author: Davis, J.

text:
    The Village of Mineral City v. Gilbow et al.

      Joint action against municipal corporation — And street abutting property owner — For damages to plaintiff — From falling over retaining wall — Misjoinder of parties defendant, zahén — Duty of property owner as to barrier — Protecting highway travelers —Duty of municipality as to protection of highway — Duty of highway traveler — Lazv of contributory negligence.

    1. In an action jointly against a municipal corporation and the owner of a lot abutting upon a street, to recover damages for injuries resulting to the plaintiff from falling over a retaining wall, where the allegation, against the lot-owner is . that he wrongfully and negligently maintained upon his premises a dangerous pit, which encroached upon a sidewalk, without any barrier or other protection to warn persons using the sidewalk or to prevent them from falling into such pit, and where the allegation against the municipality is that it wrongfully permitted said sidewalk to be in a dangerous condition without any such barrier, and that at the time of plaintiff’s injury it negligently allowed an electric light near the place of the accident to be unlighted, there is a misjoinder of parties defendant.
    2. In determining whether it is necessary, in a particular case, that a barrier should be erected in order to make the highway safe for travelers thereon, the .true test is not the distance from the highway of the dangerous object or place, whether it be much or little; but whether a traveler in passing along the highway and exercising ordinary care, would be subjected to such imminent danger that it would require a barrier to make the highway safe.
    3. When it appears in such case that the street itself, including the sidewalk, is not defective and is safe for travelers thereon, and that the pit or excavation complained of does not substantially adjoin the street, and is six feet away from the street line and upon the grounds of an abutting owner, no action will lie at common law against either the owner of the land or the municipality, by a person who has strayed from the street and fallen into the excavation, especially when such conditions have existed for such a long period of time as to show no probability of accident therefrom.

      4. Where one knowingly or carelessly departs from a known safe way and goes heedlessly across the street and beyond its limits and upon the land of an abutting owner, and is there injured by falling into an excavation, he is guilty of contributory negligence and cannot recover.
    (No. 11381
    Decided December 21, 1909.)
    Error to the Circuit Court of Tuscarawas county.
    .The defendant in error, Martha A. Gilbow, instituted this action against Charles E. Holden and the plaintiff in error, The Incorporated Village of Mineral City, to recover damages alleged to have accrued to her by reason of negligence by the defendants in permitting a pit, alleged to be six or seven feet in depth, along the sidewalk on High street in said village, to go without barriers, lights or warnings, whereby the plaintiff, on a dark evening, when an arc light maintained by the village was not lighted, fell into the pit and was permanently injured. The village demurred to the amended petition on the ground of misjoinder of parties defendant; and both defendants demurred on the ground that the facts stated did not constitute a cause of action against the defendant demurring. The court of common pleas overruled the demurrers; and the defendants filed separate answers and made separate defenses on the trial. There was a verdict and judgment against the defendants jointly. In the circuit court the judgment was reversed as to Holden bn the ground that the same was “contrary to law” and “contrary to all the evidence” as to him; likewise on the ground of error in refusing to charge as requested, by Holden and of error in the charge as given, to the prejudice of Holden; but the circuit court finding that the amount of the verdict and judgment was excessive, required a remittitur of part thereof, and thereupon with consent of the plaintiff affirmed the judgment for the balance as against the village. In this pro■ceeding the village seeks to reverse the judgment against it, and, if that cannot be done, to reverse the judgment of reversal as to Holden. • The plaintiff below, defendant in error here, files a cross-petition asking for a reversal of the judgment by the circuit court in favor of Holden.

      Mr. J. G. Patrick and Mr. P. S. Olmstead, for plaintiff in error.
    It is our contention that the amended petition in this case does not state any joint cause of action; that the facts complained of are each the independent acts of the defendants. French, Admr., v. Construction Co., 76 Ohio St., 509; Shamokin Bank v. Street, 16 Ohio St., 1; Morris v. Woodburn, 57 Ohio St., 330; Bartegs v. O’Neils, 13 Ohio St., 72; Mansfield v. Bristor, 76 Ohio St., 271: Seelen et al. v. Ryan & Co., 2 C. S. C. 158; Clark v. Fry. 8 Ohio St., 359; Dutton v. Lansdowne, 198 Pa. St., 563, 48 Atl. Rep., 494.
    This wall and pit were located on Mr. Holden’s private property; it was not in the street, nor was it along the edge of any traveled walk.
    There is a limit to the obligation. A town will not be liable to a traveler who strayed from the highway at a place where there were no barriers. 5 Thompson on Negligence, Sections 6010 and 6111.

