author: Spear, J.

text:
    Railway Company v. Murphy, Adm’r.

      Negligence—Duly of company to employes—Contributory negligence—Questions of law and fact—Pleading-—Damages.

    In an action to recover of a railway company for the death of a workman, the evidence tended to show that the deceased was sixty-two years of age at the time of the killing, and in good health; that he left a widow, one minor child, and three other children which had. reached the age of majority; that the wife resided with one of the adult sons, at Louisville, Ky.; that the deceased had a house in Sandusky, Ohio., where he lived, and to which, when working away from Sandusky, he went on Saturday nights, going thence to his work on Monday mornings.
    The evidence further tended to show that, on the day of the accident, the deceased was at work upon the track, with eighteen or twenty others, under the charge of a boss, who directed the work to be done, and the manner of doing it. The men were engaged in bolting rails together, and the duty of the deceased required him to stoop over the rail, and fasten to it the side plates by putting them on with bolts, which were fastened with nuts on the outside. To do this he had to lean over far enough to place in proper position the plates and bolts and screw up the nuts with his fingers as far as they would go, and then tighten them with a wrench. The rails on which he was working rested on the ties outside of the fixed rail of the track, but near to it? and the most of this work was done while the workman was stooping over, facing the track, with his head in such position that he could not, without interrupting the work, see any considerable distance in either direction along the track. Deceased was so stooping when struck by the pilot beam of the engine. He was near the east end of the gang of men; the boss was at the west end, some three hundred feet distant. The track was about straight east and west. The train came from the west, and was running at from twelve to fifteen miles an hour. No signal, by bell or whistle, or other warning, of its approach was given, although it had been customary to ring the bell. More or less noise was made by the handling of the loose rails, but no unusual cause existed why deceased should not hear or see the train. The others did; apparently he did not. He was in a proper position, and properly engaged at the time.
    A rule of the company required every employe to exercise the utmost caution to avoid injury to himself or to his fellows, and especially in all movements of trains, in doing which work each employe must look after and be responsible for his own safety. The rules made it the duty of the foreman to keep a copy thereof posted conspicuously in the hand-car house. But whether or not this rule was obeyed, and, if it was, whether or not the deceased had notice of the rule, the evidence did not show.
    Defendant requested the court to charge the jury that, “Upon the undisputed facts in this case it appears that the defendant Railway Company was not guilty of actionable negligence, and that the deceased was guilty of contributory negligence which brought about his death, and the verdict of the jury should be for the defendant.” Which request the court refused to give.

      Held: 1. The right of action given by the statute, secs. 6134, 6135, is for the benefit of the widow and next of kin. The petition states a case, and the proof tended to sustain the averments of the petition. It was for the jury to say, if they believed the evidence, what the recovery should be.
    2. It is the duty of a railway company to afford reasonable protection to its employes against dangers incident to their work-{Railway v. Lavalley, 36 Ohio St. 221, approved and followed). And if, under the circumstances of this case, a rule providing for warning was necessary, and by the exercise of reasonable care on the part of the company, that necessity could have been foreseen, it was the duty of the company to prescribe such rule. Whether it ought to have so provided or not, was a question for the jury.
    3. The evidence as to contributory negligence on the part of deceased made a case which, at least, was doubtful, and about which different minds might differ as to the proper inference to be drawn. Such a question cannot properly be determined by the court as matter of law, and should be submitted to the jury-The request was properly refused.
    (Decided March 7, 1893.)
    Error to the Circuit Court of Erie county.
    . Action below was against The Take Shore & Michigan Southern Railway Company for the killing of Anthony Murphy, whose death occurred while working for the company, as a track repairer, near Sandusky, Ohio, August 3, 1888, by being struck by the pilot beam of a locomotive drawing a freight train. The negligence alleged was the failure to give warning, and for not providing a proper rule requiring -warning to those at work on the track, of the approach of trains. The suit was brought for the benefit of the widow and children.
    The answer admitted Murphy was in the company’s employ, and struck by a locomotive pulling a freight train, and so injured that he died. It denied the other allegations of the petition, and averred that the deceased caused the injury by his own want of care.' This latter averment was denied by the reply.
    At the trial the defendant asked the court to charge the jury that “upon the undisputed facts in this case it appears that the defendant Railway Company was not guilty of actionable negligence, an'd that the deceased was guilty of contributory negligence which brought about his dea-th, and the verdict of the jury should be for the defendant.” This request the court refused to give, and to this refusal the defendant excepted.
    The defendant also excepted to the following parts of the charge as given, viz.:

      1. “The defendant admits that no means were especially employed by it to give signals to those who were engaged in repairing the track of approaching trains, and whether the defendant was guilty of negligence in this respect, is a question which it is for the jury to determine. It was the duty of the defendant to employ and use ordinary care to prevent injury to its employes, but railroad companies are not insurers against accidents and injuries to their employes. As a matter of law they are only required to use ordinary care and exercise ordinary precaution and prudence, and adopt ordinary agencies and means to prevent injuries to their employes. They are not bound to employ the highest degree of care to that end.”
    2. “The question of ordinary care is to be determined by the jury from a consideration of all the evidence in the case. No general rule can be given as to what in law constitutes ordinary care; it depends upon the circumstances of each particular case. * * *
    3. “Whether before the injury complained of, the defendant in this case, had adopted such rules, and whether the deceased had knowledge of such rules, and whether he was violating the same when he received the injuries which caused his death, and whether if he was so violating them, such violation contributed to the injuries, are questions of fact to be determined by the jury from the evidence.”
    4. “If.the jury should find from the evidence that the defendant is guilty of ordinary negligence and that the same resulted in the death of Anthony Murphy, and also that the deceased was without fault in the premises, then the plaintiff is entitled to such damages as the jury may deem, from the evidence and proofs, a fair and just compensation therefor, having reference only to the pecuniary injuries resulting from such death, to the widow and next of kin, not exceeding the amount claimed in the petition.”
    A verdict for $1,600 was rendered. Motion for a new trial was overruled, and judgment entered, which was affirmed by the circuit court.

      John M. Lemmon, and O. G. Getzen-Danner, for plaintiff in error.
    I. The case made by the plaintiff below did not authorize a recovery, because it does not appear affirmatively that the next of kin sustained any pecuniary loss.
    The action is provided for by Revised Statutes 6134-5. The Ohio cases bearing on the subject are: Lyons v. Railroad Co., 7 Ohio St., 336; Muhl’s Admr. v. Railroad Co., 10 Ohio St., 272; Steel’s Admr. v. Curtis et al., 28 Ohio St., 191-2; 2 Thompson on Negligence, p. 1289, par. 90; Blake v. Railway Co., 18 Q. B. 93; Grottenkemper v. Harris, 25 Ohio St., 510.
    II. Again it does not appear that the railway company, plaintiff in error, was guilty of any actionable negligence. It is alleged that its duty was to blow the whistle to warn men, or otherwise warn them. Now the record shows that no attempt was made to prove that such was the duty of the company. The allegation was emphatically denied. Could the jury presume that such was the duty of the company? I answer, no. It was alleged also that the negligence of the foreman and of the engineer brought about this action. But they were fellow-servants, so the law says, and so the court said in its charge. Whalan v. Railroad Co., 8 Ohio St., 249; Morgan v. Hudson River Ore & Iron Co., 133 N. Y., 666; The M. R. & L. E. Ry. Co.y. Barbour, 5 Ohio St., 541; P., F. W. & C. Ry. Co. v. Devinney, 17 Ohio St., 197; Kumler, Admr.,v. Railroad Co., 33 Ohio St., 151; Railroad Co. v. Fitzpatrick, 42 Ohio St., 318; Randall v. B. & O. Ry. Co., 109, U. S. 478-9; Kennedy v. The Pa. Ry. Co., 17 Atlantic Rep. 7. (A Pennsylvania case); The Pa. Ry. Co. v. Wachter, 60 Md., 395; Rogstad v. St. P., M. & M. Ry. Co., 15 Am. & Eng. Rd. cases, 648: Railway Accident Law, 342, 350.
    What is meant by ‘‘ordinary negligence?” Ordinary is not equivalent to culpable. There are no degrees of negligence in Ohio. This was misleading, for ordinary negligence may be every-day negligence of the common kind, a lack of perfection, which is not culpable. We have some doubt as to the expression in the same sentence of the charge, “and also that the deceased was without fault in the premises.” This may possibly mean by a stretch that the deceased was not negligent, I cite to the court in conclusion: McKinney on Fellow-Servants, 308-9, last part sec. 141; lb. pp. 283-4, part of sec. 129, near last part; Gormley v. O. & M. Ry. Co. 72 Ind.,31; S. C. 5 Am. & Eng. Rd. Cases, 581-2; Love-grove v. L. B. & S. C. Ry. Co., 111 C. L., 669, Gallagher v. Piper et al, 111 C. L. 669.

