author: Crew, J.

text:
    The Koppitz-Melchers Brewing Co. v. Schultz as Admx., and Hall.

      Bond given as security for performance of contract — Conditions of contract violated by party secured — Action by violating party against obligor of bond — Burden of proof on plaintiff —Answer by defendant that liability on bond was enlarged by act of plaintiff — Answer good against general demurrer— Error for court to charge that burden of proof rests on defendant — Contracts—Surety—Evidence—Court practice.

    1. Where a bond is given by H as principal with S as his surety to secure the faithful performance by H of a oontraJet made and entered into between H and a brewing company, which contract was conditioned and provided that, H should purchase beer of said brewing company in car load lots, should have a total credit with said company on the purchase of beer under said contract of not to exceed two car loads at any one time, and providing further that H, on ordering the third car load of beer, should pay for the first, and that the third car load should not be shipped by said brewing company until the first car load had been paid for, a failure of the brewing company to require payment for the first car load of beer before shipping the third, and the giving by it of a credit to H in excess of two car loads at any one time, is a material breach and violation of the terms and conditions of said contract and, if without the consent of the surety, operates to release him from liability on said bond.
    2. In an action on said bond by the brewing company, obligee therein, when it alleges in its petition full performance of all of the terms and conditions of said contract on its part, an answer by the surety which controverts and puts in issue said allegation of performance, and alleges and pleads such specific breaches of said contract on the part of said brewing company as materially vary and enlarge the liability of the surety on said bond, states a defense and is therefore sufficient as against a general demurrer.
    S. Where, in an action brought by the obligee in such bond, the allegation of performance, in plaintiff’s petition, is controverted by the answer of the surety, the burden is on the •plaintiff to establish on the trial, by a preponderance of the evidence, the facts showing such performance, and it is error lor the court in such case to instruct the jury that the burden is on the defendant — the surety — to show and prove that such violation and non-performance by plaintiff was without 'his, the surety’s consent.
    (Decided June 2, 1903.)
    Error to the Circuit Court of Guernsey county.
    On July 27, 1898, the plaintiff in error, The Koppitz-Melchers Brewing Co., entered into a contract in writing with the defendant in error, Henry T. Hall, whereby it agreed to sell and deliver beer to said Henry T. Hall, at Cambridge, Ohio. By the terms of said contract shipments of beer were to be made by said brewing company in “car load lots,” and Hall Avas to pay for the same at the times and in the manner stipulated and provided in said contract. Among other stipulations and provisions, said contract contained the follOAving:
    “It is further agreed that the second party shall have a total credit Avith the party of the first part on the purchase of beer under the terms of this agreement, not exceeding at any one time tAvo car loads of beer, and this credit shall be for the beer itself, exclusive of the value of the packages, and the second party agrees to remit to the first party for the first car of beer Avhen he orders the third car and the third car shall not be shipped unless the first car shall have been paid for. He shall pay for the second car of beer when he orders the fourth car and the fourth car shall not be shipped unless the second car* has been paid for, and this rule shall follow and hold good on all subsequent orders, and in no case shall the second party OAve the first party more than sixty days for beer shipped to him.”
    Contemporaneous Avith the making of said contract, and for tlie purpose of securing the faithful performance of the same upon his part, said Henry T. Hall, as principal, with Herman Schultz as his surety, executed and delivered to said brewing company his certain bond in the words and figures following, to-wit:
    “Know all men by these presents, that we, Henry T. Hall, of Cambridge, Ohio, as principal, and Herman Schultz, of Cambridge, Ohio, as surety, are held and firmly bound unto the Koppitz-Melchers Brewing Co., a Michigan corporation, of Detroit, Michigan, in the sum of $1,200 good and lawful money of the United States, for the payment of which well and truly to be made, we bind ourselves, severally and collectively our heirs and representatives firmly by these presents.
    “Sealed with our seals and dated this twenty-seventh day of July, 1898.
    “Whereas, the said Henry T. Hall is in the business of selling beer and has made a contract with the said Koppitz-Melchers Brewing Co., of Detroit, Michigan, to buy its beer in car load lots, both in cooperage and in bottles, or either or both; now, therefore, the conditions of this obligation are such that if the said Henry T. Hall shall promptly pay and discharge all his debts and obligations to said Koppitz-Melchers Brewing Co., as provided for and specified in the contract hereto attached, then this obligation to be void, otherwise in full force.
    “Henry T. Hall,
    “Herman Schultz.
    “In presence of
    “Carl Behrendt,
    “Jay G. Philpott.
    “ (Stamp.) ’’

      On August 2, 1899, plaintiff in error commenced an action on said bond against said Henry T. Hall and Herman Schultz, in the court of common pleas of Guernsey county, Ohio. Herman Schultz, surety in said bond, died in January, 1900, and the defendant in error, Angie Schultz, was appointed administratrix of his estate, and became a party to said suit by revivor. On January 13, 1900, by leave of court, plaintiff in error filed an amended petition in said cause, alleging due performance of said contract upon its part, claiming there was due to it from said Henry T. Hall, on account, under said contract, the sum of $1,254.67, and alleging a breach of said bond by the nonpayment of said sum and praying for judgment against the defendants, Henry T. Hall and Angie Schultz, as administratrix, for the full penalty of said bond, $1,200, with interest from October 24, 1899. To this amended petition Angie Schultz, administratrix, filed her answer admitting the execution by Herman Schultz of said bond and contract as claimed in plaintiff’s amended petition, but alleging a violation of the terms and conditions of said contract on the part of said brewing company, in that it did not require Hall to pay for the first car load of beer before it shipped to him the third car load, and did not require him to pay for the second car load before shipping him the fourth, and averred that said brewing company “at no time required Hall to pay for the beer furnished him as provided in said contract, that Hall ordered and received from plaintiff three car loads of beer before he paid for any part bought and ordered under the contract.” To this answer the brewing company demurred and this demurrer was sustained by the court of common pleas, that court holding that the answer was insufficient, for the reason that it did not contain the averment that such violation of the contract on the part of the brewing company was without the knowledge and consent of Schultz, the surety in said bond. To the sustaining of said demurrer the defendant, Angie Schultz, at the time duly excepted. Thereupon an amended answer was filed by her, which amended answer among other averments contained the following:
    “This defendant says that notwithstanding the terms and provisions of said contract and bond the plaintiff, without the knowledge or consent of the said Herman Schultz, and in violation of said contract and bond, sold and shipped to the said Henry T. Hall, upon his order, the third car load of beer before the said Hall had paid for the first, and likewise without the knowledge or consent of the said Schultz sold and shipped to the said Hall, on his order, the fourth car load of beer before the said Hall had paid for the second, and the plaintiff without the knowledge or consent of the said Schultz, wholly disregarded said contract and shipped beer to the said Hall whenever he ordered it without him having paid for the previous beer ordered, according to the terms of the contract, and the plaintiff wholly disregarded all the terms of the contract.”
    Plaintiff replied, admitting “that said plaintiff and Henry T. Hall entered into a contract, and that the terms are as alleged in said amended answer and that the terms of the bond are as stated therein,” but denied any breach of, or nonperformance on its part, of the terms and conditions of said contract. The case was tried to a jury and resulted in a verdict for plaintiff for the full amount claimed. Upon this verdict judgment was entered by the court. A motion for neAV trial was overruled, and Angie Schultz,, as administratrix, etc., prosecuted error to the circuit court of Guernsey county. That court reversed the judgment of the court of common pleas for the reasons: (1) “That said court of common pleas erred in sustaining the demurrer to the ansAver of plaintiff in error to the amended petition of the defendant in error, The Koppitz-Melchers Brewing Co.” (2) “For the further reason that the court erred in its charge to the jury.” To reverse this judgment of the circuit court this proceeding in error is prosecuted.

      Mr. John F. Stockdale, for plaintiff in error.
    Our claim is, that the departure from the contract as stated in this answer, does not of itself constitute a defense; but that in order to make it available as a defense in this case, it must not only allege, as it does, that the principal debtor was not required to pay as provided in said contract and that the dealings between the creditor and principal debtor were different from the provisions of the contract, but that such dealings or such changes, were had or made without the knoAvledge or consent of the surety. In support of this proposition, we cite the case of Bank v. Leavitt et al., 5 Ohio St., 207; cited also in 2 Am. Lead. Gas., 288; Brandt on Suretyship, Sec. 345.
    It will be seen that these dealings, which amount to a departure from the original contract, only release the surety when such dealings are without his consent. United States v. Howell, 4 Wash., 620; 2 Am. Lead. Gas., 284; Suydam v. Vance, 2 McLean, 99; Adams v. Way, 32 Conn., 161.
    By the foregoing cases cited it will be seen that laAV governing bonds as to alteration and change is. the same as that which governs notes; and in Brandt on Suretyship, Sec. 335, this language is used: “A material alteration of a bond signed by a surety, has the same effect to discharge him as in case of note or instrument not under seal.”
    The assent of the surety- may be proved by parol. Brandt on Suretyship, Sec. 345; Horr v. Hawkhurst, 7 Re., 168; 1 Bull., 225; Wyke v. Rogers, 12 Eng. L. & Eq., 162; Crosby v. Wyatt, 10 N. H., 318; Woodcock v. Railway Co., 21 Eng. L. & Eq., 285; Truesdell v. Hunter, 28 Ill. App., 292, where the court say: “In an action against a surety on a note, the burden of the proof to support the plea of alteration, is upon the surety.” Dempsey v. Moran, 9 Re., 212; 11 Bull., 213.
    The following additional cases are cited as sustaining the view held by this plaintiff in error: Bramble v. Ward, 40 Ohio St., 267; McComb v. Kittridge, 14 Ohio, 348; Ide v. Churchill et al., 14 Ohio St., 372; Blazer v. Bundy et al., 15 Ohio St., 57; Boling v. Young, 38 Ohio St., 135; Erwin v. Shaffer, 9 Ohio St., 43; Jones v. Brown, 11 Ohio St., 601; Boice v. Hodge et al., 51 Ohio St., 236; Bever v. Butler et al., Wright, 368; Slagel v. Pow, 41 Ohio St., 603.

