author: By the Court :

text:
    Martin, as Administrator, v. Jones et al.

      Deed of conveyance — To A. J. “and Ms children after Mm” — Habendum to A. J. “and Ms heirs forever” — A conveyance in fee simple.

    A conveyance to A. J. “and his children after him” with habendum to A. J. “and his heirs forever,” is a conveyance to A. J. in fee simple, the granting clause and the habendum not being irreconcilably repugnant.
    (Decided April 24, 1900.)
    Error to the Circuit Court of Belmont county.
    Susanna J. Price, mother of Abner Jones, on the 23rd day of September, 1881, made a deed as follows:
    “Know all men by these presents, that I, Susanna J. Price, in the consideration of the sum of three hundred dollars in hand paid by Abner Jones do bargain, sell, and convey unto the said Abner Jones and his children after him the following premises situate in the county of Belmont and state of Ohio, viz., being a part of section twenty-three (23), township No. seven (7), and range No. five (5), and being lot No. sixteen and No. seventeen on the town plat of the village of Fairmount.

      To have and to hold said premises with the appurtenances thereunto the said Abner Jones and his heirs forever, and the said Susanna J. Price for herself and heirs covenant with the said Abner Jones and heirs that she is lawfully seized of the premises, and that the premises are free and clear from all incumbrances Avhatsoever and that she will warrant and defend the same against the lawful claims of all persons whomsoever. In testimony whereof I hereunto set my hand and seal this 23d day of September, A. D., one thousand eight Hundred and eighty-one.”
    Abner Jones went into possession of the property thus conveyed and held possession until his death.
    • His administrator filed a petition in the probate court to sell the said real estate, to pay debts of Abner Jones. The children of Abner Jones answered, setting out the deed, denying that Abner Jones was seized of said real estate in fee simple, and claiming that he had only a life estate Avith remainder in fee to his children. A demurrer to the answer, by the plaintiff, was overruled by the probate court and petition dismissed. The judgment of the probate court was reversed by the common pleas court, and the circuit court reversed the judgment of the common pleas.

      Petty & Grew, for plaintiff in error.
    We maintain that the deed from Susanna Price to Abner Jones conveyed to said Abner Jones an estate in fee simple in the real estate described in said deed. And that in the granting clause which is “do bargain, sell and convey unto the said Abner Jones and his children after him,” the words “his children after him” are words of description merely, and that by the use of such words it may have been intended to convey a fee simple estate or an estate for life.

      It being doubtful from looking at the granting clause alone, what estate was intended to be and was granted, we must look at the deed entire and especially at the habendum ; the office of which is to deter-, mine the estate granted, or to lessen, enlarge, explain or qualify, but not totally contradict or be requgnant to the estate granted in the premises. 2 Bk., Blackstone, 297 and 298; 2 Waits, A. and D., 497; Brown v. Manter, 53 Am. Dec., 223; 1 Devlin, sec. 213.
    And where the language of the deed will admit of two constructions the one less favorable to the grantor is to be adopted. 2 Devlin on Deeds, sec. 848.
    One of the offices of the habendum is to enlarge the estate granted in the premises. Chaffee v. Dodge, 2 Root, 205; Tyler v. Moore, 42 Pa., 386.
    We think the habendum in this case performed its office, that is, it being doubtful what estate was granted in the premises (whether an estate for life or in fee simple), by looking at the habendum, we see defined the estate as a fee simple estate. It has been claimed in this case that the habendum is not an essential part of the deed. Chancellor Kent and other law writers say the same, but the reason given by them all is that the granting clause in modern conveyancing very often, and we may say nearly always, performs the office of the habendum, so (that the habendum only becomes an essential part of the deed in such cases as the one at bar, where the granting clause fails to determine the particular estate granted. 3 Washb. K. P., 372 (3rd Ed.) ; Blair v. Osburn, 84 N. C., 417; 2 Waits A. and D., 497 et seq.

    But admitting for the purpose of argument the claim of the defendants in error, that the granting clause conveys .merely a life estate to the said Abner Jones and the fee to his children; yet by reason of the habendum which is “to have and to hold said premises with the appurtenances thereunto, unto the said Abner Jones and his heirs forever,” the estate granted in the premises to said Abner Jones is enlarged into an estate in fee simple, for this is the exact purpose, object, and office of the habendum. 2 Bk. Blackstone, 297; 3 Washb. R. P., 372, Sec. 642; Sterns v. Parmer, 10 Met., 52; Berry v. Billings (44 Me., 416), 69 Am. Dec., 107; Berridge v. Glassey, 56 Am. Rep., 323; Jamaica Pond Corp. v. Chandler, 9 Allen, 168; McLeod v. Terrant, 20 L. R. A., 846.
    Suppose it to be conceded that the estate granted in the premises was uncertain and indefinite, would it be claimed for a moment, in this instance, that you could not go to the habendum to further determine the estate granted? And if you go to the habendum in the one case, you most certainly can in the other. For you may always look at the habendum for the purpose of ascertaining the intention of the grantor. And in construing the deed, the habendum is to be tested by the rule whether it can be construed so as to stand with the premises, or is so repugnant as to be irreconcilable with the latter.
    In the one case it lessens, enlarges, or explains the premises, and in the other is to be rejected. In the case at bar we most certainly think it enlarges. 3 Washb. R. P., page 374 (3rd Ed.) ; 3 Washb. R. P., 436; Flagg v. Eames (40 B. E., 23), 94 Am. Dec., 363; Barnett v. Barnett, 104 Cal., 298.
    It is not necessary, in order to convey an estate in fee simple that the word “heirs” appear in the premises of the deed, but it is sufficient if it appear in the habendum, the office of which is to define the grantee’s estate. Lancaster Bank v. Myley, 13 Pa., 544; Rines v. Mansfield, 9 S. W. Rep., 798.

      William E. Patterson and John Pollock, for defendants in error.
    If the premises and habendum are repugnant, which should prevail? It is held by all the rules of construction that in case of repugnancy between the two, the premises should govern.
    In a deed, if there be two clauses so repugnant to each other that they cannot stand together, the first is held to prevail over the last. 3 Washburn on Real Property, 398 (4th Ed.); 2 Blackstone, 381; Ball v. Foreman, 37 Ohio St., 132.
    The habendum is ineffectual to divest an estate already granted by the premises. By the latter, in the deed in question, an estate is granted to the “children” of Abner Jones, and the habendum cannot divest them of this estate. 4 Kent. Com., 468; Hafner v. Irwin, 34 Am. Dec., 390; Budd v. Brooke, 43 Am. Dec., 321.
    The habendum cannot serve to change the grantees or their interests as named in premises unless perhaps express reference is made in the premises to the intended operation of the habendum. Tyler v. Moore, 42 Pa. St., 374; Tiedeman on Real Prop., Sec. 826.
    The test to be applied to any habendum in a deed is whether it can be construed so as to stand with the premises or is so repugnant in its operation as to be irreconcilable with the latter. In one case, it. limits and explains the grant, in the other it is rejected as no effect. 3 Washburn on Real Property, 439 (2nd Ed.).
    It has frequently been held that where a specific limitation is contained in the premises, and is followed by a more general limitation in the habendum, that the latter limitation cannot enlarge the estate granted by the premises. Bricker v. Bricker, 11 Ohio St., 240; Tiedeman on Real Property, Sec. 844; 5 Am. & Eng. Ency. (1st Ed.), 457, n. 2.
    The object of construction is to ascertain the intent of the parties, and when this intent is discovered, it governs. Every deed is to be so construed as, if possible, to give effect to the intention of the parties, and endeavor should be made to give every part of the deed meaning and effect. Wolfe v. Scarborough, 2 Ohio St., 361; White v. Sayre, 2 Ohio St., 113; Jackson v. Meyers, 3 Johns, 395; Sheppard’s Touchstone, page 86, rule 4.
    To give to the deed the construction claimed by plaintiff in error, you must strike out of the grant, and ignore the words “And his children after him.” This does violence to an essential part of the deed. The better construction, and the one intended by the parties to the deed, would be to read the habendum as though it were only an addition to the grant, or in other words, to construe the habendum as though it read, “to Abner Jones and his children after him and their heirs forever.” The word “heirs” in the habendum would then give force and effect to all the provisions of the grant. No other construction can be given it, and yet carry out the proper intention of the deed.
    That we may look to the surrounding circumstances to aid us in determining the true construction of a deed, we have the authority of Bobo v. Wolf, 18 Ohio St., 415.
    It is true that the habendum does not contain the word “children” or any words that would show of themselves that only a life estate in Abner Jones was intended. In so far as habendum does not agree with granting clause, the former is ineffective and invalid. Ball v. Foreman, 37 Ohio St., 132; Flagg v. Eames, 40 Vt., 16.