      But where the defect is so far from the highway that it only can be reached by one straying from the highway, no barrier need be erected. 9 Am. & Eng. Ency. Law (1 ed.), 380; Kelley v. Columbus, 41 Ohio St., 263; Village v. Kallagher, 52 Ohio St., 183.
    It is not the duty of the village to provide against every probable accident and injury. Dayton v. Glaser, 76 Ohio St., 471.
    The true test is whether there is such a risk of a traveler using the street in the ordinary way, in passing along the street being thrown or falling into the dangerous place, that a railing is requisite to make .the place safe. 5 Thompson on Negligence, Sections 6056, 6057, 6058; Puffer v. Orange, 122 Mass., 389, 23 Am. Rep., 368; Murphy v. Gloucester, 105 Mass., 470; Daily v. Worcester, 131 Mass., 452; Barnes v. Chicopee, 138 Mass., 67, 23 Am. Rep., 259; Sykes v. Pawlet, 43 Vt., 446; Hannibal v. Campbell, 86 Fed., Rep., 297; Sparhawk v. Salem, 79 Am. Dec., 700; Bennett v. Railroad Co., 102 U. S. 577.
    It will probably be claimed, that since the jury found against the defendants below on the matter-of contributory negligence, that this finding is final and conclusive. But our contention is, that this inference of negligence appears from the well established, admitted or undisputed facts in this case, and that, therefore, it becomes a question of law upon these facts. Railroad Co. v. Skiles, 64 Ohio St., 458; McCarty v. Railroad Co., 11 O. C. D., 229; Railroad Co. v. Crawford, 24 Ohio St., 631; Pennsylvania Co. v. Rathgeb, 32 Ohio St., 66; Village of Leipsic v. Gerdeman, 68 Ohio St., 1; Railway Co. v. Elliott, 28 Ohio St., 340; Pennsylvania Co. v. Alburn, 13 C. D., 130; Railroad Co. v. Thompson, 19 Ill., 586; Railroad Co. v. Ritchie, 102 Pa. St., 425; Sutton v. Railroad Co., 66 N. Y., 243.
    We admit the rule, that the owner of the property is not liable to a person who comes upon his premises without invitation, expressed or implied, and is injured from the unsafe and dangerous condition of the premises.
    Here we have a state of things altogether different. Mrs. Gilbow did not intend to commit a trespass, she did not know that she was not in the street; she was lost. While we think she should have known it, yet if the court finds against the plaintiff in error upon that proposition, then she was not knowingly on Holden premises, and the rule does not apply. Morris v. Woodburn, 57 Ohio St., 330.
    We are unable to perceive any difference between the case at bar and the above case. Phifer v. Cox, 21 Ohio St., 248; 24 Am. & Eng. Ency. Law, 35.
    If a city has been compelled to pay a judgment, recovered by a traveler caused by a defect in the street, and by the negligence of a third person, it may maintain an action against such person for reimbursement. Thompson on Negligence, Section 6359; Brooklyn v. Railroad Co., 47 N. Y., 475; Westfield v. Mayo, 122 Mass., 100; Brookville v. Arthurs, 130 Pa. St., 501; Milford v. Holbrook, 85 Am. Dec., 735; Norwich v. Breed, 30 Conn., 535.

      We contend, that where the property owner constructs a pitfall along the margin of the street or sidewalk, so a traveler thereon might slip and fall into the same, and he fails to protect it by fences or barriers, he is primarily liable, even though the village might also be liable. They stand upon . the same footing. 24 Am. & Eng. Ency. Law, 113; 2 Shearman & Redfield, 362.

      Messrs. He alea & Healea and Messrs. Graham & Stafford, for defendant in. error, Holden.
    The owner of the land is not liable, for injuries resulting from the unsafe or dangerous condition of his premises, to persons who go upon them, without invitation express or implied. Kelley v. Columbus, 41 Ohio St., 263; 1 Thompson on Negligence, Sections 945, 946, 1225, 1228; Shearman & Redfield on Negligence (5 ed.), Sections 243, 703; Beck v. Carter, 68 N. Y., 283, 23 Am. Rep., 175; 24 Am. & Eng. Ency. Law, 94; 9 Am. & Eng. Ency. Law, 380, 381, 382, 383; Sparhawk v. Salem, 79 Am. Dec., 702; Schimberg v. Cutler, 74 C. C. A., 33.
    No allegation of invitation of any character by Holden to Mrs. Gilbow to go upon his premises appears in either of her petitions; nor has any claim been made of liability by reason of such invitation. Mr.. Holden owed her no particular duty to keep the street safe or to erect such barriers as would prevent her from leaving the same, or to furnish lights by which she could safely travel such streets. That was the duty of the village.

      Mrs. Gilbow was guilty of such contributory negligence as under the. undisputed facts, as shown by the record, precludes her right of recovery in this action. Schaefler v. Sandusky, 33 Ohio St., 246; Conneaut v. Naef, 54 Ohio St., 529; Dayton v. Glaser, 76 Ohio St., 471; Norwalk v. Tuttle, 73 Ohio St., 246; Dayton v. Taylor, 62 Ohio St., 11.
    We contend that the question of the right of a municipality to recover over, or whether it is primarily or secondarily liable or not, is not in any way involved in this controversy; but as counsel argue it and say that Holden was primarily liable and the village secondarily liable, we beg to say that under the facts and circumstances of this case the rule stated is not correct. The case is clearly distinguishable from Morris v. Woodburn, 57 Ohio St., 330. The village, if liable at all in this case, is primarily liable. Wilhelm v. Defiance, 58 Ohio St., 63; Chicago v. Robbins, 2 Black, 418; 4 Wall, 657; 1 Shearman & Redfield (5 ed.), 384.
    We contend that knowledge is not an essential element of the act of trespass; that when Mrs. Gilbow left the street and entered upon Holden’s premises, without invitation express or implied, whether knowingly or not, she was a trespasser.

