author: Spear, J.

text:
    Eggleston et al. v. Harrison, Assignee.

      Deed of assignment of land for the benefit of creditors — Embracing land situate in a county other than assignor's residence — Must be entered for record in recorder's office of such county —In order to be notice to bona fide purchaser — Section 4134, Revised Statutes.

    A deed of assignment -which embraces land of the assignor situate in a county other than that of his residence, in order to be effective as against a subsequent bona fide purchaser, having at the time of the purchase no knowledge of the deed of assignment, must, by force of section 4134, Revised Statutes, be entered for record in the office of the recorder of the county where the land is situate. And if such purchaser first duly enters his deed for record in the office of the recorder of that county he will take a good title as against the assignee. Betz v. Snyder, 48 Ohio Stat., 592, distinguished.
    (Decided January 9, 1900.)
    Error to the Circuit Court of Lucas county.
    The action below was by Joseph T. Harrison, assignee, against Elizá W. Chatfield, W. H. Chat-field and Charles B. Eggleston for a decree setting aside a deed, and was tried on appeal in the circuit court.
    So far as necessary to an understanding of the legal questions involved, the facts found by the circuit court are as follows:
    On the 17th day of October 1892, Eliza W. Chat-field, together with her husband, William H. Chatfield, both of whom then resided in the county of Hamilton, and state of Ohio, by their deed of assignment duly executed, acknowledged and delivered, made assignment of all her property, both real and personal, and wherever situated (but without specific description) to Joseph T. Harrison, in trust for the benefit of her creditors; and that, at the same time, William H. Chatfield, by his separate deed of assignment duly executed, acknowledged and delivered, made assignment of all his property, both real and personal and wherever situated (but without specific description) to Joseph T. Harrison, in trust for the benefit of his creditors; and that both said deeds of assignment were filed Avith the probate judge of said Hamilton county, Ohio, in his office at the probate court of said county on the 19th day of October, 1892, at 3:53 o’clock P. M., and said assignee thereupon duly qualified and entered upon his duties as such assignee.
    That said deeds of assignment have not been filed for record in the office of the recorder of Lucas county, Ohio, nor have they been recorded elsewhere than in the probate court of Hamilton county, Ohio.
    That at the time of said assignments, said Eliza W. Chatfield was the owner of the real estate described in plaintiff’s petition and situated in Lucas county, Ohio; that the property of said Eliza W. Chatfield included in her assignment, was insufficient to pay the debts then owing by her, and that the trust under said assignment has not been ended nor have the debts then owing by her been paid or settled.
    That on the 12th day of March, 1894, said Eliza W. Chatfield, together with her husband, said William H. Chatfield, then residents of Chicago, Illinois, by deed duly executed, sold and conveyed the said property in Lucas county, Ohio, being the same described in the petition, to the defendant, Charles B. Eggleston; that said deed was left for record with the recorder of said Lucas county, Ohio, on the 19th day of March, 1894; and that said Eggleston purchased said property in good faith, for a valuable consideration, and, at the time of said purchase, had no knowledge of said deed of assignment from Eliza W. Chatfield and husband, William H. Chatfield, to said Joseph T. Harrison, bnt did have knowledge of the separate deed of assignment by William H. Chatfield to said Harrison.
    Thereupon, as conclusions of law, the court found that the title to the property in Lucas county passed by the deed of assignment to the assignee, and, upon its filing in the probate court of Hamilton county, the assignment took effect as to all persons, and that the deed from the Chatfields to Eggleston was without effect. A decree in favor of the assignee, setting aside the deed and for costs followed. To reverse this judgment the present proceeding in error is brought.

      White & Snyder, for plaintiffs in error.

      A. E. Wilson and Harrison & Aston, for defendant in error.
   Spear, J.

The record presents this question: Must a deed of assignment embracing land of the assignor situate in a county of this state other than that of his residence, be recorded in the recorder’s office in such other county in order to make it effective against a subsequent bona fide purchaser, having, at the time of the purchase, no knowledge of the existence of the deed of assignment; or does the assignment, upon being delivered to the probate judge of the county of the residence of the assignor, take effect as to land lying in another county so as to be notice to subsequent bona fide purchasers?

It is apparent that the determination of the question involves a comparison of the statutes of the state, upon the subjects of registration and assignments, and an examination of decisions bearing upon those statutes.

The importance of a system of tracing titles was recognized by our law-makers at an early day. In the year 1803 the legislature passed an act (10. L., 136) entitled, “An act providing for the recording of deeds, mortgages and other conveyances of land,” by which the office of county recorder was established, and his duties defined, among which were the duty to procure proper books and record therein all deeds, mortgages and conveyances of lands and tenements lying within the county; to endorse on each instrument received the time when so entered for record; to record such instruments in regular succession according to the priority of receipt of same, and when recorded, to endorse thereon the time when, and the number and page of the book where recorded. A penalty was prescribed for neglect or refusal to perform any duty so enjoined, or for fraudulently endorsing a different date than that on which the instrument was received or recorded. Like provision as to duties has been continued in our statutes until the present time. In 1831 (29 O. L., 346), an act was passed respecting the proof, acknowledgment and recording of deeds, etc., which provided that mortgages executed agreeably to the provisions of the act should be recorded in the county in which the mortgaged premises are situate, and shall take effect from the time when recorded, and that where two or more mortgages were presented for record on the same day they shall take effect from the order of presentation for record. Also that all other deeds and instruments, of writing for the conveyance or encumbrance of land shall be so recorded within six months, and if not so recorded within the time shall be deemed fraudulent as to subsequent tona fide purchasers having at the time of making the purchase no knowledge of the existence of the former deed, but that such deed, etc., may be recorded after the time named, and from the date of such record shall be notice to subsequent purchasers, and these provisions have been continued and remain in force, save that the time of delivery to the recorder for record is substituted for the time of actual record (section 4133, Revised Statutes), and that as to all other deeds, etc., the provision is that, “All other deeds and instruments of writing for the conveyance or encumbrance of any lands, tenements or hereditaments executed agreeably to the provisions of this chapter, shall be recorded'in-the office of the recorder of the county in which the premises are situate, and, until so recorded, or filed for record, the same shall be deemed fraudulent so far as relates to a subsequent bona fide purchaser having at the time of the purchase no knowledge of the existence of such former deed or instrument.” (Section 4134).

The first act regulating the mode of administering assignments in trust for the benefit of creditors was passed April 6, 1859, (56 O. L., 231). By the first section it was made the duty of the trustee, within ten days after the delivery of the assignment to him and before disposing of any property so assigned, to cause the assignment, or a copy, to be filed in the probate court and enter into an undertaking, with surety, for the faithful perfomance of his duties. The second section provides for the removal of the assignee upon his failure to comply with the requirements of the first section and the appointment of another, and gives the court authority to make the appointment effective by proper order. Subsequent sections provide for further duties of the assignee and for a full disposition of the trust estate. An amendment to section 1 was made by the act of March 16,1860 (57 O. L., 39), by which the mode of recovery on the bond for misconduct or neglect on the part of the assignee was defined, and the liability somewhat enlarged, but no other change was made in the section. And thus the section appears to have remained until the codification of 1880, when it was amended and became section 6335, Revised Statutes, as it is now, viz.: “When any person, partnership, association or corporation, shall make an assignment to a trustee of any property, money, rights or credits, in trust, for the benefit of creditors, its shall be the duty of said assignee, within ten days after the delivery of the assignment to him, and before disposing of any property so assigned, to appear before the probate judge of the county in which the assignor resided at the time of executing the said assignment, produce the original assignment, or a copy thereof, cause the same to be filed in the probate court, and enter into a bond, payable to the state, in such sum and with such sureties as shall be approved by the court, conditioned for the faithful performance, by said, assignee, of his duties according to law; and the court may require the assignee, or any trustee subsequently appointed, to execute an additional undertaking whenever the interests of the creditors of the assignor demand the same; any such assignment shall take effect only from the time of its delivery to the probate judge, and the exact time of such delivery shall be endorsed thereon by the probate judge, who shall immediately note the filing on the journal of the court; and it may be delivered by the assignor to the probate judge either before or after its delivery to the assignee.”

