author: Oweñ, C. J.

text:
      Ex parte Dalton.

      Contempt of legislative body — Power of committee to command cleric to produce poll-book —Commitment to jail upon refusal.

    1. A standing committee on privileges and elections of either house of the general assembly, while engaged under the orders of such house in taking testimony and making investigations to be reported to it, in a contest for membership thereof, pending therein, with power-to send for persons and papers, may, by a subpoena duces tecum, lawfully command a clerk of the court of common pleas, having custody thereof, to produce before such committee any poll-book affecting the election involved in such contest, although this may require its removal to another county than that in which his office is situated.

      2. Upon the refusal of the clerk to obey the command of such subpoena, it is lawful for such house, upon his arraignment therein and further refusal, to order his commitment to jail as for contempt of its authority, until he obeys, or signifies his willingness to obey, the command of such subpoena; such imprisonment not to extend, however, beyond the pending session of the general assembly.
    Error to the Circuit Court of Franklin county.
    Habeas corpus.
    On the 11th day of February, 1886, the standing committee on privileges and elections of the house of represetatives of the general assembly of Ohio was, by authority of the house, regularly engaged (in a contest for membership) in an investigation, at the city of Columbus, affecting the election and qualifications of certain members of such house, and certain alleged frauds charged to have been committed in Hamilton county, in the election of such members, with power to send for persons and papers, and to examine the returns of such election, in order to the determination of the questions involved in such investigation. "While, so engaged, such committee duly caused a subpoena duces tecum to issue, commanding Daniel J. Dalton, clerk of the court of common pleas of Hamilton county, to appear as a witness and produce before such committee the poll-book and tally-sheet of the October election of 1885 for precinct A of the Fourth ward of Cincinnati; the same being pertinent to such investigation. The subpoena was duly served. Dalton appeared, but refused to produce the papers named in the subpoena. His refusal was reported to the house, at the bar of which he was called upon to answer for his refusal to obey the command of the subpoena, where he still refused, acting under the advice of his counsel, to produce such papers, without an order of the court of which'he was clerk. Thereupon, by the authority of a resolution of the house, and its warrant duly issued by its speaker, he was committed to the custody of the sergeant-at-arms of the house as for contempt of its authority, to be by such officer committed to the jail of Franklin county in such city of Columbus, for thirty days from and including the date of such commitment, or until the close of the present session of the general assembly, if the same should close within that period; unless he should sooner signify his willingness to produce the papers called for by the subpoena. Being in the custody of such officer, Dalton duly procured a writ of habeas corpus to issue out of the court of common pleas of Franklin county, commanding such sergeant-at-arms to show cause for the caption and detention of his prisoner. Upon the foregoing facts such court, Hon. Hawley J. Wylie presiding, adjudged the detention to be lawful, and remanded the prisoner to the custody of such officer.
    The judgment was affirmed on error by the circuit court, and to reverse this judgment of affirmance the present proceeding is prosecuted.

      Baker § Goodhue, for petitioner.
    A court, upon habeas corpus, may inquire, not only into the jurisdiction of the tribunal attempting to punish as for contempt, but may inquire into the legality of the grounds upon which the claim that the petitioner is in contempt are based. Kilbourn v. Thompson, 103 U. S. 168.
    The writ was void, and there can be no contempt in disobeying a void writ. People v. Bradley, 60 Ill. 390.
    Neither the house of representatives, nor a committee of its members, have power to compel the petitioner to produce, out of his county, a poll-book of which, under section 2961 of the Revised Statutes, he is made the custodian. The language of that section is, that the poll-book shall be deposited with the clerk, “ there to remain for the use of any person who may choose to inspect the same.”
    Public records that have a depository, in the absence of statutory inhibition, can not be taken from the place of deposit ; nor can their custodian, by the process of subpoena duces tecum, be compelled to remove them from thence, especially when the instrument or record is susceptible of exemplification. Every document of a public nature which there would, be inconvenience in removing, and which the party has the right to inspect, may be proved by a duly authenticated copy. Bowman v. Sanborn, 25 N. H. 87-113; United States v. Delespine, 12 Pet. 654; United States v. Percheman, 7 Pet. 51-85; In re Dillon, 7 Sawyer, 571; Corbett v. Gibson, 16 Blatchf. 334; Bradley v. Silsbee, 33 Mich. 328; Raymond v. Longworth, 4 McLean, 481; 1 Green 1. Ev. 103.
    The house of representatives is without power to punish for contempt. There is no direct constitutional grant of such power.
    A trial and conviction as for a contempt is the exercise of judicial power. People v. Keeler, 39 Hun, 563; s. c. on appeal, 99 N. Y. 463.
    Section 32, article 2, of the constitution, inhibits the exercise of judicial power by the general assembly. See State v. Harmon, 31 Ohio St. 250, 258.
    So then, in looking for this power to send a man to jail on a finding in contempt, the house of representatives in Ohio either gets it from statutory enactment (Rev. Stat., § 52), or common law; that Is, the power is inherent.
    It can not derive the power from both sources. It can not have authority to punish for contempt by statutory grant and common law grant. If a statute attempts to prescribe a penalty for a defined offense, no other can be inflicted; and you can not go outside the statute to find either another penalty, or another source of power to inflict other than the statutory penalty. Haney v. State, 5 Wis. 529; Driskill v. Parrish, 3 McLean, 631; Brooklyn v. Toynbee, 31 Barb. 282; Sipperly v. Railroad Co., 9 How. Pr. 83; Washburn v. McInroy, 7 Johns. 134; Tiffany v. Driggs, 13 Johns. 252; Scrinegrour v. State, 1 Chand. (Wis.) 48.
    And this rule is equally applicable in the definition and punishment of what may be styled contempt. Bickley v. Commonwealth, 2 J. J. Marsh. (Ky.) 572; Ex parte Edwards, 11 Fla. 174; Dunham v. State, 6 Iowa, 245.

      And the same principle is enunciated in Tweed’s case, reported as People v. Liscomb, 60 N. Y. 559.
    In Dunham v. State, supra, the court held, p. 257: “ It is insisted, however, that the courts of this state may punish other acts and omissions, as contempts, than those mentioned in the code. We are strongly inclined to think, however, that the provisions of the code upon this subject must bo regarded as a limitation upon the power of the courts to punish for any other contempts.”
    No act or conduct can be a contempt that does not fall within the designation of the statute. McDonald v. Keeler, supra; Dunham v. State, supra.

    No inherent power exists in legislative bodies to punish for contempt. Kilbourne v. Thompson, 103 U. S. 168; Stockdale v. Hansard, 9 Ad. & El. 1; McDonald v. Keeler, supra.

    No punishment is prescribed by statute in Ohio for contempt of a legislative body..
    Section 52 of the Revised Statutes provides that such person “ shall be liable to the pains and penalties for contempt of the authority of the general assembly.” What these “pains and penalties” are does not appear. They are not prescribed.
    The statute further provides that he “ shall be dealt with according' to parliamentary rules and usages in cases of contempt.” Punish a citizen of Ohio according to “ rule or usage ? ”
    There are neither common law offenses or penalties in Ohio. Key v. Vattier, 1 Ohio, 132; Vanvalkenburg v. State, 11 Ohio, 404; Allen v. State, 10 Ohio St. 287; Smith v. State, 12 Ohio St. 466.
    The federal constitution guarantees that “■ no person shall be deprived of life, liberty, or property, without due process of law.” Even the inherent right of a court of jus-* ticé to punish for contempt is compelled to bow to this constitutional guaranty.

      Miles § Stevenson, also for petitioner.
    Our state government is divided into three co-ordinate branches, exercising distinct functional powers, sharply defined by constitutional limitations. Neither of these branches can exercise any powers not expressly given by the people in whom all political power is inherent and from whom all just powers are derived. By the constitution, “ the legislative power is granted to the general assembly, the executive power to the governor, and the judicial power to the courts.” C. W. & Z. R. Co. v. Clinton Co., 1 Ohio St. 85. And by express terms “all powers not herein delegated remain with the people.” Sec. 20, Bill of Rights.
    The general assembly is expressly inhibited from exercising any judicial power, with the single exception of the power of impeachment.
    Neither the house nor its committee on privileges and elections was, in the investigation upon which they were engaged, acting in the capacity of a court.
    No help whatever can be obtained from English precedents, as was admitted by court and counsel in Kilbourn v. Thompson, 103 U. S. 168; for as has been said the “ omnipotence of the British Parliament forms no criterion on this side of the Atlantic.” That legislative body has always assumed the right of judicature as well as of legislation.
    Contempt is an “ offense ” or it is not. If it is an “ offense,” and the penalty therefor is so defined as to deprive the defendant of his liberty, then he is entitled by due process of law to have the truth of the matter tried before a court of competent jurisdiction.