      Messrs. Richards & McCullough and Mr. /.' F. Green, for defendant in error, Mrs. Gilbow.
    The argument in support of the village of Mineral City proceeds upon the theory that under the allegations of the amended petition the action as to one of the parties defendant was for an omission of duty, while as to the other it charged the creation of a nuisance. This construction is clearly unwarranted by the averments of the amended petition, which alleges only that the defendants were guilty of negligence. We contend that this omission of duty on the part of both defendants was one, single, joint, concurrent tort, and that the plaintiff could have sued either or both of the parties defendant at her option. 15 Ency. PI. & Pr., 559. And this court is committed to the rule by the decisions in Boyd v. Watt, 27 Ohio St., 268; Vary v. Railroad Co., 42 Ia., 246; Railway Co. v. Croskell, 6 Tex. Civ. App., 160. 25 S. W. Rep., 486; Brown v. Fairhaven, 47 Vt., 386; Peckham v. Burlington, Bravt. (Vt.), 134; Weisenberg v. Winneconne, 56 Wis. 667; Lyman v. Hampshire County, 140 Mass., 311; Walsh v. Bridge, 96 N. Y., 427; Charman v. Railwuay Co., 105 Fed. Rep., 449.
    In the absence of any special law as to the liability respectively of a municipality and an abutting owner for injuries due' to negligence in the maintenance of the highway, resort must be had to the broad common-lav?' rule that wherever a duty is owed by several, they are jointly liable. Peoria v. Simpson, 110 Ill., 294.
    Plainly the Questions were of the negligence of the village and of Holden and the contributory negligence qf Mrs. Gilbow, for the iury, under appropriate instructions from the trial court, and their verdict has established conclusively that the condition of the highway was defective, that the plaintiff exercised due care, and that the defect was the proximate cause of the injury. 15 Am. & Eng. Ency. Law (2 ed.), 456, 464, 467.
    These questions were reviewable bjr the circuit court, and it has held that the verdict is’ not against the manifest weight of the evidence. This court will not review the evidence. Finley v. Whitley, 46 Ohio St., 524.
    The true rule is that an abutting owner (and the municipality as well) is liable for injuries due to negligence in failing to guard a pitfall upon his premises, when the pitfall is so near the street line that pedestrians are liabje to fall therein while properly and lawfully using the street. Early v. Railway Co., 66 Mich., 351; Kelley v. Columbus, 41 Ohio St., 263.
    The authorities disclose that no rule of law has established the distance from the sidewalk that a passerby in the eccentricities of travel may step, and yet be within the protection of the rule making an abutter liable for injuries resulting therefrom. Numerous cases hold with our own, (.Kelley v. Columbus, supra), that where the excavation is twenty feet or more from the highway the owner is under no obligation to fence his property. Binks v. Railway Co., 3 B. & S., 244, 113 E. C. L., 242; Hudson v. Marlborough, 154 Mass., 218, 28 N. E. Rep., 147; Daily v. Worcester, 131 Mass., 543; Puffer v. Orange, 122 Mass., 389, 23 Am. Rep., 368; McHugh v. St. Paul, 67 Minn., 441, 70 N. W. Rep., 5; Schmidt v. Distilling Co., 90 Mo., 284, 59 Am. Rep., 16; Vanderbeck v. Hendry, 34 N. J. L., 471; Murphy v. Brooklyn, 118 N. Y., 575, 23 N. E. Rep., 887; Gillespie v. McGowan, 100 Pa. St., 144, 45 Am, Rep., 365; Gorr v. Mittlestaedt, 96 Wis., 296; Hadley v. Taylor, L. R., 1 C. P., 53; Early v. Railroad Co., 66 Mich., 349; Malloy v. Savings & Loan Society, 21 Pac. Rep., 525; Beck v. Carter, 68 N. Y., 283; Crogan v. Schiele, 53 Conn., 186, 1 Atl. Rep., 899, 55 Am. Rep., 88; 15 Am. & Eng. Ency. Law (2 ed.), 456.
   Davis, J.

There was a misjoinder in this action. In the amended petition the complaint against the lot-owner is that he maintained upon his premises a dangerous' pit, which encroached upon the sidewalk; and that he wrongfully and negligently failed to guard the same by barrier, light or other precaution. This is not complained of the village and manifestly does not affect or concern it. The charge against the village is that it knowingly permitted the sidewalk to be in a dangerous condition, without any barrier between it and the pit or retaining wall on the abutting premises. This is an entirely different cause of action from that alleged against the abutting owner; and, if both were sustained by the evidence, they would at best be only concurrent and not joint acts. Morris v. Woodburn, 57 Ohio St., 330. The plaintiff below relied chiefly on City of Peoria v. Simpson, 110 Ill., 294. The averments in that case present a condition of facts widely differing from this case; and the court expressed doubt as to the result reached. But the court stated the law very correctly and concisely, as follows: “Undoubtedly the rule is for separate acts of trespass: separately done, or for positive acts negligently done, although a single injury is inflicted, the parties cannot be jointly held liable to the party injured. If there is no concert of action — no common intent— there is no joint liability. This rule is very well settled by authority. Hilliard on Torts, Sec. 10, p. 315; Little Schuylkill Nav., Railroad & Coal Co. v. Richards’ Admr, 57 Pa. St. 142: Shear & Redf. Neg., 58; Bard v. Yohn, 26 Pa. St.. 482. But a different principle applies where the injury is the result of a needed: to perform a common duty resting on two or more persons, although there may be no concert of action between them. In such cases the party injured may have his election to sue all the parties owing the common duty, or each separately, treating the liability as joint or separate.”

In the case which is now in hand, the overruling of the demurrer for misjoinder made it necessary for the defendants to make separate answers and to make separate defenses on the trial, which nevertheless resulted in a joint verdict and a joint judgment against the defendants, although not a scintilla of evidence appears in the record to show that the sidewalk itself was in any way dangerous or defective so as to have contributed • to the plaintiff’s injury, or that the “pit” or wall over which the plaintiff fell was so near to the sidewalk as to make the ordinary and proper use of the sidewalk dangerous; and, although not a scintilla of evidence appears that the lot-owner “encroached” upon the sidewalk or even approached it within six feet of his own property line. Nor does it appear that the lot-owner maintained a nuisance as alleged, but rather that the condition of things which existed there was' forced upon him by the construction of a railroad and the acts of the village, whereby the street in front of his lot was raised several feet and he built the retaining wall six feet within his property line to protect his own property. At a distance of one foot and a half within the propert}^ line was a row of fence posts on which at a former period wires had been strung. This situation had existed since about the year 1883; and it must be apparent, therefore, that the precipice, five or six feet high, caused by the retaining wall, was not so near to the sidewalk as to make the ordinary use of the street or walk at all dangerous. The demurrer for misjoinder of parties should have been sustained.

The circuit court reversed the judgment against the abutting lot-owner, Holden, for several reasons, one of them being that the judgment was “contrary to all the evidence as to the said Charles E. Holden.” Under the ruling in Wetzell v. Richcreek, 53 Ohio St., 62, which states the settled practice of this court, this judgment of the circuit court is not reviewable; but inasmuch as the contentions of the plaintiff in error have necessitated an examination of the whole record, it is not improper to say that we have discovered nothing which would make it clear that the circuit court erred in its judgment as to Holden.

In the further consideration of this case it will be necessary to go back and bring into view a few other undisputed facts, which have not yet been mentioned. Along the east side or front of the Holden lot runs High street and the sidewalk already spoken of. Between the street and the sidewalk is a retaining wall, varying in height from six to twenty-four inches. The sidewalk is of plank and five feet wide. Between the sidewalk and the retaining wall over which the plaintiff fell, for a distance of about six feet, is a grass plot or sod. The lot below is, and always has been, used as a flower garden. A railwav track crosses High street diagonally in front of part of this lot and from near the point where the railway track crosses the east sidewalk on High street, a brick crossing, more than five feet wide, extends diagonally across High street, where it intersects the west sidewalk on High street and the sidewalk on Center street at the ’northeast corner of the lot in question. Center street extends along the north side of the lot.