In support of the conclusion of the circuit court the proposition is urged that section 4134 does not apply to deeds of assignment executed by residents of this state because of the special provisions of the section above quoted, and there being, therefore, no requirement that such deeds shall be recorded in the county Avhere the land is situate, such record would not be constructive notice.

Manifestly this claim must rest upon the ground either that the enactment of the assignment statute répeals pro tanto section 4134, or that it takes out of the scope of that section deeds of assignment and places them entirely in a category by themselves. Probably no different principle applies whichever form the claim assumes.

It is to be borne in mind that the conveyance does not cease to be a deed simply because it is an assignment. It conveys the land because it is a deed, and would fail to convey the land if it lacked the requisites of a deed. Kingman v. Loyer, 40 Ohio St., 109. So the proposition, reduced to the concrete, is, that the later act makes a different rule with respect to notice as to some deeds from that which applies to other deeds. Put in different form, the proposition is this: A purchaser of land situate in a county of this state other than that of the residence of the grantor, who has paid full value for it and received a conveyance, must, by force of section 4134, forthwith file the deed for record with the recorder of the county where the land is situate, or take the risk of having his deed deemed fraudulent and of losing the land in case a subsequent purchaser from the same grantor, who is without knowledge of the former deed and has relied on the title as shown by the public records, first files his deed for record; but if the grantee .happens to be an assignee, voluntarily selected by the debtor to subject the land to sale and apply the proceeds to the payment of debts already accrued, debts founded upon past considerations, then, by force of section 6335, his duty is only to hand the deed to the probate judge of the county where the debtor resides, and any subsequent purchaser, though one for full value who is in fact ignorant of the existence of the deed to the assignee, and who has relied upon the public record in the county where the land is situate, must lose his purchase.

There is found in the statute no express words making such change. If it obtains it must arise upon implication, and in all cases where a change results in a radical departure from the previous rule on the subject, the implication leading to it should be clear and distinct. It is, in effect, a repeal. The pertinent rule of construction with respect to repeals, well established and, we suppose, of universal application, is that repeals by implication are not favored. The presumption is that laws are passed with deliberation and with knowledge of all existing ones on the subject. Therefore acts upon the same subject are to be construed as a whole with reference to an entire system of which all are parts. The presumption being against indirect repeal, the courts will endeavor to harmonize the several parts, and where the statute has made no exception the courts will make none, nor where exceptions, are made will they be carried further, in the absence of direct language, than the spirit of the law requires. An enlarged meaning, beyond the import of the words, will not be given to one act in order to repeal another by implication. State v. Dudley, 1 Ohio St., 457; Cass v. Dillon, 2 Ohio St., 607; Bowen v. Lease, 5 Hill, 221. It is not sufficient that the subsequent statute covers some of the cases provided for by the former; there must be positive repugnancy; and even then the old is repealed only to the extent of the repugnancy. If, by fair and reasonable interpretation, acts which are seemingly incompatible or contradictory may be enforced and made to operate in harmony, and without absurdity, both will be upheld, and the later one will not be regarded as repealing the former by construction or intendment. Sutherland on Stat. Con., 152; 23 Am. & Eng. Ency. of Law, 489; People v. Gustin, 57 Mich., 407; Plum v. Lugar, 49 N. J. L., 557.

That it has been the purpose of our law-makers to create a system of registration of deeds of land within each county, which will show the true condition of title to all lands therein, or at least establish that the apparent owner of. record is to be considered the true owner; and that upon the records so made innocent bona fide purchasers may rely, and be justified in acting upon the information thus acquired as true, the acts to which attention has been called and the decisions of our courts giving construction to them, abundantly attest. The opinion of this court as to the importance of such a system and its great value in facilitating the business of our communities in their every-day transactions, is sufficiently expressed in the case of Coe v. Erb, 59 Ohio St., 259, and need not here be repeated. However, in addition to the statutory provisions there referred to, and to those hereinbefore cited, there may be added, as further showing the purpose above indicated, the provision as to the recording of wills. It is by section 5932, required that where real estate devised by will is situate in any other county than that in which the will is proved, an authenticated copy of the will and order of probate shall be admitted to record in the office of the probate judge of each county in which such real estate may be situate. Also, the provision (section 1212), that each sheriff shall keep a foreign execution docket, in which all levies upon lands in the county of executions received from other counties Shall be entered and recorded, with proper indexes, and such entries shall be notice to subsequent purchasers and creditors of the matter therein contained.

Is it reasonable to conclude that the legislature, after establishing such a comprehensive system of registration, applicable by its terms to all conveyances, a.nd affording in each county notice of conveyances affecting lands within the county, and liens thereon authorized by the laws of the state, should intend, by indirection, to take out from the operation of the rule as to notice in force for over fifty years, deeds of assignment, thereby making it necessary, before one can safely purchase land, to search the records of every county in which the vendor may have resided to ascertain whether, perchance, there may not have been at some time in the past, an assignment for the benefit of creditors, and resulting in abrogating a 'principle of law, universally recognized as a general rule, that a court can exercise no extra-territorial jurisdiction, and that its decrees, therefore, can have no direct force as to lands outside the limits of the territory in which the court is held? It would, we think, be expected that a change so* radical and sweeping should be indicated by an express declaration to that effect.

We are, of course, required to give force and meaning to the amendment of the assignment statute made in 1880, and in order to ascertain the scope of it we must look to the law as it stood before. By that no time was fixed for the taking effect of the assignment. It was, therefore, governed in that respect by the general rule, and, as held in Johnson v. Sharp, 31 Ohio St., 611, would take effect as a deed at the time of its delivery, a rule which involved uncertainty and gave rise to abundant contention. This holding, and the many inconveniences incident to practice under the rule, were fully understood by the codifiers, and the purpose to change the rule and prescribe another and more clearly-defined test, is plainly manifest in the language of the amendment, viz.: “Any such assignment shall take effect only from the time of its delivery to the probate judge,” followed by the requirement that “the exact time of such delivery shall be endorsed thereon by the probate judge, who shall note the filing on the journal of the court.” A further provision is that the deed “may be delivered by the assignor to the probate judge either before or after its delivery to the assignee.” All of which clearly shows that the prominent idea is to fix a time and method, and to settle that delivery is complete by handing to the probate judge, without reference to the presence or act either of the grantee or the joint act of grantor and grantee, and is a further expression of the legislative purpose to provide a uniform, easily understood system of registration. As held in Betz v. Snyder, 48 Ohio St., 492, the filing of the deed with the probate judge and its record in his office takes the place of the requirement to deliver to the recorder of the county for record in his office, and the case is authority to the point that, respecting lands within the county, no further filing or record is necessary. To this extent, therefore, the later statute may be held to make an exception as to deeds of assignment (there remaining adequate provision for record notice of the title in a proper office at the county seat), but there appears no sufficient reason, and certainly no necessity, for the conclusion that the purpose was to carry the exception to the extent of entirely abrogating section 4134, as applied to deeds of assignment. Neither the original assignment statute, nor the amendment, undertakes to determine what further must be done in order to make the deed effective as notice with respect to lands lying outside the county where the assignment is filed. For the general purpose of the assignment, and as affecting lands within the county, the amendment makes the delivery to the probate judge conclusive, and the act requires no further record as to such lands, but we deem it reasonable to hold that as to lands lying in other counties of the state the deed of assignment, like all other deeds, must, by force of section 4134, in order to be notice to subsequent bona fide purchasers, be entered for record in the office of the recorder of the county where the premises are situated. This construction, as it seems to us, gives full effect to the language of the assignment statute, including the amendment, without lessening the force of other sections, and leaves the whole body of our statute law on the subject harmonious and consistent.

Nor does the requirement to comply with section 4134 impose hardship or unusual responsibility upon the assignee. It is his duty, in the proper discharge of the trust, to acquaint himself fully with the assigned property, its character and location, and the added labor, with the trifling expense, of having'his deed recorded in all counties where the lands of the assignor may be situate, is small in comparison with the trouble and expense which would be incurred by persons contemplating the purchase of land by inquiries and searches in all counties where the owner may have resided, in order to make it certain beyond peradventure that the apparent title is the real one. And that the effect of imposing such a task upon purchasers could but retard, and make still more difficult, transactions in real estate, is beyond question.