      Jacob A. Kohler, attorney-general, George K. Nash and Jesse JL. Cameron, for respondent.
    There are many leading cases and many text books of the highest respectability that maintain that the authority to punish for coutempt is a necessary incident, inherent in the very organization of all legislative assemblies, and of all courts of law and equity independent of statutory provisions. Anderson v. Dunn, 6 Wheat. 204; Yates v. Lansing, 9 John. 395; 1 Kent Com. 300; State v. Copp, 15 N. H. 212; 1 Story Const. 595; Rawle Const. 48; Cooley Const. Law. 134.
    The case of Anderson v. Dunn, supra, decided in the supreme court of the United States, is strongly in point. That was an action for false imprisonment against the sergeant-at-arms of the house of representatives, aud it was held to be a legal justification aud bar to plead that the house of representatives had resolved that the plaintiff had been guilty of a breach of the privileges of the house and of a high contempt of the dignity and authority of the same. That case has not been overruled. The broad power, asserted in that case, was modified, in the subsequent case of Kilbourn v. Thompson, 103 U. S. 168; but in all cases of a judicial nature, such as the election, returns and qualifications of members, the authority of Anderson v. Dunn stands unshaken.
    No doubt the sovereign legislatures, the houses of parliament, and'our state legislatures, have the power to commit for contempt committed in their presence, or for disobedience of their orders. 3 Whart. Crim. Law, 3445. See also 1 Greenl. Ev. 402; Burnham v. Morrissey, 14 Gray, 226.
    The prerogative of a legislative body, or of either house, to punish for contempt, is maintained as a necessary incident, or as inherent in its very organization by Fowler, J., in State v. Mathews, 37 N. H. 451.
    If the contempt be committed in the presence of a court or of a legislative body, the offending party may be ordered into custody without any warrant or written order. State v. Copp, 15 N. H. 212; State v. Mathews, supra. And see also Wickelhausen v. Willet, 12 Abb. Pr. 319; Doc. 327 N. Y. House of Assembly; In re Falvey, 7 Wis. 630.
    Upon the proposition that in all cases of contested elections and to determine the qualification of its members, and where the examination of witnesses is necessary to the performance of these duties, the house may fine and imprison a contumacious witness. Kilbourn v. Thompson is clearly and forcibly in point and sustains the position of respondent in every particular.
   Oweñ, C. J.

It is maintained on behalf of the petitioner that neither the house of representatives nor its committee had power to command him to remove any of the poll-hooks committed to his custody from his office and take them out of his county . This claim is based upon the assumption that section 2961 of the Revised Statutes requires that the poll-books shall remain in his office and not be removed therefrom under any circumstances.

This section provides that:

“After canvassing the votes in the manner aforesaid, the judges, before they disperse, shall put under cover one of the poll-books, seal the same, and direct it to the clerk of the court of common pleas of the county; and one of the judges (to be determined by lot, if they can not othervise agree), shall convey the same to the clerk, at his office, within three days from the day of election; and the other poll-book shall be forthwith deposited with the clerk of the township, or the clerk of the municipal corporation, as the case may require, there to remain for the use of any person who may choose to inspect the same after the expiration of the time within which any legal notice of the contest could be given.”

It requires but a oasual examination of this section to show that the contention of the petitioner proceeds upon a misconstruction of it; that the words “ there to remain” have relation not to the poll-book which is to be conveyed to the clerk of the court of common pleas, but to “ the other poll-book,” which is to be deposited with the clerk of the township or municipal corporation.

That this position of the petitioner is untenable, clearly appears from the provisions of sections 3003, 3004, 2998, 2999, and 3001 (Rev. Stats.) These sections are more fully considered in the third paragraph of this opinion. They cleai’ly contemplate a trial before that branch of the general assembly to which a contest is taken on appeal, and the production before such house, or a committee acting for .it, of the returns of an election which is being investigated.

The right of the house to command the production before it, or its committee, of the papers named in the subpoena, and of the witness to produce them, is clear.

It is further maintained in behalf of the petitioner, that even if it was lawful for him to produce before the committee at Columbus the poll-book demanded, the house had no power, upon his refusal to produce it, to commit him as a punishment for contempt of its authority.

The case of Anderson v. Dunn, 6 Wheaton, 204 (decided by the supreme court of the United States in 1821), declared the doctrine that representative bodies in America possessed, inherently, the power to punish for contempt. For sixty years following this decision, its authority remained unquestioned in this country. The repeated and unqualified declarations of this principle by courts and text-writers are to be traced to this case. Maurice v. Dyer, 2 Greene, 165; Yates v. Lansing, 9 Johnson, 395; 1 Burr’s Trial, 352; United States v. Hudson, 7 Cranch, 32; 1 Kent’s Com. 300; United States v. New Bedford Bridge, 1 W. & M. 401; Tenney’s case, 23 N. H. 162; State v. Copp, 15 N. H. 212.

The later case of Kilbourn v. Thompson, 103 U. S. 168, is relied upon by counsel for petitioner as an authority in support of his position, and as overruling Anderson v. Dunn.

In the case of Kilbourn v. Thompson, the plaintiff had, on proceedings similar to those taken in the present case, been convicted of a contempt, and sentenced by the house of representatives of congress to imprisonment. It appeared on the face of the proceedings, that the contempt consisted of his refusal to answer a question propounded by a committee of the house appointed by a resolution, which was set forth. This resolution directed the committee to investigate certain business transactions in which the United States government was interested simply as a creditor of one of the parties, and the supreme court held that the preamble and resolution under which the committee was appointed showed upon their face that the investigation ordered did not have for its object any legislative action, or the impeachment of any officer of the government, but the collection of a debt owing to the government, a power which congress could not exercise, but which was vested only in courts of justice; that in orderiug such an investigation, the house of representatives exceeded the limits of its powers, and, consequently, the committee had no.authority to require the plaintiff to testify before it. On this sole ground, the decision of the court was placed, but in arriving at this conclusion, several important points, which have a bearing upon the question now before us, were discussed in the highly instructive opinion of Justice Miller.

It may be conceded that so far as Anderson v. Dunn declared the doctrine/ that representative bodies in this country possess, irtherently, the general and unlimited' power to punish for contempts, it is overruled by Kilbourn v. Thompson, but so far as it has application to the questions now before us, its authority remains unshaken by the latter case.

This is apparent from the following language of the syllabus of Kilbourn v. Thompson: "Held, that, although the house can punish its own members for disorderly conduct, or for failure to attend its sessions, and can decide cases of contested elections, and determine the qualifications of its members, and exercise the sole power of impeachment of officers of the government, and may, where the examination of witnesses is necessary to the performance of these duties, fine or imprison a contumacious witness — there is not found in the constitution of the United States any general power vested in either house to punish for contempt.”

In the course of a very learned and able opinion, Justice Miller says: “Each house is by the constitution made the judge of the election and qualification of its members. In deciding on these, it has an undoubted right to examine witnesses and inspect papers, subject to the usual rights of witnesses in such cases; and it maybe that a witness would be subject to like punishment at the hands of the body engaged in trying a contested election, for refusing to testify, that he would if the case were pending before a court of judicature.”

Here is a recognition of the power which the house exercised m the case at bar.

The case of McDonald v. Keeler, 39 Hun (N. Y.) 563, which is relied upon by the petitioner, is not an authority against the power of the house to commit, for contempt, a witness in an election contest, for the reasons (1) that, as counsel concede, it was reversed by the court of appeals of that state (99 N. Y. 463), and (2) that while denying the power of a branch of the general assembly to punish for contempt in the particular case before it, Learned, J., qualified the general rule in the following language:

“ Here, then, we must notice that by the constitution the legislature has certain judicial powers. Each branch is the judge of the qualifications of its own members. This power is judicial in character, though often partisan in fact. There is a power to remove certain judicial officers. There is a power of impeachment. These are judicial powers. They imply a decision on past occurrences, and a giving judgment accordingly. It may be, therefore, that in all actions of this kind, the senate and the assembly may rightfully enforce the same power of punishing for refusing to answer questions which is exercised by courts. These cases, therefore, we exclude from consideration.”
The constitution of Ohio ordaius (Art. 2, § 6) that: “Each house shall be judge of the election, returns, and qualifications of its own members.”

The house of representatives was exercising, through its committee, the power thus conferred, at the time of the commitment of the petitioner.

The power to enforce the attendance and testimony of witnesses, and the production .of papers affecting the election of its members, is indispensable to the efficient exercise of the power so conferred.