      A strict construction of an instrument is often unjust and is to be avoided. Irwin’s Heirs v. Long-worth, 20 Ohio St., 581; Summers Admr. v. Williams, 8 Mass., 174; Sheppard’s Touchstone, page 86, 87, rules 1 to 4; Thornton v. Mulquinne, 79 Am. Dec., 548; Bender v. Fromberger, 4 Dall., 436; Foxcroft v. Mallett, 4 How., 353.
    Counsel for plaintiff in error maintain that there is no estate in fee granted to “the children” in premises because the word “heirs” is omitted. There are exceptional cases where an estate in fee may be granted without the word “heirs” being used, when the intent of the grantor is plain. Brown v. National Bank, 44 Ohio St., 269.
   By the Court :

The intention of the parties to a deed should be gathered, if possible, from the whole instrument; and no part of the deed should be rejected as repugnant to the granting clause, unless the repugnancy is irreconcilable. In this case, the granting clause and the habendum are not inconsistent, and are readily reconcilable. Whether the word “children” in the granting clause and the word “heirs” in the habendum, are taken in the same sense, or whether the word “heirs” be regarded as broader than, and inclusive of, the word “children,” there is no repugnancy. We take it that the habendum makes definite in a technical sense -the granting clause; and that the two clauses, when taken together, manifest an intention to convey to the grantee and his heirs, an estate in fee simple. The parties to this deed regarded the phrase “and his children after him,” in the granting clause, as the exact equivalent of the phrase “and his heirs forever,” in the habendum.

Judgment of the Circuit Court reversed and the judgment of the Common Pleas affirmed.


source: Caselaw Access Project

author: By this Court :

license: Public Domain

text:
    Brundige v. The Village of Ashley et al.

      Injunction by taxpayer — In village where no solictor — Sections 1777, 1778 and 1779. Rev. Stat. — Plaintiff not entitled to compensation for attorney, when.

    In an action brought by a. taxpayer under sections 1777, 1778 and 1779, Revised Statutes, where a village has no solicitor, the plaintiff is not entitled to have included in the costs allowed to him, compensation to his attorney.
    (Decided April 24, 1900.)
    Error to the Circuit Court of Delaware county.
    The incorporated village of Ashley, in Delaware county, acting by its officers, improved High street in that village under the act of January 19, 1893, entitled “an act to authorize the village council of the incorporated village of- Ashley, Delaware county, to issue bonds for the purpose of street improvement.”
    The street having been improved under the contract, bonds were issued and sold and a levy made upon the taxable property of the village to pay such bonds as were about to mature, as well as the interest upon the whole issue of bonds.
    Thereupon the plaintiff in error, a taxpayer, filed a petition on behalf of himself and the said village against the treasurer of the county, the county auditor, the village, the mayor, and the clerk, averring that said act was unconstitutional, that the issue of said bonds and all of the proceedings for the improvement of said street were unauthorized; that said village had not then a city solicitor .and no. one was authorized to act for it as its solicitor, and that the proceedings under said act for the improvement of said street were an abuse of the corporate powers of said village, and prayed that the levying and collection of all taxes for that purpose be enjoined, and for all relief equitable and right in the premises.
    The Court of Common Pleas awarded the relief prayed for, and made the temporary injunction perpetual, but added to the judgment entry the following:
    “And the court being of the opinion that this action is not maintainable under sections 1777 and 1778, but that it is maintainable under sections 5848, 5849, etc., the court refuses on application to allow as part of the costs herein attorney fees to plaintiff’s counsel, and, therefore, rules that nó attorney fees can be taxed as costs in the case.”
    The plaintiff excepted to the refusal of the court to allow attorney’s fees to be taxed in the costs, and took the case to the Circuit Court upon that question. The Circuit Court affirmed the Common Pleas. Thereupon he filed his petition in error in this court, seeking to reverse the judgments of the lower courts as to that question.

      F. M. Marriott, for plaintiff in error.

      J. S. J ones & Sons, for defendants in error.
   By this Court :

Conceding for the purposes of this case that the proceeding in the Court of Common Pleas was under and by virtue o'f sections 1777 and 1778 , Revised Statutes, the question arises as to whether a reasonable compensation to his attorney should be included in the costs allowed to the plaintiff under section 1779, when the municipality had no solicitor to be first requested to bring the action, as provided in said section 1778.

The question must be answered in the negative, for the reason that the provision for including such compensation for the attorney is authorized only when the solicitor has been first requested to bring the action, and has refused to do so.

If there is a solicitor and no such request is made upon him, there can be no compensation for the attorney included in the costs allowed to plaintiff, and if there is no solicitor the same result must follow, because it is the request and refusal that warrants the allowance of such fees.

The fact that there is no such solicitor does not have the legal effect to make it unnecessary to first make such request. The plaintiff knew before he began his action that there was no solicitor, and he began the action at his peril. He won his case, but he cannot be allowed to draw money from the public treasury to pay his counsel in the absence of a statute expressly authorizing him to do so. It has often been held by this court that money cannot be drawn out of the public treasury unless authorized by statute. Debolt v. Trustees, 7 Ohio St., 237; Anderson v. Commissioners, 25 Ohio St., 13; Strawn v. Commissioners, 47 Ohio St., 404; Clark v. Commissioners, 58 Ohio St., 107, and section 5, article 10 of the constitution.

It was held by this court in the unreported case of Kissel v. The Village of Columbus Grove, 53 Ohio St., 650, that compensation to his attorney could not be included when the costs allowed to the plaintiff in an action under said sections 1777, 1778, and 1779, where the village had no solicitor.

If it is desirable that compensation to the plaintiff’s attorney should be included in the costs allowed to the plaintiff in cases where there is no solicitor, the general assembly should so provide by statute, but in the absence of such provision in the statute, no such compensation can be allowed.

Judgment affirmed.


author: Davis, J.

text:
    The Travelers' Insurance Co. v. Myers & Company.

      Insurance policy construed like other contracts — Insurance against loss from lidhility of employer to employe — Stipulation of immediate notice of accident to insurance company —Gannot he waived hy agent, whew — Law of agency.

    1. Policies of insurance should be construed, like other contracts, so as to give effect to the intention and express language of the parties. West et al. v. Citizens’ Insurance Go., 27 Ohio St., 1, approved and followed.
    2. In a policy which insures against loss from liability to employes of the insured who may accidentally sustain bodily injury while in the employ of the insured, “under circumstances which shall impose upon the insured a common law or statutory liability to such employes by reason thereof,” a stipulation as follows: “Immediate written notice shall be given this company of any accident and of all alleged injuries, together with copies of all statements made by employes, and all other information in possession or knowledge of the insured in any way relating to such accident or liability therefor,” is of the essence of the contract and cannot be waived by an agent of the company without authority therefor.
    3. When such policy contains a stipulation that “no agent has authority to waive or alter anything in this policy contained,” and the same is accepted by the insured, it is both notice to and an agreement by, the insured that an agent has no authority to waive or alter anything contained in the policy. Union Central Life Insurance Company v. Hook, ante, p. 256, approved and followed.
    4. “Immediate written notice” in such stipulation means written notice within a reasonable time under the circumstances of the case; and where the facts are not disputed, what is a reasonable time is a question of law.
    (Decided May 8, 1900.)
    Error to the Circuit Court of Ashland county.
    The action was brought in the court of common pleas of Ashland county to recover under a policy of insurance issued to the defendant in error “against loss from liability to employes of the insured who may accidentally sustain bodily injuries while on the pay roll of the insured and while actually occupied by the performance of duty in the trade or occupation for which they have been employed by the insured and under circumstances which shall impose upon the insured the common law or statutory liability to such employes by reason thereof.” This policy contained the following stipulation: “Immediate
    written notice shall be given this company of any accident and of all alleged injuries, together with copies of all statements made by employes and all other information in possession or knowledge of the insured in any way relating to such accident or liability therefor.” And also the following stipulation: “No agent has authority to waive or alter anything in this policy contained.”
    During the term of this policy, that is on October 27, 1894, Simon Ouster, an employe of the defendants in error, sustained certain personal injuries. This fact was communicated verbally by the insured to one Mason, who was at that time the local soliciting agent of the plaintiff in error at Ashland, in Ashland county, Ohio, Mason told the plaintiffs. defendants in error here, not to do. anything further at the present time, for likely the man would never say anything and that such an investigation into the circumstances of the accident as would be necessary in procuring statements of witnesses and employes might arouse the suspicion of Ouster and cause him to make a claim for damages and that if any claim was made by Ouster the plaintiff should inform Mason of the same and he would attend to it. Acting on this suggestion of Mason’s the insured gave no notice to the insurance company until July 22, 1895, nearly nine months after the accident to Simon Custer had occurred.
    Custer made no claim upon his employers for the injury until July 16, 1895, and then claimed that the injury which he had received had developed into >a serious difficulty. Promptly on receipt of the notice given July 22, 1895, that is on July 23, 1895, the insurance company declined to recognize the claim of the insured on the ground that the insured had not complied with the stipulations of the policy that immediate written notice be furnished to them of all accidents and with the necessary statements of the circumstances relating to the liability. The case vas tried in the common pleas court upon an agreed statement of facts, a jury being waived. The court gave judgment for the plaintiff, and upon petition in error to the circuit court the judgment was affirmed. The case comes into this court upon petition in error to reverse the judgments of the common pleas and circuit courts.