It is not intended to say that the legislature may not, if it will to do so, omit to provide for any notice; or provide for notice as to one class of deeds by a record in one place and by record of another class in another place. Such discrimination is made as to deeds of land from the state, as is shown by the case of Webster v. Clear, 49 Ohio St., 392. A special provision of statute (54 O. L., 160) requires that all deeds of land sold by the state shall be for delivery to the persons entitled to receive them at the office of the auditor of state at the capital; that before delivery they shall be recorded in the office of the secretary of state, and that the auditor of state shall keep a record of such deeds delivered, showing to whom delivered and the date. The complainant in the case above cited (a second purchaser), did not search these records. Had he done so he would have ascertained the true state of the title. He lost the land, but indemnity having been likewise provided by statute for one who purchases land from the state which has been already sold, he was thus made whole. The purpose of making the records at the state capital constitute notice seems apparent, and the provision is adequate to the purpose. Hence this special provision was deemed clearly sufficient to take deeds by the state out of the scope of section 4134. What we do undertake to affirm is that in order to warrant the conclusion that any class is intended to be taken out of the general requirement as to filing and record, that intent must be made definitely to appear.

It is, however, insisted that the case is controlled by that of Betz v. Snyder, supra. But we are of opinion that the holding in that case when properly understood, and the language of syllabus and opinion applied to the facts shown by the record., is not decisive of the case at bar, although at first blush some expressions might create a contrary impression. The question there presented was whether or not a mortgage of real property executed before the execution of the deed of assignment for the benefit of creditors by the mortgagor, but not deposited for record with the recorder until after the deed of assignment had been delivered to the probate judge of the county in which the land was situate, being also the county of the residence of the assignor, created a lien upon the property as against the assignee, or the creditors. It was held that the deed of assignment took effect from the time of its delivery to the probate judge; that it was not necessary to file the instrument for record with the recorder of deeds, and that the mortgage, being filed subsequently with the recorder, did not constitute a lien. The doctrine is clearly correct as to lands within the county, but the holding does not require its application to lands in other counties. To do so would make it necessary to conclude that the filing of the assignment with the probate judge created a Us pendens. The ancient doctrine was that a lis pendens was constructive notice to all the world like a recorded deed, but the later, and it seems to us, the more reasonable doctrine, is that it rests only upon the ground that the law will not allow parties litigant to give to others pending a suit rights to property in dispute so as to prejudice the opposite party, and defeat the execution of the decree which may finally be entered. But the doctrine applies only where the court has jurisdiction over the thing. It is, in short, a rule of public policy, and is not to be extended so as to work injustice. Adams’ Eq., 157; Dovey’s Appeal, 97 Pa. St., 158; Bellamy v. Sabine, 1 DeG. & J., 566. But even if it should be conceded that the old doctrine still prevails, how can it be said that there was a lis pendens? Lis implies a controversy between contending parties. Here no controversy had arisen. Because there was power in the probate court to deal with the subject matter of the assignment when its jurisdiction should be invoked, it does not follow that the mere filing of the assignment with the probate judge was equivalent to the begining of a suit. No process issued; no parties Avere in court. It would, it seems to us, be extending the exercise of construction to an unreasonable length to say that the simple acts of delivering to the judge of the probate court a deed of assignment, the noting by him of such filing-on the journal,.the qualification of the assignee, and the giving of notice by him of his appointment, gives to the probate court power to adjudicate as to title to lands in other counties, thus extending the court’s jurisdiction beyond the borders of the territory within which, for general purposes, its jurisdiction is limited. These duties of the judge partake more of the nature of clerical and ministerial than of judicial acts. Notice by the assignee of his appointment would seem to have no other purpose, as expressed by Burrell in his work on Assignments, section 267, than to apprise creditors of the transfer and to instruct them how to obtain its benefits, and to inform debtors of the assignor, and persons having moneys or property belonging to him to whom they are to account for the same. Doubtless these steps initiate a pending proceeding for some purposes, and for such purposes affect all persons, but they fall far short of creating a Us pendens, and ought not to be held to take the place of the filing of the deed of assignment in the office of the recorder in other counties wherever lands of the assignor are situate, as required by section 4134. This section was intended for the benefit of purchasers; section 6335, for the protection of creditors. Both were designed to secure rights; not to impair or destroy them. They are consistent in their provisions, and may Avell stand together. They are consistent, also with section 5056, Revised Statutes, relating to lis pendens. What rights would have accrued had the assignee taken possession of the Lucas county land, and by proper application for an order, invoked the jurisdiction of the probate court, we need not consider.

Nor is our conclusion inconsistent with Havens v. Horton, 53 Ohio St., 342. That case dealt with lands lying wholly within the county where the assignment was made, and the question was simply as to which of two courts, in that county, the common pleas or the probate, had jurisdiction to decree foreclosure and order sale of the assigned property.

The construction of our statutes herein indicated accords with the construction of the statutes of Pennsylvania upon kindred.subjects in Dougherty v. Darrach, 15 Pa. St., 399, and similar statutes of Indiana in Switzer v. Miller, 58 Ind., 561. It is suggested by counsel for the defendant in error that those statutes differ essentially from ours. They do differ in phraseology, but not, as it seems to us, in purpose and effect.

Our conclusion requires a reversal of the judgment of the circuit court and judgment to be entered here for the plaintiff in error upon the facts found by that court.

'Reversed.


source: Caselaw Access Project

author: Burket, J.

license: Public Domain

text:
    Miller v. Stark, Adm’r, et al.

      Administrator no power to sell or transfer mortgage notes belonging to deceased at his death — Such notes taken by third party regarded as paid as between administrator and third party — But as between third party and subsequent mortgagee, such third party may be subrogated to lien of prior mortgage, when.

    An administrator has no power to sell or transfer notes secured by mortgage which belonged to the deceased at the time of his death, and such notes taken up by a third party will be regarded and held as paid, as between the administrator and such third party; but as between such third party and a subsequent mortgagee with notice of the prior mortgage, such third party may be subrogated to the lien of the prior mortgage, when no additional burdens will thereby be imposed upon such subsequent mortgagee, and such third party did not pay the notes to the administrator as a mere volunteer.
    (Decided January 9, 1900.)
    Error to the Circuit Court of Licking County.
    In the month of March, 1883, Friend W. Smith purchased a tract of land in Licking county having a duly recorded mortgage thereon in favor of one Amos Remington for about $4,590.00, which amount Mr. Smith became liable to pay as part of the purchase price of the land. He gave his own note, secured by mortgage duly recorded on the land to one Lester J. Remington, for the balance of the purchase price, one note being for $542.75, and this note was afterward sold, endorsed and delivered to Henry Hubbard, defendant, and the mortgage was assigned to him, the other notes secured by that mortgage having been paid by Mr. Smith.
    Amos Remington died holding said notes, and L. B. Stark became his administrator, and instituted an action to foreclose said mortgage, making said Washington Miller and Henry Hubbard parties, and they filed cross-petitions.