That the power to commit a recusant witness for contempt in disobeying the command of a subpoena issued in the due course of an investigation affecting the election of any of its members, is invested in each house, is now too firmly established to be considered a debatable question.

Anderson v. Dunn, 6 Wheaton, 204; Kilbourn v. Thompson, 103 U. S. 168; McDonald v. Miller, 39 Hun. (N. Y. Sup. Court) 563; s. c., 99 N. Y. 463; Rapalje on Contempts, § 2, and cases there cited.

Counsel for petitioner maintains, further, that the only power conferred by statute on each house to proceed against a disobedient witness for contempt of its authority is derived from section 52 (Revised Statutes), and that the power therein attempted to be conferred is too vague and indefinite regarding the mode of punishment to be capable of legal enforcement.

Section 50, Revised Statutes, provides: “That a chairman may issue subpoenassection 51 provides to whom subpoenas shall be directed, and how served, and the form; and section 52 provides punishment for disobeying the subpoena, or refusing to answer, or refusing to produce books or papers.

Section 52 provides : “ Whoever willfully fails to appear in obedience to such subpoena, or appears and l’efuses to answer any question pertinent to the matter of inquiry, or declines to produce any paper or record in his possession or control, shall be liable to the pains and penalties for contempt of the authority of the general assembly, . . . according to parliamentary rules and usages in case of contempt ; and the chairman of the committee before which such person fails to appear, or refuses to answer, or produce a paper or record, as aforesaid, on the order of the committee, or a sub-committee, shall report the facts to the proper branch of the general assembly, and on like order, issue a warrant for the arrest and conveyance of the witness before that branch, to answer for the contempt; and the sergeant-at-arms, or sheriff, to whom such warrant is directed, shall forthwith execute the same,” etc.

Rales have been adopted by the house to effectuate the provisions of this section.

Counsel for petitioner repeatedly assorts, during his argument, that it is conceded that the only statutory power to commit for contempt is to be found in this section (52). By whom this concession is made we are not advised. Certainly, this court has not made, nor is it bound by, any such concession.

On the contrary, we find that express statutory power is given to make the order by which the petitioner was placed in the custody from which he seeks to be discharged by the proceeding we are reviewing.

Section 8003 (Revised Statutes) provides, generally, for an appeal to, and contest before, either branch of the general assembly, of the right of a person declared elected thereto. Section 3004 provides that the provisions of sections 2998, 2999, and 3001 (relating to contests for county offices), shall apply to contests for seats in the general assembly. Section 2998 provides, that the-officers authorized to take depositions may issue “ subpoenas duces tecum for the production of the books, papers, ballots, or things relating to such election; and they may compel the attendance of witnesses, and the production of every thing named in the subpoenas.”

Section 2999 provides that:

“ Whoever refuses to obey such subpoena duces tecum, or to produce any books, papers, ballots, or things in his possession, or under his control, named in such writ, shall be committed to the jail of the county by the justices or other officer, there to remain until he produces the things called for.”

Section 3001 provides that:

On the trial either party may introduce oral testimony, or depositions of witnesses taken as provided in civil actions; and whenever any omission, defect, or error occurs in the proceedings of an officer, in declaring or certifying that a person was duly elected to an office, the same may be corrected by oral or other testimony offered at the hearing of any preliminary proceeding, or at the trial.”

These provisions, having been thus engrafted upon those for contest for membership of either house, furnish specific warrant for the action of the house in the case before us. This renders unnecessary any further discussion of the provisions of section. 52, or the rules of the house, so far as they relate to commitment of witnesses for contempt.

The questions we have been considering were incidentally involved in the case of Dalton, Clerk v. The State ex rel. Richardson, 43 Ohio St. 652. This court there held that the .jurisdiction conferred by the constitution upon each house to “judge of the election, returns, and qualifications of its own members,” is supreme aud exclusive, and that: “In a contest in either house, the broadest range is given contestants to purge the ballot and returns of the consequences of neglect, mistake, fraud, and crime, from the opening of the polls to the final declaration of the result.”

The pertinency of this language to the case before us is emphasized by the fact that it was used with reference, among other things, to the very paper (then before this court) whose production was commanded by the subpoena issued in the ease at bar. It was used to support the proposition that a contest before either house afforded a complete and adequate remedy for fraud, neglect, or crime at the election or in making up the returns thereof. If it be true that neither house of the general assembly has power to compel the production before it, or a committee acting for it, in the trial of a contest involving the election of a member, of the returns and other papers affecting such election, the declaration of this court in the case last cited is but a false pretense, and a contest in either house is not an adequate remedy for the contestant.

The parties to such a contest are entitled to the enlightened judgment of each member of the house upon the questions involved in the contest.

Where a full understanding of- such questions requires a personal inspection of the returns of the election, it is the right of each party to the contest to ask that they be brought within reach of each member whose vote is to aid in the final determination-of the contest. With the thoroughness of the investigation dependent wholly upon the pleasure or caprice of witnesses, and without the power to enforce their attendance and testimony and the production of papers, by such means, if necessary, as the house of representatives used in the present case, it would be worse than an absurdity to say, as did this court in the case last cited, that: “In a contest in either house the broadest range is given contestants to purge the ballot and returns of the consequences of neglect, mistake, fraud, and crime, from the opening of the polls to the final declaration of the result.”

Judgment affirmed.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Manhattan Life Insurance Company v. Smith.

      Life insurance — Notice to beneficiary of amount of premium due — When husband agent of wife — Attempt by husband to surrender policy — Tender.
    1. Where, by the terms of a contract of life insurance, the beneficiary named in the policy is entitled to participate in the profits, a portion of which, in the form of dividends, is to be applied each year in reduction of premiums, and it has been the uniform practice of the company to give timely notice of the amount of premium, amount of dividends, and of the balance to be paid in cash, and the company neglects to give such notice, having knowledge of the residence of the beneficiary, and by reason thereof a premium is not paid at the time specified in the policy, the company can not set up such failure to pay as a defense to a recovery upon the policj', although by its terms the same is to be forfeited in case of failure to pay a premium upon any of the dates stipulated therein.
    2. In such case, where the company has uniformly sent the notices to the insured (the husband of the beneficiary) and he has .made payment of premiums from year to year, the law will treat him, in making such payments, as agent for the wife; but where it is shown to the company, by letters from the husband, very shortly after notice sent, that he and' the wife have separated, she having commenced a proceeding for alimony against him, and that he is desirous of having the policy changed and made payable to his estate, the company is not justified in treating him as her agent, for the purpose either of receiving notice for her, or of malting a surrender of the policy.
    3. And, in such case, an attempt by the husband, without knowledge of the wife, to surrender the policy to the company, is inoperative, and the rights of the wife are not thereby impaired.
    4. Where, in such case, the company repudiates the contract, and by its course of conduct clearly indicates that a tender of the premium after the death of the insured, if made, would not be accepted, a failure to make such tender will not bar a recovery on the policy.
    Motion for leave to file petition in error to the Superior Court of Cincinnati.
    The material facts as shown by the record are as follows: June 4, 1863, the Manhattan Life Insurance Company issued to Rosehannah Smith an ordinary life policy upon the life of her husband, John W. II. Smith, of Cincinnati, Ohio, for three thousand dollars. The premium, $75, was payable June 4th of each year, the beneficiary being entitled to participate in the profits, and the dividend each year to be deducted from the premium. The policy contained a forfeiture clause to the effect that if the premiums ' should not be paid when due, the company should not be liable for payment of the sum assured, or any part thereof, and the policy should cease and determine. The applicacation is in the name of the wife. The first premium was acknowledged as being received from her and future premiums were to be paid by her. The husband kept the policy in his possession and transmitted to the company the premiums until and including the premium due June 4, 1879. In that year Smith and his wife had difficulty, and in the month of October she commenced an action in the court of common pleas of Hamilton -county against him for alimony. They at that time parted, and did not afterward resume marital relations. Both lived in the city of Cincinnati, which had been their home during the existence of the policy, he being engaged in business at the corner of Fifth street and Central avenue. In the month of April, 1880, the husband received a notice from the company, dated April 24th, informing him that the premium would be due the 4th of June following, and making this statement: Premium, $75; less dividend, $24; cash to be paid, $51. The company had uniformly sent him a notice each year about the same length of time before June 4th, containing a similar statement, showing amount of premium, amount of dividend, and balance to be paid in cash, and the amount paid was uniformly the annual premium, less the dividend for the year.
    Upon receipt of notice Smith wrote the company, under date of April 27th, asking if there was any way in which he could have the policy transferred; that he did not desire to continue it in its present form, as his wife was otherwise provided for, and asking if he could get a paid up policy. To this the company replied that the only chauge that could be made was to issue a paid up policy in its stead for $810, without profits, and, that if he wished this, to forward the policy and renewals prior to June 4th. Smith responded by letter, of which the following is a copy:
    “ Cincinnati, May 3,1880.

