the ground that a policy issued by such an association is void unless the assured shall have signed the constitution of the association. In contending for this proposition some reliance is placed on the following-language which appears in the opinion in State ex rel. v. Manufacturers’ Mutual Fire Association, 50 Ohio St., 149, viz.: “To become a member the person must sign his name to the constitution.” This is merely a construction of the language of the statute (section 3690, Revised Statutes)., which is that: “All persons who sign such constitution shall be considered and' held to be members of the association, and shall be held in law to comply with all the provisions ■and requirements of the association.” In that case the question which is before us in these cases, did not arise and was not considered, viz.: Whether the assured,, on the one hand, might not be estopped by his ■conduct,, when sued for assessments, from asserting that he had not complied with the law, or that he was. not legally a member; and whether, on the other hand, the association might not be estopped by its conduct, when sued on its policy, from asserting that it had not required and obtained the signature of the assured to the constitution. The remark in the opinion in State ex rel. v. Manufacturers’ Mutual Fire Association, while it is strictly correct, was made with reference to a wholly different controversy, and' is. not pertinent here.

There is no provision in the statute that a policy issued by a mutual protective association sháll, be void if the assured does not sign the constitution. It. is only by inference that it can be said that it even would be voidable. To allow either party to the-policy to set up his own wrong as a defense to an obligation incurred under the policy, where the policy has been issued and held in good faith as an indemnity and where premiums have been paid and received under it, is not only manifestly unjust, but. contrary to settled rules of law. It was -held in Tone v. Columbus, 39 Ohio St., 281, that: “Want of power-in the corporation may be waived, or an estoppel may arise from failure to assert it at the proper time.” And in Matt v. R. G. Mutual Protective Society, 70 Ia., 455, it was held that, “a religious society, formed under the auspices of a church, which includes a mutual life insurance scheme as one of its features, cannot defend against a suit on one of its policies upon the plea of ultra vires, when it has been receiving" the assessments on the policy.” In an action upon a bond and mortgage given to a “loan and fund association,” reciting in the bond that the signer is a member of such association, and recognizing the obligation of the by-laws, it was held that in the absence of " fraud, the signer was, estopped to deny that he was a member of the association. Howard Mut. Loan & Fund Association v. McIntyre, 3 Allen (Mass.), 571. In Parker v. U. S. Building, Land & Loan Association, 19 W. Va., 744, it was held that, “the failure of a member to sign the constitution of such association, if he has for a long time acted as a member of the association, will, not prevent the association from enforcing the performance of a contract made with such member, though it be a contract which the association was not authorized to make with any but a member.” Finally, it was held by this court, in Trumbull County Mut. Fire Ins. Co. v. Horner, 17 Ohio, 407, that a member of a mutual fire insurance company, when sued upon an assessment upon his deposit note, to pay a loss occasioned by fire, cannot set up a defense that he and his associate corporators have neglected to comply with the provisions of their charter.

It is our opinion, therefore, that the judgment of the circuit court of Hamilton county, and that of the court of common pleas, in the case of The Louis Lipp Co., should be and are hereby affirmed; and that in the case of The American Fire Brick and Clay Co., the judgments of the circuit court of Tuscarawas county and of the court of common pleas, were erroneous; but on authority of Slingluff v. Weaver, 66 Ohio St., 621, and Gompf v. Wolfinger et al., 67 Ohio St., 144, the case is

Dismissed for want of jurisdiction.

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


author: ' Spear, J.

text:
    McCammon et al. v. Cooper, Trustee, et al.

      A ground rent is a freehold estate, when—Such right descends according to laws of real estate, when—Sections 4158, 4159 and 4163, Revised Statutes—Inheritance by minor of father’s land— Land sold—Proceeds invested in ground rent—Minor dies intestate and without issue—Law of descent.