      Mr. Robert T. Scott, for defendant in error.
    We contend that the bond entered into by and between the company and Hall and Schultz, must be* construed with reference to and in connection with the contract, and a failure of the brewing company to substantially perform the contract according to its terms, would be a breach of the bond, and thereby release Schultz.
    Schultz would not become liable to the brewing company, unless Hall violated the contract; and the company was duly bound to substantially perform its part of the contract, in order to make Schultz liable, in the event that Hall violated his part. 4 Am. & Eng. Enc. Law (2 ed.), 685; Grim v. Semple, 39 Ia., 570; Locke v. McVean, 33 Mich., 473; Dunbar v. Fleisher, 137 Pa. St., 85; Fletcher v. Jackson, 56 Am. Dec., 98; Peake v. United States, 16 App. D. C., 415.
    The common pleas court sustained the demurrer to the answer, for the reason it did not contain an allegation that-the contract was violated by the company, without the knowledge and consent of Schultz.
    The court made no distinction between the violation of the express terms of a written contract and the making of a new and separate contract, such as the extension of time, etc., on negotiable paper. We do not claim that there was a new contract between Hall and the brewing company, or that they had agreed upon any variation of the contract; our contention is that the brewing company violated the express terms of.the contract, and that the violation of the contract would be a violation of the conditions of the bond, and would release Schultz as a surety.
    Schultz was not a mere surety, such as is known on negotiable paper, but he was more properly a limited guarantor for Hall (limited by the express terms of the contract and bond), and as such he became and was a favorite of the law, and the brewing company was required to treat him as such and protect him, if it was in its power to do so. But instead of protecting him, the answer alleges that it wholly disregarded the provisions of the contract as to credit and time of payment.
    It is elementary that sureties are favorites of the law and have the right to stand upon the strict terms-of their obligation when, ascertained. Beyond the burdens thus taken upon themselves they are not-bound. This proposition is supported by authorities, so numerous that we will not attempt to cite all, but. only call the court’s attention to. a few. State v. Medary, 17 Ohio, 554; Gerke et al. v. Brewing Co.,. 11 Circ. Dec., 206; 24 Am. & Eng. Enc. Law (1 ed.), 749; Miller v. Stewart, 9 Wheat., 680; Lafayette v. James, 92 Ind., 240; 47 Am. Rep., 140; Sewing Machine Co. v. Brock, 113 Mass., 194; Montefiore v. Lloyd, 15 C. B. N. S., 203; Bill v. Barker, 16 Gray, 62; State v. Boon, 44 Mo., 254; Cremer v. Higginson, 1 Mason, 323; Crawford et al. v. Satterfield, 27 Ohio St., 421.
   Crew, J.

The contract and bond relied upon and pleaded by plaintiff in error were contemporaneously executed, were parts of the same transaction, and must be construed together as one instrument.

The plaintiff in error by accepting this contract, and as obligee in said bond, impliedly undertook and agreed with Herman Schultz, the surety in said bond,, that Hall should at no time have a total credit with it on the purchase of beer under said contract, exceeding two car loads at any one time, and that it would not ship said Hall a third car load of beer until the first car load received by him should have been' paid for, and it would not ship him a fourth car' load until the second had been paid for, etc. The surety in said bond had the right to rely upon this implied undertaking on the part of the brewing company that it would extend credit and would make shipments to Hall only in accordance with the stiptdations and provisions of said contract. It is elementary that the obligation of a surety is not to be extended beyond what the terms of the contract of suretyship fairly import. The surety has a right to stand upon the very terms of his contract, the exact letter of his bond, and if he does not consent to any variance of it and a variation is made, such variation operates to annul his contract and to discharge him from liability, and if the obligee in a bond given to secure the faithful performance of a contract, without right, does that which injures the surety or his rights, or fails to do that which the contract enjoins upon him as a duty to do, and such omission operates to the prejudice and injury of the surety in the bond, the surety is thereby discharged. Brandt on Suretyship, Sec. 397. In this case the defendant in error, Angie Schultz, in her original answer to plaintiff’s amended petition, averred among other things that Herman Schultz, as surety, was released from the obligations of the bond in suit, by reason of the fact “that the said Henry T. Hall was not required to pay for the first car load of beer, for which he was given credit, nor did he pay for the first car load of beer when he ordered the third car load of beer; that the said Henry T. Hall was not required by the plaintiff to pay for the second car load of beer when he ordered the fourth car load of beer; that the plaintiff wholly disregarded its contract with the said Henry T. Hall, and at no time required the said Henry T. Hall to pay for the beer as provided in the contract; that the said Henry T. Hall ordered and received from plaintiff on credit three car loads of beer before he paid for any part of the beer bought and ordered under the contract.”

The demurrer of plaintiff to this answer being a general demurrer, these allegations were admitted to be true. These limitations as to shipments of beer, and the provisions and stipulations of said contract as to the times and manner of payment for the same were for the benefit and protection of the surety, and their observance by the brewing company was a condition precedent to its right to recover against the surety on said bond. It being admitted by the plaintiff, by its demurrer, that it had violated its obligation and engagement with the surety as recited in tlie contract and bond, it was without right to recover against such surety for a breach of said bond, especially when the breach complained of, and for which recovery was sought, might never have occurred but for such unauthorized and excessive shiqiments of beer by plaintiff in violation of the express provisions and stipulations of said contract. Again, this answer of defendant alleging as it did certain specific breaches of said contract on the part of the brewing company, was the equivalent of a denial and had the effect to put in issue the averment of plaintiff’s amended petition that: “Plaintiff performed all its part to be performed under said contract.” Such performance on the part of plaintiff being, as we have seen, an essential prerequisite to its right to maintain an action on said bond, the effect of these averments in the answer ivas therefore to deny and put in issue a material averment of the plaintiff’s petition. The matter thus pleaded, if admitted or proven, constituted a defense, and by way of denial tendered a material issue. The demurrer of plaintiff to said answer was therefore improperly sustained.

On the trial of this cause in the court of common pleas the court charged the jury in part as'follows: “The plaintiff brings this suit as upon a bond executed and delivered for the performance of a contract with said-Henry T. Hall, and if you find by a preponderance of the testimony, that plaintiff, without the knowledge and consent of said Herman Schultz, violated the contract with Hall, and thereby increased the risk of said Schultz, then the said Schultz would be released from the obligations thereof, and your verdict would then be in favor of the defendant as administratrix. So that the main issue submitted to you by the pleadings and testimony is whether or not plaintiff and said Hall did change and modify and violate, said contract as alleged by defendant, and if so, was it without the knowledge and consent or acquiescence of said Schultz, and this puts the burden of proof upon said defendant, to prove and establish it by a preponderance of the evidence, and you are the sole judges of the credibility of the several witnesses and the credit to be given to them as to what they testified.”

This charge was excepted to by the defendant Angie Schultz, and was found and held by the circuit court to be erroneous, in so far as the jury was thereby instructed that the burden of proof was on the defendant to show and prove that the violation of said contract by the brewing company was without the knowledge and consent of Schultz, the surety in said bond. As we have already seen when considering the demurrer, the contract in suit was conditioned and it provided that the brewing company would not ship to Hall the third car load of beer until he had paid for the first and would not ship him the fourth until he had paid for the second, and a compliance with these covenants and provisions on the part of the brewing company was an essential prerequisite to its right of recovery against the surety on said bond, and any violation of these covenants and conditions by the brewing company which increased the risk or liability of Schultz under said contract would discharge him as surety on said bond, and the failure on the part of the brewing company — obligee in said bond — to observe and comply with these provisions was the matter alleged and relied upon by defendant in her answer, as and for her defense. In its amended petition the brewing company averred that it had complied with and performed all the terms and conditions of said contract on its part to be performed, but the effect of the matters specially pleaded in the answer of Angie Schultz was, as above stated, to deny and put in issue this averment of plaintiff’s amended petition, and upon the issue so tendered the burden was upon the plaintiff to show and prove performance on its part as averred in its petition. The defendant in this case, Angie Schultz, did not rely upon or plead a change or modification of the original contract, or the making and substitution of a new contract in its stead, but she relied upon the nonperformance by plaintiff of the express terms of the contract in suit, performance of which was a prerequisite to its right to recover on said bond. Hence the authorities cited and relied upon by counsel for plaintiff in error in this case, relating as they do, in nearly every instance, to cases where the defense relied upon and pleaded by defendant — was that of the making’ and substitution of a new contract — such as for the extension of time on negotiable paper, are without application.

The attitude of the defendant Angie Schultz in this case is purely defensive, and her answer in effect merely a denial of the performance by plaintiff of the terms and conditions of said contract necessary to be performed by it in order to put the surety on said bond in default and to entitle plaintiff to recover thereon against him. If as alleged in defendant’s answer there was on the part of the brewing-company such failure to perform the terms and conditions of said contract as released the surety, then if the brewing company would excuse such nonperformance on its part and relieve itself from the penalty of such violation because of the consent thereto of the surety in said bond, the burden is upon it to plead and prove such consent, and not upon the surety to show and prove that such failure to perform was without his consent. The denial by plaintiff in its reply of the allegations of defendant’s answer pleading- nonperformance, was wholly unnecessary, inasmuch as it had already averred in its amended petition full performance of said contract on its part, and the effect of defendant’s answer was simply to deny such averment. In this case no reply by plaintiff was necessary, and the filing of one did not have the effect to change the issue arising on the amended petition and the answer thereto, nor did it operate to shift the burden of proof. The charge as given was therefore erroneous.

Judgment of the circuit court, affirmed.

Biirket, C. J., Spear, Davis, Shauck and Price, 33., "concur.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    Stivens v. Summers et al.

      Time of commencing actions — Section J¡982, Revised Statutes— Actions for relief on ground.of fraud — Action not to accrue till discovery of fraud — Includes action to set aside fraudulent deed — Must he actual and not constructive notice — Filing of deed, not constructive notice, tohen — Interpretation of law.