      Day, Lynch & Day, for plaintiff in error.
    Mason, the soliciting agent, brought the contracting parties together, and there his authority to represent the company ended, since it does not appear from the record that by the ordinary course of business he was held to have ampler powers. The principle controlling here was announced by this court in Insurance Co. v. Eshelman, 30 Ohio St., 647; Quinlan v. Ins. Co., 133 N. Y., 363.
    The burden of proof as to the scope of the agent’s authority is upon the defendants in error who seek to avail themselves of the alleged waiver of written notice. B. O. etc., v. Post, 152 Pa. St., 579; Wood on Ins., 396; May on Ins., 138-138a; Biddle on Ins., Sec. 122; Ostrander Ins., 140.
    ' We further contend that after the issuing and delivery of the policy to J. W. Myers & Co., the express stipulation therein controlled as to form of notice, time of giving notice and when J. W. Myers & Co. received this policy they were presumed to know and accept all its term and conditions. West v. Ins. Co., 27 Ohio St., 1.
    The defendant in error therefore knew as clearly as language could inform it, that no agent, special or general, had any authority to dispense with written notice of an accident to an employe nor to vary the time or manner of giving such notice. Maer v. Fidelity Association, U. S. Court of Appeals, Insurance Law Journal, April, 1897, page 292; Walsh v. Hartford Ins. Co., 73 N. Y., 10; Carey v. German Ins. Co., 84 Wis., 80.
    In Iowa it has been held that “under a policy making it an express condition that none of its provisions could be waived, except in waiting by the secretary, an adjuster cannot orally waive proof of loss required by the policy.” Kinkman v. Farmers’ Ins. Co., 90 Ia., 457; Martin v. Ins. Co., 84 Ia., 516.
    • Also in Michigan, in a late case, it has been held that a verbal waiver of a condition in the policy, by an agent of the company, will not prevent a forfeiture when the policy plainly provides upon its face, that no agent shall have power to waive any of its conditions except by writing endorsed on or attached to the policy. Gould v. Dwelling House Ins. Co., 90 Mich., 302; Cleaver v. Ins. Co., 65 Mich., 527; Golden v. Northern Assurance Co., 46 Minn., 471.

      Further, in a late Nebraska case, the court held that an agent could not verbally waive conditions in the policy when his authority in this respect was restricted by the terms of the contract. German Ins. Co. v. Heiduk, 30 Neb., 288; Smith v. Ins. Co., 60 Vt., 682; Porter v. U. S. Ins. Co., 160 Mass., 183; Kyte v. Commercial Co., 144 Mass., 43; Head v. Insurance Co., 2 Cranch U. S., 127; Ermentrout v. Girard Ins. Co., 63 Minn., 305.
    In addition to the authorities above quoted from we would respectfully invite the attention of the court to the following cases which we believe support the position above contended for: Machine Co. v. Ins. Co., 50 Ohio St., 549; Hawkins v. Rockford Ins. Co., 70 Wis., 1-5; Herbst v. Lowe, 65 Wis:, 321; Brown v. Ins. Co., 59 N. H., 298; Shengart v. Lycoming Ins. Co., 55 Cal., 408; Enos v. Sun Ins. Co., 67 Cal., 621; Lycoming Ins. Co. v. Langley, 62 Me., 196; Match Co. v. Ins. Co., 92 Wis., 510; Ins. Co. v. Wagner, (Tex.) Ins. Law Jr. Mch., 97, p. 261; Ins. Co. v. Snyder (N. J. Eq.) Ins. Law Jr. Mch., 97, p. 261; Phoenix Ins. Co. v. Stevenson, 78 Ky., 150; Havens v. Home Ins. Co., 111 Ind., 90; Smith v. Provident Assurance Society, 65 Fed. R,, 765; N. D. O. Id., 34 Bull., 37; Ins. Co. v. Holgraph, 53 Ill., 516; Universal Mut. Ins. Co. v. Weiss Bros., 106 Pa., 20; Potts-ville Mut. Fire Ins. Co. v. Improvement Co., 100 Pa.,. 137; Burlington Ins. Co. v. Kennerly, 60 Ark., 532; Sc. 31 S. W., 155; Dwelling House Ins. Co. v. Snyder,. 34 Atl., 931; Watch Co. v. Ins. Co., 66 N. W., 525; Underwood Veneer Co. re London G. & A. Co., 27 Insurance Law Journal, 910; Foster v. Fidelity & C. Co., 40 L. R. A., 833; State v. Osgood, 85 Maine, 288; McFarland v. U. S. M. A. A., 27 S. W., 436; Mandel v. Fidelity & C. Co., 170 Mass., 173; Electric

      Light Etc. Co. v. Fidelity Co., 69 N. W., 307; Kimball v. Mason Frat. A. C. Assn., 27 Ins. Law Jr. 390; Smith v. Travelers Ins. Co., 50 N. E., 516.