      E. B. King, for defendant in error.
    I. It is urged there is no evidence of any pecuniary loss sustained by next of kin in the killing of Anthony Murphy. The fair inference of the testimony is that he lived at home, and to the extent of his ability and his wages, supported his family. But the law is certainly against the view of my learned friend, and the cases he cites are clearly in support of this judgment. Lyons v. Ry., 7 Ohio St., 337; Muhl’s Admr. v. Ry. Co., 10 Ohio St., 272; Grotenkemper v. Harris Admr., 25 Ohio St., 570; Steel's Admr. v. Kurtz et al., 28 Ohio St., 191; Russell v. Sunbury, 37 Ohio St., 372; Davis v. Guarreieri, 45 Ohio St., 470; Quin v. Moore, 15 N. Y., 432; Tilley, Admr. v. Railway Co., 24 N. Y., 471; McMahon, Admr. v. City of New York, 33 N. Y., 642; O' Marra, Admr. v. Railway Co., 38 N. Y., 445; Etherington, Admr. v. Railroad Co., 88 N. Y., 641-4; Hourghkirk v. President and C., 92 N. Y., 220; Oldfield, Admr. v. Railway Ck, 14 N. Y., 310; Strong, Admr. v. The City of Stevens Pt., 62 Wis., 255; Hoppe, Admr. v. Ry. Co., 6 Wis., 357; Castello, Admr. v. Landwehr, 28 Wis., 523; City of Chicago v. Major, 18 Ill., 349; R. R. Co. v. Bantom, 54 Pa. St., 495; C. & A. R. Co. v. Bonfield, 8 Am. and Eng. R. R. Cases, 493. See notes pages 128, 5 Am. and Eng. Ency. of Law. Ford v. Osborne, 45 Ohio St., 1, 3.
    ' II. The next claim made is that the plaintiff in error was not guilty of negligence, and this is claimed from the evidence, and also from error in the charge of the court.
    The Railway Co. having both admitted and proved that it provided no means, the only question left was whether the defendant was guilty of the want of ordinary care in so failing to make provision for the safety of its employes, so engaged; and this is what the court told the jury. And we submit that question was fairly given to them^ as the court was bound to do.
    It has been decided a great many times upon questions of negligence, where the facts are disputed, or where the facts are not disputed but the inference drawn from them might be in doubt, that the question must be submitted to the jury. The cases which counsel say have been cited in behalf of Murphy are so referred to because the court has, in those cases, recognized the principles upon which the railroad 'company here would be liable, if at all. The Railway Company v. Levalley, 36 Ohio St., 226; Railway Company v. Henderson, 37 Ohio St., 552; Dick v. The Railroad Co., 38 Ohio St., 389; Fuller v. Jewett, 80 N. Y., 46; Gottlieb v. N. Y. R. R., 100 N. Y., 462; Ellis v. N. Y. R. R., 95 N. Y., 546; Goodrich v. R. R., 116 N. Y., 404; Clark v. R. R., 36 N. Y., 135; Black v. R. R., 108 N. Y., 640; Hathaway v. R. R., 29 Fed. Rep., 489; Lake v. Milliken, 16 Am. Rep., 456; Fairbanks v. Kerr, 70 Pa. St., 86, 91; Atkinson v. The Goodrich, etc., 60 Wis., 141, 156, 157; Schroth v. Prescott, 68 Wis., 678, 681; Vinton v. Schwab, 32 Vt., 612, 614; Sloan v. Ry. Co., 62 Iowa, 728; Schmidt v. Sinnot, 103 Ill., 166, 167; Penn. Co. v. Frana, 112 Ill., 398; Corcoran v. Railway Co., 126 N. Y., 673.
   Spear, J.

I. As to the request to charge. It is urged that the instruction asked should have been given, because:

First—It does not appear affirmatively that the next of kin sustained any pecuniary loss. The tendency of the evidence is stated in the syllabus, and need not be repeated. FVom the facts thus shown, we are asked to presume that the deceased did not contribute anything to the support of his wife or children, and hence that his life was of no value to them. We think the presumption does not follow. It was his legal, as well as moral, duty, to contribute of his wages to the support of the wife and minor child, at least, and the inference, in the absence of a showing to the contrary, is that he did his duty. . But, aside from this: A right of action is given by the statute, secs. 6134, 6135. It is for' the benefit of the widow and children. The petition states, a case under the statute. The proof tended to sustain the petition. To hold as requested, on the ground urged by counsel, would be to ignore the statute.

Second—As another reason why the proposition requested should have been given to the jury it is insisted that it does not appear by the evidence that the company was guilty of actionable negligence.

If there were no evidence tending to prove actionable negligence on the part of the company, this point is well taken; if there were evidence tending to establish that fact, then it was a question for the jury whether or not the com • pany was so guilty, and the court could not, properly, determine that question for the jury in its charge.

It was averred by plaintiff that no warning, nor signal, nor notice, was given deceased of the approach of the train. No complaint was made that there was negligence on the part of the section boss in not giving deceased warning, nor on the part of the engineer of the freight train in not giving proper signals of approach, for no rules of the company required either. But the negligence charged was against the company itself for not making reasonable provision for the safety of the deceased while engaged in his work as track repairer, in that it did not require its engineers in charge of locomotives and trains to be watchful for persons at work on the track and signal them, nor did it provide any person to watch for such trains, nor in any manner protect the workmen from danger.

Under the evidence upon this issue, (which will be found summarized in the syllabus), it would seem to be apparent that there was at least a question as to the proper inference to be drawn from the facts, and that the question was one for the jury, provided any duty rested upon the company to afford means to warn men engaged, as was the deceased at the time, of the approach of trains. Upon this we suppose the law not to be in doubt in this state. In Railway Co. v. Lavalley, 36 Ohio St. 221, a workman was injured while repairing a freight car standing on the track, by the striking of the car on which he was working by another car moving on the same track. He was working at the time under the direction of a foreman, and the injury was occasioned by failure to give him warning. The court laid down the general rule that “it is the duty of a railroad company to' make such regulations or provisions for the safety of its employes as will afford them reasonable protection against the dangers incident to the performance of their respective duties.” The .court further held that the duty to give warning rested on the foreman, who was the superior of Eavalley, and the company was liable for his neglect. It did not appear whether any special rule of the company required watchfulness on the part of the foreman or not. The principle of this case is re-asserted in Railway Co. v. Henderson, 37 Ohio St. 552, and in Dick v. Railroad Co., 38 Ohio St. 389.

That the above holding fixed negligence on the. foreman can make no difference in the application of the principle. If the case be one where the injury results from the want of reasonable provision by the company for the safety of its employes it is unimportant whether a rule of the company has been violated by its foreman, or the company has failed to make a proper rule on the subject, provided that it appears from the nature of the business in which the workman is engaged, the company, in the exercise of reasonable care, should have foreseen the necessity of such precautions. Negligence is always an inference from facts put in evidence, as contrasted with a fact which is the subject of direct proof. The proof disclosed facts calling for logical, as distinct from legal, deduction. Where that is the case the question is for the jury, and not for the court. And, whether or not, under the circumstances of the case at bar, the company should have anticipated the necessity, and exercised proper precaution, by prescribing a. rule requiring warning, was clearly a question for the jury. Of like character was the question of contributory negligence. As matter of law the court could not say that it would not be the duty of the company to provide any means to warn men in that position of approaching danger, nor that, as matter of law, the deceased was negligent because he did not interrupt his work sufficiently to protect himself from approaching trains.

2. As to the parts of the charge excepted to. Objection is taken to the court saying to the jury that defendant admits that no means were specially employed to give signals,, etc., and submitting to the jury whether in that respect the company was negligent, because the record fails to show any such admission. It is true that the record does not show a direct admission by .the company, but its wútnesses —the engineer and conductor—testified that there was no rule on the subject so far as they knew, to wffiich there was no contradiction, and the statement, as it appears in the charge, could not have prejudiced the company’s case.

Fault is found, also, with what the court said as to ordinary care, and especially with the statement that “ no general rule can be given as to what in law constitutes ordinary care.” The court added this: “A general definition of ordinary care is such care and vigilance as a person of ordinary prudence and foresight would usually exercise under the same or similar circumstances.” Taken as a whole, we see no valid objection to this part of the charge. Had the company desired a more definite instruction, it was its privilege to ask it.

The question involved in the third paragraph excepted to is elsewhere disposed of.

Objection is taken to the court’s use of the term “ordinal negligence.” Probably the term is not in common use in our practice, but it is not unknown to the books. It was, we presume, intended by the court to import the absence of ordinary care. The attempt to distinguish different degrees of negligence has been much criticized, but we fail to find that the term here given is condemned. It is observed by Mr. Justice Bradley, in Railroad v. Lockwood, 17 Wall. 357, that “if ordinary care is due, such as a prudent man would exercise in his own affairs, failure to bestow that amount of care is called ordinary negligence.” See, also, Wharton on Negligence, sections 44, 45, 46; Sherman & Redfield, section 49, and Deering, section 11. If, in the opinion of counsel, the term was likely to be misunderstood by the jury, it was the duty of counsel to call the court’s attention directly tp it.

Objection is also taken to the charge as to the rule of damages. To the extent which the charge goes it is in accord with the statute, and is correct. Had more specific instructions been thought necessary they should have been requested.

The sufficiency of the evidence has been pássed upon by the court below. This court is not required to consider that. We cannot say, from the record, that the trial court, erred, and the judgment will be

Affirmed..


source: Caselaw Access Project

author: Burkft, J.

license: Public Domain

text:
    State, ex rel. Richards, Att’y Gen. v. The Manufacturers’ Mutual Fire Association.

      Mutual Fire Insurance Associations— Who may become members— Who may be directors of—Manner in which may insure property —Sections 3686, 3687, 3688, 3689 and 3690, Revised Statutes, construed.

    1. Assocations organized under sections 3686, 3687, 3688, 3689 and 3690, Revised Statutes, are not authorized to receive into their membership, persons who are non-residents of this state.
    2. Persons who are not members of such association, can not lawfully fill the office of director thereof.
    3. Such association is not authorized to do insurance business on what is known as the “joint stock” plan, nor on the “contingent liability” plan, as defined in - section 3634 of the statutes; but it is confined to insurance business in which its members insure each other against loss by fire and other casualties, and agree to-be assessed specifically, for payment of losses, and for incidental purposes.