    1. In Section 4982, Revised Statutes, which limits to four years actions for relief on the ground of fraud, the saving clause, “hut the cause of action in such case shall not he deemed to have accrued until the discovery of the fraud,” embraces actions to set aside deeds which are constructively fraudulent as to creditors of the grantor.
    2. The clause does not contemplate a constructive discovery) and the cause of action does not accrue when the fraudulent deed is filed for record unless the plaintiff then receives actual notice of its execution and of the* circumstances which render it fraudulent.
    (Decided June 2, 1903.)
    Error to the Circuit Court of Clinton county.
    Plaintiff, brought her action in the court of common pleas to set aside two deeds for real estate executed by the defendant, John J. Summers, to his two sons as being in fraud of creditors, and to subject the lands conveyed to the payment of a debt due from the grantor to plaintiff at the time of the conveyance. The cause ivas tried in the circuit court on appeal, and upon the issues joined the following facts were found by that court:
    “First — On December 25, 1895, one J. W. Summers borrowed of the plaintiff nine hundred ($900) dollars and gave plaintiff therefor his promissory note with the defendant John J. Summers, as surety, due in one year from date, with seven per cent, interest thereon; the only consideration for said note was said money so loaned to said J. W. Summers and said John J. Summers bore no relation to said note except as surety, which fact was known to plaintiff.
    “Second — On December 1,1899, the plaintiff, Mary J. Stivens, by the consideration of the court of common pleas of Clinton county, Ohio (in which county, the said John J. Summers and J. W. Summers resided) duly and regularly recovered a judgment against the said John J. Summers and J. W. Summers, on said promissory note, for the sum of nine hundred and fifty-eight and sixty-two one-hundredths ($958.62) dollars being the amount then due on said note, and also for costs, amounting to twelve and three one-hundredths ($12.03) dollars. Said judgment is still in force and wholly unpaid and unsatisfied, both John J. Summers and J. W. Summers being insolvent.
    “Third — At the time said debt to plaintiff was incurred, to-wit, December 25, 1895, the said John J. Summers was the owner in fee simple of a large amount of real estate situate in Clinton county, Ohio, and was also owner of a large amount of personal property, and was at that time able to meet and pay all debts and claims against him.
    “Fourth — On March 18, 1896, while the plaintiff was a creditor of the said John J. Summers, as above stated, he, the said John J. Summers and Hannah Summers, his wife, executed and delivered to his son, Isaac R. Summers, a warranty deed thereby conveying to his said son, David E. Summers, seventy-five and sixty-one one-hundredths (75.61) acres of land belonging to the said John J. Summers, of the value of sixty ($60) dollars per acre, a total of forty-five hundred and thirty-six and sixty one-hundredths ($4,536.60) dollars, and fully described in the amended petition , of plaintiff as tract No. 1. Said deed contained a recital as to the consideration thereof, in the words and figures following, to-wit:
    “ ‘In consideration of natural love and affection, and thirteen hundred ($1,300) dollars to him paid hy the said Isaac R. Summers.’ Said^ deed contains no other recital as to the consideration therefor. Said deed also reserved a life estate in said lands, to the said John J. Summers and Hannah Summers, his wife, for and during their joint lives, and the life of the survivor of them. No consideration was in fact paid by the said Isaac R. Summers to the said John J. Summers for said land, but the said Isaac R. Summers did execute and deliver to the said John J. Summers, four promissory notes, each for the sum of three hundred and twenty-five ($325) dollars, all of said notes made payable to the administrator of John J. Summers, deceased; the first note due in one year, the second in two years, the third in three years, and the fourth in four years, after the deaths of both John J. Summers and Hannah Summers, his wife, without interest; it being the intention that no portion of said notes should be paid, until the times above limited after the death of the survivor of said two grantors.
    “At the same time, and as part of the same transaction, the said John J. Summers and Hannah Summers, his wife, executed and delivered to his son, David E. Summers, a warranty deed thereby conveying to his said son, David E. Summers, seventy-five and sixty-one one-hundredths (75.61) acres of land, belonging to the said John J. Summers, of the value of sixty ($60) dollars per acre, a total of forty-five hundred and thirty-six and sixty hundredths ($4,-536.60) dollars and described in the amended petition of plaintiff, as tract No. 2. Said deed also contained a recital as to the consideration thereof, in the words and figures following, to-wit: ‘In consideration of natural love and affection, and twelve hundred ($1,-200) dollars, to him paid by the said David E. Summers.’ Said deed contains no . other recital as to the consideration therefor. Said deed also reserved a life estate in said lands to the said John J. Summers and Hannah Summers, his wife, for and during their joint lives, and the life of the survivor of them. No consideration was in fact paid by the said David E. Summers to the said John J. Summers for said land, but the said David E. Summers did execute and deliver to the said John J. Summers, four promissory notes, each for the sum of three hundred ($300) dollars all payable to the administrator of John J. Summers, deceased. The first note was due in one year, the second in two, the third in three, and the fourth in ,four years after the deaths of both John J. Summers and Hannah Summers, his wife, without interest; it being the intention that no portion of said notes should be paid until the times above limited after the death of the survivor of said two grantors.
    “Both of said deeds were voluntary conveyances, and at the time of their execution and delivery, to-wit : March 18, 1896, the said John J. Summers was indebted to divers and sundry persons, including plaintiff, in an amount greatly in excess of the value of the property Avliich he retained in his hands liable to the payment of his debts.
    “In the execution and delivery of said deeds, there was no actual intent on the part of the said John J. Summers, Isaac R. Summers, and David E. Summers, or any of them, to hinder, delay or defraud the cred-. itors of the said John J. Summers, the purpose of said John J. Summers in executing said conveyances, being to make a settlement of his property among his children, in his lifetime. Said deeds were both filed for record with the recorder of Clinton county, Ohio, on March 28, 1896, and on March 31, 1896, were both duly recorded in the land records of Clinton county, Ohio.
    “Fifth — On March 18, 1896, and ever thereafter, the said J. W. Summers was, and still is insolvent; and on November 29, 1899, he made a general assignment for the benefit of his creditors. On the final settlement of said assignment by the assignee, after applying all of his property thereto, there remained unpaid of his indebtedness about the sum of eleven thousand ($11,-000) dollars.
    “Sixth — The plaintiff, Mary J. Stivens, had no actual knowledge or notice of the execution and delivery of said two deeds to the said Isaac R. Summers and David E. Summers, or of the existence of» said deeds, until December 1, 1899, and she, the plaintiff, did not actually discover any of the facts constituting the alleged fraud in this case until December 1, 1899.
    “Seventh — The plaintiff commenced this action on March 31, 1900. As its conclusions of law upon the above facts the court find: (1) That said two deeds are constructively fraudulent only. That the plaintiff’s cause of action is barred by the statute of limitations, and she cannot recover in this action, and thereupon the court find for the defendants, John J. Summers, Isaac R. Summers and David E. Summers, on the issues joined.”
    This is a petition in error for the reversal of the judgment in favor of the defendants which the circuit court rendered upon said finding.

      Mr. A. E. Clevenger and Messrs. West & Wallcer, for plaintiff in error.
    Section 6344, Revised Statutes, says: “All transfers, conveyances, or assignments made by a debtor or procured by him to be made, with intent to hinder, delay, or defraud creditors, shall be declared void at the suit of any creditor,” etc.
    Conveyances constructively fraudulent, as well as those with an actual intent, are included within this statute. Jamison v. McNally et al., 21 Ohio St., 295; Loudenback v. Foster, 39 Ohio St., 203.
    The intent or intention is an emotion or operation of the mind, and can usually be shown by acts or declarations; and as acts speak louder than words, if a party does an act which must defraud another, his declaring that he did. not by the act intend to defraud is weighed down by the evidence of his own act. Every man is presumed to intend the natural consequences of his own acts. The intent may be to hinder or delay creditors, as well as to defraud them, and either is sufficient under the statute. Intent alone, however, is not sufficient to render a conveyance fraudulent unless it is carried out so as to prejudice creditors; but when such is the natural and proximate result of the debtor’s act, it may be fraudulent, notwithstanding the motive or intention. 8 Am. & Eng. Enc. Law, 758; Wait on Fraudulent Conveyances, Secs. 9-11; Coleman v. Burr, 93 N. Y., 31; Winchester v. Charter, 97 Mass., 140; Crumbaugh v. Kugler, 2 Ohio St., 374.
    In its conclusions of law on the facts found, the circuit court fully recognize and apply the law as stated above. The court find that the transaction, while free from an evil intent, is, nevertheless, constructively fraudulent as against the plaintiff and the other existing creditors of the said John J. Summers. The court, however, held that plaintiff’s cause of action was barred by the provisions of Section 4982, Revised Statutes.
    In construing this statute, the court held that in cases of constructive fraud only, that is, fraud free from actual evil intent, the proviso in said section, viz.: “But the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud” has no application; that the four years’ limitation begins to run from the commission of the acts constituting the alleged fraud; that said proviso applies to a case of actual fraud only; that is, to a case where the intent to defraud actually exists. This was the sole question decided by the circuit court, and applying this statute, as thus interpreted, to this case, the court held that plaintiff’s cause of action was barred, more than four years having elapsed since the commission of the alleged fraudulent acts.
    Under the code of Ohio, there is but one form of action, which is known as a civil action. Section 4971, Revised Statutes: “It is to be borne in mind that in this state, the question is not embarrassed by distinctions arising between actions at law and suits in chancery; for whatever rights the party may have are enforcible by the civil action of the code.” Conger v. Atwood, 28 Ohio St., 134. On the same point are a number of Ohio cases, as follows: Clayton v. Freet, 10 Ohio St., 544; Goble v. Howard, 12 Ohio St., 165; Neilson v. Frye, 16 Ohio St., 552; Jones v. Timmons, 21 Ohio St., 596; Hull v. Bell, 54 Ohio St., 228; Pierce v. Stewart, 61 Ohio St., 422.