      In addition to the above facts the circuit court upon appeal found the following facts:
    “That at the date of the purchase by said Hubbard of said note and at the date of the assignment of mortgage to him, he, the said Hubbard, knew there was a mortgage on the lands, made by said Lester J. Remington to Amos Remington, but did not know the amount due and made no inquiries as to the sum due thereon, and that he made no examination of the records in the recorder’s office of the county in respect of said mortgage.
    That some time in the year 1886 or 1887, the said Friend W. Smith, being in arrear on the overdue notes payable April 1st in the years 1885 and 1886, and being unable to pay the notes to become due thereafter upon said Lester J. Remington notes and mortgages, applied to said Washington Miller, his wife’s father, to pay the amount overdue, being $700.00, and the other notes as they come due, and then said to said Miller that if he would do so, he, the said Friend W. Smith, would deed to his, said Friend W. Smith’s, wife such an amount of said land as would equal the amount of money so paid by said Washington Miller, which said Miller agreed to do for the purpuse of providing a home for his said daughter. That under this arrangement, the said Miller paid to said administrator about $700.00, amount overdue as aforesaid on the notes payable in 1885 and 1886, and took the same up, whereupon he handed the two notes to said Smith with the direction to keep them safely.
    That said Miller at the request of said Smith, and in pursuance of said agreemnt and promise of said Smith to make said conveyance to said Miller’s daughter for the purpose of providing her a home, paid to said administrator the notes which matured in 1888, 1889, 1890, 1891 and 1892, and a balance of $133.34 on the note which matured in 1887, the' balance of which had before then been paid by said Smith, handed each note to said Smith, with direction do keep them safely.
    That the said administrator was informed by said Miller at the time said first payment was made, and afterwards, of the said arrangement under which he had paid said money and taken up said notes. That said Miller under the same arrangement paid to said administrator $400.00, which sum was credited on the notes which matured April 1, 1893.
    That said Smith, after the notes were delivered to him by said Miller, tore off the signature of Lester J. Remington from the notes due in 1885, 1886, 1887, 1888, and 1889, put a pen through the name on the notes due in 1890 and 1891, but did not tear off or mutilate the signature of said Remington upon the note due in 1891.
    That this tearing off and mutilation were not done by the direction or with the knowledge of said Miller. That said notes remained in the possession of said Smith until after the commencement of this action, when they were handed by said Smith to the attorneys of said Miller. That no arrangement or understanding was had or made by said Miller with said administrator touching the notes except that said Miller was paying them for said Smith under arrangement aforesaid, or touching any sale made of them or any of them to said Miller, and none of them were endorsed to said Miller. That the payments made by said Miller were with his own money.
    That said Miller never applied to said Smith to make a deed for said lands to the wife of said Smith, and no such deed was made or approved. That the sums so paid by said Miller in taking up said notes with interest exceed the sum of $3,815.00.”

      The circuit court awarded to the administrator the first and best lien for the amount due on the notes still held by him, $2,099.95, to Mr. Hubbard, the next lien for the amount due on his mortgage, $983.46, and refused to subrogate Mr. Miller, and dismissed his cross-petition at his costs.
    Thereupon Mr. Miller filed his petition in error in this court, seeking to reverse the order of distribution, and the judgment against him for costs.

      Kibler & Kibler, for plaintiff in error.
    Miller claims ownership of the notes taken by him and an interest in the moneys paid on two other notes, that he had a lien therefor, and his lien is superior to the lien of the administrator of Amos Remington and of Henry Hubbard, and that, if that is not literally true, that he ought to be subrogated to the position of estate of Amos Remington in respect of said notes and the lien thereof. Bank v. Covert, 13 Ohio 240; Winters v. Bank., 33 Ohio St., 250.
    Miller was not a stranger or intermeddler. There was no extinguishment of the debt. The administrator of Amos Remington was advised of the arrangement. The notes or the amounts paid by Miller were to continue or exist, or be in force, so that Miller’s intention to have a conveyance to his daughter could be carried into effect, to the extent of the payments. Penn. v. Egan, 136 N. Y., 262; 24 A. & E. En., pp. 281, 287, note, 291-294; Gans v. Thieme, 93 N. Y., 225; Stayner v. Bowers, 42 Ohio St., 314; Union Mortgage B. & T. Co. v. Peters, 72 Miss., 1058; Crumlich v. Cent. Imp. Co., 38 W. Vt., 390; 3 Pom. Eq., Secs. 1211, 1212, 1213; Amick v. Woodworth, 9 C. C. R., 556; 6 C. D., 496; Sheldon on Sub., Sec. 8.

      We admit that a mere stranger, who pays without request of the mortgagor or debtor, and without ratification, cannot invoke the doctrine of subrogation for his relief. But here was the request, and payment on condiion that a corresponding interest in the land would be reversed.

      Waldo Taylor and J. B. Jones, for defendants in error.
    We cite the following authorities in support of our position: “Payment is the discharge of a sum due. Payment is a mode of extinguishing obligations. It is an act for the exercise of will, of consent. To constitute a payment, money or some other valuable thing must be delivered by the- debtor to the creditor for the purpose of extinguishing the debt, and the creditor must receive it for the same purpose.
    Payment means satisfaction by money, not by an exchange or compromise, or accord and satisfaction. Maurice v. Hudson River Co., 3 Dwer. N. Y., 426.
    Payment or Purchase. — Where a note or bill is taken up, or a debt paid by a stranger, the question arises whether the transaction amounts to a purchase or a payment. The general rule is, that the demand of a creditor which is paid with the money of a third person, without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, is absolutely extinguished. Where one not a party to the contract pays a debt, it is an extinguishment of the demand, whether made with the consent of the debtor or not. Harrison v. Hicks, 1 Port.(Illa.), 423; Ss. 27 Am. Dec., 638.
    There is an important difference betwen the pay-, ment of a note and the purchase of it from the owner. Payment is the discharge of the debt. The purchase of a note is a contract of sale. Binford v. Adams, 104 Ind., 43; 2 Dan. Neg. Inst. (3d ed.) 1221; Wolff v. Walter, 56 Mo., 292; Burr v. Smith, 21 Bar. N. Y., 262.
    By a Third Party. ■ — • One person cannot, without authority, pay the debt of another and charge the amount against the party for whose benefit the payment was made.
    In the absence of proof to the contrary, it will .be presumed that payment was made by the party bound, and not by another. Ames v. Merchants’ Ins. Co., 2 La. Am., 594; 3 McGee v. San Jose, 68 Cal., 91.
    The payment of a debt by a person not legally liable for it is a satisfaction of the debt, if so received by the creditor. Martin v. Quinn, 37 Cal. 55, 21 Bart N. Y., 262.
    A voluntary payment by a stranger cannot be set up as a defense to an action by the original creditor. Lucas v. Wilkinson, 1 H. & N., 420.
    By stranger, is meant a stranger to the contract. Here the plaintiff is the original creditor. L. B. Stark as administrator, represents him.
    Payment by a stranger for a debtor on his account, and afterwards ratified by him is a good payment. Belshoer vs. Bush, 11 C. B. 191, 22 L. L. C. P., 24.
    A bill of exchange, promissory note, or order for the payment of money, found in the hand of the drawee or maker, is presumptive evidence of its payment. The surrender of a note is prima facie evidence of its payment. Smith v. Hosfer, 5 Cal., 329.
    It was understood by both parties to that transaction, that Smith, by accepting title under that deed, assumed and agreed to pay off and discharge said first; mortgage and the notes secured thereby. By so doing the notes secured by that first mortgage became the personal debt of Smith. It would have been necessary to exhaust him and the lands before recourse could have been had upon Lester J. Remington. Snyder v. Robinson, 35 Ind., 311
    Again, from an examination of the finding of the circuit court it is clear that Miller was a stranger to the legal relations between Smith and Stark, administrator. On the part of Miller it was a voluntary payment without any legal liability to pay. Gould v. McFall, 118 Pa. St., 455; 4 Am. St., 606; City of Camden v. Green, 54 N. J. L., 591; 33 Am. St., 686.
    In this case it is clear that Miller was a stranger to the notes he paid, and it is clear that the notes were not bought by Miller from Stark, administrator, but it is also clear that they were paid and extinguished, and it was so understood by Miller, Smith and Stark. It is well settled that he who pays note or debt is not subrogated. 3 O. O. I., 2 O. D. 1.
    Part payment does not entitle one to subrogation pro tanto. The right does not arise until full payment. People’s Ins. Co. v. Strackle, 2. C. S. C. R., 186; Lawson’s 5 Rights, Remedies and Practice, 4221.
   Burket, J.