      Quo Warranto.

    This is a proceeding seeking to oust the said Mutual Fire Association, from exercising the franchise of a corporation under the laws of Ohio.
    The petition avers that .the said defendant is a corporation, duly incorporated under the laws of the state of Ohio, and that said defendant ought not to be permitted, longer to exercise the franchise of a corporation, for the following causes, to-wit:
    1. Said association has written, and has now in force, policies of insurance on property located in thirty-six states and territories outside of Ohio, issued to non-residents of this state, contrary to the laws of Ohio.
    2. While incorporated as an assessment fire association, said defendant has transacted regular fire insurance business on the cash, or joint stock plan.
    3. Said association, contrary to law, has operated as a regular mutual fire insurance company, doing business on the contingent liability plan.
    4. The majority of the board of directors, are not members of said association.
    5. Said association is hopelessly insolvent; its total cash assets, consisting of cash deposited in the Akron Savings Bank, to the amount of $72.42; while its total liabilities amount to $27,936.17.
    Prayer for ouster apd other proper relief.
    The defendent, by its answer, admits that it is incorporated under the laws of Ohio; that it has issued policies, or certificates of membership, to such of its members as were non-residents of the state of Ohio, on their application therefor, and on property situated outside of the state of Ohio; and avers that it has a legal right so to do; that such has been the custom and method of doing business, by mutual fire associations incorporated under the laws of this state, ever since the passage of the act of March 30, 1877, entitled, “an act to incorporate associations for the mutual protection of its members against loss by fire.”

      Said defendant further avers, that such has been the custom and method of doing business by such associations, to the knowledge of, and with the consent of, the Commissioner of Insurance of the state of Ohio, up to, and until about the 15th of September, 1891; at which date defendant received instructions from said insurance commissioner, together with the written opinion of the attorney-general, to the effect, that such mutual fire associations could not lawfully include in their membership non-residents of Ohio, and could not lawfully issue to such non-residents, policies, or certificates of membership, on their property located outside of this state.
    The defendant further avers that upon receipt of said instructions and opinion, it immediately ceased to issue policies or certificates to members non-resident of this state, insuring their property outside of Ohio, and recalled all certificates issued to such non-residents, and did all in its power to bring itself within said instructions and opinion, and to abide thereby.
    Defendant denies that it has transacted a regular fire insurance business on the cash or joint stock plan, and avers, that by its by-laws and contracts with its members, each and all members agree to pay a first assessment in cash, at the time the indemnity takes effect, and to pay such further sums thereafter, as may from time to time be assessed against such members, for the payment of all losses, and for incidental purposes, which shall accrue during the time such persons are members.
    Defendant’ denies that it has operated as a regular mutual fire insurance company, doing business on the contingent liability plan, and avers that all members, in their certificates of membership, agree to pay such sums from time to time, as may be assessed against them by the association, to pay all losses occuring to co-members, during the time that such persons are members.
    Defendant denies its insolvency, and generally denies the averments of the petition, not in its answer admitted to be true, or qualified.

      The reply of plaintiff denies the averments of the answer, and avers that policies were issued by defendant, in which it was expressly stipulated, that there should be no assessments after the payment of the first assessment in cash; that such policies were issued on the joint stock, or cash plan, and were made non-assessable; that in many policies, the liability of the member was limited to five times the amount of the first, or cash assessment; thus constituting such policies, the. same as the policies of a mutual insurance company, doing business on the contingent liability plan.
    It appears from the admissions in the answer, and from the evidence, that the facts charged in the petition are substantially true as therein stated.

      J. K. Richards, Attorney-General, for plaintiff.

      U. S. Marvin, Tinker & Waters, and Tibbals & Franks, for defendant.
   Burkft, J.

A construction was placed by this court upon some of the provisions of sections 3686 to 3690, both inclusive, Revised Statutes, in the case of The State ex rel. Attorney-General v. Monitor Fire Association, 42 Ohio St. 555; but the question as to whether or not such an association is authorized by law to receive into its membership non-residents of Ohio, was not decided in that case; and we are now requested, by both parties in this case, to pass upon and settle that question.

Section 3686 provides that, “Any number of persons of lawful age, residents of this state, not less then ten in number, may associate themselves together for the purpose of insuring each other against loss by fire and lightning, cyclones, tornadoes, or wind storms; and may make, assess and collect, upon and from each other, such sums of money, from time to time, as may be necessary to pay losses which occur by fire and lightning, cyclones, tornadoes, or wind storms, to any member of such association, and the assessment and collection of such sums of money shall be regulated by the constitution and by-laws of the association. ”

Section 3687 provides that, “The object of the association, shall only be to enable its members to insure each other against loss by fire * * * and other casualties, and to enforce any contract which may be by them entered into, by which those entering therein shall agree to be assessed specifically for incidental purposes and for the payment of losses which occur to its members.”

Section 3689 provides that the persons named in the certificate shall elect directors ■ and other officers to serve for one year|; and such association, so organized, shall be a body corporate for all the purposes aforesaid; but in no instance shall the-power to insure against losses by fire, be exercised to others than members of the association.

By section 3690 it is provided that all persons who sign the constitution of the association shall be considered and held to be members thereof, and shall be held in law to comply with all the. provisions and requirements of the association.

It will thus be seen that the association is required, by the statute, to begin its existence with members who are residents of Ohio; and the object of the association is to insure its members only, against loss by fire, etc. To become a member the person must sign his name to the constitution. The officers are elected by the members, and the whole scheme contemplated by the statute seems to be an association of rather a local nature, one in which the members are likely to be more or less acquainted with the standing 'of each other, and not scattered all over the country or the world. The success and solvency of such an association depends in a large measure upon the standing and responsibility of its members, the promptness with which they pay their assessments, and the confidence which each has that all the others will in the future continue to comply with the requirements of the association.

This can best be done by limiting the membership to a small territory, and we think, and so hold, that it ¿safe the intention of the legislature, by the statute in queBBKn. to limit the membership of the association to our own state,, and not to permit it to accept members who are non-residents of the state, and not to insure property for such nonresidents situate outside of this state.

Sections 3686 to 3690, both inclusive, form a part of Title two, of part second, of Revised Statutes; and section 3248 provides, that in all “ corporations formed under this title, * * * * all directors and all' the executive officers must be holders of stock in an amount to be fixed by the by-laws, and trustees of corporations must be members thereof.”

So that it was the evident intention-of the General Assembly that in associations of the character in question, the directors should be members of the association, and that persons who are not members of the association, are not legally qualified to fill the office of director in such association.

An association organized under said sections 3686 to 3690, is not authorized to transact insurance buisness upon the “joint stock” plan, nor upon the “ contingent liability ” plan provided for in section 3634, Revised Statutes. It is expressly provided at the close of said section 3634, that, “nothing in this section shall apply to associations for the mutual protection of their members against loss by fire heretofore or hereafter organized as provided in section 3686 of' theRevisedStatutes.” And section3687confines the business of an association for the mutual protection of its members, to insurance in which the agreement among the members is, “ to be assessed specifically for incidental purposes, and for the payment of losses which occur to its members.” The only assessments which such an association has the lawful power to make, are assessments for specific incidental purposes, and for specific losses sustained by its members.- The idea upon which such associations are founded is, that whenever a loss occurs to a member, the amount thereof being first ascertained and adjusted, a specific assessment is made upon all the members to pay such loss. But in practice, the method pursued is not to-make and collect an assessment for each loss as it occurs, but to make and collect assessments At stated periods for all losses which have occured up

' In such an association the liability of the members is limited only by the amounts of the losses. And an attempt to limit the annual liability, either to the amount of the cash premium paid when the policy is issued, or to the amount of three or five annual cash premiums, is not sanctioned by law, but is expressly prohibited by said sections 3634 and 3687, of the Revised Statutes.

The evidence shows that the defendant has violated the statute in this regard.

It is therefore clear that the defendant has been exercising powers and franchises not authorized by statute.

But defendant pleads that what it has thus done, has been the custom of such associations for years past, with the knowledge and consent of Commissioner of Insurance of the state of Ohio. The evidence fails to show such knowledge and consent on part of the Commissioner of Insurance, and even if it did, his knowledge and consent would not make the acts lawful. Nor would the fact that all such associations have had a custom among themselves to do their business in an unlawful manner, add any legal sanction to such illegal methods.

We therefore conclude that the course of business as transacted by said defendant, is not only illegal, but inexcusable, and that the prayer of the petition should be granted.

fudgmejit of ouster.


author: Williams, J.

text:
    Bank v. Brewing Company.

      Banks—Relation between them and general depositors—Legal effect of check before acceptance—When payment may be refiised —Set-off—Cross demands.

    1. Money received by a bank on general deposit becomes the property of the bank, and its relation to the depositor is that of debtor, and not of bailee or trustee of the money.
    2. The check of such depositor for part of the sum due him, is not an assignment pro tanto, without acceptance by the bank.

      3. Where, at the time such check is drawn, or is presented, the drawer is indebted to the bank on past due paper, it may treat the cross demands existing between them as compensated so far as they equal each other, and credit the demands accordingly ; and, if there is not then sufficient balance standing to-the credit of the drawer, payment of the check may be refused for want of funds.
    (Decided April 7,1893.)
    Error, to the Circuit Court of Union county.
    The case is stated in the opinion.