      There being in Ohio only the one form of action, viz., the civil action of the code, Section 4982, Revised Statutes, in all of its parts, applies to an action for relief on the ground of fraud, whether the fraud be constructive or actual. If the fraud complained of be constructive only, the action for relief is still an action for relief on the ground of fraud. It can not possibly be anything else; and the proviso in section 4982: “But the cause of action in such, case' (that is, such case or action, for relief on the ground of fraud), shall not be deemed to have accrued until the discovery of the fraud,” applies, whether such action for relief be on the ground of a constructive or an actual fraud. The statute makes no distinction whatever, and it is judicial legislation to read into this proviso an exception not included within its plain terms. Thus, it seems to us that the language itself of the section is conclusive against the construction placed thereon by the circuit court.
    Again, the limitations of the code of civil procedure, as to the time of commencing civil actions, are applicable as a bar, to all suits comprehended within the civil action of the code. This civil action of the code, is a substitute for all such judicial proceedings as were previously known, either as actions at law, or suits in equity. Therefore, the statute of Ohio limiting the time of actions for relief on the ground of fraud, embrace both legal and equitable actions. Chinn v. Trustees, 32 Ohio St., 236; Rife v. Lybarger et al., 49 Ohio St., 427.
    Our statute of limitations, being a part of the code, is to be liberally construed in order to promote its object; and the rule of the common law that statutes in derogation thereof, must be strictly construed, has no application to it. Section 4948, Revised Statutes. McAllister v. Hartzell, 60 Ohio St., 88.
    The foregoing being the law of Ohio, we must look to the statute itself, its terms and its purposes, in order to determine its meaning. And when considered in this light, the conclusion is irresistible that it was the intention of the legislature that this proviso in section 4982 should apply to all actions for relief on the ground of fraud, whether the fraud complained of be constructive or actual. Such is the construction given to a similar statute by the Supreme Court of California. Boyd v. Blankman, 29 Cal., 19. This case is cited and approved by the Supreme Court of California in the case of Currey v. Allen, 34 Cal., 258.
    The circuit court based its conclusion that the saving clause of the Ohio statute applies only to cases of actual fraud, largely on the case of Farnum v. Brooks, 9 Pick., 212. This cause was decided under the statute of the state of Massachusetts.
    It will be noted that the Massachusetts statute is widely different from the rule established by section 4982 of our code. Under this statute it is not necessary, and indeed is not usual, that the cause of action should be based upon fraud, but all that is necessary is, that a cause of action should be fraudulently concealed ; while the Ohio statute requires that the cause ■of action, to be within its purview, should be founded upon fraud itself. Under the Massachusetts statutes, the fraud in question is not that which gives, hut that which conceals a cause of action, and any cause of action whatever may be its character, if fraudulently concealed, comes within the purview of the statute. Thus an action based upon a fraud may or may not be within the statute. Certainly, a case decided upon such a statute as this, can afford no light in construing such a statute as we have in Ohio. This distinction is clearly pointed out in Howk v. Minnick, 19 Ohio St., 462.
    Under the Massachusetts and Indiana statutes, and states Avith like statutes, in every case where fraud is the foundation of the action, in order to toll the statute, there must be two separate and distinct frauds, viz.: One, which is the foundation of the action, and the other the fraudulent concealment of that-cause of action from the party aggrieved. In giving to the Ohio statute such construction, the circuit court, it seems to us, widely departed from its manifest scope and meaning. It is easy to see how, under such a rule, actual fraud alone can toll the statute. These statutes require an intentional, fraudulent concealment of the cause of action from the party aggrieved, to prevent the running of the same. A man never intentionally conceals an act, if his conscience accuses him of no wrong in the act. The very fact of fraudulent concealment proves a conscious fraud. Hence, under these statutes, the exception, that is, the fraudulent concealment which prevents the running of the statute, can never exist, except in cases of actual fraud. This is shown by the following • decisions under these statutes: Wynne v. Cornelison, 52 Ind., 312; Township, etc., v. French, 40 Ia., 601; Stanley v. Stanton, 36 Ind., 445; Stone v. Brown, 116 Ind., 78; Wear v. Skinner, 46 Md., 257.
    Now the circuit court construed section 4982 as though it read: “Actions for relief on the ground of fraud; but the cause of action shall not be deemed to have accrued until the discovery of the fraud in all such cases where there has been a fraudulent concealment of the cause of action from the party aggrieved.”
    As pointed out above, this requires two cases of fraud to be made out in every action, before it is possible to toll the statute, and, of course, this confines the exception to cases of actual fraud only. It is well settled that the record, or registry of a deed is constructive notice only to those who claim through, or under the grantor by whom such deed is executed. Blake v. Graham, 6 Ohio St., 583; Leiby v. Wolf, 10 Ohio, 83; Hibbs v. Insurance Co., 40 Ohio St., 557.
    The holder of a mortgage on real estate is not charged with constructive notice of a subsequently executed and recorded conveyance of a portion of the premises covered by his mortgage; and he can not, without proof of actual notice of such conveyance, or circumstances equivalent thereto, be charged with the value of other portions of the mortgaged property released by him after the record of such subsequent conveyances. Sharp v. Myers, 1 Circ. Dec., 374; 2 C. C. R., 82. Affirmed by the Supreme Court without report. Batterson v. Sharp, 24 Bull., 444.
    It is a fundamental proposition, established with complete unanimity, that a registration properly made does not operate as constructive notice to alL the world, but only to those persons who, under the policy of the legislation, are compelled to search the records in order to protect their own interests. It is. equally well settled, that such record is not notice to the holders of antecedent rights, that is, to those who have acquired their right before the time when the antecedent right may, in pursuance of the statute, be defeated by the fact of the prior record. In other words, the registration of an instrument does not act as notice backwards in time. 2 Pomeroy’s Equity, Sec. 657; Stuyvesant v. Hall, 2 Barb. Ch., 151; Stuyvesant v. Hone, 1 Sand. Ch., 419.
    The record of a deed is notice only to those who are bound to search for it, including parties subsequently dealing with the land or concerned with its title, but antecedent rights are not generally affected by registration, and the record is not notice to the grantor in the deed. Davis v. Monroe, 187 Pa. St., 212; 67 Am. St., 581.
    Where a tenant in the actual possession of real estate, fraudulently acquires a tax title thereto, the statute of limitations applicable to bar his landlord from maintaining suit to set aside the tax title, is one for relief on the ground of fraud; but in such case the statute does not begin to run until the fraud is discovered, and for this purpose there is no constructive discovery. If the tenant fraudulently takes the deed in his own name, and puts it on record, it is not notice to his landlord which would set the statute running, that would bar him from' an action for relief against the fraud; the landlord and his grantees would be entitled to the full time limited by law after the actual discovery thereof. Duffitt v. Tuhan, 28 Kan., 292. This case is especially in point for the reason that the statutes of the state of Kansas on this question are identical with those of Ohio.
    In Wisconsin it is likewise held that actual notice of the facts is necessary. Fox v. Zimmerman, 77 Wis., 414. The notice required to effect an antecedent creditor of a voluntary conveyance, is actual notice. Ward v. Thomas, 81 Ky., 452; Gen. Stat. of Ky., Sec. 6, Art. 3, Chap. 71.

      Messrs. Smith & Clevenger, for defendants in error.
    There is hut one question of law arising out of the finding of facts, and that is whether an action to set aside deeds on the ground of fraud is barred when the action was commenced more than four years after the deeds were filed for record, and when the facts show no actual fraud but a state of facts that warrants the court in applying the term legal, or constructive, fraud.

    Plaintiff in error mistakes the real issue by arguing in her brief, that conveyances constructively fraudulent as well as those involving actual fraud, fall within the provisions of section 6344, and cites Jamison v. McNally et al., 21 Ohio St., 295. We-do not dispute this doctrine, but the question in this case is when actions under section 6344 are barred by the 'statute.
    Plaintiff in error, who was plaintiff below, clearly recognized the law to be that actions under section 6344 fell within the provisions of Section 4982, Revised Statutes, for she alleges in her amended petition that the fraud complained of was discovered within four years prior to the commencement of this action. This allegation is a copy of the holding of this court, Combs v. Watson, 32 Ohio St., 228.
    Now, there is no better principle that any allegation necessary to a cause of action must be supported by evidence. This the plaintiff in error wholly failed to do, as no evidence was introduced of the discovery of anything whatever but the fact that the deeds had been made, and then counsel relied entirely upon the principle laid down in Loudenback v. Foster, 39 Ohio St., 203.

      The doctrine there laid down and in Jamison v. McNally, 21 Ohio St., 304, has no application whatever to the issues made by the finding of facts in this case. The holding in those cases was that constructive, or legal, fraud fell under the provisions of section 6344, as well as a case of actual fraud, but they nowhere say that a case of constructive, or legal, fraud will suspend the running of the statute of limitations until its discovery like a case of actual fraud.
    The question of the bar of the statute as applied to a case of actual, or constructive, fraud, is interesting but not difficult of solution in the light of our statute and adjudicated cases. The bar of a right of action under section 6344 falls under section 4982. “An action for relief on the ground of fraud, hut the cause of action in such case shall not he deemed to have accrued until the discovery of the fraud.”

    If plaintiff in error can have any standing whatever it must be by virtue of the saving clause of said section 4982, as that section would bar any cause of action founded in fraud in four years from its commission, except for the saving clause.
    The legislature in enacting that part of section 4982, relating to fraud, followed in substance the old English statutes on that subject. In the day when these statutes originated constructive fraud was unknown, as it is comparatively a modern term. It never was intended to mean more than it says in the plain language used. If it includes this case, and cases contended for by counsel for plaintiff in error, then there is absolutely no limit within which a person could safely accept under a voluntary conveyance, for if constructive fraud falls within the saving clause of section 4982, then the only limit for bringing tbe action is four years after tbe discovery of the simple fact that a deed has been made.