      “Dear Sir — In reply to your favor of April 29th, in regard to paid up policy, would say I desire to have it changed, and inclose the policy and renewals as requested. I will say that my wife has separated from me, and sued for alimony on the charge of not having provided for her. This is notoriously false, but, of course, does not particularly interest you. I greatly desire that the policy should be made payable to my estate, if it can be done, but, as I am obliged to provide for her with alimony, or otherwise support her, and as she is no longer a wife to me, I desire my children to have the benefit, if any. Some of the renewal receipts have been mislaid, but I return the last.”
    This elicited from the company a letter dated May 6th, acknowledging receipt of the policy, stating that “ no change can be made in this until the 4th day of June next, at which time we will give it our attention,” adding that all the renewal receipts had not been returned, and requesting that careful search for the others be made and that they be forwarded. May 19th he wrote: “Replying to yours of 6th, I herewith inclose you all the certificates that I have been able to find.” On the 26th the company again wrote to him: “We notice that the renewal receipts for the years 1865, 1869, 1870, 1871, 1878, 1874, and 1877 are missing, and request that you make a search for them, and failing to find them that yon make an affidavit stating the circumstances of the loss and that search had been made.” This ended the correspondence, and nothing further appears to have been done during Smith’s life. Rosehannah Smith was not consulted, and had no knowledge of these negotiations. He died on the 11th of January foilswing.
    Besides the dividends the policy earned additions yearly ; so that, at the time of the attempted surrender, Mrs. Smith ■would have been entitled upon surrender to a paid up policy for over eight hundred dollars. No paid up policy for any amount had been in fact written up to the date of Smith’s death.
    Rosehannah Smith was aware that a policy in this company on her husband’s life for her benefit had been issued. She did not know its date, although she knew it had been in existence a good many years, nor did she know the amount of the premium nor when due. ’ She received no notice from the company at any time, or from any source, as to the premium due June 4, 1880, nor did she know that any premium remained unpaid until a short time before suit brought. She has not paid that premium, nor tendered it, except that in her petition she offers to pay it in any way the court may direct. No notice of any intention to forfeit the policy was given her by the company. During the summer of 1880, and afterward, the company had an agent at Cincinnati. Mrs. Smith continued to reside there, and her place of residence was easily ascertainable.
    This action is brought on the original policy to. recover the three thousand dollars therein stipulated to be paid upon the death of John W. IT. Sraith. A verdict was rendered against the company for the above amount, less the premium due June 4, 1880, and interest, upon trial, in the superior court. Motion for new trial was reserved for decision of that court in general term. There the motion was overruled and judgment entered on the verdict

      McG-uffey $ Morrill, for the motion.
    Even although the husbaud could not put an end to the policy, he could dispose of it, except as to its equitable value based upon the premium paid. This is of the nature of an executed gift, of which he could not divest the wife by any arrangement with the company, but outside of this he could do as he pleased. Bickerton v. Jacques, 28 Hun, 119; Gambs v. C. M. Ins. Co., 50 Mo. 44; Clark v. Durand, 12 Wis. 223; Kerman v. Howard, 23 Wis. 112; Union Mut. Life Ins. Co. v. Slevin, 19 Fed. Rep. 671; Landrum v. Knowles, 22 N. J. Eq. 594.
    The prompt payment of the premium is of the essence of the contract, and the company has a right to plead forfeiture for non-payment, unless estopped by conduct which led to the failure to pay. New York Life Ins. Co. v. Statham, 93 U. S. 24.
    As a general rule the company is not bound to give notice of the maturity of the premium.
    “ The company is under no obligation to give such notice and assumes no obligation by giving it. The duty of the assured to pay at the day is the same whether the notice is given or not. It makes no difference that the company has been in the habit of giving such notice.” Thompson v. Ins. Co., 104 U. S. 252.
    "Testimony that the company was in the habit of giving such notice . . . is inadmissible unless it be shown that the notice has been purposely omitted with the design of forfeiting the policy.” Girard Life Ins. Co. v. Ins. Co., 97 Pa. St. 15.
    The facts in the case at bar distinguish it from Phœnix Ins. Co. v. Doster, 106 U. S. 30, where the premium being subject to a deduction equal in amount to the dividends, failure to give uotice prevented a forfeiture.
    In the latter case the company had been in the habit of sending notice and collecting premiums after due. It sent notice after the premium became due, but within the time it had been in the habit of receiving them, which notice, by mistake, it sent to the wrong address. The insured had made arrangements to pay and was awaiting notice. The beneficiaries tendered the amount of the premium three days after the death of the insured.
    Here there has never been any tender, and the burden is on the beneficiary to show why. A valid excuse for not paying promptly on the day is a different thing from not paying at all. Thompson v. Ins. Co., 104 U. S. 252.
    But in contemplation of law she was notified. Notice to an agent is notice to the principal. "Wharton on Agency, sec. 177.
    There is no authority that the wife must be notified. Indeed, to hold that the company must notify any other party than the one with whom it has dealt is without authority ; and such a rule would be impracticable of enforcement, especially when the beneficiaries were children.
    The rule ought to go no further than to require notice to the party whose life is insured, he being the party who has procured, kept alive, and controlled the policy. Any other rule would work hardship and confusion.
    The defendant in error was not misled by failure to receive notice.
    The company did not know her address. It is pressing the point too far to hold that because the application, a dozen years earlier, stated her address to be in Cincinnati, notice should have been sent her there.
    It is equally fallacious to claim that the company was bound to act upon the presumption that her residence was the same as her husband’s. No such presumption exists after the husband has separated from the wife. Mellen v. Mellen, 10 Abb. N. Cas. 329.

      John W. Herron and Nathaniel II. Davis, contra.
    The contract of insurance was between the company and Mrs. Smith. The application was made by her, the first premium was acknowledged as being received from her, and she was to pay the future premiums.
    She was entitled, before the policy could be forfeited, to a notice as to when the premium was payable, and the amount to be paid.
    The company was advised by the insured, a month before the premium fell due, that he was no longer the agent of his wife.
    “ Notice to the agent before the agency is begun or after it has terminated does not ordinarily affect the principal.” Story on Agency, see. 140.
    It was the duty of the company to give notice of the time the premium was due and its amount. Phœnix Ins. Co. v. Doster, 106 U. S. 30.
    No tender was necessary. The wife did not know that the premium was not paid until after the husband’s death. No tender could then avail anything. As the company had repudiated the contract, no tender was necessary, and was useless after the death of the insured. Isham, v. Greenham, 1 Handy, 361; Brock v. Hidy, 13 Ohio St. 310; Bickett v. White, 1 C. S. C. Rep. 175.
    Forfeitures are not presumed. The law wishes to avoid them. Ins. Co. v. Norton, 96 U. S. 234; Ins. Co. v. Pottker, 33 Ohio St. 462.
    It rests with the company to prove a forfeiture.
    The insured can not make any contract or arrangement with the insured to affect the vested rights of the beneficiaries. Bliss Life Ins. sec., 337; Lemon v. Phœnix Ins. Co., 38 Conn. 294; Ricker v. Ins. Co., 27 Minn. 193; Pilcher v. Ins. Co., 33 La. 322; Chapin v. Fellowes, 36 Conn. 132; Timayenis v. Ins. Co., 21 Fed. Rep. 223.
    The company, by negotiating with Smith for a paid up policy and holding the matter under consideration until the day the policy was due, waived the forfeiture which might have arisen from the non-payment of the premium. Bliss Life Ins., sec. 189; Appleton v. Phœnix Mut. Ins. Co., 59 N. H. 541; Viele v. Germania Fire Ins. Co., 26 Iowa, 9; Bodine v. Exchange Ins. Co., 51 N. Y. 117; Ins. Co. v. Eggleston, 96 U. S. 572; Williams v. Bank of U. S., 2 Pet. 102.
    No contract for a paid up policy was ever consummated. The paid up policy was not issued until after Smith’s death.
    There was no accord and satisfaction. Ellis v. Bitzer, 2 Ohio, 93; Kromer v. Heim, 75 N. Y. 574; Panzerbeiter v. Waydell, 21 Hun, 161; Pettis v. Ray, 12 R. I. 344.
   Spear, J.

At the outset we inquire : Had the husband, independent of any relation as agent for the wife, power to surrender the policy ? He could stop paying premiums. That would have left the wife to continue the policy in force for its full amount by herself making payment of premiums; or, she could have declined to pay and receive a paid up policy for a lesser amount, and this she would do, not by the grace or favor of the company, nor yet by virtue of any new agreement with the company, but by force of the original contract and the law applicable thereto.