      E. A. Myiranta, for defendants in error.
    It will be conceded that when this, accident occurred that the injury was slight. That the subsequent conduct of Custer in resuming work within a few days and continuing until the completion of the contract from six to eight months thereafter making no claim during all this time (that as a thing apart from the question of agency) said Myers and Co. consulted C. D. Mason and for the purpose of this statement simply because he was a well' informed individual, on the proper action to be taken. Their joint judgment was that for the benefit of all concerned that the wise policy to pursue under the circumstances was to keep the matter quiet and not precipitate a claim for damages by entering upon any investigation whatever at that time. If this was an act upon the part of Myers & Co. in line with what a reasonably prudent person would do under like circumstances, then may it now well be argued that under the evidence in this case no cause arose that warranted a rational belief that an accident such as would incur common law or statutory liability had arisen until the date of the Custer letter July 16, 1895. And that, therefore the questions presented here are out of this case as matter of fact.
    Considering this case however in the view that such an accident occurred as warranted and required notice to be given to the company in October, 1894, let us, examine very briefly the Ohio authority. We have no authority in Ohio that covers this contention and we must resort to general principles laid down in insurance cases. Mass. Life Ins. Co. v. Eshelman, 30 Ohio St., 647; Union Ins. Co. v. McGookey, 33 Ohio St., 565.
    The claim of the plaintiff in error is, — That by the terms of the provisions 4 and 10 of the policy of insurance it is relieved from liability, the claim of the defendant in error is that there was a full and complete compliance with all the provisions of the contract of insurance by the defendant in error: That .provision 4 of the policy calling for immediate written notice of all injuries to employes and claims made by them was fully complied with by defendant in error by the written advices given to plaintiff in error in July, 1895.
    The defendant in error thus gave plaintiff in error immediate written notice of the claims of the employe Ouster as soon as defendant in error had any knowledge of any claim being made by said Ouster. The plaintiff in error through its special agent, J. B. Williams acknowledged receipt of the communication of defendant in error on July 22, 1895, and refused to take any account of the claim made.
    It will be seen from the evidence and especially from the letters of Ouster that at the time of the disaster, as he terms it, he did not consider himself seriously injured; that his injury while slight at the time it occurred grew upon him and became chronic and that it was not until July 1895, that he felt that his injuries received from the accident were so severe that he should be entitled to damages from defendant in error.
    Can it be said under these circumstances that the conduct of the defendant in error with reference to notice to plaintiff in error, is not in line with what a reasonable, prudent person would do under like circumstances and can it be said under the evidence in this case that a cause arose that warranted a rational belief that an accident had occurred which would incur a common law or statutory liability until the date of Ouster’s letter on July 16, 1895? Mandell v. Fidelity & Casualty Co., 170 Mass., 173; 64 Am. St., 291; Harnden v. Ins. Co., 164; Mass., 382; 49 Am. St. Rep., 467, Baker v. Com. Union Assur. Co., 162 Mass., 385; St. Louis Ins. Co. v. Kyle, 11 Mo., 278; 49 Am. Dec., 74; Central City Ins. Co. v. Oates, 86 Ala., 558; 11 Am. St., 67, George H. West, et al v. Citizens Ins. o., 27 Ohio St., 1; Webster v. Dwelling Hous Ins. Co., 53 Ohio St., 563; Crane & Co. v. Accident Ins. Co., 3 Ohio N. P., 318; 6 Dec., 118; Carpenter v. German Am. Ins. Co., 31 N. E., 1015; Kentler v.Am. M. Acc. Assn., 60 N. W. R., 1002.
    Defendant in error acted as directed by said agent, made no inquiry as to the extent of the injuries of said Ouster and made no investigation and received no claim or demand from said Ouster until July, 1895. Defendant in error acted under the directions of said agent as he supposed and had a right to presume to be for the best interest of plaintiff in error. Said agent only .so far waived provisions as to giving of written notice as he ordered a delay in the giving of said notice until such time as the said Ouster might make a claim. Ins. Co. v. Wilkinson, 80 U. S. (13 Wall.), 222; Mass. Life Ins. Co. v. Henry Eshelman, 30 Ohio St., 647, Union Ins. Co. v. McGookey, 33 Ohio St., 555; Ins. Co. v. Williams. 39 Ohio St., 584; Ohio Farmer Ins. Co. v. Danison, 38 W. L. B., 163; Bebee v. Hartford Ins. Co., 25 Conn., 51.

      Notice to agent of material facts, is notice to the principal whether actually communicated or not. Peoples Ins. Co. v. Spencer, 53 Penn. St., 353; Liddle v. Ins. Co., 4 B. (N. Y.), 179; Beal v. Park Ins. Co., 16 Wis., 241; Hough v. City Ins. Co., 29 Conn., 10; Keenan v. Mo. St. Ins. Co., 12 Iowa, 129; Combs v. Hannibal Ins. Co., 43 Mo., 148; 65 Am. St., 717; Horton v. Home Ins. Co., 122 N. C., 498; 59 Am. St., 625; Snyder v. Dwelling House Ins. Co, 59 N. J., 544; 2 Am. & Eng. Enc. Law, Vol. 338; Hartford Fire Ins. Co. v. Keatney, 86 Md., 130; 63 Am. St. 499; Life Ins. & Inv. Co. v. Martin, 32 Md., 310.
    How far the notice given complies with the stipulation in the policy is a question for the jury. May on Ins., Vol. I., sec. 143, page 254; Aetna Ins. Co. v. Maguire, 51 Ill., 342; May on Ins., Vol. II, sec. 509, page 1172; Wood on Ins., secs. 391, 395, 421; Barber on Ins., pages 128 and 129; Richards on Ins., page 87, sec. 86.
    If the company holds out its agent to the public as authorized to do a particular act, or to transact a particular kind of business, this carries with it an authority to adopt the ordinary means, and to do and say the appropriate things, to accomplish the object for which the agent is employed. Ins. Co. v. Wilkison, 13 Wall., 222; Abraham v. Ins. Co., 40 Fed. Rep., 717.
    Certain states by statute, have adopted the rule that the soliciting agent shall be deemed the agent of the insurers no matter what the policy provides. Such statutes are constitutional and control the contract. Continental Life Ins. Co. v. Chamberlain, 132 U. S., 304; McConnell v. Iowa Mut. Aid Assn., 79 Iowa, 757; Revised Statutes of Ohio, sec. 3644; Ins. Co. v. Eggleston, 96 U. S., 572.

      Proof of loss may be waived by parol, though policy requires it to be in writing. German Ins. Co. v. Gibson, 53 Ark., 494; Burlington Ins. Co. v. Kennerly, 60 Ark., 532.
    Parol evidence is admissible to show waiver by acts in pais of an insurer notwithstanding a stipulation in the policy that nothing less than an express agreement indorsed on the policy shall be construed as a waiver of any of its conditions or restrictions. McFarland v. Kittanniny Ins. Co., 134 Pa. St., 590; 19 Am. St., 723, and note.
   Davis, J.

Policies of insurance, like other contracts, should be reasonably construed, so as not to defeat the intention and express language of the parties. West et al. v. Citizens’ Ins. Co., 27 Ohio St., 1. It was agreed by the parties to this contract of insurance, that immediate, written notice should be given to the company of any accident and of all alleged injuries, together with copies of all statements made by employes, and all other information in possession or knowledge of the insured in any way relating to such accident or liability therefor. It is obvious that this stipulation is of the essence of the contract in insurance of this kind. It is not merely a stipulation as to the form of bringing to the notice of the insurer the fact of a loss, as in policies of fire and life insurance. It is clearly a matter of substance in the contract; because the obligation of the insurer is not against the mere happening of an accident or an injury, but against “loss from liability” to employes who may be accidentally injured while in the employ of the insured “under circumstances which shall impose upon the insured a common law or statutory liability to such employes by reason thereof.” The occurrence of an accident and injury, however slight, if it may result in a legal liability to an employe of the insured, would necessarily involve an inquiry into the facts and circumstances which may make the insured liable; and these must be communicated to the insurer, else there would be no notice to the insurer that there had been anything more than an accident without liability. In insurance of this character it is a matter of the first importance to the insurer, who may be forced to become the real -defendant in a lawsuit against the insured employer, to be speedily informed of all the facts and witnesses concerning a possible litigation. In a very little time the facts may in a great measure fade out of memory, or become distorted, witnesses may go beyond reach, physical conditions may change, and, more dangerous than all, fraud and cupidity may have had opportunity to perfect their work. Therefore, this stipulation is vital to the contract; and it need not be surprising that the policy contains an agreement that it shall not be waived by any agent, for it is declared by the insurer and accepted by .the insured that “no agent has authority to waive or alter anything in this policy contained.”

It is not claimed that written notice was given to the company at the time of the alleged accident and injury, nor for almost nine months thereafter; and it does not appear from the record that the company was at any time furnished with copies of all, or any, statements made by employes, and all other information in possession or knowledge of the insured in any way relating to such accident or liability therefor. Immediate notice means notice within a reasonable time, and when the facts are not disputed, what is a reasonable time is a question of law. American Fire Ins. Co. v. Hazen, 110 Pa. St., 530; Kimball v. Ins. Co., 8 Gray (Mass.), 33; Bennett v. Ins. Co., 67 N. Y., 274.

There was nothing in the circumstances of this case to require or justify the delay of such notice for a period of nine months, and much to indicate that such delay was positively prejudicial to the insurer. But it is answered that the insured gave to the insurer immediate written notice of the claims of the employe who was injured, as soon as the insured had any knowledge of any claim being made by the employe. Notice of the claims of the injured employe, however, is not the thing stipulated for. The contract is that immediate written notice, that is, within a reasonable time, shall be given of any accident and of all alleged injuries together with information relating to liability therefor. This was not done. From the record of this case we are able to say that the proper notice could have been given within a few days after the accident, as well as, or better than, nine months afterAvards. The insured undertook at their own peril to decide whether there was, or would be, a liability or not, and whether the injury received was severe enough to require the stipulated notice to be given. Having assumed that hazard and realized their mistake, they have no one to blame but themselves, that they are left without a remedy.