    We are not without light on this subject in Ohio, for we claim all the questions involved in this finding of facts have been squarely settled by this court. Combs v. Watson, 32 Ohio St., 228; Maas v. Miller et al., 58 Ohio St., 483.
    We might safety rest our case upon these Ohio decisions, but we' desire to go further and show the court that with one or two exceptions the higher courts of this country have held the same way. Counsel for plaintiff in error state that the circuit court were guided largely in arriving at their conclusion in this case by the decision in Farnum v. Brooks, 9 Pick., 212. Counsel are in error in this respect. While the circuit court considered that case of great value in determining the questions involved, they based their holding first, on Combs v. Watson, 32 Ohio St., 228, and Maas v. Miller et al., 58 Ohio St., 483, and secondly, on the fact that there is an unbroken line of decisions on’’this question whenever the identical question has been before a court. We now refer to the cases of Farnum v. Brooks, 9 Pick., 213; Austin v. Raiford, 68 Ga., 201; Printup v. Alexander, 69 Ga., 553; Township v. French, 40 Ia., 601; Downs v. Harris, 75 Ga., 834.
    One of the most significant decisions in this state on the question of what is necessary to suspend the running of the statute of limitations, is found in the case of the State v. The Standard Oil Co., 49 Ohio St., 188.
    That constructive fraud will not suspend the running of the statute of limitations, as a general proposition, we desire to cite further the following authorities: Wilmerding v. Russ, 33 Conn., 67; Geb

      hart v. Sautter, 30 Ia., 152; Bishop v. Knowles, 53 Ia., 268; Laird v. Kilbourne, 70 Ia., 83; Hawley v. Paige, 77 Ia., 239; Francis v. Wallace, 77 Ia., 373; Michel v. Walraven, 92 Ia., 423; Clark v. Van Loon, 108 Ia., 250.
    In Iowa, as in Ohio, the statute provides that the. action shall be brought within five years “after the cause of action accrues,” and that it shall not be deemed to have accrued “until discovery of the fraud by the party aggrieved.” And it will be noted also that these cases make the filing of the deed notice to the world of any constructive fraud, and the limitation begins to run from such filing. See also Perry v. Wade, 31 Kan., 428; Boyd v. Boyd, 27 Ind., 429; Wynne v. Cornelison, 52 Ind., 312; Phillips v. Shipp, 81 Ky., 436; Hughes v. Littrell, 75 Mo., 573; Oterson’s Appeal, 7 Pa. Dist. Rep., 379; Vodrie v. Tynan, 57 S. W. Rep., 680; Wait on Fraud. Con., Sec. 292. Per contra are cited the following cases: Boyd v. Blankman, 29 Cal., 19; Humphrey v. Carpenter, 39 Minn., 115; Fox v. Zimmerman, 77 Wis., 414.
    The court of appeals of Kentucky does hold that the recording of a deed is not constructive notice to antecedent creditors. Ward v. Thomas, 81 Ky., 452; Cavanaugh v. Britt, 90 Ky., 273; Brown v. Connell, 85 Ky., 403.
    But if counsel rely upon that court for the law applicable to the limitations of actions for relief on the ground of fraud, their petition in this case is insufficient, and no decree can be rendered in plaintiff’s favor, for that court holds that the petition must aver not only that the fraud was not discovered, but that it could not have been discovered by the exercise of reasonable diligence. Brown v. Brown, 91 Ky., 639; Cavanaugh v. Britt, 90 Ky., 273.

      From these references it will be seen that the supreme courts of Connecticut, Massachusetts, Iowa, Georgia, Missouri, Kansas and Indiana have all held that where a conveyance is constructively fraudulent only, the statute of limitations begins to run as against creditors of grantor either from the date of the deed, its filing for record, or its record. While California, Missouri, and possibly Wisconsin, hold that the time begins to run from actual notice of the existence of the deed.

      Now, where stands Ohio? This question is settled by the case of Maas v. Miller, 58 Ohio St., 483.
    In the case of constructive fraud when does the four years begin to run? Some of the cases make the date of the deed the starting point, others the filing for record, and others the actual recording. The weight of authority favors the filing as the time from which to count. This is distinctly held in the Iowa cases, and our Supreme Court, in .the case of King v. Kenny, 4 Ohio, 82. This is quoted with approval in Ratcliff v. Teters, 27 Ohio St., 81. Other cases would make the actual recording the date from which the statute runs. It seems unreasonable to hold the parties responsible for the delay of the recorder, and for all purposes the filing is just as available for notice as the recording. Both on principle and authority the statute runs from the filing. But it is immaterial which rule is adopted in this case. The deeds were executed on March 18, filed on March 28, and recorded March 31, 1896, and this case was not commenced until March 31, 1900. If we start counting from the date, the action was brought four years and fourteen days after the cause of action accrued ; if from the filing, it was delayed four years and four days, and if from the recording four years and
      one day. The statute does not say four years from the day on which a cause of action accrues so that that day would be excluded, but four years from the accruing- of the cause of action. The day on which it accrues must be included for an action may be brought on that day. And giving the widest possible latitude to construction the cause of action in this case “accrued” March 31, 1896, and perished at midnight, March 30, 1900.
    One day over time is as effective as one year. The statute of limitations is no longer received with disfavor but with favor by the courts.
    We claim the law to be that, if there is anything on the face of a record that would be sufficient to put a creditor upon inquiry, he is chargeable with notice of all that reasonable inquiry would have disclosed. These deeds stated on their face: “In consideration of natural love and affection and $1,200 (one $1,300).” This was the exact truth, for a payment can be made by note as well as cash. This was notice to any person chargeable with notice that nearly the whole of the consideration in these deeds wás a gift. 14 Amer. & Eng. Enc. Law (2 ed.), 355; Thomas v. Kennedy, 24 Ia., 397; Duhme, Admr., v. Mehner et al., 5 Dec., 107; 3 N. P., 266.
   Shauck, J.

The record does not suggest that the circuit court was unmindful of the doctrine of Jamison v. McNally et al., 21 Ohio St., 295, since its conclusion of law concedes that under our statute a deed may, at the suit of a creditor of the grantor, be set aside for constructive as well as for actual fraud, and that these deeds were constructively fraudulent. Upon that point the briefs of counsel are in accord.

The proposition by which the judgment of the circuit court must be tested is stated by it in its conclusion of law: “That the plaintiff’s cause of action is barred by the statute of limitations.” The pertinent provision of the statute is in section 4982 which defines the actions which may be brought within four years, that lastly stated being “an action for relief on the ground of fraud, but the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.” Of the facts found the following are brought into prominence by the opposite views of counsel; the deeds were filed for record with the recorder of the county in which the lands are situated more than four years before the bringing of the action; the deeds were only constructively fraudulent; 'until within four years from the bringing of her action the plaintiff did not have actual notice of the execution of the deeds, nor did she prior to that time actually discover any of the facts which made the deeds fraudulent. The fraudulent deeds having been ^executed more than four years before the beginning of the action, the precise question is whether it is within the provision that “the eáuse of action in such case shall not be deemed to have accrued until the discovery of the fraud.” We are not favored with the opinion of the circuit court, but counsel urge that it properly concluded that the case is not within the saving clause of the statute because the deeds were only constructively fraudulent, and because they were filed for record more than four years before the action was brought. The numerous cases cited in support of this view-will be found in the Reporter’s abstract of the briefs. It is not necessary to analyze them separately. Most of them obviously depend upon provisions not found in our statute, or upon facts not found in the present case. A statute providing that in an action for relief on the ground of fraud the cause of action shall not he deemed to have accrued until the discovery of the fraud distinguishes itself from one which suspends the bar of the statute because of the fraudulent concealment of the cause of action; and this case involves no consideration arising out of the relation of trustee and beneficiary. When not influenced by peculiar provisions of recording acts the view generally taken is that the registration of a deed does not operate retrospectively so as to affect the holders of antecedent rights. Pomeroy Equity Jurisprudence, Secs. 656-8. This view has been consistently maintained in this state. Leiby v. Wolf, 10 Ohio, 83, and cases following it. Sharp v. Myers, 1 Circ. Dec., 374; 2 C. C. R., 82, approved by this court in affirming the judgment. If we felt at liberty to depart from this doctrine and to assume that the recording act affords a refuge to a fraudulent grantor or his fraudulent grantee another difficulty would be encountered. Assuming that the plaintiff was charged with knowledge of these deeds when they were left for record and of the fact that they were by way of gift, knowledge of essential elements of fraud would still be wanting. Such a deed by one who retains property fully sufficient to discharge his debts is not a fraud upon his creditors. Since the action could not be maintained but for the facts found respecting the financial condition of the grantor at the time of making the deeds, and since the record did not disclose those facts, it cannot be said that the fraud was discovered until the plantiff, from a different source, received notice of such facts. A deed fraudulent as to creditors may recite the payment of a full and valuable consideration by the grantee, and an examination of the record would not disclose to a creditor of the grantor that a cause of action has accrued in his favor. It would inform him that the land conveyed cannot be subjected to the payment of his claim because a valid title thereto has become vested in a purchaser for value. In such case it cannot be said that the fraud has been discovered until the creditor has notice of the falsity of the recitation as to the consideration. It seems, therefore, that the judgment of the circuit court is not justified by the fact that the deeds were filed for record more than four years before the action was brought. The opposite conclusion involves an erroneous view of the statute relating to the recording of deeds, as well as of that by which actions of this character are limited.

Nor is the conclusion of the circuit court justified by its finding that these deeds were only constructively fraudulent. Usually, and in these cases always, the consequences of fraud are not determined by its character. In order that an act be constructively fraudulent it is essential that it would, either in the particular case or in common experience, lead to consequences equivalent to those following actual fraud. By the act of the debtor these lands had been placed beyond the reach of an execution at law. The creditor’s resort to equity being thus made necessary, neither the principles nor the statutory provisions involved suggest that his rights may be affected by considering whether the act of the debtor proceeded from evil design or from an innocent mistake respecting his financial condition when the deed of gift was made. The language of the limiting section of the statute and of the saving clause obviously comprehends constructive as well as actual fraud. It being admitted that constructive fraud is included in the provisions of the statute by which the right of action is defined and in that by which it is limited, an exception should not by interpretation be imported into that by which it is saved. The controlling fact found by the circuit court is that the action was brought within four years after the actual discovery of the fraud. It is gratifying to believe that long and. uniform practice has prepared the bar of the state for these conclusions.

Judgment reversed and judgment for plaintiff.

Burket, O. J., Spear, Davis, Price and Crew, JJ., concur.


author: Davis, J.

text:
    The Bradford Belting Co. v. Gibson.

      Powers of boards of trustees and directors of corporations — Section 3248, Revised Statutes — Directors prima facie power to malee contracts — Agent cannot enlarge his authority by own statement, when — Iiis statement not competent evidence, when — Error for court to charge 'jury that burden of proof rests with secretary, when — Law of corporations — Agency.
    1. The corporate powers, business and control of an Ohio corporation are required by Section 3248, Revised Statutes, to be exercised, conducted and controlled primarily by its board of directors; and prima facie the corporate power of making, or of refusing to perform, contracts on behalf of the corporation rests in the board of directors.
    2. In the absence of express authority conferred upon its officers or agents, and of such a course of dealing with the world as clearly implies authority to do the controverted act, a corporation can be bound only by its board of directors.
    3. An agent cannot enlarge his own authority by an unauthorized representation as to its extent; and proof of the state- ■ ipent by the Secretary of a corporation that the corporation would not perform a contract and that lie was authorized by tbe directors and stockholders to so state, is not competent evidence to bind tbe corporation, without otherwise showing authority from the corporation to the secretary to make such statement in behalf of the corporation.