The plaintiff had lived in the village, and only two squares away from the place where she was hurt, for twenty-three years; and she had never lived farther away than one-half mile from the village. She declares that she did not know of the conditions as we have described them; yet she knew them well enough and had sufficient confidence in the accuracy of her knowledge, to leave her home alone,, between six and seven o’clock on the evening of the 8th of February, to visit a friend living on Center street. It was a dark evening, and unaided by any other light than that shining from the windows of dwelling-houses along the way and a few business places' on High street, she made her way along the street on which she lived to High street and along the east side of High street to the brick crossing near the railway. If .she had continued along the brick crossing she would have reached the sidewalk on Center street without danger from the “pit” or precipice and without injury; but she departed from the crossing and went directly across High street over the rough and frozen ground of the unpaved street, over the low retaining wall between the roadway and the sidewalk, across and not along the sidewalk, between the posts on the abutting owner’s ground, at a point about forty feet south from the corner at Center street. She continued' on over the sod and over the wall, — where she fell.

Now if it be conceded that it was the duty of either or both of these defendants to protect travelers along the highway or the sidewalk, and that is as much as can plausibly be claimed, it must be apparent that the omission of that duty was not the proximate cause of the plaintiff’s injury. See Sparhawk v. City of Salem, 1 Allen (Mass.) at p. 30. Her injury did not result from any defect in the street, nor from any excavation, pit or precipice in such proximity to the street as to endanger travelers thereon. It was caused wholly by her act of leaving a safe way in the street, crossing the street and sidewalk and straying upon private property. There was no obligation resting upon the village to prevent her from going outside of the street, the dangerous place being outside of the street and not so near as to endanger those using it in the ordinary and proper way. Its obligation is to keep the streets open and in repair and free from nuisance; and its liability extends no farther than the neglect of such duty. Furthermore, the owner of adjacent property, unless expressly so required.by statute, is not bound to keep the street or sidewalk in repair and safe for travel, except as to defects created by himself; nor is he under any legal obligation to erect and maintain barriers to protect travelers on or along the street from a dangerous place which is entirely on his own premises, unless the place is so near the street as to render the street, or sidewalk thereon, itself dangerous for travel. In the latter case it is the duty of not only the abutting owner, but of the municipality also, to see that travelers on the street are warned or protected. These, propositions are generally recognized as sound law, and the authorities are so numerous and so readily accessible that it is not thought to be necessary to cite them here. But in determining whether it is necessary, in a particular case, that a barrier should be erected in order to make the highway safe for travelers thereon, the true test is not the distance from the highwav of the dangerous object or place, whether it be much or little: but whether a traveler in passing along the highway and exercising ordinary care would be subiected to such imminent danger that it would require a barrier to make the highway safe. Kelley v. City of Columbus, 41 Ohio St. 263, 268: Alger v. City of Lowell, 85 Mass., 402, 405; City of Norwich v. Breed, 30 Conn.; 544, 545.

In this case the retaining wall was lawfully constructed and maintained by the abutting lot-owner for his own protection: and It is manifest that it could not be dangerous ' to persons using the sidewalk for its appropriate purpose and with ordinary care, especially with the warning line of posts standing eighteen inches from the sidewalk and with four and a half feet of safe ground beyond that to the retaining wall. The situation continued like that from 1883 to the time of this accident on February 8, 1904, without a single case of a traveler on the street being injured by the “pit” or precipice, at least none such is mentioned in the record. Can it be said that a traveler on or along that street was in anv probable danger while he was exercising ordinary care? If not, neither the abutting owner nor the village was, as a matter of law. under anv obligation to erect a fence which would nrevent anv and everybody from getting outside of the street line, whether passing along the street or voluntarily crossing and goino m thp direction of the precipice. Glasier v. Town of Hebron, 131 N. Y., 447; McHugh v. City of St. Paul, 67 Minn., 441; Hardcastle v. South Yorkshire Ry. Co., 4 Hurlstone & Norman (Exchequer) R., 67.

The plaintiff was moreover guiltv of negligence which directly contributed to the disaster of which she complains'. We have already traced her course from her home to the scene of the accident, as she has disclosed it herself. As a witness she seems to have tried to leave upon the minds of the court and jury the impression that she was ignorant of the geography and conditions' in the neighborhood of the Holden lot; yet she knew of the brick crossing in the street, and knew when she came to it, and knew that she was crossing the street on the rough and frozen ground. She says she knew that there was a step at the end of the brick crossing at the .corner of High and Center streets, which appears to have been only a few inches high, and thought when she went over the retaining wall between the roadway and the sidewalk, that it was that step at the end of the brick walk. It was a dark evening, yet she knew when she came to the brick crossing. If she did not know when she departed from it, she had warning enough in the nature of the ground and the obstacles which she encountered to have caused an ordinarilv prudent person, under those circumstances', to have stopped and gotten the bearings. Either carelessly or for her own fancied convenience, she departed from the safe way when she left the brick crossing and went heedlessly on across, and out of, the street to her fate. City of Dayton v. Taylor, Admr.) 62 Ohio St., 11.

It is' argued that it was the province of the furv to find thus and so, and that we are concluded by its findings; but this argument ignores the fact that the court was asked to direct a verdict 'for the defendants, which it refused to do; and thereby it becomes a question of law, whether upon the undisputed facts the judgment below is justified. Our conclusion upon the whole case is, that the plaintiff has not shown a cause of action against the defendants or either of them; and therefore the judgment of the circuit court as to the defendant Holden is affirmed and the cross-petition of the defendant in error, Martha A. Gilbow, is dismissed; and the judgment of the circuit court and that of the court of common pleas as to the village of Mineral City are reversea and final judgment is rendered for the village.

Reversed.

Crew, C. J., Summers and Shauck, JJ., concur.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Green v. Coit.

      Levy upon order of attachment on real property — Duty of levying officer under Section 5537, Revised Statutes — Description of property reqtiircd by Section 5528, Revised Statutes.