It is now too well settled to admit of dispute that a beneficiary for whose benefit a promise has been made by one upon a sufficient consideration moving from a third person, may maintain an action upon that promise; and if the beneficiary has acted on the promise so as to have changed position, or acquired a vested right, the contract can not be changed without, his consent. The case at bar is a stronger case than the one supposed, in that the application was made in the name of the vrife and the contract itself made directly with her, though the risk was on the life of the husband. There was value in the policy, and at least to that extent the wife’s right in it was a vested right. She was the beneficiary named in it, and upon both reason and authority we think it clear that no new contract or arrangement of any kind which affects the vested rights of the beneficiary in the policy can be made with the company alone by the insured. Bliss on Life Insurance, sections 337, 345, 571, and the cases cited by counsel, abundantly sustain this position. "We conclude that the husband, in this case, had no power to surrender the policy merely because he was the insured party and had paid premiums. Had he any other standing regarding the transactions which gave him such right? In the payment of premiums he, in law, was her agent. If he had the right to act for her at all it was because of this relation as agent. Was he her agent at the time he attempted to surrender this policy? and what was the company, with the knowledge furnished by the letters as to his attitude toward his wife, bound to understand? By his letter of April 27th, in which he iuquired if the policy could be transferred, he gave the company to understand that he was seeking a result on the face of the transaction inconsistent with her interests. This was, of itself, significant and suggestive. And when it was followed by the letter of May 3d, giving the information that his wife had separated from him and sued for alimony, and renewing his request that the policy be made payable to his estate because he was obliged to provide her with alimony and because she was no longer a wife to him, it is idle to claim that the company was not apprised of facts from which it was bouud to presume that his relation of agent had ceased. He could not have made the fact clearer had he included a direct statement to that effect. The relation of principal and agent implies trust, confidence. Here was antagonism, and a direct effort to sacrifice her rights for his benefit. The company was bound to know that as agent he could not lawfully do that. The husband not having any authority then, either by reason of having paid premiums, or by his position as the insured in the policy, nor yet as agent for the wife, to make a surrender, it follows that the attempted surrender of the policy was inoperative, and that the rights of the beneficiary were not impaired by the attempt.

But the company claims that, independent of the question of surrender, there can be no recovery beyond the sum of $810, because the policy was forfeited by the failure to pay the premium due June 4,1880. To this it is replied that there could be no forfeiture without notice to the beneficiary, such as had been uniformly given during the entire life of the policy, 'and that she had not, up to the commencement of the suit, been notified either of the amount of the premium to be paid, or of any purpose on the part of the company to forfeit the policy. On this question of notice the company insists that the notice given the husband was, in law, a notice to the wife, for that, whatever was the fact as to his agency at the time his letters to the company were written, they do not show when the separation took place, and for all that appears, it was after the notice of April 24,1880, was received by him. We confess we are unable to perceive the force of this claim. As early as the 29th of April, five days after the notice was mailed, the company was apprised that Smith was acting contrary to the interest of his wife, and seven days later a full disclosure of his purpose was made. In the light of these facts, and of the irresistible inferences to be drawn from them, it will hardly do to claim seriously that the company was justified in assuming that he was agent for the wife April 24th. As matter of fact, the alimony suit had then been pending about six months. It being shown, therefore, that notice to the husband was not notice to the wife, and it appearing further that she had no actual notice, we are led to inquire what effect this state of facts has upon the rights of the parties ?

It will be borne in mind that by the contract Mrs. Smith was entitled to share in the profits of the company, and that, as to part of these profits, they were paid out by annual dividends, the remaining portion being retained by the company and inuring to her benefit by accretions to the policy, and that the uniform custom had been that the company should give timely notice, not only of the date when the amount to be paid as premium would become due, but as well the amount of the dividend and the ámount of balance to be paid in cash. What dividend in any year was declared, and what amount could be used to reduce the premium were facts known to the company, but not to the insured. Without this information the insured or beneficiary could not, in the ordinary course of business, know-how much was to be paid as premium each year, and could not, therefore, pay it. The ease is to be distinguished from one where the premium is a fixed amount; and from a ease, slightly differing, where, although there may be dividends which the policy-holder, at his option, may have applied as the.premium, yet there is no agreement and uniform practice that the dividends are to be deducted each year from the premium and the balance only paid to the company. It may, probably, he safely conceded that in either of the two supposed cases the assured would have no right to depend upon a notice from the company, not even if the company had ordinarily sent such notice. For the very life of successful life insurance depends upon prompt payment of premiums, and their business would be thrown into utter confusion if companies had no,means of protecting themselves by forfeiture for non-payment of premiums. But, while this is true, the contract is nevertheless an entire one of assurance for life, and the payment of the premiums, after the first, is not a condition precedent, but a condition subsequent, and the parties may deal in sucli way between each other as to estop the company from insisting upon a forfeiture where it would be inequitable for a forfeiture to be declared.

Can the company insist upon a forfeiture in this case? The premiums were paid regularly for sixteen years; the company undertook to make a new contract with a person wholly without authority to act for Mrs. Smith, ignoring her altogether; her residence was given in the application as at Cincinnati, and the presumption would be that she continued to reside there; the exact place of residence was not hard to find; the company had an agent in the city all the time, and could, without trouble, have given her notice, but no effort even of the slightest character was made to acquaint her with that which she, of all persons, was interested in knowing and entitled to know. Courts are liberal in construing transactions in favor of the avoidance of a forfeiture. There are no presumptions in favor of a right by forfeiture, for forfeitures are abhorred in equity, and are never favored in law. Upon the facts shown it appears manifest that this claim of the insurance company is inequitable, and we are of opinion that it is not maintainable in law.

A recent ease decided by the supreme court of the United States is believed to entirely cover the question here involved as to the effect of failure to give notice. We refer to Phœnix Ins. Co. v. Doster, 106 U. S. 30, and quote from it sufficiently to show its application to the case at bar. The policy was issued September, 1871, upon the life of Jackson Riddle, in consideration of the payment by the wife and children of the insured (who were named as payees in the policy) of the sum of $215, and the annual payment of a like amount on or before the 20th of September in every year during its continuance, and contained astipulation that if the premiums be not paid on or before the day of maturity the company should not be liable for any part of the sum insured, and the policy to cease and determine, all previous payments being forfeited. The policy was upon the half-note plan, which gave the insured the right to discharge one-half of the first four premiums by notes, and upon .the fifth and subsequent payments to have his dividends, if any, applied in reduction' of the premiums. Notices were sent to the insured prior to the 20th of September in 1872, 1873, and 1874, showing when premiums became due, amount of cash to be paid, interest on’ the notes, and amount for which additional note was required. Prior to the 20th of September, 1875, notice to the insured was sent, which stated amount of dividend to be applied in reduction of that premium, interest to be paid on notes previously executed, and the sum to be paid in cash.

On the 6th of October, 1876, the insured lost his life in a railroad accident, leaving unpaid the premium due on the 20th of September previous, though before starting from home he had made arrangements to pay the amount required as soon as notice was received. His residence and post-office for more than a year had been at Oxford, Ind., which was known to the company’s general agent at Chicago. On the 4th of October, 1876, there was sent from the general agent’s office, addressed, by mistake, to the insured at Fowler, Ind. (where he never resided), a notice similar to that given in 1875. This was received by a son of the insured the day the father was killed. On the 9th of October, 1876, the amount due was tendered to the company’s general agent at Chicago. He declined to receive' it, on the ground that the policy lapsed, by reason of nonpayment of premium due, the 20th of September, 1876.

On the trial in the circuit court the court charged the jury, among other things, to the effect that “if they found from the evidence that it bad been the invariable custom of the company to transmit to the insured a statement of the amount of the premium due, after deducting the dividend, with a notice of the time when, the place where, and the person to whom, the premium could be paid, then the insured had good reason to expect and rely on such statement and notice being sent to him; and that if the company, by its managing agent, had notice of the post-office address of the insured before the usual time of sending out notice, but failed and neglected to transmit such statement and notice until the 4th of October, and the same did not reach him or the payees in the policy until the 6th, and that the insured or payees were ready and waiting to pay said premium when notice and statement should be received, and by reason of such failure to send the notice and statement, and of that alone, the premium due in September, 1876, was not promptly paid; and that in a reasonable time thereafter the payees tendered the full amount of the premium, then the policy did not lapse or become forfeited, notwithstanding the premium was not paid on the day named in the policy, and in the life-time of the insured.”