The circuit court found as conclusions of lav?, that as between the administrator and Mr. Miller, the transaction extinguished the notes paid oft by Miller, and that he had no right to receive back from the administrator out of the proceeds of the sale of the mortgaged lands, money which he had paid to him in taking up the notes. In this the circuit court was right, because the duty and power of an administrator as to such notes is to collect them, and not to sell or transfer them. Section 6074, Revised Statutes; Jelke v. Goldsmith, 52 Ohio St., 499, 517; and for the further reason that what passed between the administrator and Mr. Miller, as found by the circuit court, showed no right on the part of Mr. Miller to keep the notes alive as against the administrator. The object and purpose was to pay off the mortgage so that Mr. Smith could convey the proportionate amount of the land to his, Smith’s wife, because a conveyance of the land to Mrs. Smith with this large mortgage thereon would be no benefit to her. There was nothing to notify or inform the administrator that Mr. Miller was purchasing the notes and intended to keep them alive, as against him, and the circuit court finds in effect, that he did not buy them, and that they were not endorsed to him.

But while the transaction was a liquidation and payment of the notes by Mr. Miller, as between- him and the administrator, the same is not true as between him and Mr. Hubbard.

Mr. Hubbard 'was not a party to the transaction between Mr. Miller and the administrator, and there is no good reason why he should be benefited thereby, unless Mr. Miller was a mere volunteer, or the payments by him made were in legal effect payments by Mr. Smith, neither of which positions should be inferred or presumed in favor of Mr. Hubbard. His burdens are exactly the same whether the notes taken up by Mr. Miller are held by him or the administrator. The transaction cost him nothing and he should not be benefited thereby. As between Mr. Miller and Mr. Hubbard, Mr. Miller is the equitable owner of the notes taken up by him, and which notes are secured by a mortgage prior in time and right to the mortgage held by Mr. Hubbard.

It is urged that Mr. Smith cancelled the notes after Mr. Miller handed them to him, and that such cancellation destroyed the notes for all purposes, and destroyed the right of subrogation, and that Mr. Miller, by his negligence in putting the notes into the possession of Mr. Smith, enabled him to cancel them, and that Mr. Smith is bound by that cancellation.

The answer to this is that Mr. Miller did not put the notes into the hands of Mr. Smith for cancellation, but for safe keeping; and that the right of subrogation arises, not by reason of the notes, but by reason of the payment of the money. As to the alleged negligence of Mr. Miller, it is sufficient to say that Mr. Hubbard was not harmed by that negligence, and he cannot be heard to complain of the same. His burdens were not thereby increased. Negligence which does not increase the burdens of any lien-holder, does not have the effect to prevent subrogation or destroy the right of subrogation. In many of the cases in which subrogation has been allowed by this court there was more or less negligence.

It is therefore clear, that as betwen Mr. Miller and Mr. Hubbard, the former has a right to be subrogated to the lien of the mortgage securing the notes which he took up, and which is prior to the mortgage held by Mr. Hubbard.

The judgment as to the order of distribution and costs against Mr. Miller will be reversed, and judgment entered giving the administrator the first lien, Mr. Miller the second, and Mr. Hubbard the third, the costs to be paid out of the fund.

Judgment reversed and modified.


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    Pierce, Assignee, v. Stewart.

      Action for specific performance — Equitable in its nature — Appeal lies from common pleas to circuit court.

    1. An action for specific performance is equitable in its nature, and neither party is entitled to a trial by jury.
    2. In such an action an appeal lies from the judgment ofithe court of common pleas to the circuit court.
    (Decided January 9, 1900.)
    Error to the Circuit Court of Butler County.
    The plaintiff in error, also plaintiff below, brought his action in the court of common pleas against the defendant below, and in his petition avers that as assignee of Gustave Steffe he obtained an order in the probate court to sell certain real estate belonging to the estate; that he duly offered the same for sale at public auction; that the defendant bid therefor the sum of |933.33; that the same’was struck off and sold to him for that sum; the sale reported to the court and duly confirmed and deed ordered, one-third to be paid in cash, one-third in one year, and one-third in two years, to be secured by mortgage on the premises sold. Plaintiff further avers that he has offered to execute and deliver a proper deed to defendant, and has demanded the cash payment, notes and mortgages for the deferred payments, and that defendant has refused to comply with the conditions of the sale, and has refused to concede that he has purchased the premises. The prayer of the petition is for judgment for the cash payment, that the defendant be required and ordered to execute and deliver his notes and mortgage for the deferred payments and for all proper relief in equity.
    A demurrer to this petition was overruled and leave granted to answer. The defendant, in his answer, admits the proceedings in the probate court down to and including the advertisement of the premises for sale, and denies all the other averments in the plaintiff’s petition, and denies that plaintiff is entitled to any judgment or other relief against him.
    Upon the trial of the cause to the court there was a finding in favor of the defendant and a dismissal of the petition. Plaintiff gave notice of appeal, and the court made an entry to the effect that it appeared that the plaintiff had already given bond as assignee of Gustave Steffe, and that, therefore, no appeal bond was required.
    In the circuit court a motion was made to dismiss the appeal for the reason that the cause was not appealable, that the circuit court had no jurisdiction, and that it did not appear that plaintiff had given bond as such assignee, and no appeal bond had been given in the case.
    The circuit court sustained the motion and dismissed the appeal, to all of which plaintiff excepted, and filed his petition in this court, seeking to reverse the judgment of the circuit court.

      Isaac M. Warwick; Belden & Fitton, and Morey, Andrews & Morey, for plaintiff in error.

      A. F. Hume and Stephen Crane, for defendant in error.
   Burket, J.

The entry sufficiently shows that plaintiff in error gave bond as assignee, and that being so, he is entitled to appeal without filing an appeal bond. Section 5228, Revised Statutes.

The remaining question is as to whether the case is appealable. The answer to this question depends upon the relief sought in the action actually prosecuted, and not upon relief which might have been had in other actions which might have been brought upon the same state of facts. It sometimes occurs that a petition may be framed upon the same state of facts so as to be triable either to a court or jury as the pleader may elect, and if in such cases the petition is framed so as to present an issue for the court, an appeal cannot be dismissed upon the ground that the issue might have been so framed as to be triable by a jury.

The punishment, as for contempt of court under Section 5397, Revised Statutes, is not the equivalent of specific performance, and cannot be made a substitute therefor. If that section had been invoked the cause of action for specific performance would not have been thereby merged, but would still have remained the same as if no action had been taken under that section.

The cause of action stated in the petition is for specific performance, and such an action involves more than a recovery of money. Before any money judgment can be rendered, the court must examine and weigh the equities of the case, and exercise its sound judicial discretion, and thereby determine whether or not specific performance should be decreed.

This weighing of equities, and the exercise of judicial discretion, are inseparable parts of such an action, and determine whether specific performance should be decreed or not; and if in favor of such performance, the judgment of the court is thereafter moulded so as to be applicable to the facts in each particular case. The equitable considerations and exercise of sound judicial discretion, are the body and substance of such an action, and a judgment for money or other relief in any particular case, is only an incident flowing from the determination of the body of the case. The body or substance of such an action is essentially equitable, because equities can be determined and judicial discretion exercised by a court only, and not by a jury.

The equitable character of the action is determined by the pleadings, and not by the judgment rendered. Hull v. Bell, 54 Ohio St., 228.

The nature of an action for specific performance is well stated in Williard v. Taylor, 8 Wallace 557; 3 Pomeroy’s Equity, p. 446; Tiffin v. Shawhan, 43 Ohio St., 178. The following is quoted from the syllabus in the latter case: “The duty of a court of equity to decree specific performance of a contract to convey real estate, cannot be determined by any fixed rule, but depends upon the peculiar facts and equitable considerations of each case, and rests in the sound discretion of the court, guided and regulated, .however, in the exercise of that discretion, as far as may be, by precedent and established practice.

“If the specific performance of such a contract would be harsh, oppressive, or inequitable in its consequences, or Avould leave the purchaser with a doubtful and unmarketable title, the court, in the exercise of its discretion, will refuse to decree its performance, as no man will be compelled to accept a doubtful title.”

In that case specific performance was sought and also a money judgment for the value of the real estate. In the case at bar specific performance is sought with a money judgment for one-third of the price, and notes and mortgage for the remaining two-thirds. To decree the giving of these notes and mortgage it is necessary to invoke the equitable powers of the court, and for that reason the action is triable by the court and not by a jury. In the case of Jones v. Booth, 38 Ohio St., 405, 408, an action by a vendor against a vendee for specific performance and purchase money, was held to be appealable.