    1. Section 5537, Revised Statutes, which provides that “The officer shall return upon every order of attachment what he has done under it, and the return must show the property attached,” makes it necessary that the return shall show all the essential things the officer has done in the execution of the writ, and shall so describe the property as to identify it.
    2. The provisions of Section 5528, Revised Statutes, which make it the duty of the officer who undertakes to levy the order of attachment on real property to leave with the occupant thereof, or if there is no occupant in a conspicuous place thereon, a copy of the order, are mandatory requirements, and a return which fails to show compliance with these requirements, and fails to so describe the property as to identify it, is insufficient to give to the court out of which the writ issued dominion over the property.
    3. A statement intended as a description which merely describes the property as “Building and land $800.00, lot about 25 ft. by 75 ft.,” does not show compliance with the requirement of statute that “the return must show the property attached.”
    (No. 11395
    Decided December 21, 1909.)
    Error to the Circuit Court of Portage county.

      The plaintiff in error, Henry Green, was the plaintiff in an action commenced in the common pleas of Portage, .August 21, 1907, against the defendant in error Bina Coit. The action was to enforce an alleged lien by attachment upon certain real estate in the villag'e of Mantua, in Portage county. The cause was tried on appeal, and upon appropriate pleadings, in the circuit court. From the bill of exceptions and the findings of the court the following controlling. facts are established: Qn September 3, 1903, one Lillian Kugler was a non-resident of Ohio and also the owner of the real estate above referred to. On that date plaintiff filed a petition in the common pleas of Portage against her to recover on a cause of action arising on contract, causing a summons to issue, also a writ of attachment on the ground of non-residence. The summons was duly returned endorsed “Defendant not found.” The sheriff’s return on the writ of attachment is as follows:
    “Office of sheriff, Portage county, Ohio, November 17, 1903. Received this order on the sixteenth day of November, 1903, and in obedience to the command thereof, I did, on the seventeenth day of November, 1903, in the presence of Eugene Vaughn and Bina Coit, two freeholders of said county, attach the property described in the schedule marked/A,’ hereto attached and made part of this return; and having first administered to said freeholders the oath required by law, to make a true inventory and appraisement of said property, we proceeded to make such inventory and appraisement; as will fully appear by reference to said Schedule ‘A.’
    “Schedule A.
    “We, J. C. Goodenough, sheriff of Portage county, and Eugene Vaughn and Bina Coit, two freeholders of said county, do truly inventory and appraise the property attached under the foregoing order, as the property of Lillian Kugler and hereinafter described as follows, viz.:
    Scales ...............$100 00
    Building and Land. . . . 800 00
    Lot about 25 ft. by 75 ft.......
    Total............$900 00
    “Given under our hands this seventeenth day of November, 1903. Sheriff’s fees, $4.94; appraisers’ fees, $1.00.
    “J. C. Goodenough, Sheriff.
    “Eugene Vaughn,
    “Bina Coit.”
    April following plaintiff filed an affidavit for service by publication, and on August 10, 1905, copies were duly mailed by the clerk of the court to Kugler and proper proof thereof made. January 13, 1906, the defendant, Kugler, filed her answer, a general denial. At the September term following a judgment was rendered in favor of plaintiff and against Kugler for the amount claimed and costs. When the sheriff levied the attachment he called defendant Coit, a qualified and competent person, to act- as one of. the appraisers, who being sworn, acted and signed the schedule, and then knew the property belonged to Kugler. On May 23, 1906, Coit purchased the land described in the petition by warranty deed from Kugler, paid therefor $675.00, and went into and has since been in possession. At the trial Coit testified that he did not know the object of the appraisal; that at that time the property was under the charge and control of one Hine, the agent of Kugler; that the sheriff exercised no control over the property, and that he, Coit, never heard of the matter again until the present action was brought.
    It was further found that at the time of the purchase Kugler’s agent, Hine, at the request of Coit, furnished him an abstract of title, showing that the premises were free and clear from any incumbrance whatsoever. The circuit court also found that Coit was not a bona fide purchaser for value without notice, because he was, by reason of being an appraiser, possessed of such knowledge of the facts of the attachment as would bind him and the property, provided the attachment was so levied as to give the court in the case of Green v. Kugler jurisdiction over the property and create a lien thereon.
    But, from the foregoing facts, the circuit court was of opinion that no valid levy of the attachment had been made, and no lien created, and dismissed the petition. The plaintiff asks a reversal of that judgment.

      Mr. C. B. Newton and Mr. A. S. Cole, for plaintiff in error, cited and commented upon the following authorities:

      Cochran v. Loving, 17 Ohio, 409; 4 Cyc., 594, 595; Hicks, Trustee, v. Grussell et al., 9 Dec., 542; Root v. Railroad Co., 45 Ohio St., 222; Biggs v. Blue, 2 O. F. D., 705; Mitchell v. Eyster, 7 Ohio, part 1, 257; Rubber Co. v. Belting Co., 5 C. D., 286; Tyler v. Kuhn, 1 Dis., 405; Davis v. Lewis, 8 C. D., 772; Phillips v. Elwell, 14 Ohio St., 240; sections 5528 and 5537, Revised Statutes.

      Mr. H. L. Beatty, for defendant in error, cited and commented upon the following, authorities:

      Davis v. Lewis, 8 C. D., 774; Root v. Railroad Co., 45 Ohio St., 222; Sammis et al. v. Sly, 54 Ohio St., 511; Minor v. Smith, 13 Ohio St., 82; Murphy v. Swadener, 33 Ohio St., 85; Phillips v. Elwell, 14 Ohio St., 240; Matthews v. Thompson, 3 Ohio, 272; Throckmorton v. Moon, 10 Ohio, 43; Woodworth v. Paige et al., 5 Ohio St., 76; section 5528, Revised Statutes.
   Spear, J.

The questions presented by the record are: 1. Is it the duty of the sheriff, when he levies an attachment upon the property of the defendant, to-show by his return a full compliance with 'the provisions of the statute defining his duties concerning the levy of attachments? and 2. If it is, does the return in the present case indicate such comnliance with those requirements as to show a valid attachment and thus give to the court from which it issued dominion over the property sought to be attached?