Equally unavailing for the defendants in error is the claim that the stipulation for notice was waived by Mason, the insurance company’s local soliciting agent, or that the company is estopped to plead the contract in defense,' by misleading statements made by Mason. The apparent scope of Mason’s authority did not justify the insured in accepting and relying upon his words when this accident was verbally reported to him. He was a mere soliciting agent, and was invested with none of the powers of a general agent, or of a special adjusting agent. It does not appear to us that he was entrusted with any duties in regard to receiving and transmitting notice or of adjustment between the parties to the policy. So far as we are informed his duties ended when he received and transmitted to the company the application of the insured for the insurance. Therefore the defendants in error had no right to rely on his advice or suggestions in regard to a matter which was not within the apparent scope of his authority; and still less could they so rely on his advice when it was ■distinctly contrary to the contract stipulations. It was further expressly stipulated in the policy that ■“No agent has authority to waive or alter anything in this policy contained.” The policy is not unilateral. Since the insured have received, accepted and retained the policy, they are parties to it, although not signing it, and are presumed to know and accept all of its terms and conditions. Union Central Life Ins. Co. v. Hook, ante, p. 256. The insured, having agreed that the stipulation as to notice could not be waived or altered by an agent, cannot excuse themselves for non-performance of the contract as to notice to the company, by showing that they acted on the suggestion of the soliciting agent that they should not perform the contract as they had made it. In this conclusion we are sustained by numerous decisions in other states. We cite only a few of them. Carey v. Insurance Co., 84 Wis., 80; Smith v. Insurance Co., 60 Vt., 682; Porter v. Insurance Co., 160 Mass., 183; Walsh v. Insurance Co., 73 N. Y., 10; Kirkman v. Insurance Co., 90 Iowa, 457; Gould v. Insurance Co., 90 Mich., 302; Insurance Co., v. Heiduk, 30 Neb; 288; Ermentrout v. Insurance Co., 63 Minn., 305, 310.

We are aware that there are decisions to the effect, that conditions in respect to notice and proofs of loss, may be waived by an agent, notwithstanding a provision that no agent can change the same. Those-decisions are put npon the ground that such limitations on the authority of agents apply only to provisions relating solely to the formation and continuance-of the policy, and which are essential to the binding force of the contract while it is running, and do not apply to conditions which are to be performed after the loss has occurred, such as giving notice and proof' of loss. While we prefer to put the decision of this, case on the grounds, and in line with, the decisions, already stated, we think that we have made it sufficiently clear that the stipulation as to notice in this, policy, is of the very substance of .the contract in insurance of the kind here contracted for, and therefore could not be waived by any agent.

The court of common pleas erred in rendering judgment for the defendants in error, upon the conceded facts, and the circuit court erred in affirming the judgment of the court of common pleas. The-judgments of both courts are reversed, and the

Judgment is for plaintiff in error.


author: Spear, J.

text:
    The Buckeye Pipe Line Company v. Fee.

      Causes for which, new trial may he granted — Section 5805, Revised Statutes — Review of evidence in reviewing court— Attachment and garnishment — Section 552t, Revised Statutes — Jurisdiction of court not over property wholly out of the state — Garnishee having property of defendant without state not required to surrender same to custody of court, when.

    1. A motion, for a new trial in a cause tried to the court which states as the grounds “That the judgment is not sustained by sufficient evidence, and is contrary to law,” is a substantial statement of the ground authorized by the sixth clause of section 5305, Revised Statutes, and is sufficient to bring the evidence contained in the bill of exceptions up for review in a reviewing court.
    2. Our statutes regulating attachment and garnishment (sections 5522, Revised Statutes, and following), do not give to the court issuing such process jurisdiction over property of the defendant situate wholly beyond the borders of the state, nor power to require a garnishee having property of the defendant in his possession without the state to surrender the same into the custody of the court, and an order on the garnishee requiring such act is without legal effect.
    (Decided May 8, 1900.)
    Error to tbe Circuit Court of Allen county.
    Tbe action below was by William G. Fee against tbe Buckeye Pipe Line Company to recover for a refusal to obey an order of tbe court of common pleas of Allen county, directing tbe company, as garnishee, to turn over to tbe sheriff of that county 1036 barrels of crude petroleum oil, which, it was alleged, tbe company’s answer showed was in its possession belonging to Miller, Tallmage & Russell, against whom Fee bad recovered judgment for $535.90, interest and costs.

      The answer of the defendant below admitted the recovery of the judgment as stated, the service of garnishee process upon it; that it answered, admitting its possession of certain oil belonging to the judgment debtor; that it was ordered by the court to deliver such oil to the sheriff, and that it had not done so. All other allegations were denied and new matter by way of defense set up, which was traversed by reply.
    The case was submitted to the court, a jury being waived, upon an agreed statement of facts, which were embodied in a bill of exceptions, the substance of which follows:
    The Buckeye Pipe Line Company is an Ohio corporation ; its business is confined to that of a common carrier and storer of oil, and in no sense is it a purchaser or seller of oil; its principal office is at Lima, Ohio, where the books of its business are kept. On November, 7, 1896, it had in its possession 1086 barrels of oil to the credit (as oil) of Miller, Tallmage & Russell, a firm composed of the defendants against whom Fee’s action was pending, and against whom he recovered the judgment, and the value of the oil was sufficient to satisfy the judgment. The oil was purchased in Huntington county, Indiana, and received by defendant in Indiana, in its usual course of business, and held by it as common carrier and storer of oil, and never was in Ohio; no Indiana oil is carried into or stored in Ohio by defendant.
    The oil territory of Indiana, including Huntington county, and the oil 'territory of northwestern Ohio, including Allen county, Ohio, comprise the territory known as the Lima division of said company; its stations for the delivery of oil are in this territory in both Indiana and Ohio, including said counties of Allen and Huntington, and all transfers of oil are made on its production books at Lima. Its system of storage and pipe lines in Indiana are not connected with its Ohio system of storage and pipe lines; the oil received in Indiana cannot be delivered through its pipes in Ohio, but is delivered in Indiana. The oil produced in Indiana is of a different kind and quality from that produced in Ohio, and generally of a different market value; but since January, 1896, the value of Indiana oil and oil produced in Allen county, Ohio, has been and is the same. Oil received and stored in Indiana from the different wells and delivered by different persons to the defendant is mingled so that the identical oil cannot be returned, but oil of like kind and quality is delivered from the general stock.
    The oil in custody was received on a “run ticket,” copy of which follows: “This oil is received into the general stock of the Buckeye Pipe Line Company, Lima division, subject to a transportation charge of twenty cents per barrel, and a storage charge, which shall be at the rate of twenty-five cents per day per one thousand barrels, so long as the market price of its certificate oil is below $1.00 per barrel; thirty-one cents per day when the market price is from $1.00 to $1.50 per barrel, and forty cents per day when the market price is above $1.50 per barrel, no change, however, to be made in rate of storage on account of prices going above or below the prices named, unless the market price remains above or below a specified point for thirty consecutive days, and it is agreed that the point of delivery shall be at the option of the Buckeye Pipe Line Company, Lima division, within said division. It is agreed that the Buckeye Pipe Line Company, Lima division, shall not in any event be liable for loss of petroleum resulting from lightning, fire, storms or other unavoidable causes, and that such loss shall be charged pro rata upon all petroleum in its custody at the time of such loss, and that the quantity called for by this ticket shall be reduced by- its proportion of such loss, and that transportation and all accruing storage charges shall be paid on the amount as deducted.”
    It is agreed that the defendant had the right to deliver the oil in controversy at any of its delivery stations in Indiana. It is further conceded as a fact that Avhen oil is sold by a person who has oil stored, it is transferred upon the production books of defendant, Lima division, at Lima, by an order directing the transfer of credit to the purchaser of a given number of barrels of oil; that there is a constant market for Indiana and other oil in its custody, and that all oil sold is at once transferred to the credit of the purchaser (as oil) upon presentation of a purchase order at any of its offices and report of that fact by an agent to the Lima office. The owner of oil, or the purchaser, can secure the delivery of the actual oil belonging to him, upon demand and payment of charges, and such deliveries are constantly being made.
    The sheriff did not seize the oil in controversy; the attachment Avas served in no other way than by leaving a copy of the attachment with the agent of the defendant at Lima, Ohio, and informing him of the contents thereof. The sheriff’s return shows proper service as to form and manner.
    In a case pending in the circuit court of Huntington county, Indiana, after January 1, 1897, that court, Avhich is a court of competent jurisdiction, appointed a receiver for Miller, Tallmage & Russell, and directed the defendant to deliver the oil in controversy to said receiver.