    1. A “ground rent” being an estate of inheritance in the rent of lands, is a freehold estate, and is a right to and interest in the-lands within the meaning of section 4158, Revised Statutes, relating to descent and distribution.
    2. Where the owner of such ground rent dies intestate and without issue, the right descends under the provisions of the sections of the Revised Statutes which control the descent of real estate,, and is not within the purview of section 4163, which relates to> personal property.
    3. Where a minor inherits from her father lands which came to hiitr by deed of gift and the same are sold under the order of the probate court, and the proceeds invested in government bonds and subsequently the bonds are sold and the proceeds invested in a ground rent, and afterwards that ground rent is redeemed; and the proceeds invested in another ground rent, and the minor dies while the owner thereof, intestate and without issue, the estate will descend by virtue of section 4159, Revised Statutes, to the next of kin of the deceased, and not to the heirs at law of the ancestor.
    (No. 8237
    Decided January 5, 1904.)
    Error to the Circuit Court of Hamilton county.
    In the year 1885 George McCammon died intestate, leaving an only child, Leora McCammon, an infant, and a widow, Ida Leora McCammon. He left a large personal estate, also real estate situate in Cincinnati, which descended to his daughter Leora. All this he had derived by deed of gift from his father. In 1897 the guardian of Leora applied to the probate court of Hamilton for authority to sell certain of the real estate, under favor of section 6280, Revised Statutes, on the ground that a better investment could be made-in government bonds or ground rents. The court, made the order prayed for directing the sale. The-net proceeds amounted to $8,253.14. Prior to this, the guardian had received $5,000, the proceeds of certain policies of fire insurance upon buildings belonging to his ward and inherited by her from her-father. The guardian invested this entire fund in government bonds, and subsequently sold the bonds,, and, in pursuance of the order of the probate court,, invested the proceeds, together with the proceeds of the real estate, in a ground rent. October 3, 1898,. the guardian resigned, and the defendant in error,, Harry L. Cooper, was by the probate court appointed, trustee. The privilege of purchase being exercised as to the above named ground rent, $20,000, the proceeds, were received by the trustee, and that amount, was thereupon by him reinvested in other ground rents.
    Subsequently, in 1900, Leora McCammon died,, aged fifteen, intestate and unmarried. The trustee-settled his account in the probate court, and was ordered, on motion of the mother, now Ida Leora Olmstead, to convey to her the said real estate or ground i^ents in his name as trustee, in fee simple, and to turn, over to the administrator of Leora deceased, the-money and personal property' in his hands. From this order plaintiffs in error, Wm. McCammon, the-brother of George McCammon, and John L. McCammon, the nephew of George McCammon, his only heirs-at law, having theretofore appeared in the probate court to resist the motion, and having filed their claim tq said two funds, $8,253.14 and $5,000, appealed the-case to the court of common pleas. In that court, upon, hearing, the same order was made as that of the; probate court That judgment was affirmed by the ■circuit court, and the McCammons bring error.

      Mr. Harlan Cleveland; Mr. John E. Bruce and Mr. -Jacob H. Bromwell, for plaintiffs in error, cited and -commented upon the following authorities:

      Armstrong v. Miller, 6 Ohio, 118; Pence v. Pence, 11 Ohio St., 290; National Bank v. Insurance Co., 104 U. S., 54; Patterson v. Lamson, 45 Ohio St., 90; Brower v. Hunt, 18 Ohio St., 311; Rook v. Warth, 1 Ves. Sr.; Parry v. Ashley, 3 Sim., 97; Fleming v. Jordan, 28 Bull., 332; Hawes v. Lathrop, 38 Cal., 493; Shaw v. Bauman, 34 Ohio St., 25; Pennell v. Deffell, 4 De Gex. M. & G., 372; Van Allen v. Am. Nat. Bank, 52 N. Y., 1; Ware v. Polhill, 11 Ves., 257; Ex parte Philips, 19 Ves., 118; Norton v. Norton (1900), 1 Ch., 101; Wetherill v. Hough, 52 N. J. Eq., 683; Forman v. Marsh, 11 N. Y., 544; Horton v. McCoy, 47 N. Y., 21; Sweezey v. Thayer, 1 Duer (N. Y. Supr. Ct), 286; Scull v. Jernigan, 2d Dev. & Bat. Eq. (N. C.), 144; March v. Berrier, 6 Ired. Eq. (N. C.), 524; Woerner’s Am. Law Guardianship, sec. 91, pp. 301-2; Schouler on Dom. Rel., sec. 357; Story on Eq. Juris., sec. 1357; Perry on Trusts, sec. 611; Matter of Bolton, 10 Miscel. Rep. (N. Y.), 532; Lockman v. Reilly, 95 N. Y., 64; In re Williams, 3 Bland Ch. (Md.), 186; Thompson v. Pettihone, 79 Ky., 319; Rogers v. Rogers, 101 Tenn., 428; secs. 4158, 4159, 4163, 6269, sub. 7, and 6280, Rey. Stat.

      Mr. Judson Harmon and Messrs. Harmon, Colston, Goldsmith & Hoadly, for defendant in error, cited and commented upon the following authorities:

      Patterson v. Lamson, 45 Ohio St., 90; Hutchings v. Davis, 68 Ohio St., 160; Lessee of Allen v. Parish, 3 Ohio, 187; Bruner v. Briggs, 39 Ohio St., 478; Hollingworth v. State, 29 Ohio St., 552; County of Le-high v. Meyer, 102 Pa. St., 479; Ex parte Partington, 6 Q. B., 649; Brower v. Hunt, 18 Ohio St., 311; Fleming v. Jordan, 11 Re., 688; 28 Bull., 332; Hawes v. Lathrop, 38 Cal., 493; Rook v. Worth, 1 Ves. Sr., 460; Williams on Real Property (2 ed.), 234; 1 Cooley’s Blackstone, Bk. 1, p. 111; Parry v. Ashley, 3 Sim., 97; Hubbard v. Austin, 8 Dec., 111; 6 N. P., 249; Earnfit v. Winans, 3 Ohio, 135; Emerson v. Cutler, 14 Pick., 108; secs. 4158, 4159, 4163, 5803-13, 5804, 5808, 6282, Rev. Stat .
   ' Spear, J.