We answer the first question in the affirmative and the other in the negative. Attachment is an extraordinary remedy; it is in. the nature of an execution before judgment; by means of it the rights of a party'may be determined without service of process upon him and even without his knowledge; it is intended to create a lien on the property of the defendant, authorized only by statute, and it is the universal rule that in all attachment proceedings the requirements of the statute must be substantially complied with. Our statute respecting return (section .5537. Revised Statutes), prescribes that the officer shall return upon the order “what he has done under it. and the return must show the property attached.” This means, neces-' sarily, all the essential things he has done. The reason is apparent. The proceeding is to serve as notice to all interested parties of the seizure of the property, and whether in the given case it has been seized or not depends upon the steps taken by the officer in that behalf. The court is to be informed by the return of the officer what his proceedings under the writ were, and how conducted. Then the court, and not the officer, will judge whether the writ has been executed as required by statute.- This conclusion is sustained by abundant authorities. Rankin v. Dulaney, 43 Miss., 197. Shinn on Attachment, section 229, gives the rule: “The officer must, by,the statement on his return, inform the court what his proceedings under the writ were, and how they were conducted. Then the court may be able to judge whether the writ has been executed and served as reouired by the statute.” “He must not only comply, in fact, with the statute, but his return must show that he has so complied.” Drake on Attachment, section 236. See, also, Crizer v. Gorren, 41 Miss., 563; Crisman v. Swisher, 28 N. J. L., 149; Kilbourne v. Frellsen, 22 La. An., 207; Welch v. Robinson, 10 Humph., 264; Benjamin v. Shea, 83 Ia., 392; Porter v. Pico, 55 Cal., 165. Phillips v. Elwell, 14 Ohio St., 240, cited by counsel for plaintiff in error, has not been overlooked. However, we are quite unable to see in what way that case can have application to the case at bar, and no comment upon it is deemed necessary.

It follows that the question of lien and consequent dominion of the court over the land in question must depend upon the sheriff’s return upon the writ of attachment. His duty in the execution of the writ is prescribed by section 5528, Revised Statutes, which is: “The sheriff shall execute the order without delay; he shall go to the place where the defendant’s property is, and there, in the presence of two freeholders of the county, declare that, by virtue- of the order, he attaches the property at the suit of the plaintiff; the officer, with the freeholders, who shall be first sworn by the officer, shall make a true inventory and appraisement of all the property attached, which shall be signed by the officer and freeholders, and returned with the order; when the property attached is real property, the officer shall leave with the occupant thereof, or if there is no occupant, in a conspicuous place thereon, a copy of the order; and when it is personal property, and can be come at, he shall take it into his custody, and hold it subject to the order of the court.”

Turning now to the return, we find it insufficient in essential particulars. It shows that there was an attempt to.levy the writ on real property, but does not show that any copy of the order was either left with the occupant of the property or posted in a conspicuous place thereon; nor does it even show whether the property was occupied or not. These are absolute requirements of the statute, intended to show to the world, as far as practicable, that the property has been seized in attachment and is subject to the control of the court in which the plaintiff’s petition has been filed. It is stated by Prof. Waples, in his work: on attachment, section 324, that: “Where landed property, such as a house and lot, is attached, it is important that notice be given to the tenant in possession, or a copy of the writ left with him, or some act showing the transfer of legal possession from the defendant to the officer,” and the text is abundantly sustained by j'udicial decisions. Moreover, there is no sufficient description of the prooertv. “Building and land, $800.00, lot about 25 ft. by 75 ft.,” is clearly insufficient as a descriotion. While it is true that such precision as to the description as is required in a return of a levy of execution is not required in attachment proceedings, yet it is well settled that the property must be described with reasonable certainty, and the description . must be such as to identify it. Here there is nothing to show in what part of Portage county even the land is located, nothing by which an inquiring creditor or purchaser could be guided, and nothing which would enable the court to intelligently direct an order of sale. Perhaps it is not quite so indefinite as the supposed lev upon a flock of geese, or of wild pigeons, given in the books, but it falls but little short of it. As held in Root v. Railroad Co., 45 Ohio St., 222, at 228, provisions of statute which are intended for the protection only of the debtor may be waived, or cured by amendment, but those which require notoriety .and notice are for the benefit of creditors and purchasers, and unless these requirements are complied with the court acquires no dominion over the property, and the attachment is invalid as to such third persons.

It follows that no lien on the property was created by the attempted levy, and while the court acquired jurisdiction of the person of the defendant Kugler by the filing of her answer, three years after the attempted attachment, it acquired no jurisdiction or dominion over the res. In no view of the case can it be said that there was a lis pendens at the time of Coit’s purchase.

It is insisted that Coit can not be heard to object to the insufficiency of the levy and return because he was one of the appraisers. The point is not substantial. The case turns upon a question of jurisdiction; not upon a question of estoppel. Jurisdiction can not be given to a court by the mere act of a party. True, Coit was not, in the legal sense, an innocent purchaser without notice, because, and only because, he had notice of the attempted attachment; not because there was present any element of actual bad faith. So that if the attachment should prove sufficient to create a lien, he was bound by it; but if ineffectual' to create a lien he was not affected by it.

These conclusions are in accord with the very-full statement of opinion by the circuit court, as shown by its findings of fact, and the judgment of that court will be

Affirmed.

Crew, C. J., Summers, Shauck and Price, JJ-, concur.


author: Summers, J.

text:
    Shehy v. Cunningham.

      Consideration clause in a deed — Conclusive for operative effect of deed — For. other purposes, open to parol explanation.

    The consideration clause in a deed of conveyance is conclusive for the purpose of giving effect to the operative words of the deed, but for every other purpose it is open to explanation by parol proof and is prima facie evidence only of the amount, kind and receipt of the consideration.
    (No. 11005
    Decided December 21, 1909.)
    Error to the' Circuit Court of Mahoning county.
    The facts are stated in the opinion.

      Messrs. Arrel, Wilson & Harrington, for plaintiff in error.