      The defendant has a lien on this oil for transportation and storage charges. Since the order and judgment recovered by Fee against Miller, Tallmage & Russell, the plaintiff, through the sheriff of Allen county, has made demand upon defendant for the oil in controversy, which has been refused and the oil never delivered.
    On trial, a finding was had for Fee, and judgment rendered for the amount of his claim. Motion for a new trial was overruled, to which the company excepted. The circuit court affirmed the judgment, and the company brings error. Its ground for reversal is that the court “erred in rendering judgment for the plaintiff against the defendant, and in overruling motion of defendant for a new trial.”

      James 0. Troup, for plaintiff in error.
    Under the facts of this case the principal question is:
    Can a court in Ohio compel a garnishee, who is not indebted to the defendant in attachment, but has in possession as bailee, property of the defendant, which is located wholly outride of the state of Ohio, to bring that property into Ohio and deliver it into the custody of the court?
    An attachment is a proceeding in rem, incident to the main action, and the steps to be taken under it are very clearly defined by statute, sections 5528 to 5550, Personal property when attached must be seized and taken into custody. “In the absence of a levy so made, the court acquires no jurisdiction over the property sought to be attached.” Root v. R’d. Co., 45 Ohio St., 222.
    In respect to the obligation of the garnishee, the limit of the court’s power, in the first instance, is to order a delivery of the property into court.

      Had the court the power to make such order under the facts in this case? The jurisdiction of the court over property in attachment proceedings is limited to such property as is within the sovereignty which created the court. The sovereignty cannot, through any branch of its government, extend its control over either persons or property, beyond its territorieal limits. This proposition is axiomatic and no authority need be cited in support of it. The court by attachment proceedings, lays its hand upon property of the defendant, if it can be found, and holds it until the main controversy be determined. But the hand of the court cannot reach beyond the territorial limits of the sovereignty which created it. “The servant is not greater than his master.” The court, by its garnishee process, obtains constructive possession and control of property of which the sheriff cannot get the actual physical possession. But the court cannot extend its constructive possession and control beyond the territorial lines which limit its physical possession and control. 8 Am. &, Eng. Ency. Law, 1255; Story’s Conflict of Laws, secs. 543, 550.
    It must be borne in mind that this is not a case wherein the garnishee was indebted to the defendants in attachment. The Buckeye Pipe Line Company owed them nothing. It merely had in its possession, as bailee, property which was not and never had been within the state of Ohio. The domicile of the defendants being in Indiana, that is the legal situs of their personal property. In this instance, it is also the actual situs. It follows that two independent sovereignties cannot exercise jurisdiction over property situate exclusively within the territory of one of them. To hold that they can would lead to. inextricable confusion in the transaction of business and in the administration of justice. Lawrence v. Smith, 45 N. H., 533; Bates v. C. M. & St. P. Ry. Co., 60 Wis., 296, 372, 374; Latimer v. Union Pacific Ry., 43 Mo., 105; Con. Ins. Co. v. Chase, 33 S. W. Rep., 602; Montrose Pickle Co. v. D. & H. Mfg. Co., 40 N. W. Rep. (Iowa), 705; Am. Cent. Ins. Co. v. Hettler, 56 N. W. Rep. (Nebraska), 711. In a search for authorities which has covered a wide range, I have found but one case where it was held that a garnishment is maintainable, although the goods in possession of the garnishee were at the time in another state. It is the case of Childs & Co. v. Digby, 24 Pa. St., 23. But in the case of Penn. R. R. Co. v. Pennock, 51 Pa. St., 244, 254, the court disapproves of the doctrine announced in Childs v. Digby, and holds the doctrine which is announced in the cases above cited.
    Both on principle and under the authorities above cited, I contend for the general proposition first stated, viz.: A court in Ohio cannot compel a garnishee, who is not indebted to the defendant in attachment and has no property of the defendant in Ohio, but has in possession, as a bailee, property of the defendant, which is located wholly outside of the state of Ohio, to bring that property into Ohio and deliver it into the custody of the court.
    If, however, the court should hold the opposite on the general proposition as above stated, there are considerations which seem to me to have required the discharge of the garnishee in this particular instance. Remembering that this oil was produced and is stored in Indiana and that the garnishee has no connection between its systems of lines in Indiana and its system in Ohio; it should also be remembered that, by the contract under which the oil was received, “the point of delivery shall be at the option of the Buckeye Pipe Line Company.”

      Tbe court cannot, for tbe benefit or convenience of any creditor, so vary the terms of tbe contract of delivery as to compel tbe company to deliver tbe oil at any other points than it may select; and certainly not compel a delivery beyond tbe reach of tbe company’s lines. Several of tbe authorities already cited seem to support this proposition in a greater or less degree; but there are others. 1 Bouvier’s Law Die., 163; Schuler v. Israel, 120 U. S., 506. Suppose tbe principal defendants in this case bad sued tbe Buckeye Pipe Line Company in this state for the damages for non-delivery of their oil after demand made. It would surely be a good defense that tbe demand alleged was a demand to deliver in Ohio, and that tbe company is not bound to deliver in Ohio, but is ready to deliver at a designated point on its lines in Indiana. If . in this case Miller, Tallmage & Russell could not compel a delivery in Ohio, neither can their creditors compel a delivery in Ohio.
    It is pleaded in tbe answer of tbe company that since tbe garnishee notice was served upon it, a court in Indiana, of the county where tbe property is located, has appointed a receiver of tbe property and ordered the company to deliver tbe same to him. It is admitted that tbe court bad jurisdiction so to do. This, I claim, is, or ought to be, an all-sufficient reason for a refusal by this court either to order the company to deliver property, not Avithin its jurisdiction, or to hold tbe company responsible for not doing so. A sovereignty within whose territory any personal property is actually situate, has entire dominion over it, while it remains there, to the exclusion of all other sovereignties. Story, Conflict of Laws, secs. 423a, 550, 551.
    For the reasons above stated, and under the authorities ábove cited, I claim the garnishee ought to have been discharged, and the judgment of the courts below ought to be reversed.