      4. It is error to instruct the jury that if the secretary did make such statements that would be prima facie evidence that the directors had so decided, and the plaintiff would be authorized to consider that he had spoken by authority of the board of directors; and that if the jury should find that the secretary did make such statements, the burden of proof would be upon defendant to show that the secretary had acted without the authority of the board of directors.
    (Decided June 2, 1903.)
    Error to the Superior Court of Cincinnati.
    The defendant in error is a capitalist and contractor. She filed a petition against the plaintiff in error, in which she alleges that the defendant is a corporation, and for a first cause of action says;
    “1. Plaintiff, for a first cause of action says: On or about March 9, 1897, plaintiff agreed with defendant to erect a large factory building on a certain lot in Cincinnati, according to plans and specifications then‘being prepared by architects, and to be thereafter agreed upon; and after its completion to execute to defendant a lease on the property for ninety-nine (99) years, renewable forever, with a privilege of purchase. And in consideration thereof, defendant agreed to accept said lease and pay an annual rental of five per cent, upon the total cost in quarterly installments, and to pay all taxes and assessments.
    “Plaintiff proceeded to carry out said agreement on her part, and made "contracts for said building, under which the old building on the site was removed, and sewers and water connections put in, and the cellar and trenches for the foundation dug, and costly material was contracted for and prepared, and while said contracts last named were being so carried out the defendant notified plaintiff to stop the further progress of the work, and that it would not enter into said lease.
    “By reason of said repudiation of said contract by defendant, plaintiff was compelled to and did incur expense and loss of ten thousand four hundred and twenty-two dollars and fourteen cents ($10,422.-14), for work done and material ordered and prepared, over and above its value as old material, as follows: Loss on material, eight thousand one hundred and ten dollars; architect’s fees, seven hundred and fifty dollars; excavation, eight hundred and fifty dollars; Greensburg stone, four hundred and fifty-five dollars; plumber, one hundred and twenty-five-dollars; permit, forty-one and fifty-five one hundredths dollars; survey and title, ninety dollars; total, ten thousand four hundred and twenty-two dollars and fourteen cents.
    “Wherefore, plaintiff asks judgment for $10,422! 14 on the first cause of action with interest.”
    The defendant answered admitting that it is a corporation under the laws of Ohio, and denying each and every other allegation of the petition. On the trial it appeared that the plaintiff had obtained from one Bradford, a written agreement to convey to her for a cash consideration of $10,000, two lots in Cincinnati, and guaranteeing the title to be free, clear and unincumbered and acceptable to plaintiff’s attorney; that Bradford died shortly' after making said agreement and without having conveyed the said premises; that plaintiff did not notify Bradford that the title was acceptable to her nor tender the consideration for such conveyance; and that Bradford’s heirs refused to convey. The evidence to prove the anticipatory breach of the contract by defendant as alleged in the petition consisted of certain alleged oral statements made at the plaintiff’s office a short time after Bradford’s death, by James L. Anspaugh, one of the directors and the secretary of the defendant corporation. This evidence was objected to by defendant on the ground that there was no evidence to show that Anspaugh was authorized to make the said statements. The objection was overruled and the defendant excepted to the said ruling and also to the charge of the court as to the effect of said evidence. Other facts appear in the opinion. The verdict and judgment were for the plaintiff and the judgment was affirmed by the general term; and this proceeding is prosecuted to reverse the judgment of the superior court in both special and general term.

      Mr. Lawrence Maxwell, Jr., of Messrs. Ramsey, Maxwell & Ramsey, for plaintiff in error,
    cited and commented upon the following authorities:

      Raudabaugh v. Hart, 61 Ohio St., 73; McCoy’s Admrs. v. Bixbee’s Admrs., 6 Ohio, 310; Doogood v. Rose, 9 Com. B., 132; Withers v. Reynolds, 2 B. & A., 882; Railway Co. v. Dane, 43 N. Y., 240; Stockton v. Insurance Co., 33 La. Ann., 577; Stensgaard v. Smith, 43 Minn., 11; Richardson v. Hardwick, 106 U. S., 252; Johnstone v. Milling Co., 16 Q. B. Div., 460; Brewing Co. v. Bullock, 9 O. F. D., 193; 59 Fed. Rep., 83; Elsas v. Meyer, 21 Bull., 346; Hochster v. De la Tour, 2 E. & B., 678; Daniels v. Newton, 114 Mass., 530; Baldwin v. Burrows, 47 N. Y., 199; Bennecke v. Insurance Co., 105 U. S., 355; Bank v. Armstrong, 7 O. F. D., 499; 152 U. S., 346; Price v.
      Moore, 158 Mass., 524; Dedham Institution v. Slack, 6 Cush., 408; Phipps v. Hope, 16 Ohio St., 586; Campbell v. Gittings, 19 Ohio, 347; Beach on Contracts, Sec. 415; Adriance v. Roome, 52 Barb., 399; Bruff v. Railway Co., 1 F. & F., 344; Burnside v. Dayrell, 3 Exch., 224; Newlands v. Accident Assn., 54 L. J. N. S. Q. B. Div., 428; Barnett v. Tramway Co., 18 Q. B. Div., 815; Reed v. Buffum, 79 Cal., 77; Stewart v. Bank, 11 S. & R., 267; Johnston v. B. & L. Assn., 104 Pa. St., 394; Harvey v. Railroad Co., 13 Hun, 392; Bank v. Hogan, 47 Mo., 472; Bank v. Catholic Church, 109 N. Y., 512; Railroad Co. v. Harter, 26 Ohio St., 426; Workhouse v. Moore, 95 Pa. St., 408; Manufacturing Co. v. McAlister, 36 Mich., 327; Turnpike Road Co. v. Craver, 45 Pa. St., 386; Bank v. Loan & Trust Co., 14 Wis., 325; Titus & Scudder v. Railroad Co., 37 N. J. L., 98; Olney v. Chadsey, 7 R. I., 224; Savings & Loan Assn. v. Smith, 125 Ala., 509; Mfg. & Supply Co. v. Milling Co., 9 S. D., 542; Lyndon Mill Co. v. Literary & Biblical Inst., 63 Vt., 581; Railway Co. v. Bank, 62 Ark., 33; 2 Cook on Corp., Sec. 716; Curran v. Railroad Co., 138 N. Y., 480; Ohio ex rel. v. Treasurer, 22 Ohio St., 144; State ex rel. v. Peoples’, etc., Assn., 42 Ohio St., 579; D’Arcy v. Railway Co., L. R. 2 Ex., 158; Masterton v. Mayor, 7 Hill, 61.

      Mr. T. C. Campbell; Messrs. Bates & Meyer and Mr. B. M. ClenDening, for defendant in error.

      Raudabaugh v. Hart, 61 Ohio St., 73; Bond v. Carpenter, 15 R. I., 440; Smith v. Lewis, 24 Conn., 624; Durkee v. Railroad Co., 29 Vt., 127; Curnan v. Railroad Co., 34 N. E. Rep., 201; Fister v. LaRue, 15 Barb., 343; Hooker v. Bank, 30 N. Y., 83; Smith v. Wells Mfg. Co., 148 Ind., 333; Bank v. Shoemaker,
      68 Mo. App., 592; Clark v. Marsiglia, 1 Denio, 317; Derby v. Johnson, 21 Vt., 21; Gibbons v. Bente, 51 Minn., 499; United States v. Behan, 110 U. S., 338; Davis v. Bronson, 2 N. D., 300; Cameron v. White, 74 Wis., 425; Moline Scale Co. v. Beed, 52 Ia., 307; Nebraska City v. Gas Co., 9 Neb., 339; Queen City Elec. L. Co. v. Gibson House Co., 4 N. P., 119; 6 Dec., 148; Reed v. McGrew, 5 Ohio, 375; Creed v. Commercial Bank, 11 Ohio, 489; Cresinger v. Welch, 15 Ohio, 156; Steamboat Albatross v. Wayne, 16 Ohio, 513; Stewart v. State, 1 Ohio St., 66; Gill v. Sells, 17 Ohio St., 195; Oliver v. Sterling, 20 Ohio St., 391; Schneider v. Hosier, 21 Ohio St., 98; Railway Co. v. Rawson, 9 Re., 709; 16 Bull., 423 (affirmed, no report, 25 Bull., 87); 4 Thompson oh Corp., Sec. 4696; Taylor on Corp., Sec. 204; Smith v. Wells Mfg. Co., 148 Ind., 333; Patterson v. Robinson, 116 N. Y., 193; Railway Co. v. Harter, 26 Ohio St., 426; Bosche v. Toledo Display Horse Co., 7 Circ. Dec., 374; 14 C. C. R., 289; Curnan v. Railway Co., 34 N. E. Rep., 201; 138 N. Y., 480.
   Davis, J.

In order that the plaintiff might recover in this action, it was necessary that she should prove the allegation made in her petition, that while the contracts were being performed on her part, “the defendant notified plaintiff to stop the further progress of the work, and that it would not enter into said lease.” This she attempted to do by testimony which tended to show that the secretary of the defendant corporation said, when asked by the plaintiff’s. agents whether the death of Mr. Bradford would make any difference in the carrying out of the contract by the defendant, that he would have to consult the stockholders and directors about that, and that afterwards the defendant’s secretary said to plaintiff’s agents that the heirs of Mr. Bradford and the stockholders of the Bradford Belting Co. could not carry out the contract, and that they had directed him to so inform the plaintiff. There was no evidence of the authority of the secretary to speak for the corporation in this matter other than his alleged conversations as above stated; and it appears that the defendant for that reason objected to the testimony relating to the alleged statements by the secretary, and as to notice to the plaintiff by the defendant through the secretary, that defendant would not perform the contract on its part; but the court overruled the objection and admitted the testimony. This evidence is the pivotal point in this case. Mr. Anspaugh, the defendant’s secretary, flatly contradicted the testimony as to the statements alleged "to have been made by him. The court instructed the jury if he did make such statements that “would be prima facie evidence that the directors had so decided, and the plaintiff would be authorized to consider that he had spoken by authority of the board of directors,” and that “then the burden of proof would be upon the defendant to show that he had acted without the authority of the board of directors.” The defendant produced its minute book, which did not show any action upon the subject, and the surviving directors each testified that the board of directors had never authorized any one to notify the plaintiff that the defendant would not carry out its contract.