Ajudgment was rendered against the company and the case taken upon ,error to the supreme court. The opinion was delivered by Mr. Justice Harlan, who, in commenting upon this part of the charge, uses this language: “We are of opinion that these propositions are substantially correct. Nor do we perceive that the rulings of the court below are in conflict with our decision in Thompson v. Ins. Co., 104 U. S. 252. . . . The present case has features which plainly distinguish it from the Thompson case. In the former there was a tender of the premium within a few days after the death of the insured, and as soon as the payees ascertained the sum required to be paid. In the latter, the amount to be paid was fixed. It was not liable to be reduced on account of dividends, or for any other reason, and the insured, therefore, knew the exact amount to be paid in order to prevent a forfeiture of the policy. Now, although the policy issued upon Riddle’s life required payment annually of a specific sum as a premium, that stipulation must be construed in connection with the agreement set out in the application, that the premium might be discharged pro tanto by such dividends as were allowed-to the insured From time to time. Whether the company, in any particular year, declared dividends, and what amount was available in reduction of the .premium, were facts known, in the first instance, only to the company, which had full control of the matter-of dividends. It certainly was not contemplated that the insured should every year make application, either at the home office or at the office of its general agent in Chicago, in order to ascertain the amount of dividends. The understanding between the parties upon this subject is, in part, shown by the practice of the company. Independently of that circumstance, and waiving any determination of the question whether the forfeiture was not absolutely waived by the act of the general agent, in sending notice to the insured after the day fixed for the payment of the premium due September 20, 1876, it was, we think, the company’s duty, under any fair interpretation of its contract, having received information as to the post-office of the insured, to give seasonable notice of the amount of dividends, and thereby inform him as to the cash to be paid in order to keep alive the policy. It did, as we have seen, give such notice in 1875, and received payment of the amount due after the date fixed in the policy. Within a reasonable time after the notice for 1876 came, in due course of mail, to the hauds of one of the payees, a tender of the amount was made to the general agent at Chicago. No such features were disclosed in the Thompson case, and they are, as we think, sufficient not only to distinguish th-e present case from that one, but to authorize the instructions of which the company complains. . . . Judgment affirmed.”

Undue importance must not be given to the fact of preparation by the insured for the payment of premiums before leaving home. The date of leaving home is not disclosed, and for aught that appears the preparation may have been made after the 20th of September. At best its tendency was but to show readiness on his part to comply. The fact is not alluded to at all by Justice Harlan in his comments upon: the action of the court below. It will be observed that a point of difference in the two cases is that in the Riddle case tender was made; in this case it was not. But it must be kept in mind that a notice which the company’s agent sent, actually reached one of the beneficiaries the day of his father’s death, and he had, therefore, the information on which to act. Mrs. Smith had no information, and the neglect of the company was the cause of that igno-. ranee. The beneficiary in the Riddle policy was apprised of the sum to be paid and that it was due; the beneficiary in the Smith policy was kept in ignorance of that sum and of time for payment. There are other questions involved in the Riddle case, but they are not believed to at all affect the case before this court.

The action of the company in the case at bar was in effect a repudiation of its promise to pay the amount stipulated in the policy. Even had Mrs. Smith learned the amount and time of payment after the death of her husband, a tender would have been a useless ceremony. “ On general principles, whenever the act of one party, to whom another is bound to tender money, services, or goods, indicates clearly that the tender, if made, would not be accepted the other party is excused from technical performance of his agreement. The law never requires a vain thing to be done.” Isham v. Greenham, 1 Handy, 361. See also Brock v. Hidy, 13 Ohio St. 310. Notice was essential to a forfeiture. The company gave none, and by its course of action waived the forfeiture which might have arisen from nonpayment of premium due June 4, 1880, and it is now es-topped from setting it up.

We are aware that the views herein expressed as to the effect of failure to give notice áre notin accord with a number of reported eases, but they are directly supported by the decision of the highest court in the land, and inferentially by decisions of'many other courts, and we believe they rest upon the firm ground of sound principles. There was no error in the instructions given the jury at the trial, nor in the refusals to charge as requested ; and an examinanation of the record discloses no error in the admission or exclusion of testimony prejudicial to the company. It follows that the action of the court at general term in overruling the motion for new trial and entering judgment on the verdict was not erroneous.

Motion overruled.

Johnson, J., did not sit in this case.


author: Minshall, J.

text:
    Dodd v. Bartholomew.

      Written instrument — Mistahe in name— Validity.

      1. Where an error occurs in the name of a party to a written instrument, apparent upon its face, and, from its contents, susceptible of correction, so as to identify the party with certainty, such error does not affect the validity of the instrument.

      2. Charles A. Clark and Sarah Clark, his wife, executed and delivered, in due form of law, a mortgage to S., signing and sealing it as " Charles A. Clark” and "Sarah Clark;" but in the granting, defeasance, and testatum clauses, Charles A. Clark is described as Charles B. Clark, and his wife, although properly described in the granting clause as Sarah Clark, is described as Mary Clark in the testatum clause. In the certificate of acknowledgment the officer certifies that "the above named Charles B. Clark and Mary Clark, his wife, the grantors in the above instrument,” personalty came before him and acknowledged the signing and sealing of the same; and further, that “ the said Mary Clark, wife of the said Charles A. Clark,” was examined separate and apart from her said husband. Held, that the errors in the names of the grantor and his wife, in the several clauses of the deed, and in the certificate of acknowledgment, are apparent upon the face of the instrument, and that the contents show, with certainty, that the persons, Charles A. Clark and Sarah Clark, who signed the deed as grantor and wife, are the same persons elsewhere desc.ribed-in the deed as Charles B. Clark and Mary Clark; and that the deed so executed and delivered, having been recorded, is a valid mortgage, not only against the makers, but against all subsequent lien-holders, by mortgage or otherwise.
    Error to the District Court of Licking county.
    In January, 1876, Frederick Schuler and his wife conveyed a certain lot in the town of Newark to Charles A. Clark, and at the same time the latter with his wife Sarah, to secure a part, $325, of the purchase-money, executed and delivered a mortgage on the property to the vendors.
    The mortgage was duly executed and acknowledged; but, by a'mistake of the scrivener in drafting it, Charles A. Clark was described in the granting, defeasance, and testatum clauses as Charles B. Clark; and his wife, Sarah Clark, though properly described in the granting clause, was described as Mary Clark in the testatum clause; but the deed is properly signed and sealed by each respectively as Charles A. Clark and Sarah Clark.
    In the certificate of acknowledgment, the justice of the peace certifies that, personally came before him “ the above named Charles B. Clark and Mary Clark, his wife, the grantors in the above named instrument,” and acknowledged the signing and sealing of the same; and that the said Mary Clark, wife of the said Charles A. Clark, was examined separate and apart from her husband.
    Subsequently to the execution and record of the above mortgage, Clark and wife, on ^February 23,1876, executed and delivered to Samuel Dodd a mortgage on the same property to secure the payment of $190, which was duly recorded. Afterward the debt to Schuler not being paid, and Clark having died, Schuler commenced a suit in the court of common pleas, for the correction and foreclosure of his mortgage, against the widow and heirs of the decedent; and such proceedings were had that a decree was made accordingly, which was assigned by Schuler and wife to Bartholomew, the defendant in error. Afterward, and while the money derived from the sale of the land was in court, Dodd, by its leave, became a party and filed an answer and cross-petition, upon which Bartholomew was made a party, who also answered. Each claimed priority over the other, the latter, not only one the ground of the prior execution and record of the mortgage of his assignors, but also on the ground that the assignment of the judgment and decree, previously entered in favor of Schuler and wife, carried with it their lien for the unpaid purchase-money, intended to be secured by the mortgage. The contention was determined by the judgment of the court in favor of Dodd, and Bartholomew appealed to the district court of the county where it was determined in favor of the appellant; and this proceeding is now prosecuted in this court to reverse the judgment of the district court and affirm that of the common pleas.
    J. JR. Stanbery, for plaintiff in error.
    "The Schuler mortgage is not a lien as against Dodd, because it was not properly executed and acknowledged, and because it contained the names of persons as grantors who did not own the lands, and it was not acknowledged as the statute directs by the grantors.
    A defectively .executed mortgage, as between the parties, may be treated as an agreement for a mortgage and the agreement specifically enforced. Bloom v. Noggle, 4 Ohio St. 46.
    Dodd is a stranger to both the mortgage and decree, and can not be affected by them, even although he had notice of the agreement. Such agreement created no lien. Erwin v. Shuey, 8 Ohio St. 510; White v. Denman, 16 Ohio, 60; s. c., 1 Ohio St. 110; Smith v. Hunt, 13 Ohio, 260; Johnston v. Haines, 2 Ohio, 55; Mayham v. Coombs, 14 Ohio, 429.
    A vendor’s lien is an equity personal to the vendor, and is not assignable. Jackman v. Hallock, 1 Ohio, 318; Tierman v. Beam, 2 Ohio, 383; Brush v. Kinsley, 14 Ohio, 21.
    If, then, the assignee of note or mortgage to secure a vendor’s lien can not take the vendor’s equity by assignment, how can he acquire such an equity when the lien is merged in judgment? If he can not take title to the evidences of the judgment, he can not acquire it by assignment of the judgment itself, for that is founded upon things not assignable, and is the same as the evidence. Unger v. Leiter, 32 Ohio St. 212; McArthur v. Porter, 1 Ohio, 99; Taylor v. Foote, Wright, 356.