It is urged that when the defendant refused to complete his purchase, that the whole amount of the purchase price became due, and could be recovered at once in an action at law. But even if this be so, it is a sufficient answer to say that the plaintiff did not elect to so treat the matter, and did not institute that kind of an action; and further, that an action for the recovery of the entire purchase price would still be a proceeding for specific performance, and the money judgment could not be recovered until after the court should pass upon the equity of the case and exercise its judicial discretion as is always required in such an action, and as was done in the case of Tiffin v. Shawhan, supra, and Jones v. Booth, supra.

The conclusion is that the action is appealable, and that the circuit court erred in dismissing the appeal. The judgment of the circuit court will therefore be reversed, the motion to dismiss the appeal overruled, and the cause remanded to the circuit court for further proceedings according to law.

Judgment reversed.


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    Osborn, Adm’r, v. The Portsmouth National Bank.

      Demurrer to petitiin — On ground that came of action is barred by statute of limitations — Petition must show whole cause of action is barred — Bar by statute of limitation not presumed.

    1. To warrant the sustaining of a demurrer to a petition on the ground that the cause of action is barred by the statute of limitations, the petition must show on its face that the whole cause of action is so barred. If the petition is silent as to time, as to any separable part of the cause of action, the demurrer should be overruled.
    2. There is no presumption that a cause of action is barred by the statute of limitations, but the petition being silent as to time, the presumption is, as against a demurrer, that the cause of action is net barred.
    (Decided January 9. 1900.)
    Error to the Circuit Court of Scioto County.
    The amended petition of the plaintiff in error in court of common pleas, omitting the caption, is as follows:
    “The plaintiff, George M. Osborn, says that he is the administrator de bonis non, with will annexed, of the estate of William Salter, deceased, duly appointed by and qualified in the probate court of Scioto county, Ohio, and that he has been acting as such since May 21, 1888.
    That the defendant, the Portsmouth National Bank, of Portsmouth, Ohio, is and at all times hereinafter mentioned, was a corporation duly organized under the national banking laws of the United States of America, and its principal office located in the city of Portsmouth, in the said county and state.
    That William Salter died testate on the-day of October, 1876, haying at that time a cash balance, subject to check, with the defendant of at least $64,-000.00. That said balance with said bank was so large that it could not have paid the same out at one time, but it did in fact delay paying over the same, except in small sums, and continuing through many years.
    That prior to and at the date of his decease the said William Salter had a valid and subsisting contract with defendant, by which the said defendant was to pay the decedent for the use of his said deposit in said bank six per centum interest per annum on the daily balance in said bank, as shown by the books of the bank, to be credited to his account semiannually on May 20 and October 20, of each and every year.
    That said contract with said defendant has never been annulled, changed or abrogated; nor have the conditions thereof been kept by the defendant.
    That said Samuel Reed and one Anna Beyers were, by the last will and testament of said Salter, appointed as executor and executrix thereof respectively, but that Samuel Reed assumed the actual management and control of said estate as though sole executor, and assumed the responsibility of said trust, and so continued to act until the plaintiff herein was appointed and qualified as his successor in said trust; that during the time that said Reed acted as executor he was also a stockholder and director in the defendant, and was in fact the actual manager of its business and affairs. That said Reed, as said manager, by direction of the bank, kept and retained the money of said Salter, and used the same in its regular business, and said account remained unchanged except as it was increased by deposits therein, or decreased by checks given thereon.
    That said Reed, as manager and stockholder in said bank, was interested in retaining said money in said bank, and in refusing to collect or account for interest thereon; that said defendant, in collusion with said Reed, sought to deprive the said estate of the benefit of the contract for interest above mentioned.
    That the said Salter estate held and kept accounts with said bank for many years, and the said accounts are mutual, numerous and complicated, and the same are in dispute; the said defendant holds back its books and papers relating to said matters, and refuses to come to an accounting or settlement of said matters and refuses to strike a difference in the accounts.
    That if proper credits were made by the said defendant to the said account there would be a large balance in said bank due said estate and unpaid, the exact amount of which plaintiff is unable to state, but avers that same can be ascertained by an examination of the books of defendant.
    That the said defendant fails and refuses, and has refused, though often requested to do so, to account to and with plaintiff for any balance in the said bank, and on deposit with defendant, due the said estate, and has refused and failed to state an account with defendant.
    The said plaintiff therefore prays that the defendant may be ordered to come to an account touching the said matters, and that the court order a reference of said accounts to a master for the purpose of settling the same and ascertaining the exact condition of the said account between the said parties, that a judgment may be had against the defendant for the amount so ascertained, and that the said plaintiff may have all other and proper relief in the premises.”
    To this petition the defendant demurred, claiming that the action was barred by lapse of time. The court sustained the demurrer, and the plaintiff not desiring to amend further, judgment was rendered in favor of the defendant bank. The plaintiff filed a petition in error and the circuit court affirmed the judgment of the court of common pleas. Thereupon plaintiff filed his petition in error in this court, seeking to reverse the judgment of the circuit court.

      Duncan Livingstone and J. S. Dodge, for plaintiff in error.

      Oscar W. Newman, for defendant in error.
   Burket, J.

Upon the death of William Salter, in the year 1876, a cause of action accrued to his personal representative for the money in bank subject to check, and if the plaintiff was seeking in this action to recover that money only, it would be clearly barred by the statute of limitation, unless prevented by some saving clause of the statute. But the petition avers that by virtue of a valid and subsisting contract, the bank was to pay interest at six per cent, on the daily balances of the deposit, to be credited on the 20th day of May and October in each and every year, and that said contract has never been annulled, changed or abrogated; that said account remained unchanged except as it was increased by deposits therein, or decreased by checks given thereon; that said estate held and kept accounts with said bank for many years, and the said accounts were mutual, numerous and complicated, and that if proper credits were made by the bank to said account, there would be a large balance in said bank due to said estate, and unpaid.

Aside from the deposit of $64,000, subject to check at the death of Mr. Salter, no date is given as to when deposits were made, or when they became payable; but it clearly appears from the petition that there were thereafter credits for interest under said contract, which contract remained unchanged to the date of the filing of the petition; that other deposits were made from time to time, and that the estate held and kept accounts with the bank for many years, but how many does not appear; neither does it appear when the credits for interest ceased, or when the other deposits were made. The demurrer cannot be aided by a presumption that the credits for interest and deposits were made at so early a date as to be barred by the statute of limitations. No presumption arises in favor of the statute of limitations. On the contrary, when the petition is silent as to time, the presumption is in favor of maintaining the action. In such cases the statute of limitations must be invoked by answer. For some years after the adoption of the code of civil procedure, the lower courts held that the statute of limitations could be invoked only by answer, and that it was not available on demurrer; but later it was held by this court that a petition was demur-able Avhich shoAved on its face that the cause of action was barred by the statute of limitations. For aught that appears in this petition there may be a balance due on this account not barred by the statute of limitations, and therefore the demurrer should have been overruled.

The court of common pleas erred in sustaining the demurrer and rendering judgment in favor of the defendant in error, and the circuit court erred in affirming the judgment of the common pleas. The judgments of both courts will be reversed, the demurrer to the petition overruled and the cause remanded to the court of common pleas for further proceedings according to law.

Judgments reversed.


author: Minshall, J.

text:
    Noble v. Tyler, Adm’r.

      Rents not apportionable between the Administrator of a life tenant and the remaindermen, when — Disposal of “annual crops raised by lobor" — As assets of the estate of the deceased, whether severed or not at his death — Sections 6026 and 6027 Revised Statutes.