      Charles B. Axlgate, for defendant in error.
    There was no case made in the record for review in the circuit court because the motion for new trial was not sufficient to present the question attempted to be presented, and hence the judgment of the common pleas in favor of Fee should stand.
    In order to review a case — as the one at bar— upon the evidence, the objection must be made to the finding of the court, that it is not supported by the evidence; that the decision of the court, as to what the facts determine, is not warranted by the evidence. The reason for a new trial must be assigned in the motion for a new trial, in order to bring the evidence in the record up for review in that regard. The objection in this case is, that the judgment is not sustained by sufficient evidence; not that the decision is not sustained. A judgment is the final adjudication of the rights of the parties to a controversy. A judgment is what the law declares shall be done; it is the award based upon the finding. It is the act of the court warranted by the law, and conclusive between the parties to the suit, because it is founded upon the decision of what the facts determine. To thus attack the judgment without objecting to the finding upon which it is based, does not appear to be such an assignment of error as will bring the evidence in the record up for review, when such motion is overruled. Westfall v. Dungan, 14 Ohio St., 276; Randall v. Turner, 17 Ohio St., 262; Everett v. Sumner, 32 Ohio St., 562; The Buckeye P. L. Co. v. Fee, 15 O. C. C., 637; 8 Circ. Dec., 727.
    It is claimed that the property which was the subject of garnishment, not being in the strict sense a credit, and the identical oil in controversy never having been seized by the officer, and never having been in the state, but always having been in the state of Indiana, renders it impossible that jurisdiction by the proceedings in attachment and garnishment can be acquired here; and hence that recovery cannot be had. That the proceedings being in rem. the jurisdiction is governed by the situs of the property. In most instances this is true; the situs of personal property is, for most purposes, the domicile of the owner, because it is deemed to be attached to his person. But, say the courts, the law for attaching property of non-residents necessarily assumes that the property has a sitios distinct from the owner’s domicile. Wherever the owner may maintain a suit to recover the property, if the grounds exist, the property may be attached as his property. And this would probably determine the sitios of the property in controversy in this case. It is conceded that when the oil of Miller, Talmage & Russell went into the possession of the Buckeye Pipe Line Company, it lost its identity; it was no longer susceptible of separation or seizure; it became and was a part of the common stock of oil of the Buckeye Pipe Line Company, Lima division.
    The Indiana oil, and Ohio oil, is conceded to be of different quality; yet this is a fiction that cuts little figure, when faced by the fact that the oil of both fields was of the same market value, which was also conceded; that it was optional with the company to deliver oil represented by its run tickets, either in Ohio or Indiana, no matter in which field produced; and that the Indiana and Ohio oil, Lima division, was taken and considered and made a common stock of oil, out of which this run ticket might be paid by delivery of the quantity of oil at any of its stations of the Lima division. So that this run ticket represented so much oil of a common stock. Miller, Talmage & Russell owned by virtue of it, so many parts of this common stock; and if any of the common stock was destroyed, they lost their portion of the common stock thus destroyed. This ownership was in the common stock, and their ownership was in the common stock; and they and other owners of the run tickets of this company owned all of the oil of this common stock. None of them owned any particular oil, ei'thdr in Indiana or Ohio; they owned it together, all of it, both in Indiana and Ohio, their interest being defined by their run tickets..
    The liability and rights of this garnishee to this attaching creditor is measured by its liability to Miller, Talmage & Russell. It claims, and has the option, upon demand, to deliver the oil represented by this' run ticket to Miller, Talmage & Russell; could it be successfully denied that Miller, Talmage & Russell would have a right to recover, against the company .in Allen county, Ohio, their interest in the common stock? We think not- After having refused altogether, could the fact that the company had an option as to where it should deliver, justify a refusal to deliver at all? and still refusing, could the court consider its option as any longer a right that it might exercise under its contract? We think not.
    Under the facts as agreed, we must conclude, that the proceedings in attachment and garnishment, clothed Fee with the rights that could have been exercised by Miller, Talmage & Russell. Aid a refusal to deliver the oil at all from this common stock, upon demand of the sheriff, under the order of the court, was a waiver of the company’s right to exercise its option as to the place of delivery; and the property being part of a common stock, the situs of which was as well in Allen connty, Ohio, as in Huntington county, Indiana, we must necessarily conclude that the action was properly brought and jurisdiction properly acquired in the common pleas court.
    It is conceded that the attachment in this state issued, and the proceedings in garnishment were had, before the appointment of the receiver for Miller, Talmage & Russell, by the circuit court of Huntington county, Indiana, and before said court took cognizance of the matter. That being the case, the jurisdiction of a court of this state, competent to deal with the controversy, having been first acquired.over the property in dispute, such jurisdiction is exclusive, and the order of the circuit court of Huntington county, Indiana, upon plaintiff in error, to turn the oil in controversy over to the receiver of that court, is no protection to plaintiff in error.
   Spear, J.

A preliminary question was made by •defendant in error in the circuit court, and is renewed here, with respect to the sufficiency of the motion for new trial, and attention is called to the form of the motion, which is: “First, that the judgment

is not sustained by sufficient evidence; and, second, it is contrary to law.” It is contended that the motion is not sufficient to bring the evidence in the record up for review because the attack is made, not upon the finding or decision of the court, but upon the judgment, and hence the evidence cannot be examined in a reviewing court for any purpose. To sustain this contention would, we think, be to carry techincality to extreme length, especially in view of the provisions of sections 4948 and 5115, Revised Statutes, requiring liberality in the construction of proceedings, and the disregard of immaterial errors g,nd defects.

The statute, sec. 5305, gives one of the grounds for new trial: “6. That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law.” This provision treats of the final action of a jury, a referee or master, and of a court. A jury’s work ends with a verdict, that of a referee or master with a report, and that of a court in a decision. We have here no verdict and no report; simply the action of the court itself. What is a decision as here expressed? Manifestly it is not simply a finding, for a finding concludes nothing. The defeated party is not hurt by a finding, nor is the controversy ended by it, if the action stops there. I-t would seem that the act called here a decision is intended to embrace the last act of the court; in other Avords the judgment. This would appear to be a rational conclusion, giving to the language of clause 6 a practical construction, without the aid of authorities. But the text books make it clear. ' It is true that in an abstract sense there is a shade of difference between the import of the word “decision” and the word “judgment.” As expressed by Abbott (Law Diet., 351), “the decision is the resolution of the principles which determine the controversy; the judgment is the formal paper applying them to the rights of the parties.” But the same author gives the general definition of decision as “the result of the deliberations of a tribunal; the judicial determination of the question or cause.” Freeman in his work on Judgments, sec. 2, says: “A judgment, except where the signification of the word has been changed by statute, is defined as being “the decision or sentence of the law pronounced by a court, or other tribunal, upon the matter contained in the record.” Wharton (Law. Diet., 235 and 437), gives “Decision, a judgment,” and “Judgment, judicial determination; decision of a court.” Definitions in other law dictionaries are of like import. See Bouvier, Rapalje, Anderson, Cochran and others. See, also, Houston v. Williams, 13 Cal., 24. It is insisted by counsel that previous decisions of this court, cited in the brief, rule this case. We think they have no application to it.

We are of opinion that the language of the motion is a substantial statement of the ground authorized by the sixth clause of sec. 5305, and should be held sufficient to all intents and purposes.

Coming now to the merits of the case, the question presented is whether or not the court of Allen county had, by virtue of the attachment proceedings, such control or jurisdiction over the property of the defendants situate in Indiana, and in the possession of the Company, as to enable it to make a valid order requiring the garnishee to produce that property in Allen county and surrender it into the custody of the court. And as to the garnishee, the question is not merely, whether the garnishee had property of the debtor in its hands, but whether it had the property under such circumstances as to make it answerable for it in Allen county.

It is to be remarked at the outset that an attachment proceeding is exclusively a statutory one, and hence we look to our law regulating attachments for the source of authority to the court and its officers. What that statute lawfully authorizes, the plaintiff in attachment is entitled to demand; what it fails to authorize he may not demand, for it is well established that equity does not and cannot aid the statute. The purpose of the statute is to reach the property of defendant in the suit, and subject it to the demand of the plaintiff. In this aspect an attachment proceeding is in the nature of a proceeding in rcm, and, as in all proceedings in rem, the thing against which the proceedings are directed must be brought within the jurisdiction of the court. 1 Green. En. sections 542-3. The proceeding reaches out for the tangible property of the defendant, to b¿ levied on directly by the officer or obtained by garnishee process served on one who may have property of defendant in his possession which the officer cannot get at, or may be owing the defendant. The term attach implies seizure. As stated by Hosmer, C. J., in Hollister v. Goodale, 8 Conn., 332; “The word attach, derived remotely from the Latin term attingo, and more immediately from the French attacher, signifies to take or touch, and was adopted as a precise expression of the thing; nam qui nomina intelligit, res etiam intelligit. The only object of attachment is to take out of the defendant’s possession, and to transfer into the custody of the law, acting through its legal officer, the goods attached, that they may, if necessary, be seized in execution, and be disposed of and delivered to the purchaser. From both these considerations it is apparent that to attach is to take actual possession of property. Hence, the legal doctrine is firmly established that to constitute an attachment of goods, the officer must have actual possession and custody.” This well states the principle at the foundation of the law of attachment, and is to be kept in mind as having an important bearing on the question here. As ancillary to it is the other method of getting at the property by process of garnishment already referred to.

Our statute provides, section 5524 and following, that an order of attachment shall require the officer to attach the goods, etc., of the defendant in his county, not exempt, etc., or so much as will satisfy the plaintiff’s claim. And that when the property attached “is personal property, and can be come at, he shall take it into his custody, and hold it subject to the order of the court.” This seizure and possession is essential to the court’s jurisdiction over the property. Orders of attachment may be issued to the sheriffs of different counties of the state. Where garnishee process issues, if the officer can not get possession of the property, he shall leave with the garnishee a copy of an order of attachment and a written notice that he appear in court and answer touching the property and credits of the defendant in his possession or under his control; and he shall stand liable to the plaintiff for all property in his hands from the time of notice. If he answer, and it be discovered that on or after the service of the order and notice he was possessed of any property of defendant, the court may order the delivery of such property into court. If the garnishee deliver the property disclosed into court, he is allowed his costs.