The law relating to principal and agent is the same whether the principal be a corporation or a natural person. In either case the principal is bound only by the authorized acts of his agent. The extent of the agent’s authority may be shown by the terms of the appointment, if they are explicit, or it may be shown by a course of dealing by which the agent is held out as having an authority which would include the act in question. “But in whichever way this is done, it cannot be limited by secret instructions of the principal on the one hand, nor can it be enlarged by the unauthorized -representations of the agent on the other.” Mechanics Bank v. Railroad Co., 13 N. Y., 599, 632; People’s Bank v. St. Anthony’s Church, 109 N. Y., 512, 525. See Smith v. Railroad, 27 N. H., 86, 97, 98; Fay et al. v. Noble et al., 12 Cush. (Mass.), 1.

In this state the corporate powers, business and property of the corporation must be exercised, conducted and controlled by the board of directors, Section 3248, Revised Statutes; and prima facie the corporate power of making or refusing to perform contracts on behalf of the corporation rests in the board of directors. Under our statutes, there is nothing in the nature of a corporate office which would imply authority to perform the functions which the statute imposes upon the board of directors ás a board, not upon the directors individually. The corporation may by its regulations, so define the duties of its officers as to make them alter ego within the assigned limits. Section 3252, Revised Statutes. But in the absence of express authority, and of such a course of dealing with the world as clearly implies authority to do the controverted act the corporation-can be bound only by its board of. directors. It appearing in this case, merely that Anspaugh was secretary of the company and that (giving the utmost effect to the testimony) he represented that he was authorized to speak for the board of directors, the trial court erred both in admitting the testimony which, was objected to and in instructing the jury that those facts alone shifted the burden of proof to the defendant to show want of authority in the secretary; and the superior court in general term should have reversed the judgment for those errors.

The other questions which have been argued by counsel are not decided, because as to them the record seems to us to be incomplete and unsatisfactory.

Judgment reversed.

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


author: Spear, J.

text:
    The Peoples' Savings Bank Co. v. Parisette et al.

      Vendor of land obligates himself to convey — By good warranty, etc. — No stipulation against incumbrances and dower right— Wife need not join in deed, when — Vendee aware of facts— Court will not decree specific performance — Against husband with abatement of value of wife’s dower.

      1. Where a vendor of land has obligated himself by written contract to convey “by good warranty deed and abstract of title from organization of county,”-but the contract contains no stipulation for a deed -containing a covenant against incum ■brances generally, and none against any inchoate dowei right, it is not essential to the performance of the -contrae'' by the vendor that his wife should join in the deed and re lease her right of dower.
    2. Where, in an action brought in a court of equity to enforce the specific performance of a contract for the sale of land by the •purchaser -against a married man, the owner of the fee, whd alone signed the contract, it appears by the contract itself that some one other than the husband was expected to sign it but has not done so, and the contract contains a stipulation to convey by ai good warranty deed, but contains no ■agreement for a covenant against incumbrances, and it appears, further that the wife has not agreed to sign such contract or in any way release her inchoate right of dower in the land, and that the purchaser at the time knew that the vendor.-had a wife who would under the law be entitled to a right of dower, and there is no collusion between the husband and wife relating to the contract or deed, the court will not decree specific performance against the husband, with an abatement in the contract price of the land of the estimated value of the prospective dower of the wife.
    (Decided June 2, 1903.)
    Error to the Circuit Court of Summit county.
    The plaintiff in error, The Peoples’ Savings Bank Co., was plaintiff in the courts below. Its action was brought against Charles Parisette and his wife, Susan. Parisette, to enforce specific performance of a land, contract for certain lands in the city of Akron, executed by the husband alone. The contract was of the-kind known as an optional contract in which it was. recited that “for and in consideration of fifty dollars,, received to the full satisfaction of F. J. Wettach,, the receipt of which is hereby acknowledged, we do' hereby give said F. J. Wettach, his heirs and assigns,, the refusal to purchase of us until December 15,, 1900, for the sum of $24,000, * * * the following; described tract of land,” [description follows], and “if said F. J. Wettach, his heirs or assigns, at any time, on or before said date, pays the said sum as. above set forth, we do hereby bind ourselves, our heirs, administrators or assigns, to convey to sáid F. J. Wettach, his heirs, administrators or assigns, by good warranty deed and abstract of title from organization of county, of said above tract or lot of land.”
    Issue being joined by separate answers and reply, the cause was tried in the common pleas, and by the plaintiff appealed to the circuit court. That court found the ultimate issue for the defendants. The facts specially found are in substance: That Charles Parisette, at the time of giving the option, was the owner in fee of the premises. Susan Parisette then was and now is his wife. She has an inchoate right of dower in the premises, and no other interest therein. Wettach was the duly authorized agent of Charles Parisette for the sale of the premises, and the option was given to him to aid in a sale. Susan never signed or agreed to sign any contract or deed for a sale of the premises, and never agreed to sell the same, or to release her inchoate dower therein. Wettach duly assigned the' option to the plaintiff Company, and it paid the fifty dollars. Within the life of the option the Company elected to take the premises on the terms stated, and so notified Charles, who then refused to make a conveyance. On December 13, 1900, and within the life of the option, the Company tendered Charles the full balance in lawful money and demanded a deed of the premises as provided for in the option, which he again refused. Plaintiff Company knew that Charles Parisette had a wife living at the time he signed the option. There was no collusion between Charles Parisette and his wife relating to said option or deed. On December 21, 1900, Charles Parisette duly tendered the plaintiff a good warranty deed for the premises, properly executed and signed by himself alone, and ever since has been ready and willing to deliver said deed, but plaintiff refused and still refuses to accept such deed.
    From the foregoing the court finds as matter of law: (1) That the plaintiff is entitled to no relief against Susan Parisette. (2) That the plaintiff is not entitled to a warranty deed for said premises from the said Charles Parisette, except upon payment to. him of the entire unpaid portion of the purchase money provided for in the option given by him. Then follows the specific order “that the said Charles Parisette deliver to said plaintiff, on its request so to do, the deed heretofore tendered him to plaintiff upon the payment of said plaintiff to said defendant Charles Parisette of the balance due on said contract, to-wit: the sum of $23,950.” 'Judgment as to costs followed accordingly, from all which the plaintiff Company brings error.

      Mr. Nathan Morse, for plaintiff in error.
    I. A general warranty is a covenant on the part of the grantor that he, his heirs, etc.,- shall warrant and defend the title conveyed to the vendee, his heirs, etc., forever against the lawful claims of all persons. Anderson’s Law Die., 1105; Stanley v. Bedinger, 1 Circ. Dec., 522; 2 C. C. R., 345.
    II. A deed of land subject to an inchoate right of dower is not a marketable title. Tiffin v. Shawhan, 43 Ohio St., 178; Kellerman v. B. & L. Assn., 39 Bull., 203.
    III. A marketable title is such a oné as ought to satisfy a man of ordinary prudence. Rife v. Lybarger, 49 Ohio St., 429.
    IV. Right of dower, although inchoate, is an incumbrance upon the lands to which it attaches and is within the operation of the ordinary covenants against incumbrances, and a contingent right of dower is within the covenant of . general warranty. 2 Scribner’s Dower, 3; Prescott v. Trueman, 4 Mass., 627; Shearer v. Ranger, 22 Pick., 447; Wright v. Young, 6 Wis., 125; Black v. Kuhlman, 30 Ohio St., 198.
    V. Plaintiff in error is entitled, under his contract, to a deed of general warranty, and the court will enforce specific performance of that contract, though the wife did not join therein, and if the defendant cannot make such deed, nor the court decree the same; if Butler refuses to cancel the mortgage or if‘Mrs. Parisette refuses to sign the deed, the court can and should order performance by Parisette, as far as he is concerned, and that he (Parisette) protect this plaintiff in error from both said mortgage and said inchoate dower right. 3 Parsons on Contracts, 337, 338; Troutman v. Gowing, 16 Ia., 415; Zebley v. Sears, 38 Ia., 507; Davis v. Parker, 14 All., 94; Wright v. Young, 6 Wis., 125; Luckett v. Williamson, 31 Mo., 54; Lucas v. Scott, 41 Ohio St., 640; Martin v. Merritt, 57 Ind., 34; Moore v. Moulton, 2 Bull., 323.
    YI. The proper form for such relief is to require vendor to execute the conveyance as per his contract, and, from the agreed purchase price, to order the vendee in paying the same to retain so much thereof as is necessary to pay off the mortgage and interest when due; and added thereto so much thereof as the court shall find from the annuity tables is the equivalent of the inchoate right of dower, and secure the payment thereof, with interest, by mortgage upon said premises, the said sums so retained to be for the payment of the mortgage when due, and the amount for indemnity against the inchoate right of dower, to be paid to Parisette or wife as the event shall determine. Stanley v. Bedinger, 1 Circ. Dec., 522; 2 C. C. R., 344; Moore v. Moulton, 2 Bull., 323.
    The policy of our law is and always has been to facilitate the easy transfer of real estate, and to maintain contracts by specific performance, when the same can be done with justice and equity to all parties, and we contend that the law in regard to matters of incumbrances and dower rights, has always, in this state, been as we claim it, viz.: to enforce the contract; and at the same time protect lienholders, dower rights, and a purchaser, as can be fully and equitably done in this case. '