    1. Rents are not apportionable between the administrator of a tenant for life and the remaindermen, where there is no privity and the estate of the latter -becomes an estate in possession, immediately upon the death of the life tenant, and puts an end to the lease made by him.
    2. The administrator of the estate of a tenant for life, or his lessee, is entitled under sections 6026, and 6027, Revised Statutes, to the “ annual crops raised by labor,” as assets of the estate of the deceased, whether severed or not at his death.
    ¿5. M., the owner of a life estate, remainder to certain other persons, on August 15,1892, leased the land to a tenant, to be farmed for a year, for which the lessor was to receive as rent $800. She died Aug. 22,1893. The wheat sown in the fall of 1892, together with the crops of 1893, had all been cultivated and harvested before her death, except the corn which had been cultivated and laid by in July, and was harvested in November. The rent was secured by a note, payable March 1,1894. Held, that the note for the rent is assets of the estate of the deceased life tenant.
    (Decided January 9, 1900.)
    Error to the Circuit Court of Butler County.
    The suit in error in this case grew out of exceptions filed in the probate court by the plaintiff in error to certain items in the inventory of the estate of Marcella McLean, deceased, as filed by her administrator, D. L. Tyler. The exceptions were overruled, and an appeal taken to the common pleas. It, as requested, found the facts, and thereon overruled the exceptions; and the judgment was affirmed by the circuit court.
    It appears from the finding of facts, that Marcella McLean was the owner of a life estate in two certain farms, one of 208 acres and the other of 83 acres, which estate had been devised to her by the will of her father, Elias Ayers, who died March 13, 1885, the remainder being devised to certain of his grand children, Walter Ayers, David Ayers and Bertha Ayers. Marcella died August 22, 1893, testate, leaving the residuum of her property to Agnes Noble; and D. L. Tyler was duly appointed her administrator with the will annexed. Among what is claimed to be assets of her estate are two notes, one for $800, made by John Burch, due March 1, 1894, and given for a year’s rent of the 208-acre tract; and the other for $350, given by Charles McLean, due at the same time, and given for the rent of the 83-acre tract. The leases and the notes were made August 15, 1892, and September 3, 1892, respectively. The administrator, assuming that the rent should be apportioned between the estate of Marcella McLean, the life tenant, and the remainder-men, inventoried each note at half its value; the makers being perfectly solvent. The residuary lega-« tee, Agnes Noble, filed exceptions to this, claiming that each note should be inventoried as an asset of the estate at its full value. The finding of fact in regard to the leasing of the farms and the giving of the notes is as follows:
    “That Marcella McLean held possession of said tract of 208 acres and 83 acres from the death of her father, Elias Ayres until her death, 22nd August, 1893; that on 15th August, 1892, she leased the said 208 acres to John Burch to be seeded in the fall of 1892, and farmed for the year 1893; that Burch seeded about 36 acres in the fall of 1892 in wheat, which was by him harvested in June, 1893, fifteen acres timothy harvested July, 1893, and that in the spring of 1893, he planted about 42 acres in corn on said farm, and it was all laid by as early as July, 1893, but which was not gathered and harvested until November, 1893; that at the date of said lease said Burch gave his note for $800.00 for said rent, payable to Marcella McLean or order, on or before the 1st day of March, 1891; that on the 3rd day of September, 1892, said Marcella McLean leased said 83 acres to Charles McLean (which was to be seeded by him in the fall of 1892, in part, and the balance farmed during the year 1893); that, in the fall of 1892 he seeded on said tract 21 acres in wheat, and that the same was harvested in June, 1893. The balance of said farm he planted in corn in the spring of 1893; and it was all laid by as early as July, 1893, but which was not gathered and harvested until November, 1893; that for the rent for said year 1893, said Charles McLean gave his note for .$350.00, the same payable to Marcella McLean or her order .on or before March 1, 1891; each of said notes was written (,on same piece of paper as the lease. Said two notes so given by John Burch and Charles McLean were in the possession of Marcella McLean at her death and held by her, and came into the hands of said D. L. Tyler as her said administrator, with the will annexed, no part of the same having been paid.”

      Millikin, Shotts & Millilkin, for plaintiff in error.
    The general rule as stated in Taylor, Landlord and Tenant, is that the rents which have accrued previous to the death of the lessor, are collectable by the personal representative; those that accrued afterwards, by the heir. 25 Wendell R., 156; 20 Ind., 386; Taylor, Landlord and Tenent, Section 390.
    But this is where the heir and the personal representative both represent the same estate, the one representing the real and the other the personal estate, and the only question was which representative should receive the rent and administer it. Besides we claim that the statute laws of Ohio Section 6026 and 6027,. have settled the rule that the administrator is entitled to the rent whether in the shape of crops or money.
    There is a direct privity between the heir and the administrator. If the administrator receives money he uses it in paying the debts of the estate and thereby relieves the land belonging to the heir.
    The spirit of the law as shown by Sections 6026 and 6027, Revised Statutes, is that the administrator of one who owns an estate for life in the land, and plants and cultivates the crops or rents the same for money rent, is entitled to receive the same and appropriate it to the payment of her debts and be distributed as she directs by her will. There is no reason for making any distinction between grain rent reserved by the life tenant and money rent reserved by her for the use of the land. It is a conceded fact that Marcella McLean had a right to rent the land for money rent and fix the terms of payment. How did it concern the remainderman as to when she would have that rent made payable? 1 Washburn Real Property, 132, Section 3.
    It is significant that the three grandchildren are not claiming any portion of the crops that were raised. They don’t disturb Burch or McLean, the tenants. They are simply endeavoring, through Tyler, administrator, to acquire one-half the money rent the tenants agreed to pay. The law is well settled in Ohio that growing crops are personal estate and do not pass by judicial sale. Cassily v. Rhodes, 12 Ohio, 88; Houts v. Showalter, 10 Ohio St., 125; Albin v. Riegel, 10 Ohio St., 339.
    And this rule applies as well to the tenant’s share as to that of the landlord. The only case we have been able to find in Ohio that bears directly upon the question before the court is, the case of Van Hays, Exr., v. West, 3 C. C. Rep., 65, 2 C. D., 37.

      Slayback & Harr, for defendant in error.
    The question under consideration is not one of emblements, but of money rent. We have no statute in this state providing for the disposition of rents which accrue after the death of the owner of real estate; this matter is controlled by the common law as stated in Van Hays, Ex., v. West, 3. C. C. Rep., D., 37,65, 2 C. D., 37, in which plaintiff in error considers precisely in point in this case. Nothing is better settled in this state than that upon the death of a life tenant the right of possession passes at once to the reversioner or remainderman; and Sections 6026 and 6027, Revised Statutes (upon which the entire argument of plaintiff in error is based) plainly recognizes this, for in the absence of these provisions the personal representatives would not even be entitled to emblements.
    These provisions of the statute are intended to secure to the life tenant the right to reap what he sows, not to enable him to deprive the reversioner or remainderman of his heritage by leasing the land for a period beyond his own term.
    For the respective rights of the administrator and the reversioner or remainderman we must look to the rules of the common law, where we find the matter fully settled. Giauque’s Decendent’s Estates, pp. 285 and 286, Sections 26 and 28.
    This statement of law by Mr. Giauque is based upon numerous authorities and decisions, which are cited by the author: Woerner’s Adm’r, Secs. 300, 301; Sohier v. Eldridge, 303 Mass., 345; Fay v. Halleran, 35 Barb., 295; Bloodworth v. Stevens, 51 Miss., 475;
      Ball v. Bank, 80 Ky., 501; King v. Anderson, 20 Ind., 385; McDowell v. Hendrix, 67 Ind., 513; Loyal v. Caldwell, 23 Mo., 372; Price v. Pickett, 21 Ala., 741; Redfield on Wills, Vol. 3 p 184 Sec 12; citing Morris v. Harrison, 2 Vol. 268; William’s Executors, 736, 737; King v. Anderson, 20 Ind., 385; Sutliff v. Atwood, 15 Ohio St., 186.
    But plaintiff in error argues that, in the case under consideration, the rent “accrued” when the written promises to pay were given by the tenants to the life tenant, Marcella McLean; but that such is not the law was decided in said case of Sutliff v. Atwood, cited above; Millikin v. Welliver, 37 Ohio St., 460.
    If Mrs. Me Lean had been farming this land herself, or if she had leased it for grain rent, most of the crop would have been harvested before her death, August 23, and the owners of the subsequent estate could have had possession of the land from and after her death, subject to the right of the personal representative of Marcella McLean to go upon the land, harvest and remove the emblements, the growing crops, as provided by sections 6026 and 6027.
    But in the case at bar, Mrs. McLean had leased these farms for money rent, for a period of more than six months after the termination of her life estate, during all of which time those entitled to possession were kept out.
   Minshall, J.