      Porter & Porter, for plaintiff in error.
    I. Schlegel was at the time, wholly insolvent, and the bank, if it had paid out this money on this check, would have lost its entire indebtedness against Schlegel. An equity, therefore, existed in favor of the bank. Smith v. Felton, 43 N. Y., (4 Hand) 419.
    II. There being no equities in favor of the Brewing Company, and no privity of contract between said company and the bank, it is only an acceptance of the check by the bank, or promise to accept, that would render the draweeliable to the holder. Story’s Bills of Exchange (4th Ed.) p.. 263 (§238), note two; Chapman v. White, 6 N. Y., page 412; Swan’s Treatise (11th Ed.), 715.
    III. The relation of banker and depositor is that of debtor and creditor. If an action had been brought by the depositor (Schlegel) against the bank for the amount of the deposit, a set-off by the bank of its claim, we think, could have been set up; and if so, the respective demands were “ compensated so far as they equal each other,” under section 5077 of the code. Etna Nat. Bank v. Fourth Nat. Bank,. 46 N. Y., 82; Chapman v. White, 6 N. Y., 412; Jordan v. Bank, 74 N. Y., 467, 472; Smiths. Felton, 43 N. Y., (4 Hand) 419.
    IV. The bank also had a general lien upon the deposit of Schlegel, and might justly apply the same in payment of its debt due from Schlegel. Falkland v. St. Nicholas Bank, 84 N. Y., 149; Jordan v. Bank, 74 N. Y., 467-472; Gordan v. Kearney, 17 Ohio, 572; Chaffee v. Bank, 40 Ohio St., 1-6; Bates Dig., vol. 3, page 70, par. 8; Bank v. Bank, 17 Pet., 174; Third Parson on Contracts, 262, 264 (note etc.); Second Addison on Contracts, p. 513 (sec. 831).

      D. W. Ayers, for defendant in error.
    Does the' unauthorized act of the Bank of Marj’-sville, plaintiff in error, in taking the money of Schlegel, admitted to be merely deposited with said bank, and applying the sum so deposited on said Schlegel’s overdue note, without his knowledge or consent, excuse the bank from the payment of the check made on the fund so deposited to the Windisch-Muhlhauser Brewing Company?
    It is well settled that the depositor does not part with his ownership and control of the money he deposits in or with the bank, any more than the owner of flock or herd imparts his ownership and control to the person with whom he intrusts their care and keeping. If he did part with either the ownership or control 'of his funds, the conveniences and necessities of the commercial world would be wholly at the will and pleasure of the banker. The bank may be said to be merely the business man’s money drawer, and when the commercial world understands it is opened and closed by any authority other than the business man himself, his relations in the business world must be suspended, and his business affairs intrusted to the polite banker, or he must cease the use of a bank and employ other custodians who recognize the distinction between custodian of and owner and controller of any particular thing.
    This action is not brought by Schlegel, the depositor, against the Bank of Marysville to recover the money deposited by him with the bank. If it was, we can readily see how the bank by counter claim might defend as against Schlegel with their unpaid and overdue note. Instead thereof, this is an action brought by the drawee of Schlegel’s check, on the Bank of Marysville. 17 Ohio St., 85; 3 Kent Com., 104.
    It was the agreement b3r and between the Bank of Marysville and Schlegel when he made, and they received, his deposit, that they would keep that amount of money all the time and pay the same as he might direct, and though no words were spoken at the time, if he merely gave and they received his money on deposit, there was by reason of business and commercial necessities that understanding which assimilated itself into a parol agreement that they would, instead of appropriating this sum to their own use, pay it to whomsoever he might appropriate by his check or otherwise. If the check is larger in amount than the deposit, then pro icmto.

    In short, the fund or deposit can only be drawn on by the depositor. When a banker opens an account with his customer and receives his deposit, he is not regarded as a simple bailee, but the relation of debtor and creditor is immediately created, and the implied agreement on the part of the banker, that he will hold the fund, left in his care, subject to the order of the depositor, at such times and for such sums, to the extent of the deposit, as he may direct to be paid.
    This is the general rule obligatory upon all who sustain the character and pursue the business of bankers. So inflexible is it that if the depository neglects or refuses to honor the check of the depositor, when in funds, he not only loses the public confidence, but is liable at once to his creditor for any injury he may have sustained. Byles on Bills, 13.
    The third claim of the bank, is “that it had a. general lien upon the deposit of Schlegel, and might justly apply the same in payment of its debt due from Schlegel.”
    It is sufficient to say that the statutes of Ohio provide how liens shall be obtained; and that a banker’s lien on deposit is not provided for by law. 17 Ohio St., 83; Story on Prom. Notes, sec. 492; Edwards on Bills, 397, 398; 5 Ohio St., 18; 1 Disney, 247; 3 Kent. Com., 104; Byles on Bills, 114; 25 Ill., 35; 68 Ill., 398; 80 Ill., 212; 26 Ia., 315.
   Williams, J.

The Windisch-Muhlhauser Brewing Company brought its action against the Bank of Marysville, in the court of common pleas of Union county, upon a check •drawn on the bank by George Schlegel, October 16, 1888, for the sum of $368.20, payable to the order of the plaintiff. The petition alleges, in substance, that on the 19th day of October, 1888, the check, duly endorsed, was presented at the bank for payment, at which time Schlegel had sufficient funds on deposit in the bank to pay it, but payment was refused, because, before the presentation of the check, the whole of the amount standing to the credit of Schlegel on his deposit account, had been applied by the bank, toward the payment of a note held by it, on which there was then due from Schlegel to the bank, a sum greater than the amount of his deposit; which application, it is averred, was made without the plaintiff’s knowledge or consent. The petition avers that Schlegel was insolvent when the check was presented for payment, and when it was drawn; and it also contains an allegation of the amount due on the check, for which, with interest, the plaintiff asks judgment. A general demurrer to the petition was overruled, and the defendant answered, alleging, that at the time the check was drawn, Schlegel was indebted to the bank in the sum of $1,050.00, on a promissory note given to it by him, for money advanced, and other indebtedness contracted in the course of their business; and, that on the 17th day of October, 1888, before the presentation of the check, and without any knowledge of its existence, the bank credited the note, which was then long past due, with the amount then owing to Schlegel on his deposit account, which was $378.41, and therefore, when the check was presented, there were no funds with which to pay it. The answer also alleges, that the deposit was not made for any particular purpose, nor under any special agreement or direction, but was a general deposit merely; and, that the defendant had no means of securing or satisfying Schlegel’s indebtedness to it, except by applying thereon the balance due on the deposit, as was done.

A general demurrer to the answer was sustained, and judgment rendered for the plaintiff, which was affirmed by the circuit court. The bank here contends that both judgments should be reversed, because, it is claimed, the bank had a lien on Schlegel’s deposit as a security for his indebtedness, which gave it the right to apply the former to the payment of the latter; or, if it had not such a lien, it was entitled to set off Schlegel’s indebtedness to it, against the amount due him on his deposit account. The position taken by counsel for the defendant in error is, that Schlegel did not part with the ownership and control of his money by depositiirg it in the bank, and his check constituted an assignment and appropriation of that amount of the specific fund on which it was drawn, to the plaintiff, after which, the bank could not, without the plaintiff’s consent, apply the fund in payment of Schlegel’s past due note, or set off the one against the other. That view of the law appears to have been adopted by the courts below, and no other is advanced here, in support of the judgments they rendered.

There are cases in which it is held, -that a bank check for a part of the sum standing to credit of the drawer, is an equitable assignment pro tanto-, and expressions of that purport may be found in opinions of judges, in cases where the question was not involved. Counsel for defendant in error relies chiefly on Stewart v. Smith, 17 Ohio St., 82-85, where it is said: “Such a check is an appropriation of a specific sum, in the hands of the drawee, to the absolute use and control of the holder;” and, it is argued, that being such an appropriation, the title to the fund at once vests in the payee of the check, and cannot be defeated or affected by any subsequent act of the drawee. The question in that case, was whether the drawer of the check was discharged by reason of delay in its presentation for payment; and the sentence above quoted from the opinion of the learned judge, occurs in the discussion of the difference, in legal effect, of delay in presenting bills of exchange, and bank checks,, for acceptance and payment. In the recent case of Covert v. Rhodes, 48 Ohio St. 66, it was held, after full consideration, that such a check,' before acceptance, does not constitute an assignment, so as to vest the title to the fund or credit against which it was drawn, or any part of it, in the payee or holder. Some of the authorities which maintain that doctrine, are collected in that case, to which many-more might be added. The rule results from the legal relation of the bank to its general depositors. The former is not a bailee, or trustee in any sense, of the money of the latter. The bank does not contract to keep on hand the particular money deposited, or pay the depositor’s checks out of it, nor is it expected to do so. The moneys of such depositors are commingled with other moneys of the bank, the amount deposited carried to the customer’s credit in account with the bank, and payments made on his checks are charged to his account. Unless there is some agreement to the contrary, deposits received by the bank become its property; they belong to it, and can be loaned or otherwise disposed of by it, as any other money belonging to the bank. If the money be stolen, or destroyed, the loss must be borne by the bank, though it be free from negligence or fault. It is accountable as a debtor; and the relation between it and the general depositor, is essentially that of debtor and creditor. In legal effect, the deposit is a loan to the bank. Hence, a check of such a customer, is not 'drawn upon a specific fund, but is an order drawn by a creditor on his debtor, requesting him to pay part of what is due the creditor, to the payee or holder. It, no doubt, evidences an intention of the drawer to have the sum specified paid to the holder, but does not transfer the title to any fund, or part of it, or the bank’s liability to the drawer. If it effected such a transfer, then, upon the failure of the bank before the check could be presented, in the exercise of due diligence, the loss would fall on the holder, as between him and the drawer; and, whether presented or not, the former could pursue the deposit in the hands of an assignee, or other representative of the bank. But as the check does hot operate as a transfer of the title to any fund, neither of these consequences result.