No question is or could be made that property without the state can, by virtue of a process of attachment, be seized by on Ohio officer, and of course such property could not be delivered into court. And it seems to us clear, that, notwithstanding the somewhat general language of the statute respecting garnishment, the property in the garnishee’s hands, for which he must answer, is intended by the statute to be limited to property within the state, for it could hardly have been the intention of the general assembly to give a plaintiff in attachment greater power over the tangible property of his debtor situate out of the state by virtue of garnishment than would be possible by the direct process of attachment. On the contrary it would seem, considering all the statutes together, that the intent is clearly manifest that property which may be sequestered in the hands of a garnishee must be within the state in order that it may be taken and sold to satisfy such judgment as may be obtained against the debtor, for it is in contemplation that the officer will seize the property in the possession of the garnishee if he is able to get at it; also that the garnishee may voluntarily surrender it to the officer. The inference seems reasonable that property to be so reached is intended to be confined to such as would be subject to seizure by attachment or execution if in the hands of the debtor himself.

The many inconveniences and hardships which would be likely to follow a contrary holding may be easily imagined. The case at bar presents a marked instance. There being no connection between the system of lines located in the producing oil fields in Indiana and the system located in Ohio, literal obedience to the order of the court would be, if not impossible, at least extremely impracticable. Beside this the court of Allen county has ordered the Company to deliver this oil to its sheriff in that county; the court of Huntington county, Indiana, has ordered it to deliver the oil to its receiver. If both orders are valid the Company must deliver the oil in one state and pay its value in the other. A stronger case for the application of the argument ab inconvenienti could hardly be conceived.

It is intimated, though not distinctly claimed, that the court, having the person of the garnishee within its jurisdiction, may, by virtue of some general power, enforce its order. Cases arise involving contract relations in which the undertaking to perform an act purely personal may be enforced, though the act relates to property which is extra-territorial, such as decrees for the specific performance of contracts to convey land situate in foreign parts. Suck execution is not only a strictly personal act, but one to be ■wholly performed where the decree commanding it is rendered. But the practice cannot prevail as to attachments for, as already stated, attachment is strictly statutory. PoAver to entertain such proceeding is given to justices of the peace upon practically the same terms as regulate its exercise by the common pleas, and, taking the statutes on the subject as a whole, it is entirely clear that it Avas never intended to clothe all courts having jurisdiction of the garnishee process Avith equity powers.

It may not be necessary to the determination of this case to decide whether or not there is power in the general assembly to authorize seizure of property outside the state through attachment and garnishee process, but the consideration that the power is at least extremely doubtful, affords another reason for giving to the statutes a construction denying the intent to so provide. It is said in 8 Am. & Eng. Ency. Lrav, 1156: “To charge a garnishee for property of defendant, it is absolutely essential that at the time of service of process, he should have it in his possession and within the state.” And at page 1255: “The domicile of the garnishee does not give the courts of the state jurisdiction over the debt he owes to a party in another state, and is not sufficient to sustain an action in rem. This is not determined by his domicile, but by the situs of the property which he holds.” Mr. Justice Story, in his Conflict of Laws, section 543, observes: “But although every nation may thus rightfully exercise jurisdiction over all persons within its domains, yet all are to understand that in regard thereto, the doctrine applies only to suits purely personal or to suits connected with property within the same sovereignty. For although a person may be within the territorial jurisdiction, yet it is by no means true, in virtue thereof, every sort of suit may there be maintainable against him. A suit cannot for instance, be maintainable against him so as to absolutely bind his property elsewhere.” And, section 550: “A nation within whose territory any personal property is actually situate, has as entire domination over it while therein, in point of sovereignty and jurisdiction, as it has over immovable property situate there. It may regulate its transfer, and subject it to process and execution, and provide for and control the uses and disposition of it, to the same extent that it may exert its authority over immovable property.” Surely this doctrine can not be maintained if the courts of a sister state may sequester and control property outside of their limits at their will. See also, Rose v. Himely, 4 Cranch, 241-277. The principle above stated seems to rest upon substantial ground. The exclusive dominion over property being in the country or state where the property is, remedies afforded to creditors by the laws of their state would have no more concern with it than if it were in a foreign land. Such other states could not reach it for the purpose of taxing it, and thus add to their revenues, or for the purpose of collecting taxes already due and not otherwise collectible. And what the state cannot do for hersélf it would seem clear she cannot do for her citizens. A debtor who by himself or his bailee, has property in another state has the right to keep it there; and such state has an interest in his exercise of the right free from interference by other sovereignties. Western R. R. Co. v. Thornton, 60 Ga., 300.

Decisions by courts of high standing in support of the proposition generally that property outside of the state is not the subject of garnishment are abundant. Some of them follow: Lawrence v. Smith, 45 N. H., 533; Young v. Rose, 11 Foster, 201; Clark v. Brewer, 6 Gray, 320; Penna. R’d Co. v. Pennock, 51 Pa. St., 244; Wheat v. Railroad Co., 4 Kan., 370; Ill. Gen. R. R. Co. v. Cobb, 48 Ill., 402; Sutherland v. Bank, 78 Ky., 250; Bates v. C. M. & St. P. R’y Co., 60 Wis., 296; Montrose P. Co. v, D. & E. Man’g Co., 40 N. W. (Iowa), 705.

But it is insisted that even though it should be conceded that the general rule is as claimed by plaintiff in error, the contract between Miller, Tallmage & Russell and the Company, called the “run ticket” takes this case out of that rule, inasmuch as the oil produced in the two fields was considered and made a common stock of oil out of which the ticket might be paid by delivery of the quantity of oil at any of the stations of the Lima division; so that the ticket represented so much of the common stock sohie of which was in Ohio, and hence demand might be satisfied by a delivery at any of the stations in Ohio. The statement of fact is correct so far as it goes, but it ignores the material qualification provided in the ticket, “that the point of delivery shall be at the option of the Company.” Now it is conceded in argument by defendant in error that “the liability and rights of this garnishee to this attaching creditor are measured by its liability to Miller, Tallmage & Russell.” That is, if under the facts as they existed at the time of the attachment and garnishee process were issued, Miller, Tallmage & Russell could have maintained in Allen county replevin against the Company for this oil, and, failing to obtain possession of the oil, would have been entitled to a recovery for its value, then Fee would have the right to reach the same result by attachment and garnishment. But could Miller, Tallmage & Russell have maintained such an action in Allen county at that time? Manifestly not. The option of selecting the point of delivery had not been exercised by the Company , as no action by the owners had called for its exercise. Conceding that upon demand being made by the owners on the Company for delivery to them of their oil, with tender of charges, a refusal had followed, they might have maintained replevin anywhere in the Lima division, still the stubborn fact remains that no such demand had been made, nor any refusal. Hence the owners had then no cause of action, and, measuring the attaching creditor’s rights by those of the owners of the oil, he had no ground of action. But we are reminded that there was a demand on the Company by the sheriff of Allen county after judgment, and a refusal. Suppose this to be so, how does it help the matter? The demand was for delivery of the oil in Allen county. It was not accompanied by any tender of charges which had accrued. It was not even made at.the time of the service of the writ but after judgment against the non-resident defendants, and, presumably, after the making of the order on the garnishee, and if so could not have been a predicate for such order. The proposition that this demand gave the attaching creditor a right of action entirely loses sight of the fact that no breach of the contract had occurred between Miller, Tallmage & Bussell and the Company, and that, for ought that appears, it was ready and willing to deliver the oil to them on its line in Indiana. At all events if they had then made demand for delivery of the oil in Allen county it might, with entire regard to all contract rights, have been refused by the Company, and they would have had, by reason of refusal of such demand, no right of action. By the same token the sheriff had no such right against the garnishee.

Our conclusion is that the court of common pleas of Allen county did not, by the attachment and garnishment proceeding, acquire jurisdiction of the property of Miller, Tallmage & Russell, in the possession of the Company in Indiana, and was without power to make the order on the garnishee to deliver the property into the custody of the court, and that its order in that behalf is without legal effect.

It follows that the judgment of both courts will be reversed, and judgment be entered for plaintiff in error.

Reversed.