      Messrs. Moore & Craver and Mr. S. M. Thompson, for defendants in error.
   Summers, J.

In 1892 McLain Shehy died intestate, seized of certain lands, and left surviving him as his only heirs at law his widow since deceased, his son, the plaintiff, and his three daughters, the defendants.

After the father’s death certain of the lands were partitioned among the children, and other lands were sold for twenty thousand dollars, and the purchase money was paid to and retained by the three sisters. The brother brought this suit to recover his share. The sisters answered that in the year 1890, the father conveyed to the son by deed of general warranty, ninety-nine acres of land, that it was agreed between the father and son that the value of the land was $4,700, that the land was conveyed by the father and accepted by the son as an advancement, and that the sum had not been deducted from the son’s distributive share of the estate. '

The deed recited a consideration of $4,700 and acknowledged its receipt. The deed was recorded in the year of its. date, and the son in the same year went into possession of the land.

The defendants, over the objection of the plaintiff, were permitted to offer in evidence the following receipt: “$4,700.00. Youngstown, Ohio, April 15th, 1890.' Received of L. McLain Shehy, forty-seven hundred dollars to apply on my interest in his estate. Lucius M. Shehy.” They also offered parol evidence tending to prove that the conveyance was an advancement. The courts below found in favor of the sisters. .

The plaintiff contends that it is not competent to prove that the consideration expressed in the deed was an advancement, and that the evidence offered, if competent, was not sufficient to establish the fact; that the deed is a deed of purchase, and that it is not competent to prove that it is a deed of gift by way of advancement.

That the consideration clause in a deed of conveyance is. conclusive for the purpose of giving effect to the operative words of the deed, creating a right or extinguishing a title, but that for every other purpose it is open to explanation by parol proof, and is prima facie evidence only of the amount, kind and receipt of the consideration, is settled by the almost unbroken current of American decisions, although the contrary is true in England.

McCrea v. Purmort, 16 Wend., 460, decided in 1836, is a leading case. In that case, Cowen, J., reviews the cases and says (470), “The only state whose courts appear to have maintained a steady course of decision favorable to the conclusive character of the clause is North Carolina.” And in conclusion he says (475), “Looking at the strong and overwhelming; balance of authority, as collectible from the decisions of the American courts, the clause in question, even as between the immediate parties, comes down to the rank of prima facie evidence, excent for the nuroose of giving effect to the operative words of the conveyance.”

Noticing what he there says respecting the decisions in North Carolina, it may be observed that in Barbee et al. v. Barbee et al. 108 N. Car., 581, decided in 1891, the cases in that state are reviewed, the earlier cases .are overruled and in accordance with the American doctrine the rule is held to be that, “A recital in a deed of the receipt of the consideration is not contractual in its character, and is only prima facie evidence of the payment of the purchase money which may be rebutted by parol testimony.”

In addition to the cases cited in McCrea v. Purmort, supra, the following cases, adopting the same rule, since then decided, may be cited: Mobile & Montgomery Railway Co. v. Wilkinson, 72 Ala., 286; Fechheimer et al. v. Trounstine, 15 Colo., 386; Meeker v. Meeker, 16 Conn., 383; Morris v. Tillson et al., 81 Ill., 607; Rockhill v. Spraggs et al., 9 Ind., 30; Finch et al. v. Garrett et al., 102 Ia., 381; Goodspeed v. Fuller, 46 Me., 141; Bassett v. Bassett, 55 Me., 127; Homer v. Grosholz & Coquentin, 38 Md., 520; Kumler v. Ferguson, 7 Minn., 442; Hogel v. Lindell, 10 Mo., 483; Speer v. Speer, 14 N. J. Eq., 240; Sanford v. Sanford, 61 Barb., 293; Palmer v. Culbertson et al., 143 N. Y., 213; Hall v. McNally et al., 23 Utah, 606; Beach v. Packard, 10 Vt., 96; White v. Miller, 22 Vt., 380; Bruce and wife v. Slemp and wife, 82 Va., 352.

Perhaps the most satisfactory reason for the rule is given by Robertson, J., in Gully v. Grubbs, 1 Marshall (Ky.), 387, 390. Pie says: “Attention to the principles upon which parol testimony is admissible to explain or avoid the effect, or the apparent import of a writing, may reconcile many, if not all, of the authorities which seem to be in conflict. One of these principles is, that, as in certain classes of cases, the statute of frauds and perjuries requires writing to vest rights; it would be subversive of the policy of the statute, to allow parol testimony to change the legal import of the written evidence of a 'right adopted; to certify it, therefore, in all such cases, no inferior grade of testimony shall be admitted to supply or control the intrinsic meaning of the writing.

“Another principle, and one more universal than 'the former in its application, is, that wherever a right is vested, or created, or extinguished, by contract or otherwise, and writing is employed for that purpose, parol testimony is. inadmissible, to alter or contradict the legal and common sense construction of the instrument. But that any writing, which neither by contract, the operation of law, nor otherwise vests or passes, or extinguishes any right, but is only used as evidence of a fact, and not as evidence of a contract or right, may be susceptible of explanation by extrinsic circumstances or facts. Thus a will, a deed, or a covenant in writing, so far as they transfer or are intended to be evidence of rights, can not be contradicted or opposed in their legal construction, by facts, ‘aliunde.’ But receipts and other writings, which only acknowledge the existence of a simple fact, such as the payment of money for example, may be susceptible of explanation, and liable to contradiction by witnesses.

“A party is estopped by his deed. He is not to be permitted to contradict it; so far as the deed is intended to pass a right or to be the exclusive evidence of a contract, it concludes the parties to it. But the principle goes no farther. A deed is not conclusive evidence of everything which it may contain. For instance, it is not the' only evidence of the date of its execution; nor is its omission of a consideration, conclusive evidence that none passed; nor is its acknowledgment of a particular consideration, an objection to- other proof of other and consistent considerations. And by analogy, the acknowledgment in a deed, that the consideration had •been received, is not conclusive of the fact. This is but a fact. And testing it by the rationality of the rule which we have laid down, it may be explained or contradicted. It does “not necessarily and undeniably prove the fact. It creates no right. It extinguishes none. A release can not be contradicted or explained by parol, because it extinguishes a pre-existing right. But no receipt can have the effect of destroying, per se, any subsisting right. It is only evidence of a fact. The payment of the money discharges or extinguishes the debt; a receipt for the payment does not pay the debt, it is only evidence that it has been paid. Not so of a written release. It is not only evidence of the extinguishment, but is the extinguisher itself.