The liability of the. bank to Schlegel being that of a debtor only, it does not seem of much practical importance in the disposition of the case, whether the effect of the check was to assign that much of his claim to the plaintiff, or not. The case made by the pleadings is this: The bank owed Schlegel on his deposit ’account, when he gave the Brewing Company his check, more than the amount for which it was drawn; at the same time, Schlegel owed the bank on his note, a sum greater than the bank’s indebtedness to him; these mutual debts existed between the parties in the same relation, were both past due, and each was founded on contract. Our statute secures the right of set-off to parties sustaining the relation of debtor and creditor, between whom there are such cross demands, and those existing between banks and their 'customers are not excepted from its operation; so that, if Schlegel, when the check was drawn, had brought an action on his claim against the bank, the latter could have set off against it the debt which Schlegel owed the bank. And it is clear the right of set-off was not defeated or impaired by the check, even if it be treated as an assignment. The statute plainly protects the right of set-off, when it existed between the parties, notwithstanding the assignment, by either, of his demand. Its language is, “when cross demands have existed between persons, under such circumstances that if one had brought an action against the other a counter claim’ or set-off could have been set up, neither can be deprived of the benefit thereof by assignment by the other, but the two demands must be deemed compensated, so far as they equal each other.” Revised Statutes, section 5077. By force of the statute, the indebtedness of the bank to Schlegel, was paid by a corresponding amount of the indebtedness of Schlegel-to the bank; and crediting Schlegel’s note with the amount due on his deposit account, as was done by the bank, was but giving effect to the provisions of the statute.

It is said to be a well settled rule of the law merchant, that a bank has a general lien on all the funds of a depositor in its possession, for any balance due on general account, or other indebtedness contracted in the course of their dealings, and may appropriate the funds, to the payment of such indebtedness. The right to make such appropriation, it is held, grows out of the relation of the parties as debtor and creditor, and rests upon the principle, that “as the depositor is indebted to the bank upon a demand which is due, the funds in its possession may properly and justly be applied in payment of such debt, and it has therefore a right to retain such funds until payment is actually made.” Falkland v. Bank, 84 N. Y. 145. Though this right is called a lien, strictly it is not, when applied to a general deposit; for, a person cannot have a lien upon his own property, but only on that of another; and, as we have seen, the funds on general deposit in a bank, are the property of the bank. Properly speaking, the right, in such case, is that of set-off, arising from the existence of mutual demands. The practical effect, however, is the same. The cross demands are satisfied so far as they are equal, leaving whatever balance that may be due on either, as the true amount of the indebtedness from the one party to the other. Aside, then, from-any question as to whether the plaintiff could maintain its action on the check without acceptance of it by the bank, the petition fails to make a case against the defendant. True, the petition does not allege that the deposit made by Schlegel in the defendant bank, was a general one; but it is presumed to be such, unless it otherwise appear; and there is nothing in the petition, from which it may be inferred that the deposit was special, or made under any particular agreement or direction. It is also true, the petition avers that when the plaintiff presented the check for payment, the drawer had sufficient funds in the bank for its payment; but, it is alleged that the bank held the past due paper of Schlegel, for an amount exceeding his deposit, and, had applied the whole amount due him in payment of the paper, before the presentation of the check. It is not important that the application was made without the plaintiff’s consent; such consent was not necessary to give validity to the application, and if it were, the want of it would not entitle the plaintiff to recover, for the right to have the claims set off would still exist.

The judgments of the circuit court and court of common pleas are reversed, and cause remanded, with instructions to sicstain the demurrer to the petition, and for further proceedings.


author: Minshall, J.

text:
    Emery et al. v. Darling.

      Specific performance—When contract to make a will, may be enforced—Part performance.

    One sister covenanted in writing with another, that if the latter would reside with her as long as she desired, she would “ give and bequeath” to her all the property, real and personal, of which she should die seized. The sister to whom the promise was made, accepted it, and fully performed the contract on her part; but her sister died without making a will, or in any way conveying the property to her. Held: That at the death of the sister making the promise the other became the equitable owner of the property of which her sister died seized; and, in specific performance of the contract, is entitled to a conveyance of the legal title from the heirs of her deceased sister.
    (Decided March 7, 1893.)
    Error to the Circuit Court of Morrow county.
    The suit below was an action brought in the court of common pleas by one of the heirs against the others, of A. Cordelia Powell, deceased, to compel partition of certain real estate of which she died seized. One of them, Mary E. Darling, a sister of the deceased, filed a cross-petition, claiming that under a written contract between her and her sister, and which had been fully performed on her part, the property in equity belonged to her, and that, in specific performance of the contract, the other heirs should be required to convey to her the legal title that descended to them by the death of her sister. Issues of fact having been made upon the averments of the cross-petition by a repljq the court found upon the trial in favor of Mary E. Darling, and rendered judgment accordingly; from which the others appealed to the circuit court, where, upon the trial, the court made a finding of the facts, and rendered j udgment thereon in favor of Mary E. Darling, decreeing a conveyance of the property to her.

      The finding is as follows:
    “First—That A. Cordelia Powell died intestate on the '31st day. of December, A. D. 1885, leaving the following named heirs and legal representatives, viz: The said plaintiff, Homer P. Emery, her nephew; and the said defendants, Mary E. Darling, her sister; Rebecca Tupper, her sister; 'William Powell, her nephew; Alice Powell and Eunice Emery, her neices.
    “ Second—That said A. Cordelia Powell died seized of the legal title to the lands and tenements in said petition described.
    “ Third—That said A. Cordelia Powell executed and delivered to the said Mary E. Darling the paper writing offered in evidence, which reads as follows, to-wit.: ‘I, A. Cordelia Powell, do covenant and agree that in and for the consideration of my sister, Mary E. Powell Darling, staying with me as long as I require, I do give and bequeath to said Mary E. Powell Darling, all the real estate and personal property of which I may die seized or possessed.
    “A. C. Powerr.
    “October 12, 1882.’ ,
    “ Fourth—That no possession was ever taken of said premises in said petition described by said Mary E. Darling (except that she stayed with said A. Cordelia Powell thereon in pursuance with the terms of said paper writing) under said paper writing, during the lifetime of said A. Cordelia Powell, and that said A. Cordelia Powell remained in the possession thereof until her death.
    “Fifth—-That said Mary E. Darling fully performed said agreement on her part and stayed with said A. Cordelia Powell from the 12th day of October, A. D. 1882, in said premises until the death of the said A.' Cordelia Powell, and remained thereon and held posession thereof ever since, and Ns now living thereon.”
    The only question is, whether upon the facts the court erred in decreeing a conveyance by the other heirs to Mary E. Darling.

      Thos. E. Duncan, for plaintiff in error.
    It will be noticed that the writing contains the apt and effective words of a will and not of a contract. No present, conveyance, no right or interest conveyed to take effect while she lives. No release in any sense of her absolute-dominion over the property. We contend that lands cannot be disposed of in this way, and that it was error in the-court, under the pleadings, to admit the paper writing for that purpose. The lands were not a gift either inter vivos- or catcsa mortis, for want of delivery. Phipps v. Elope et al., 16 Ohio St., 586.
    Property*- owned by a person during his life can be disposed of at his death, in one of two ways. First—By last, will and testament, duly executed. Second—By descent^ 1 Ohio St., 283-; 7 Ohio St., 444.
    The strongest point in support of the defendant’s claim,, is, that A. Cordelia Powell in the paper writing expressed an intention to give her the property at her death. Intention, however, though clearly expressed, uncoupled with, actual disposition, cannot be interposed to interrupt or control the regular course of descent and distribution. Crane v. Doty, 1 Ohio St., 285. Directions by an owner in respect to a disposition of his property, to take effect after his death, and different from such as the law would prescribe in case of intestacy, are of no validity, unless made through the 'medium of a last will and testament. So it will be seen that the laws of descent will govern unless it is made clearly to appear that the property was otherwise disposed of under the forms of law.
    Nor can this so-called control be sustained upon the ground of part performance, for the reason that acts done in the performance of a contract, which would entitle a party to a specific performance from the other side, must be such acts as puts the party performing in such situation that the non-performance of the agreement would operate as a fraud upon his rights. The situation of the parties-must be-such, that the enforcement of the contract alone can furnish the adequate relief. The payment of money, or rendering of service is not such part performance as. avoids the operation of the statute of frauds, because a recovery for its value can be had which has always been regarded as full compensation. The specific performance of •a contract will be decreed in a propel case, where there has been a delivery of possession in performance of it, but the possession relied upon must be clearly referable to the contract and be delivered and held in pursuance of it. Armstrong v. Rathenhorns, 11 Ohio, 272; Willard’s Equity, page 586.
    Nor can the paper writing be regarded as a contract to make a will. The defendant in error makes no such claim. She makes no claim of breach of contract in not making a will “devising and bequeathing” to her the property, as such claim would be at law and against the administrator, and the measure of recovery in such case would be the value of the services at the time they were rendered. 3 Weekly Raw Bulletin, 994; Needles v. Needles, 7 Ohio St., 443.