The real question in this case is, When did the rent for which these notes were given, accrue? If upon the facts as found, it accrued, in the proper sense of the term, in the life time of Marcella McLean, the notes, to their full value, should have been inventoried as assets of her estate. The lease, in each case, or more properly speaking, the agreement for the occupation and farming of the land, was made, the one August 15, 1892, and the other September 3, of the same year. They gave to the tenant, in each case, the right to seed part of the land in wheat in the fall of 1892, and to farm the land for the year 1893. This is the common way among farmers of renting lands to be farmed for a year — wheat in our climate being sown in the fall and harvested in the following summer. No one would claim, under this letting, either tenant could have sown his tract in wheat in the fall of 1893, with the right to harvest it in 1894, for all his rights in the premises were to end with the harvesting of the crops, cultivated in that year, and the rent then accrued; and would have been payable but for the agreement by which the time was extended to the first of March following.

By an indulgence of the common law in favor of agriculture, incorporated in the statute law of this state, Sections 6026 and 6027, Revised Statutes, one whose estate may be terminated by an event, the time whereof is uncertain, has the right to reap what he has sown, although this may, to some extent, trench upon the occupancy of the tenant of the next estate in remainder or reversion. This, however, cannot be said to impair the next estate; for it is an incident, created by law, of every estate in reversion or remainder — a burthen, if it be one, imposed, as we have said, in the interest of agriculture; for, when the termination of an estate is uncertain, it would greatly discourage the cultivation of the land, if every such tenant must sow at his peril. Hence it is that the right to harvest growing crops, sown and cultivated before the termination of the partícula,.' estate, in no légal sense infringes upon the next estate in possession. Every such estate is created subject to such contingency; and the right is an inch dent to every estate whose termination is not fixed by some definite time. When the time of the termination of an estate is definitely known, the reason ceases, and no such right exists; and this is why we have said, that if either of the renters of Mrs. McLean had sown the land rented to him in wheat in the fall of 1893, he would have done so at his peril, as the termination of his tenancy was a fixed period, limited to the time in which annual crops are usually harvested in the fall.

It therefore follows, as we think, that the agreement for the cultivation of the particular farms of the deceased, terminated in her life time, and the rent agreed to be paid on or before March 1,1894, had accrued, and the notes should have been inventoried at their full value as assets of her estate. The makers of the notes could make no defense to their collection, as they had fully enjoyed, under the agreement and the law, the consideration for their respective promises to pay.

Much confusion has arisen in the case from the fact that the rent did not, by the agreement of the parties, become due until March 1, 1894, about six months after the death of the life tenant, from which it is assumed that the rent then accrued. This would imply that the term, instead of being for a year, was for a year and six months, which is contrary to the fact. The accrual of rent does not necessarily depend upon the time fixed by the parties for its payment. The accrual of rent has respect to the term of the lease. It accrues as the term elapses and is fully accrued when the term is complete. The term and the enjoyment of it is the consideration for the rent; when the term is complete the rent has accrued. If, as claimed, the question depends upon when the rent is made payable,, irrespective <of the time of its accrual, then the next in estate might be .entitled to it any number of years after it had been earned, for any number of years may be given for its payment. It is then evident that the accrual of rent depends upon the lapse of the term for which it is to be paid, and not upon the lapse of the time given for its payment. The latter is a matter of agreement between the parties. If there were no express agreement the rent would become due on its accrual; but, by agreement, it may be made to become due at any time that will best suit the convenience of the parties. Here, by agreement, it was made to become due in six months after its accrual, or, in other words, after it had been earned by the land. Hence the remaindermen have no claim to this rent — it was all earned, or had accrued, in the legal sense, in the lifetime of Marcella McLean, and is consequently assets of her estate, though the notes given for it did not become due until after her death.

It is thought that the case of Sutliff v. Atwood, 15 Ohio, St., 186, sustains the contention of the defendant in error in this regard. All that this case decides, that can be in any way helpful to the claim of the remaindermen is, that the taking of the notes for rent did not change the character of the consideration for which they were given while they remained in the hands of the lessor, un-negotiated; and consequently, a suit on them by the lessor against the lessee, would be in fact a suit for rent. This is not questioned. But there is no such question in this case. The principle, however, on which the case was decided, applied to this case, disposes of any claim made for the remaindermen to any portion of the rent due on these notes. Sutliff leased his dairy farm to Atwood for the term of three years at an annual rent of $500, payable at the end of each year. He transferred the first note to one Quimby, who recovered a judgment upon it, levied on the lease, and purchased it in at the sheriff’s sale, and then assigned it to the lessor, Sutliff. The latter then brought suit on the notes for the rent that accrued after the assignment of the lease to him, and it was held that he could not recover. The ratio decidendi of the decision is, that being in possession of the demised premises under the assignment, his right to rent was compensated by his duty to pay it; in other words, he could not occupy the position of lessor and lessee at the same time. So, in this case, when the life tenant died the estate of the remaindermen, by operation of law, at once became an estate in possession, and they could not demand rent therefor from any other person. Whether they in fact took possession is immaterial; they had the right to it, subject to the right of the administrator of the deceased life tenant, or her lessee, to the growing crops; and we may assume, though there is no finding as to the fact, that they took possession, as possession generally accompanies the right. Therefore having the possession and the right to it, they cannot, in law or reason, demand rent from someone else, for a possession which they themselves have and enjoy.

In Millikin v. Welliver, 37 Ohio St., 460, 468, the corn in question was planted and raised after the death of the lessor, Smith, and so went to the devisees and not to the administrator.

We have examined the cases and authorities cited by the defendant in error, and fail to see how, on the facts of the case, they support his contention. He assumes that the lease did not terminate until the rent notes became due. In this, as we have shown, he is in error. Neither tenant had any right to enter upon the farm, leased to him, after the crops had all been harvested in the usual time. Most of the cases cited relate to leases made by the owner in fee, who died before the termination of the lease. In such cases, the death of the lessor does not terminate the lease, and as there is privity of estate between the administrator and the heir, the rent is apportioned, that which had accrued at the death of the lessor going to the administrator, and that which accrues afterward attends the reversion and goes to the heir or devisee. In some cases the death of the life tenant does not terminate his estate, as in the case of an estate per outer vie. In such cases, and in all other cases, where the death of a life tenant does not terminate an existing lease, there may be an apportionment between the administrator and the remainder-men on the above principles. But no case is produced, and we think no well considered one can be found, where an apportionment has been made between an administrator of the life tenant and the owner of the next estate, taking effect in possession, immediately upon the death of the life tenant. In such cases at common law, where the term had not ended at the death of the life tenant, no rent could be collected — not by the administrator, for the reason that the lessee was deprived of the consideration for his promise,— the possession of the land; nor by the remaindermen, for there is no privity of estate between him and the life tenant’s lessee; and, for the further reason, that rent, in his favor, cannot issue out of lands in his own possession. Whether this is so in Ohio as to the administrator, does not arise in this case; for, as above shown, the tenants enjoyed all they were entitled to under the letting to them and for which they promised to pay the notes in question; and do not, it seems, deny their liability to pay, either to the administrator or to the remaindermen. And it is worthy of note in this connection, that it is admitted that if Marcella McLean had farmed the lands as they were farmed by the tenants, her administrator would have been entitled to the crops raised in the year 1893, under the statute above referred to. It seems then a strange sort of logic by which the conclusion is reached, that having transferred this right to another for a consideration secured by a note, the note would not be hers, and so assets of her estate, without regard to when it was made payable.

The whole confusion, as we have said, arises out of not properly distinguishing between the accrual of rent and the time when it is made payable. It is generally made payable at the lapse of some particular period of the lease, as annually or by the month, and so becomes payable as it matures; and, in all such cases, the time of payment and the accrual of the rent are coincident. But, as before pointed out, it is not necessary that this should be so in order to reserve rent. Time for the payment of rent may be given irrespective of the time of its accrual.

Reversed and exceptions sustained.