    Messrs, Stuart & Stuart, for defendants in error.
    The decisions on the question involved in this case, it will be found on examination of the authorities, turn very largely upon the facts of each particular case.
    In this case the bank knew that Charles Parisette had a wife, was well acquainted with both parties, knew that the option was made out for the wife to sign, and that she had not signed it. Mrs. Parisette has all through this proceeding, from the time she first learned that'there was talk of selling the property, been unwilling to have it sold. She has done nothing to give the bank any right to impair of change her interests in the property. There was no collusion between herself and her husband, Charles Parisette. He has always been ready and willing to carry out his contract. He is not in court asking that the bank be compelled to carry out its part of the contract.
    If a deed of general warranty covers an inchoate right of dower, concerning which proposition the authorities in other states seem to be at variance; still there is no cause of action until the dower becomes consummate. Nyce’s Executors v. Obertz. 17 Ohio, 75.
    If a person agrees to pay another a certain sum of money for a certain piece of property, knowing at the' time that the owner of the property has a wife living, and that the wife has not bound herself in any way to release her dower, he has' entered into an agreement with his eyes open. If he wanted that dower interest released he should have seen that it was put in the contract. It is uncertain whether the dower interest will ever be worth anything. If it is, and it is covered by the covenants of warranty in the deed, then the purchaser has his remedy against the vendor’s estate.
    This is the rule at law. But the plaintiff in error is in this court asking for specific performance; true it has abandoned its claim for specific performance by Susan Parisette, but it 'asks that the court order a certain, or rather a very uncertain, amount to be deducted from the purchase price as an indemnity against possible future loss.
    Should a court of equity then make the order prayed for?
    We think not. It is true there are diverse decisions upon this question in other states, but we claim the law is as stated by our circuit court, that it is well settled in this state. Lucas v. Scott, 41 Ohio St., 636.
    Authorities which sustain the proposition for which we contend are as follows: Tuite v. Miller, 10 Ohio St., 382; Black v. Kuhlman, 30 Ohio St., 203; Reilly v. Smith, 25 N. J. Eq., 158; Riesz’s Appeal, 73 Pa., 485; Humphrey v. Clement, 44 Ill., 299; Bostwick v. Williams, 36 Ill., 65; Peeler v. Levy, 26 N. J. Eq., 330.
    To decree specific performance with indemnity would be to inquire, not whether a good title could be made, but how to provide against a bad one.
    The courts in Pennsylvania, New Jersey and Illinois hold squarely with us in our contention, and while there is a quotation in the New Jersey Ohaneery Reports, found in 21 Atl. Rep., 475, from Pomeroy on Specific Performance, in support of the opposite view, with apparent approval, yet the question of an inchoate dower was not involved in, that case and there was no reversal or modification of the long established rule in New Jersey. We believe that the decisions of our Ohio courts, which have any bearing on the question, and which we have already cited, sustain the proposition for which we contend, and that was the view taken by the common pleas and circuit courts in this case.
   Spear, J.

It is insisted by counsel for plaintiff in error that the stipulation in the option is for a deed conveying the entire property free from any and all rights, claims, and incumbrances, and of the latter class is the inchoate right of dower; that the obligation, therefore, rested on the vendor to clear the title, and convey free of all claims of every kind; that failing this the vendee should have been allowed to retain so much of the purchase money as will protect his title against such inchoate right of dower, and the vendor decreed to convey on receiving the remaining part of the purchase money, and that the refusal of the circuit court to so adjudge was error.

This proposition of counsel assumes that a wife’s inchoate right of dower is an incumbrance on her husband’s land, and that the optional contract contains a stipulation on the part of the vendor that he will convey by deed embracing a covenant against incumbrances. While the first proposition seems never to have been distinctly decided in Ohio, the la¡w is so held by courts of last resort in a number of the states, notably Maine, Massachusetts, Indiana, Wisconsin, Iowa and Michigan, and it is declared by Judge Scribner, in his admirable work on Dower (vol. 2, p. 3), after a review of the authorities, that: “A right of dower, although inchoate, is so far an incumbrance upon the lands on which it attaches as to be within the operation of the ordinary covenant against incumbrances.” But if this proposition be conceded, still the plaintiff must establish that the contract binds the vendor to convey by deed containing the usual covenant against incumbrances. It is clear that there is not a specific stipulation to that effect. The language is: “By a good warranty deed and abstract of title from organization of county.” The term “warranty” usually implies a warranty of the title, and that it was the matter of title that the parties had in mind in framing this stipulation is manifest from the terms used. The purchaser was to have in his deed a warranty of title, and accompanying the deed an abstract of title. A covenant of warranty and a covenant against incumbrances are essentially different in their nature. A breach of the one is ordinarily attended by consequences differing from those following a breach of the other. The former is in the nature of a covenant for quiet enjoyment. As well defined by Collet, J., in King v. Kerr, 5 Ohio, 155, it “is an undertaking by the warrantor that on the failure of the title which the deed purports to convey, either for the whole estate or for a part only, by the setting up of a superior title, that he will make compensation in money for the loss sustained by such failure.- * * * This covenant is not broken until the grantee, his heir or assignee, is evicted from or disturbed in the enjoyment of the premises, or a part of them, by the setting up of a superior or paramount title.” To which may be added the qualification that the covenant may be broken by any disturbance of possession wbicb is equivalent to an eviction. Tbe latter covenant is a stipulation against all rights to, or interest in, the land wbicb may subsist in third persons to tbe diminution of tbe value of the estate, tbougb consistent with tbe passing of tbe Tee by tbe deed, and such covenant, if there be an incumbrance, is broken so soon as made. We are aware that it has been held, here and there, that an agreement for a good and sufficient warranty deed implies a deed embracing covenants usually contained in deeds in this state, but we are not aware of any authoritative bolding to the effect that tbe term “good warranty deed,” where used in a contract in direct connection with tbe matter of title, implies, as conclusion of law, more than it expresses, and we are not ready in this case, under tbe peculiar facts of it, to affirm tbe unqualified position of counsel in this respect. Indeed, as we understand it, tbe settled rule is that a covenant of general warranty, by itself, does not include a covenant against incumbrances (Bostwick v. Williams, 36 Ill., 65); and it is stated unqualifiedly by a learned author that a covenant of warranty is not broken by an outstanding inchoate right of dower. 3 Washburn on Real Prop., sec. 2389. Manifestly it could not be. Even tbougb it be conceded that tbe covenant of warranty is sufficient to cover a claim for dower, yet there has been no eviction, and nothing equivalent to an eviction. There has, therefore, been no breach, and there may never be. In a situation where tbe dower right has become consummate, and tbe claim prosecuted so that tbe purchaser has been deprived of tbe possession of a portion of tbe land, a different case is presented. Johnson v. Nyce, 17 Ohio, 66; Nyce v. Obertz, 17 Ohio, 71. If this position is maintainable, and it is difficult to see why it is not, it would be a full answer to the demand for a decree against the husband requiring a conveyance embracing a release of dower by the wife to say that he had incurred no obligation to that effect, and therefore it is not essential to the performance of his contract that his wife should join in the deed and release her right of dower; and the conclusion would, also afford a full answer to the demand that a portion of the purchase money be withheld until the dower right becomes consummate, or is extinguished by the decease of the wife.

But suppose this position be doubted, still there is another phase of the case which we are unanimous in thinking satisfactorily disposes of it. Let us inquire more specifically into the terms of the agreement, and the inferences to be drawn from it. What was the contract specific performance of which plaintiff demanded, and what the breach, if any? The parties were the vendor, the husband, and the vendee, the plaintiff. The paper itself carries the information that it was when drawn contemplated to be executed by some one other than the vendor, and since the plaintiff was. aware that he had a wife living, the inference is. natural that she was the person whose signature had been expected. The paper further showed that she had not signed, and the fact found is that she had made no agreement to sign or sell the property, or release her inchoate right of dower. Furthermore, the absence of her signature would suggest a refusal by her. The Company knew, therefore, that it was dealing with the husband alone as to his right and title in the property, it knew that the wife could not be compelled to sign, and that, therefore, the contract was impossible of., specific execution if construed to include ber dower. It knew that it was accepting a contract which on its face did not purport to sell any interest but that of the husband, and especially did not purport to sell or agree to convey any inchoate* dower of the wife. In this situation of affairs the Company chose to agree to j>ay the stipulated price for just what the option purported to sell. No fraud, or overreaching, or mistake of any kind is charged. The vendor is ready to convey just what the stated terms of his contract obligate him to convey. How can the Company reasonably demand that the court import into the contract a stipulation to convey by a deed containing a covenant against this dower right, when no agreement of that character, nor respecting incumbrances of any kind, is expressed, and when in all probability, had such a ‘demand been made of the vendor, he would have refused to comply with it? We think it cannot. The effect of the construction contended for by counsel would be either to attempt to arrive at a sum to be deducted absolutely by a process admittedly speculative, or to suspend the payment of a considerable portion of the purchase money to the grantor during the joint lives of himself and his wife, which, it seems to us, could never have been within the contemplation of the parties when this optional contract was signed. Plaintiff was in a court of equity pressing an inequitable demand. We think it was properly refused. On the plaintiff’s o^rnt construction of the option the Company is in the attitude of one who takes the promise of another to do that which it is known he cannot perform except by the concurrence of a third person. Such purchaser contracts with full notice of the uncertainty attending the seller’s ability to perform, and, not having been misled to his ihjury, cannot* now ask-the extraordinary aid of a court of conscience in repairing such loss, if any, as he has sustained by the vendor’s failure to complete his contract.

A number of cases cited by counsel in his brief hold the contrary doctrine, but our conclusion is in accord with the holding of this court in Lucas v. Scott, 41 Ohio St., 636. It is also the doctrine of the English courts, for which see Pomeroy on Con., secs. 442, 458, 461; Castle v. Wilkinson, L. R., 5 Ch., 534, and James v. Lichfield, L. R., 9 Eq., 51. Likewise of, the courts of New Jersey, Pennsylvania, and Illinois. Hulmes v. Thorpe, 5 N. J. Ch., 415; Young v. Paul, 2 Stock., 401; Hawralty v. Warren, 18 N. J. Eq., 124; Welsh v. Bayaud, 21 N. J. Eq., 186; Reilly v. Smith, 25 N. J. Eq., 158; Peeler v. Levy, 26 N. J. Eq., 330; Clark v. Seirer, 7 Watts, 107; Riesz’s Appeal, 73 Pa. St., 485; Humphrey v. Clement, 44 Ill., 299. See also, Bostwick v. Williams, supra, and 2 Story’s Eq., secs. 730, 731, 732, 733, 734 and 735.

The judgment and order as rendered is

Affirmed.

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