      James Olds, and George W. Fluckey, for defendant in ■error. ,
    Could not A. Cordelia Powell contract to pay her sister for the service she performed in specific property? She ■certainly could. Is it not natural that she should agree to do what was done in this case, give all her property to her ■sister, not only for the services she might perform, but also for her companionship, and what her sister might lose in giving up her plans for the future, in order to care for her in her then condition, needing. some one to watch over and care for her. Shall it be said that one can agree to pay another for doing some particular thing with a specific article, and when the service is performed, the one rendering the •service be deprived of that for which they labored because the other party has died without having delivered the possession, although the services were fully performed at her ■death, and the title of the property in her at her death? Certainly no court will entertain such a proposition as that. And we claim that it is not necessary in order to give effect to the contract made by the parties, 'that they should clothe the same in legal and technical language, if they use such words as will enable the • court to gather their intention. Sutton v. Hayden, 62 Mo., 101; Wright as Trustee, etc. v. Tinsley et al., 30 Mo., 389; Gupton v. Gupton, 47 Mo., 37; Brinker v. Brinker, 7 Barr, 55.
    Counsel for plaintiffs rely on the case of Phipps v. Hope et al., 16 Ohio St., 586, as settling the main question in this-case. That case was hot one where there was an agreement to pay in specific property, as in this case.
    Counsel for plaintiffs say that the contract cannot be enforced for the reason that no possession was taken of the property under the contract. We submit that possession is-not necessary, as the contract was in writing. But all the possession was taken that could have been under the contract at the death of A. Cordelia Powell.
    We claim that A. Cordelia Powell having made the contract with her sister, and having had it reduced to writing, and having signed and delivered the written agreement to her sister, Mary E. Darling, several years before her death, and the sister having performed all the conditions of said contract to be performed bn her part, that she is entitled to-have the same specifically enforced, and in support of our position cite the court to the case of Bolman v. Overall, 6 Am. Probate Reports, 59; Schouler on Wills, sections 452, 453, and 454; 3 Parsons on Contracts, 406, star paging.
    It is insisted by counsel for plaintiffs that the defendant* Mary E. Darling, must fail, lor the reason that no possession was taken during the life-time of A. Cordelia Powell. We insist, in addition to what we have heretofore said, that the rule claimed by counsel does' not apply in this case as the contract was in writing; and we think that the authorities go farther and would sustain our claim even if no writing had been executed, where the consideration was services that could not be measured by a pecuniary standard, as it was in the case at bar. Rhodes v. Rhodes, 3 Sandford’s Chancery Reports, 279; Grupton et ux. v. Gupton et al.., 47 Mo., 37; Sharkey v. McDermott, 60 Am. Reports, 270.
   Minshall, J.

The ground on which objection is made to the relief granted the defendant in error is, that the paper on which she founds her claim is in the nature of a testamentary disposition, and void for want of - conformity to the statute of wills. It is true that the party who signed it merely covenants that if her sister should stay with her as long as she requires, she would “give and bequeath” to her all the real and personal property of which she should die seized. But it is of the essence of a will that its dispositions should be in the nature of gifts. Schouler on Wills §451. When it is made to carry out or perform some obligation, made and entered into by the testator, it is not essentially a will, but in the nature of a contract, and its validity as an instru.ment will not in such case depend upon its conformity to the requirements of a will, but to those things which the law deems essential to the making of a valid contract. A promise to make a will in favor of a party, supported by a sufficient consideration and in due form of law, is a valid contract, and, if not made, may be specifically enforced against the heirs of the promisor. There seems to be little difference in the cases on this point. It is said by the author just cited, in his work on Wills, §454, “The principle, which in the present day appears to be asserted, is, that where one contracts upon a valuable consideration to execute a will after a certain tenor, the agreement is binding upon his death, and may be specifically enforced against his representatives and his estate.” Parsons, in his work on Contracts, 3 vol. 406, says “It is obvious that an agreement to make a certain disposition of property by last will, is one which, strictly speaking, is net capable of a specific execution,—not in the party’s life-time, because any testamentary instrument is by its nature revocable; and after his death it is no longer possible to make his last will. Yet it has been held to be within the jurisdiction of equity to do what is equivalent to a specific performance of such an agreement, by requiring those upon whom the legal title has descended to convey the property in accordance with its terms.” See, also, Waterman on Specific Performance, §41. Johnson v. Hubbell, 10 N. J. Eq. 332; Brinkersr. Brinker, 7 Barr, 53; Bolman v. Overall, 80 Ala. 451; Sutton v. Hayden, 62 Mo. 101; Parsell v. Stryker, 41 N. Y. 480. It is said by the author of a note to Johnson v. Hubbell, 66 Am. Dec. 784, that, “It is not only in harmony with sound principle that a person may make a valid agreement binding himself to dispose of his property, in a particular way, by last will and testament, but it is supported by an almost unbroken current of authorities, both English and American.”

As a contract affecting real estate, the agreement of Miss Powell, being signed by her, the party to be charged, conformed to the statute of frauds; and having been accepted and fully performed by her sister, the legal title descended to the heirs of Miss Powell in trust for her sister, and she is entitled to have it conveyed to her in performance of the contract made by the deceased.

The caséis not like that of Phipps v. Hope, 16 Ohio St. 586. In that case the indorsments on the envelope containing the mortgage directed to be given Phipps, was held not good ás a testamentary gift, because not executed in conformity to the statute of wills, nor as. a gift inter vivos or causa mortis, because there was no delivery. But it was not held, that the promise of Joseph Hope, that if the plaintiff “would work for him, and take an interest in his affairs, as if they were his own, he would finally make or leave him well off, and would do more for him than he would for any one else,»’ was invalid and not capable of being enforced against his-estate. The ground of the decision is, that no breach of the contract is alleged. The court says, “For aught that appears in the petition, the intestate may have left the plaintiff well off, and may have done better for him than he did for any one else.” If a breach had been alleged, there is no question but that, from the. reasoning of the court, the demurrer to the petition would have been directed to be overruled.

It is suggested that the proper remedy would have been an action for the value of the services. No reason can be given for this that would not apply to any contract for a conveyance of land. Besides the authorities are uniform in saying that specific performance is the proper remedy. The consideration that moved Miss Powell to make the promise was a desire for the society of her sister. The value of the society of one sister to another is incapable of measurement in money. Rhodes v. Rhodes, 3 Sandf. Chan. 279. Hence the only appropriate remedy is the one that has been awarded.

Judgment affirmed.


author: Dickman, J.

text:
    Holmes v. Gardner.

      Bona fide purchaser for a vahcable consideration without notice, from a fraudulent mortgagee.

    1. Where a debtor executes a mortgage on real estate with intent to defraud his creditors, a bona fide purchaser for a valuable consideration without notice, from the fraudulent mortgagee, of a part of the pretended mortgage debt, will be protected against the claims of the general creditors of such mortgagor.
    2. Where such pretended mortgage debt is evidenced by a single promissory note for a gross and entire sum, such purchaser of a fractional part of the debt will be protected, on a pro rata basis, in his equitable interest so acquired.
    (Decided March 7, 1893.)
    Error to the Circuit Court of Brown county.
    On the 1st day of January, 1884, the plaintiff, C. C. Holmes, filed his petition in the Court of Common Pleas of Brown county, against John W. Gardner, Nancy Gardner, W. A. Coburn, John Kirkpatrick, E. M. Gardner, Charles Gardner, W. W. Gilliland, John Goslett, Jr., Henry Bennington, The Farmer’s National Bank of Ripley, Ohio, and William H. Sly, as assignee of John W. Gardner, defendants, seeking to set aside a mortgage deed as fraudulent, made by John W. Gardner to E. M. Gardner on the 29th •day of January, 1878, and recorded on the 31st day of January, 1878, to secure a certain promissory note then executed and delivered by the said John W. Gardner to E. M. Gardner or order for the sum of $6,000, two years after the date thereof, with eight per cent, interest thereon from date, and to adjust liens upon the mortgaged premises.
    The petition as amended, avers that on the 23rd day of August, 1881, the plaintiff having then for the first time, discovered the fraud entering into said mortgage, filed his petition in the court of common pleas against said defendants to set said mortgage aside for the same reasons set forth in the petition in this action. And such proceedings were had in said action that on the — day of September, 1882, on appeal to the district court the same was dismissed without prejudice to the right of the plaintiff to bring another action, and thereupon on the 24th day of December, 1882, William H. Sly as assignee of the said John W. Gardner, an insolvent debtor, filed his petition in the probate court of Brown county, Ohio, for the sale of said mortgaged premises and for the adjustment of the liens thereon, making all the defendants herein parties thereto, in which proceedings the said E. M. Gardner and W. W. Gilliland answered, setting up the lien of said mortgage as they do in this action; and the said William H. Sly as such assignee answered to the answers and cross-petitions upon being indemnified by the plaintiff, setting up among other things, that the said mortgage was fraudulent and void for the same reasons set forth in the petitio'n mentioned in the record in this action; and upon said action being appealed from the probate court to the court of common pleas, that court found that said mortgage was fraudulent and void as to $3,000, thereof, but valid as to the $2,000.00 thereof assigned to Gilliland, to which finding and judgnent of the court of common pleas the defendants, W. W. Gilliland and E. M. Gardner prosecuted a petition in error to the district court to reverse said finding and judgment, and on the 20th day of September, 1883, the district court reversed said judgment and decree on the ground that the court of common pleas had no jurisdiction sitting as a court of probate upon appeal to hear and determine the question in dispute,* and thereupon reversed said judgment and dismissed said action, and the'plaintiff thereupon on the 1st day of January, 1884, filed his petition as shown by the record in this case to set said mortgage aside for reasons therein stated. And said action having come on for hearing in the court of common pleas, the same finding and decree was made by that court as before, and thereupon William H. Sly having died in February, 1886, and W. W. Gilliland having been appointed trustee of John W. Gardner, said action was again appealed to the circuit court, and that court on the 26th day of November, 1887, heard the case and made the following findings of fact and conclusions of law:

      a First—The court do find from the evidence that the defendant W. W. Gilliland, for a full and valuable consideration, became the purchaser of two thousand dollars of the amount secured by said promissory note and mortgage, before the same became due, without any notice or knowledge of fraud, and that he is now owner of the same as he has averred and set forth in his answer, and that the same is a valid and subsisting lien on the real estate described in said answer and cross-petition to the extent of said Gilliland’s interest therein. And the court finds the amount of said lien, principal and interest, to the 25th day of November, 1887, to be thirty-five hundred and seventy dollars ($3,570), which said W. W. Gilliland is entitled to recover, with eight per cent, interest on $2,000.00 thereof, from said 25th day of November, 1877. Second—That so much of said mortgage dated January 29th, 1878, as is set forth and claimed in his answer and cross-petition by the defendant E. M. Gardner, namely three thousand dollars, is without consideration, and was so made with intent to hinder and defraud and delay the creditors of him, the said John W. Gardner, and is therefore fraudulent and void as against the creditors of said John W. Gardner, and that so much of said mortgage as is now held and claimed by said defendant E. M. Gardner, should be set aside and held for naught, and that the said answer and cross-petition of E. M. Gardner should be dismissed. Third—That the plaintiff discovered said fraud and the fraudulent character of said mortgage in the spring or summer of 1879, and more than four years next before the beginning of this action. Fourth
      —That on the 23rd day of August, A. D. 1881, said plaintiff brought an action in the common pleas court of Brown county, Ohio, to adjust liens on the real estate described in the petition in this action and in said mortgage of January 29, 1878, and to sell the same to pay certain judgments which said Holmes then held against the defendant John W. Gardner, on the same notes now set forth in the amendment to his petition in this action, to which suit W. W. Gilliland and E. M. Gardner were made defendants and required to disclose' their liens on .said premises. Said Gilliland and Gardner filed their separate answers find cross-petitions in said action on the 14th day of February, A. D. 1882, and therein set forth the same claim under said mortgage of January 29, 1878, as now claimed by them in this action. On the 15th day of March, A. D. 1882, the plaintiff C. C. Holmes, filed answers to said cross-petitions of Gilliland and Gardner denying the validity of the said mortgage of January 29, 1878, on the ground of fraud, substantially as he does in this action. Said action was dismissed by the district court of Brown county, Ohio, September 14, 1882, without prejudice to another action. On the 17th day of March, 1882, said John W. Gardner made an assignment under the state insolvent laws, to one W. H. Sly, and said Sly on the 14th day of December, A. D. 1882, filed a petition in the probate court of Brown county, Ohio, to sell the real estate of his said assignor by said mortgage of January 29, 1878, to pay the debts, to which petition said Gilliland and Gardner were again made defendants, and required to.set up their.liens, if any, on said real estate, prior to the 14th day of January, A. D. 1882. Said W. W. Gilliland and E. M. Gardner again filed their separate answers and cross-petitions in said probate court, and therein set forth and claimed the same interest under said mortgage of January 29, 1878, as they do in this action.
    “The present plaintiff, C. C. Holmes, appeared in the probate court, and asked to be made a defendant to said petition of said assignee; but his application and motion was denied by the court, and said Holmes then indemnified said assignee, and required him to contest the validity of said mortgage of January 29, 1878, for fraud. And said assignee then, prior to said 14th day of December, 1882, filed his answer to said cross-petition of W. W. Gilliland and E. M. Gardner in said action, attacking said mortgage for fraud, substantially as the plaintiff has done in this action. Said petition of W. H. Sly, assignee, was dismissed by the district court of Brown county, Ohio, so far as the issues made as to said question of fraud were concerned, on the 20th day of September, 1883. And said action as to said issues failed on said day otherwise than upon its merits. Thereafter, on the first day of January, 1884, the plaintiff brought the present action.. And the court does further find that the real estate described in plaintiff’s petition has been sold, and that the proceeds thereof are now in the hands of said trustee of said John W. Gardner. From which findings and conclusions of facts the court does now adjudge, order and decree, that out of the proceeds of the sale of the real estate described in the said mortgage of January 29, 1878, the defendant W. W. Gilliland, as the trustee of John W. Gardner, first pay said sum of $3,570.00, so as aforesaid found to be due and owing to him on said mortgage, together with eight per cent, interest on $2,000 thereof, and the residue of said proceeds that he administer according to law. It is further adjudged and ordered by the court that the plaintiff recover from the defendant E. M. Gardner the costs made on his petition, excepting the costs made on the cross-petition of Gilliland, and taxed to $175.42, and that the defendant W. W. Gilliland recover from the plaintiff the costs by him expended in this action, taxed to $14.70. To all of which findings, conclusions, orders, judgments and decrees the plaintiff, by his counsel, and the defendant E. M. Gardner, by his counsel, except. And it is further ordered that all other cross-petitions in this action, and all the parties hereto, be and they are hereby dismissed. It is further ordered that a special mandate issue to the court of common pleas to carry the above and foregoing judgments into effect.”
    To reverse the judgment of the circuit court a petition in error is filed in this court.

      C. A. White, for plaintiff in error.
    My proposition is, that the mortgage is an entirety. That it is a mere chose in action. That the assignee takes it subject to every defense and every infirmity that might be urged against the maker or the original payee. That the assignee stands in the shoes of the original payee. That the principles of law applicable to commercial paper do not apply to mortgages. This mortgage was given to secure a single promissory note for the gross and entire sum of $5,000. In this case it appears that both the note and mortgage were obtained by fraud and it falls within the rule laid down b3r this court in the case of Baily v. Smith, 14 Ohio St., 396; Ranneyv. Hardy, 43 Ohio St., 157; Osburn v. McClelland, 43 Ohio St., 284.
    From the findings of the court in this action it is clear that the consideration for the note and mortgage was illegal, and consequently that the mortgage was void. McQuade v. Rosecrans, 36 Ohio St., 442; Widow 'v. Webb, 20 Ohio St., 431; Raguet v. Roll, 7 Ohio, 77; Kahn v. Walton, 46 Ohio St, 195.

      G. Bambach & Son, for W. W. Gilliland.
    Plaintiff’s attorney seems to urge two objections against the judgment in favor of Gilliland upon this ground, namely: that the mortgage is an entirety, thereby meaning, we presume, that part of it could not be assigned; and that a mortgage in this state is not commercial paper. The principal case relied on is Baily v. Smith, 14 Ohio St., 396. In reference to the first objection, there would be some room for argument, if this were an action, at law upon the note, prior to the code; but no rule exists so far as we know ‘which precludes the assignee of part of the security of the mortgage to enforce his claims against the mortgage in equit3r. Stanbery v. Smythe, 13 Ohio St., 501. Plaintiffs further maintain “that the principles of law applicable to commercial paper do not apply to mortgages.” Phis, for the sake of argument, may be conceded, though there is high authority against the doctrine. But that is not the question in this record. The question here is, whether a general creditor of the mortgagor, having no specific lien ■on the realty, can assail the lein acquired in good faith, for value and without notice, by assignment from a mortgagee, as against whom part of the mortgage is invalid for fraud. In other words, whether the title of a bona fide purchaser for value of an interest in realty can thus be assailed by •one having only a general claim against the vendor. The proposition argued by the attorheys for plaintiff in error is secondary to this question, and has misled them in the consideration of the real and principal question before us.
    But it is incorrect to say that a mortgage does no more than to create a mere lien upon the property. It operates as a conveyance of the estate by way of pledge or security of the debt, and gives to the mortgagee the benefit of all the doctrines applicable to bona fide purchasers. Harkrader v. Leiby, 4 Ohio St., 611; Raguet v. Roll, 7 Ohio, 2 pt. 70; McArthur v. Franklin, 16 Ohio St., 193; Hill v. West, 8 Ohio 224. The assignments invested the several assignees after E. M. Gardner, to and including the defendant Gilliland, with all the rights secured by the mortgage, as effectually, we claim, as if conveyed by deed. Paine v. French, 4 Ohio, 318; Baily v. Smith, 14 Ohio St., 406; Webb v. Roff, 9 Ohio St., 430; Pierce v. Faunce, 47 Me., 513; Hill v. West, 8 Ohio 224; McGuffy v. Finley, 20 Ohio, 474; Grant v. Ludlow, 8 Ohio St., 38; Bank v. Teeters, 31 Ohio St., 36; Porter v. Barkley, 18 Ohio St., 546; Rooker v. Rooker, 29 Ohio St., 5.
    If then, the assignment of the mortgage had the same effect in equity as a conveyance from the mortgagee, which we think is fairly established by the authorities cited above, it would be a dangerous innovation in our law to subject a bona fide holder of an interest in land under a fraudulent mortgage to the assaults of the unsecured creditors of the mortgagor. Norton v. Beaver, 5 Ohio, 181; Barr v. Hatch, 3 Ohio 538; Manly v. Hunt, 1 Ohio, 257; Minns v. Morse, 15 Ohio, 568.
    Although the authority of Baily v. Smith does not reach this case, as we think, we desire nevertheless to call the attention of the court to the case of Carpenter v. Longan,, 16 Wall. 271; Webb v. Haselton, 4 Neb., 308-19 Am. Rep. 638; Burhaus v. Hutchison, 25 Kan. 625-37 Am. Rep. 274, Lewis v. Kirk, 28 Kan., 497-42 Am. Rep., 173.
   Dickman, J.