      Charles H. Kibler, for defendant in error.
    The mortgage of Clark and wife was valid in its execution and acknowledgment. It was sealed, signed by Charles A. Clark and Sarah Clark (the proper names of the mortgagors), and the proper officer signed the certificate of acknowledgment. There were no such defects as appear in Johnston v. Haines, 2 Ohio, 55; Miami Exporting Company v. Gano, 13 Ohio, 269; White v. Denman, 16 Ohio, 59; Cin. W. & Z. R. Co. v. Clinton Co., 1 Ohio St. 100; Cincinnati v. Bickett, 26 Ohio St. 49; Barry v. Hovey, 30 Ohio St. 347.
    In those cases the defects were in the execution.

    The objection to the fact that the name of the mortgagor is called Charles B. Clark in the body of the instrument is not tenable. The defect is cured by his proper signature. “As to the name of the grantor, his signature fixes the actual identity of the person.” Jones on Mort., sec. 63; Gould v. Barnes, 3 Taunt. 505.
    The last statement of fact or intention often governs. It is the name signed to the instrument which has force. Mistakes which are apparent are immaterial. Turnpike Co. v. Brush, 10 Ohio, 111; Fosdick v. Perrysburg, 14 Ohio St. 472.
    The first name is correct. The middle letter is not necessary and is immaterial, unless it were shown that there was another person connected with the title whose name was Charles B. Clark. Franklin v. Talmadge, 5 John. 84; Roosevelt v. Gardinier, 2 Cow. 463. And see also Hitesman v. Donnell, 40 Ohio St. 287; Mack v. Schlotman, 7 Am. L. Rec. 665; Jackson v. Bonenam, 15 John. 226; Jackson v. Cody, 9 Cow. 140; Jackson v. Hart, 12 John. 76.
    Charles A. Clark would not be permitted to deny that it was his valid mortgage. 1 T. Raymond, 2; 1 Salk. 214; Gould v. Barnes, 3 Taunt. 505.
    Schuler and wife had a vendor’s lien if the mortgage was defective.
   Minshall, J.

The claim of the defendant in error, that he is entitled to a priority on the Schuler mortgage over that of Dodd, is placed on two grounds.

That the judgment assigned to him by the Schulers carried with it their lien for the purchase-money of the mortgaged property, o'f which, ho claims, Dodd had notice.

That the Schuler mortgage is, without any reformation by the court, a valid one. Being persuaded that the latter claim is correct, it is unnecessary to consider the former one-.

It is a well settled principle, applicable to the construction of deeds and other instruments, that all their parts are to bo construed together, and the meaning ascertained from a consideration of each and every part; and, in the application of this rule, it is uniformly held that a false description, whether of the subject-matter or of the parties, does not vitiate the instrument where the error appears upon its face and the instrument supplies within itself the means of making the correction.

This principle was applied in Poland v. Connolly, 16 Ohio St. 65, to a misdescription of the property in a resolution for the abatement of a nuisance on real estate; in Milford & C. Turnpike Co. v. Brush, 10 Ohio, 111, to a misdescription of the corporation in a subscription to its stock; in Fosdick v. Village of Perrysburg, 14 Ohio St. 473, to a misdescription of the obligor of a bond, it being described as “the town,” instead of “ the incorporated village, of Perrysburg;” and in Hitesman v. Donnell, 40 Ohio St. 287, the name of thegra.ntee, to whom the conveyance was intended to be made as trustee, was left blank, but the instrument, a trust mortgage, containing within itself all that was necessary to indicate how the blank should be filled, the court held that it created a valid lien on the lands as a mortgage from the date of its filing for record.

In the case now under review the mortgagor, with his own hand, signed his name to the instrument as “ Charles A. Clark” and sealed it, and his wife, likewise, signed her name as “ Sarah Clark” and sealed it. In the certificate of acknowledgment the officer certifies that “the above-named grantors” personally came before him and acknowledged the signing and sealing of the same; but, through a mistake of the scrivener, the one is described as Charles B. and the other as Mary Clark, and similar errors occur in the body of the deed; but in all instances Charles B. Clark is further described as the grantor and Mary Clark as his wife. In a note to section 63 of Jones on Mortgages it is said, by the author, that the signature of the grantor or mortgagor fixes the actual identity of the party. So that there is no want of certainty as to the grantors in the deed; they are Charles A. Clark and Sarah Clark, his wife, and any errors occurring in the name of either, in other parts of the instrument, are corrected by their signatures to it.

The question presented here is very different from that where an error occurs in the execution of the instrument. The formalities required in the execution of a mortgage are prescribed by statute, and can not be dispensed with. To be a valid instrument, as against third persons, a mortgage must be signed, sealed, and acknowledged as required by statute. But the form of the instrument is not so prescribed. The form and requisite certainty of it is left to the general rules of law. Hurd v. Robinson, 11 Ohio St. 232. It is observed by Gholson, J.,in delivering the opinion that “the inconvenience-that may occasionally arise to third persons from uncertainty of description is more sufferable than the gross injustice which would be frequently inflicted by a stringent rule as to certainty.”

And in Strang v. Beach, 11 Ohio St. 283, Brinkerhoff, J., delivering the opinion, observes that the statutes relate solely to the execution and recording of the mortgage, and that it is settled that a mistake in these respects can not be corrected, but adds: “As to all mistakes and defects of the instrument, in .other respects, the statutes are entirely silent, and upon them the decisions which have been made upon questions arising under these statutes have no bearing.”

In each of the cases cited by counsel for the plaintiff in error there was a defect in the execution of the mortgage. In Barry v. Hovey, 30 Ohio St. 347, the mortgage had but one witness. In White v. Denman, 16 Ohio, 60, there was but one subscribing witness. In Erwin v. Shuey, 8 Ohio St. 511, there was no seal. In Bloom v. Noggle, 4 Ohio St. 46, there was only an agreement for a mortgage. In Johnston v. Haines, 2 Ohio, 55, the official character of the officer taking the acknowledgment had been omitted, and nothing appeared on the face of the acknowledgment by which this could be supplied.

In Smith v. Hunt, 13 Ohio, 260, the name of the grantor was left blank in the certificate of acknowledgment, and -did not, as in this case, refer to him as the above named grantor.

Our conclusion is that the mortgage executed by Clark and wife to Schuler and wife became a valid lien on the property from the time it was delivered for record, and was, therefore, prior in lien to the one subsequently executed by them to Dodd.

Judgment affirmed,.


author: Eollett, J.

text:
    Tuttle v. Northrop.

      Guardian and ward — Liability of substituted surety for previous sale of real estate by guardian.