The .claim of plaintiffs in error is that the property inherited by Leora McCammon from her father, having been ancestral property, and the plaintiffs in error being the only heirs at law of the ancestor, they are entitled, by force of our statute of descent and distribution, to the inheritance. Not that the precise estate which was owned by Leora Mc-Cammon, at her decease, came to her by inheritance, for without question, it did not, but that that property was purchased by the proceeds of the real estate which she did inherit, and which had been sold by her guardian; and that by applying the rule of equitable conversion, the funds derived from the sale continued during the life of Leora, in whatever form they were invested, to be impressed with the character of ancestral property for purposes of descent and distribution.

We think the proposition cannot be maintained. It is conceded that under the authority of Armstrong v. Miller, 6 Ohio, 119, and Pence v. Pence, 11 Ohio St., 290, the proceeds of the sale of land would have become personal property, with all the incidents of such property as to distribution, in the event of the death of Leora, but for the act of March 18, 1890, which added a proviso to section 4163, Revised Statutes (the section which directs the distribution of personal property), which proviso is: “provided, that any fund in the hands of any administrator, guardian, assignee or other, trustee which has arisen from the sale of real estate, which real estate came to such intestate by descent, devise or deed of gift from an ancestor, shall descend according to the course of descent described by section 4158 for ancestral real estate.” And the contention with respect to this proviso is that the term “any fund in the hands of any * * * guardian * * * or other trustee” means the proceeds of the sale so long as held by the guardian or trustee under his trust and unexpended, into whatsoever form he may in fact change them by investment, thus seeking by construction to engraft upon our statute the equitable rulfe, enforced in many jurisdictions, that when for any reason the court changes the character of the property belonging to infants, it will not permit the change to alter its devolution. The proposition, as applied to this* case, is open to many answers. One is that the proviso, in its language and apparent intent, is dealing with present conditions. It does not- deal with the past except that if the fund which then exists has arisen from the sale of ancestral real estate its devolution is controlled by this proviso. But the proviso cannot be aided or enlarged by the application of any equitable* rule. As held in Patterson v. Lamson, 45 Ohio St., 77, “the statutes of descent and distribution are not to be construed and administered upon equitable principles, but by rules of law,” and in Hutchings v. Davis, 68 Ohio St., 160, “courts cannot, by reason of any real or imagined equities limit, qualify or annul rights granted by legislative enactment.” In other words, the general assembly must be held to have intended to express its entire meaning by the natural import of the words used. The natural import of the term “fund which has arisen from the sale of real estate” implies a fund which has directly arisen from that source. The principle of Brower v. Bunt, 18 Ohio St., 311, is applicable here. It is there held that: “The title to real estate which must have come to an intestate by devise, or deed of gift from an ancestor, to constitute ancestral property, is the title under which the intestate immediately held.” Not that the word “directly” is found in this proviso, but neither was the word “immediately” found in the statute under review in the case above cited. If the intention had been by this proviso to give ancestral heirs any right to the proceeds of the sale of infants’ real estate inherited from the ancestor, in any form it may be made to assume in the future, such intention would have been expressed in apt language. It is not, we think, reasonable to assume that the legislature intended to go farther in the adoption of the doctrine of equitable conversion than the ordinary meaning of the words used imports.

But it seems hardly worth while to pursue this line further. Another answer fully covers the case. The proviso does not apply because the property in question was not a fund in the hands of the trustee. A fund is well defined as money or its equivalent gathered for, or to be appropriated to, a specific object. The property in controversy is not personal property of any kind; it is a right to real estate, and it isn’t of consequence what form the inheritance of the minor assumed from time to time after her father’s decease and before her own. At the time of the latter event the inheritance had taken the form of real estate to which she had a right. And this applies as well to the insurance money as to the other; so that no different rule of law is involved. The descent of real estate as to which the owner dies intestate, is controlled by either section 4158 or 4159, Revised Stab utes, depending upon whether the estate thus left came to the deceased by descent, devise, or deed, of gift, or by purchase. If by purchase, and that is the character of this estate, then , the latter section controls, and the estate in controversy. would ■ under the fifth clause of that section, and by force of the ruling in Armstrong v. Miller, supra, and Pence v. Pence, supra, pass to the mother.

There is no error in the judgment of the circuit court affirming that of the common pleas, and it will be

Affirmed.

Burket, C. J., Davis, Shauck, Price and Grew, JJ., concur.