The record discloses that on the 29th day of January, 1878, the defendant John W. Gardner, executed a mortgage on the premises described in the original petition to his brother and co-defendant E. M. Gardner, ostensibly for the purpose of ■ securing the paj^ment of a certain promissory note of that date, by him signed, for five thous- and dollars, made payable to E. M. Gardner or order in two years after date, with interest at eight per cent, per annum. On the 1st day of September, 1878, an interest to the amount of two thousand dollars in the above named note and mortgage was assigned and transferred by E. M. Gardner to Bennington, Coburn & Co.; by them to W. T. Galbreath; by him to James Gilliland, and by his executors, to the defendant W. W. Gilliland.

The question in the case before us, which we deem most material to consider, grows out of the following findings of' fact from the evidence, to-wit-: That W. W. Gilliland, for a full and valuable consideration, became the purchaser of two thousand dollars of the amount secured by the promissory note and mortgage, before the same became due, without any notice or knowledge of fraud; that he is the owner-of the same as he has averred; and that the same is a valid and subsisting lien on the real estate described; that so much of the mortgage dated January 29, 1878, as is claimed by E. M. Gardner, namely, three thousand dollars, is without consideration, and was made by John W. Gardner with intent to hinder, delay and defraud his creditors, and is. therefore fraudulent and void as against such creditors, and that so much pf the mortgage as is held and claimed by E. M. Gardner, should be set aside and held for naught.

It is assigned for error, that notwithstanding the design of the mortgage was to defraud creditors, the court below held, that Gilliland, to the extent of the interest assigned to him in the mortgage, acquired a valid lien on the land ■as against the general creditors of the mortgagor.

As a general rule, it is now well established, that if a fraudulent grantee in a deed to defraud creditors, conveys the estate to a bona fide purchaser, for a valuable consideration, without notice, the conveyance is good as against the general creditors of the first grantor, and in favor of the purchaser the first grant will be purged of the fraud. Such a purchaser, it is said, is a favorite in the eyes of a court of ■equity, and will be protected whether he purchases from a fraudulent grantor or a fraudulent grantee. The interests ■of such purchaser are deemed superior to those of creditors, for the reason, that the former has not, like a mere general ■creditor, trusted “ to the personal responsibility of the debtor, but has paid the consideration upon the faith of the ■debtor’s actual title to the specific property transferred.” Seymour v. Wilson, 19 N. Y. 420. On the part of the pur•chaser there has been merely a substitution of property, and the value given or paid by him has taken the place of the property which he received. In regard to a case where a ■bona fide purchaser, without notice, for a valuable consideration, from a grantee, to whom property has been conveyed to defraud creditors of the grantor, Mr. Justice Storj^ said: “Will not a court of equity decree, that the fraudulent grantee shall account to the judgment creditor for the amount of the proceeds of the sale, considering them as a mere substitution for the original fund ? It appears to me, that such a course is within the established doctrine and practice of the court.” Bean v. Smith, 2 Mason, 274. See Farmers' Bank v. Teeters, 31 Ohio St., 37.

The same principles and reasons that govern in the com veyance of the property by a fraudulent grantee, may properly be extended to an assignment bjr a fraudulent mortgagee of a part of the mortgage-debt. In Harkrader v. Leiby, 4 Ohio St., 611, this court has said: “ It is incorrect to say, that a mortgage does no more than to create a mere lien upon the property. It operates as a conveyance of the estate, by way of pledge or security for the debt, and gives to the mortgagee the benefit of all the doctrines applicable to bona fide purchasers.” “A mortgagee is deemed a purchaser sub modo\ he is so regarded every day under the statute respecting fraudulent sales, and protected within the saving clause in favor of subsequent purchasers.” Per Nelson, C. J., Frisbee v. Thayer, 25 Wend. 399. “When I speak of a purchaser for a valuable consideration,” says. Eord Hardwick, “ I include a mortgagee, for he is a purchaser pro tanto.” Willoughby v. Willoughby, 1 T. R. 763. The interest acquired by the mortgagee in the land may not be large, but it may also far exceed in amount the value of the land, and the equity of redemption may therefore be worthless. A resort to the procedure of foreclosure in equity, may clothe the mortgagee with the absolute ownership. “A mortgagee,” says Jones in his treatise on mortgages, “is to the extent of his claim a purchaser of the land, and is entitled to the same protection from all secret equities and trusts of which he had no notice as any other bona fide purchaser. He is not affected by his mortgagor’s, fraud in acquiring his title.” § 710 and cases cited.

While the mortgage itself is certainly a lien for a debt, it is something more. In United States v. Fisher, 2 Cranch, 358, the court declared, “ that a mortgage is a conveyance of property, and passes it conditionally to the mortgagee.” And in Conrad v. Atlantic Insurance Co., 1 Pet. 441, a mortgage is declared to be “ a transfer of the property itself, as. security for the debt.” In Webb’s administrator v. Roff, 9 Ohio St., 430, it is held that a mortgage is a conveyance within the statute of frauds and perjuries.

Such being the nature of a mortgage security, and such the relation of the mortgagee to the estate conveyed, if E. M. Gardner, the mortgagee, had conveyed by deed to W. W. Gilliland his interest in the real estate mortgaged, it. might not have been contended that a general creditor of J. W. Gardner, could,' through a court of equity, avoid the conveyance to Gilliland, even though the mortgage was fraudulent as between 'the parties thereto. In Bailey v. Smith, 14 Ohio St., 406, at the very threshold of the discussion of the question, whether the mortgagor might insist upon the fraud as a defense to an action brought to foreclose the mortgage, Ranney, J., says: “The question is in no way affected by the further question, whether a mortgagee acquires such an interest in the land as to enable his grantee, being also assignee of the note, by deed duly executed, to claim the benefit of the rule which protects bona fide purchasers of real estate.”

Gilliland, according to the finding of facts, became the purchaser of two thousand dollars of the amount secured by the promissory note and mortgage. By what form of assignment he obtained such an interest, it does not appear. If to the extent of the amount paid by him, an assignment by deed could have put him in the place of the mortgagee, and ipso facto operated as a transfer of the premises covered by the mortgage, yet, such mode of transfer was not necessary to vest in him the rights of the mortgagee. The mere assignment of a note in writing and delivery of the mortgage deed would be adequate to transfer all the rights secured by the mortgage. Paine v. French, 4 Ohio, 318. A bank by becoming the owner of the notes, may acquire the equity in the mortgage though delivered without endorsement or assignment. Allen v. First National Bank of Xenia, 23 Ohio St, 97; and see Executors of Swartz v. Leist, 13 Ohio St., 419. And if the note or other debt secured by the mortgage be transferred without even a delivery of the mortgage, the mortgage in equity goes with the debt, unless there be an agreement to the contrary.

As the assignee of a note and mortgage may thus acquire all the right secured by the mortgage with power of foreclosure— the consideration paid being a fund substituted for the benefit of the mortgagor’s creditors — no good reason is apparent, why such assignee, if he purchased bona fide, for valuable consideration and without notice, from a fraudulent mortgagee in a deed to defraud creditors, should not be protected against the general creditors of the mortgagor, in like manner as the rights of a bona fide purchaser of property from a fraudulent grantee, without notice, who has paid a valuable consideration to such grantee, are protected against the general creditors of the first grantor, though such grantor may have been actuated by a fraudulent intention.

No authorities have been brought to our notice by counsel, in which the exact question before us has been considered, but the analogies are such, that we think the same rule should be applied to the purchaser of property from a fraudulent grantee, and the assignee from a fraudulent mortgagee of an interest in the mortgage and note or debt thereby secured. A doctrine different from that we have announced, might result in opening a wide door instead of closing the avenue to deception and fraud. The mortgagor, having colluded with his mortgagee to dispose of the security to an innocent purchaser for value who had no knowledge of the mortgagor’s creditors or their claims, might then direct his creditors to pursue the assignee of his fraudulent mortgagee, and make their claims out of the very property for which he and the confederate mortgagee had received the purchase money.

The case of Baily v. Smith, supra, which has given rise to much discussion and some contrariety of opinion, has been referred to in argument as establishing that, the transfer of a negotiable promissory note, secured by mortage on real estate, to a bona fide indorsee, does not entitle the holder to foreclose the mortgage, when it appears that both note and mortgage were obtained by fraud. In that case the mortgagor was not a party to the fraud, but was inveigled into giving his note for a pretended patent right for an utterly worthless machine, and after paying more than half of the note was deluded into executing a mortgage to secure the balance.

Under such a state of facts, the mortgagor was protected, not in taking advantage of his own wrong, but against the fraud that had been practiced upon him by others. The decision gives no encouragement' to the doctrine, that the mortgagor may conspire with the mortgagee to hinder, delay and defraud his creditors, and then avoid a foreclosure as against a bona fide purchaser, for valuable consideration and without notice, from the fraudulent mortgagee, of the whole or a portion of the amount secured by the mortgage.

It is urged, however, that the mortgage in controversy is an entirety, and was given to secure a single promissory note for the gross and entire sum of five thousand dollars.. But the equitable rights of the purchaser from the mortgagee were entitled to the protection of the court, whether he purchased all or only a fractional part of the mortgage debt. There was no legal impediment on the face of the instruments, or otherwise known to the purchaser, that prevented the mortgagee from disposing of the entire or a portion of the amount secured by the promissory note and mortgage, and the assignee of a part of the mortgage debt became entitled pro rata, as when fractional parts of the same judgment are successively assigned to different persons.. Patrick's Appeal, 105 Pa. St. 356; Moore's Appeal, 92. Pa. St. 309; Thayer's Appeal, (Pa.) 9 Atl. Rep. 498.

Upon an examination of the record we have discovered no error, and the judgment of the circuit court should be affirmed.

Judgment accordingly.