    1. On December 28,1872, Northrop was appointed guardian of an imbecile; he gave bond with Belden and Tice as sureties, and entered upon his trust. At sundry times thereafter, by order of court, he sold real estate . of his ward, and at each sale gave the special bond required by law. He received in cash the proceeds of the land sales, and he also received a small amount for the rents of real estate. After the proceeds and amounts were so received, Belden was released as surety, and Northrop gave a new bond, with Tice and Taylor as sureties, and he continued in his trust. Northrop resigned, and settled his accounts with the court, which found a large amount due from him to his ward, and ordered the same paid to his successor. Thereupon Northrop paid the greater part of the amount due, hut he made default as to the residue, and his successor brought suit on the last general bond, against Northrop as principal, and Tice and Taylor as sureties. Held, The sureties on such bond are liable for the unpaid residue, whether or not the same is partly or entire]}’- the proceeds of the sale of such real estate.
    Reserved in the District Court of Lake county.
    On December 28, 1872, Albert JB. Northrop was appointed guardian of Emily Belden, an imbecile, and gave bond, with C. Tice and A. N. Belden sureties. On September 29, 1877, Belden applied to the court to be released under section 6273 of the Revised Statutes, and on October 13., 1877, be was released upon Northrop giving the bond, in suit, which is as follows:
    “Know all men hv these presents: That we, A. B. Northrop, as principal, O. Tice and S. B. Taylor as'sureties, are held and firmly bound unto the state of Ohio in the sum of eight thousaud dollars, for the payment of which we hereby jointly and severally bind ourselves, our heirs, executors and administrators. Sealed with our seals and dated at Painesville, this 13th day of October, a. d., 1877. The condition of the above obligation is such that, whereas, the above bound A. B. Northrop has heretofore been appointed by the probate court of Lake county, Ohio, guardian of the person and estate of Emily Belden, a person of unsound mind, of Willoughby, in said county, which appointment the said A. B. Northrop has accepted. Now, if the said A. B. Northrop shall faithfully discharge all of his duties as such guardian as is required by law, then the above obligation to be void; otherwise to remain in full force. A. B. Northrop, [seal.]
    C. Tice, [seal.]
    S. B. Taylor, [seal.] ”
    Thereupon Northrop continued in the guardianship until March 5, 1879, when he resigned, and his accounts were settled, and $9,443.44 was found due from him, as guardian, to his ward, -which was ordered paid to his successor. He paid $7,365.28, January 3, 1880, and failed to pay the residue and interest, $2,503.11, for which this action is brought on the above bond.
    Northrop became insolvent and he did not answer. Several matters in the pleadings are not before this court. The matters of defense, relied upon by Tice and Taylor, are as follows: That whatever rents and profits of the ward’s real estate that came into the guardian’s hands were paid and expended by him in full for taxes on the real estate, and for current expenses of and for the support of his ward prior to the giving of the bond in suit.
    And defendants further say that no part of the amount found by the probate court, to wit, of the sum of $9,443,44, to be due from Northrop, as such guardian, on the settlement of his account, in March, 1879, was either directly or indirectly, in whole or in any part thereof, made up of or comprised any rents or profits which came to the hands of Northrop, as guardian, from the real estate of the ward.
    And the defendants further say that Northrop, as such guardian, received and there came into his hands, on the 12th day of December, 1878, the sum of $6,000, which was derived entirely from the sale of real estate of the ward under the order of the probate court, made on the 11th day of December, 1873, in a proceeding to sell real estate then pending in said court. That in the proceeding to sell real estate, a special bond was required and executed by the guardian, according to law, for the sum of $12,000, with J. S. Ellen and G. W. Storm as his sureties, and was duly accepted and approved by the court.
    And the defendants further say that Northrop, as such guardian, received and there came into his hands, credits to the amount of $2,000, on the 21st day of June, 1875, which was wholly derived from, and which was the proceeds of the sale of certain other real estate of his ward, under another and further order of the probate court, mader" June 21, 1875, in a certain other proceeding commenced by the guardian to sell the real estate of his ward.
    That in said proceeding a special bond in the sum of $4,000 was required by the court and executed by the guardian, according to law, with G. O. Townsen and Thomas J. Bradbeer as his sureties, and which bond was duly accepted and approved by the probate court.
    And the defendants further say that Northrop, as such guardian, received and there came into his hands, on the 17th day of August, 1876, the sum of $8,500 in cash, which was wholly derived from, and vdiich was, the proceeds of the sale of certain other real estate of his ward, under the order of the probate court, made August 15,1876, in a certain other proceeding commenced by the guardian to sell the real estate of his ward.
    That in the proceeding a special bond in the sum of $17,000 was required by the court and executed by the guardian, according to law, with Ransom Kennedy and Gr. "W-. Storm as his sureties, which bond was duly accepted and approved by the probate court.
    And further answering, the defendants say that said sums thus derived from the sale of real estate, and -the rents and profits, were and are the only assets and property of said ward which came into the hauds of Albert B. Northrop during the whole period of his guardianship. And that the entire sum of $9,443.44, found due from and ordered by the probate court to be paid by Northrop, as such guardian, in 1879, in March, and the entire balance of $2,503.11, sued for in this action, is made up and composed wholly of the proceeds of the sale of real estate. ■ It is admitted that the sum of fV,365.28 was paid over to the'.plaintiff by Northrop, and that there is still due and unpaid to plaintiff, as guardian of Emily Belden, from Northrop, the sum of $2,503.11.
    And the defendants say that the bond in suit, signed by them, was signed and executed by them as the sureties of Albert B. Northrop, who was and is the principal therein; That the bond is a general and not a special bond, and covers and contemplates only a breach and violation of the general duties of such guardian, and not any of the special duties by law imposed upon him on the sale of real estate, and covers and contemplates only a failure of such guardian to perform his duties' and pay over moneys derived from the sale of personal estate and rents and profits which came into his hands, and does not contemplate or embrace any failure to pay over moneys derived from the sale of real estate, or any breach of his duty in that behalf; but that the remedy of said plaintiff guardian, if any, is upon the bond severally executed in the proceedings to sell the real estate of said ward, by Northrop, as her guardian.
    Demurrers to these answers were overruled by the court of common pleas, and judgment for costs was rendered for Tice and Taylor. On proceedings in error the district court reserved the same for decision here.

      Perry Bosworth and W. D. Pudney, for plaintiff in error.

      Alvord ¡j¡¡ Alvord and Morrow $ Morrow, for defendants in error.
   Eollett, J.

Are Tice and Taylor liable on this bond for the $2,503.11 and interest due from Northrop to his ward ? The amount due is not disputed. It is admitted to be a part of the proceeds of real estate sold by order of court; but from which sale the guardian obtained this amount due, we are not told. These sureties do say, that there came into Northrop’s hands, as guardian, on August 17, 1876, the sum of $8,500 in cash. This was from the last sale of land. He may have received thereafter some small sums of money for rent.

This bond was given October 13, 1877, and after the property bad been changed from realty to personalty. There is no statute of Ohio that requires such proceeds to be regarded as realty for any purpose.

In ease of sale by an executor or an administrator to pay debts, section 6171 of Revised Statutes requires “ the surplus of the proceeds of the sale remaining on the final settlement of the account, shall be considered as real estate, and shall be disposed of accordingly.” And though this surplus goes to the heirs in the line that real estate would go, such proceeds are personalty and are held as personalty by the heir and as such pass from such heir. See Pence v. Pence, 11 Ohio St. 290, and Oxenden v. Lord Compton, 2 Vesey, Jr. 69.

On his final settlement, Northrop must have had “ in his hands ” at least the $7,365.28, which the'sureties admit he paid to his successor. And'as this payment was made on the entire amount due, it may be applied, in the interests of the beneficiary, to. the payment of any amount not in his hands at settlement. So this residue sued for was received by Northrop in cash,, and so remained in his hands on giving this bond and an his settlement. Sureties are held by the terms of the bond.

These sureties bound themselves in the sum of $8,000, with the condition : “Now if the said A. B. Northrop shall faithfully discharge all of his duties as such guardian as is required by law, then the above obligation to be void; otherwise to remain in full force.”

Among other things it “ is required by law” (sections 6269, 6304 of the Revised Statutes) of the guardian that: “At the expiration of his trust, fully to account for and pay over to the proper person all of the estate of his ward remaining in his hands.” This language is very comprehensive, and includes whatever may be a part of an estate, whether derived from personalty or realty. Whatever is the nature or source of any part of the estate, the guardian is not required to keep separate accounts, but he is required to render “ an account of the receipts and expenditures of such guardian; ”• one account of all receipts and all paid out.

We have been referred to the decisions of courts in other states; but their laws and decisions can not control our statutes. In some states, as in Massachusetts, the statutes have been changed so as to require in a guardian’s general bond the specific condition, “ to render an account of the proceeds of all real estate sold by him for investment, and at the expiration of his trust pay the same over,” etc. The bond in this case includes all such proceeds.

There is no question before us that involves the extent of the liability secured by each special bond, or what, if any security, such special bonds afford the ward or the general bondsman.

And this case does not involve the proceeds of land sold after the general bond was given.

The ward or the present guardian can not know the amount due until the former guardian has settled his accounts.

This court has held, in Newton v. Hammond, 38 Ohio St. 430: “A right of action on a guardian’s bond to recover from the sureties the amount remaining in the hands of the guardian, first accrues to the ward when such amount is ascertained by tbe probate court on tbe settlement of the guardian’s final account.”

The plaintiff delayed suit until the amount due was so ascertained. There is no claim that any oue asked that other bondsmen should be made parties to the suit.

Tice and Taylor are liable on this bond to the plaintiff for the amount unpaid. The court erred in overruling plaintiff’s demurrer to the first defense in the answer of Taylor, and the demurrer to the first and second defenses in the answer of Tice.

Judgment reversed and cause remanded, with instructions to sustain the demurrers, and for further proceedings.