“The acknowledgment of the payment of the consideration in a deed, is a fact riot essential to the conveyance. It is immaterial whether the price of- the land was paid or not; and the admission of its payment, in the deed, is generally merely formal. But if it be inserted for the purpose of attesting the fact of payment, (as it seldom, if ever, is in this country,) it is not better evidence than a sealed receipt on a separate paper would be; and, as we have already said, it seems to us that it would not be as good, for obvious reasons. The practice of inserting such acknowledgments in deeds, is very common, whether the consideration had been paid' or not. ‘For and in consideration of $-, in hand paid/ etc., is a commonplace phrase, which may be found in deeds generally. And it is seldom intended as evidence of payment, or for any other practical purpose, except to show the amount of consideration. To establish the conclusiveness of such loose expressions, therefore, might produce extensive injustice. If a note had been given for the consideration, and afterward, without payment, a deed be executed for the land, with the commonplace phraseology in relation to the price, would this be conclusive evidence that the notes had been paid off and discharged? Surely not.”

And in Beach v. Packard, 10 Vt., 96, 100, supra, it is said by Collamer, J.: “Parol 'evidence cannot be admitted to vary, contradict, add to or control a deed or written contract. The deed of bargain and sale, between these parties, had for its object the conveyance of certain land; and the extent of the land conveyed, the parties thereto, the estate conveyed thereby, and the covenants attending it, could not be affected by parol proof; and even that part, which relates to the consideration, or the payment thereof, could not be contradicted or varied, by parol, so as in any way to affect the purpose of the deed, that is, its operation as a conveyance. All this is well settled law, and fully sustained by the authorities cited by the defendant’s counsel. But the question still remains, when this acknowledgment of payment, under seal, comes collaterally in question, not for any purpose of affecting the conveyance of the lands, or raising any trust or interest therein, does any such rule of estoppel apply? The expressions from Sheppard’s Touchstone, and in a large part of the authorities, .relied on by the defendant’s counsel, are all in relation to the inadmissibility of the parol proof, as to the consideration, to affect the deed, and create thereby a resulting trust, or convert the conveyance into a covenant to stand seized, to the use of the grantor.

“It has long been holden in England, and in this country and even in this state, that receipts may be varied or contradicted by parol, as they are not contracts. If it may be so done as to a written receipt, we do not see why the same may not, as consistently, be done with one under seal. The evidence does not vary, control or affect the contract as a conveyance, and it was only so far as the consideration was essential to give effect to the deed, as an absolute conveyance, in fee, that what is said on that subject is any part of the deed. For all that purpose, it remains unaffected when the evidence is offered, only to prove that the consideration money has not actually passed to the grantor, merely to enable him to recover the same.”

In this state reference may be made to the following cases as illustrative of the application of the rule stated: Williams et al. v. Williams et al., 3 W. L. M., 258, in the district court of Fulton county, was a suit for partition brought by the half-brothers and sisters against the brothers of the whole blood, for the partitioning of lands that had been conveyed by the father, by a deed reciting a valuable consideration, to a son, who had died intestate without issue and seized of the land. If the land was ancestral the half bloods were entitled to share, but they were not if it came by purchase, and they offered parol evidence to prove that the consideration was not as recited in the deed, money, but natural dove and affection, and that the deed was a deed of gift. It was held that the evidence was incompetent, as the effect would be to contradict the deed as to the kind of consideration therein recited, and would defeat the policy of the statute of frauds by making a title to real estate to rest in parol. It was also said in that case, although the question was not presented, that such evidence was competent to prove that a grant was an advancement, so far as such proof may affect other lands sought to be partitioned, but not to divest the grantee of title to any part of the lands granted by way of advancement.

In Patterson v. Lanson, 45 Ohio St., 77, the deed recited a consideration of six thousand dollars, and acknowledged its receipt from the grantee. The fact was that the deed was a wedding gift to an adopted daughter. The father paid the purchase price and had the deed made by the seller conveying the land to the daughter. The daughter died intestate and without issue. The question was as to the course of descent. If the consideration cóuld not be explained, then the title was in the daughter by purchase and the land descended to the husband; if it could be explained, then the land descended as ancestral property. It was held that the consideration clause of the deed could not be varied or explained to change the operation and effect of the deed. To the same effect are Brown v. Whaley et al., 58 Ohio St.. 654, and Groves et al. v. Groves, 65 Ohio St., 442.

As illustrative of the application of the rule that the consideration clause of a deed may be explained for purposes other than changing the effect of the deed as a conveyance, the following Ohio cases may be considered: Harrison v. 'Castner, 11 Ohio St., 339. That was an action for the recovery of real estate. On one side it was claimed that the conveyance of one tract of land was the consideration for an agreement to convey another in exchange; and on the other side, that the conveyance, was an advancement from father to son. The defendant in the action, as a part .of his evidence to make out the agreement, having offered a deed, from Michael Castner to Rassellas Castner, which purported to have been made for the consideration of two thousand dollars, the plaintiff, Rassellas Castner, offered himself as a witness, and proposed to prove that the consideration was, in fact, natural love and affection; and that there was no other consideration. This evidence was objected to, on the ground that Rassellas Castner was not at liberty to contradict the recital in the deed. In the opinion Gholson, J., says: “The deed, in view of the purpose for which it had been offered in evidence, that is, to prove a parol agreement in reference to land, other than that which it conveyed, amounted to no more than the admission or declaration of Rassellas Castner, in reference to the matters stated or recited. The title to the land conveyed by the deed was not in question; there was no privity between the parties, as to the estate it created. Considered as such an admission, offered for such a purpose, we do not think the grantee was concluded by the recital, as to the consideration, but that, like an 'ordinary admission, it was open to explanation or contradiction.” In support of the opinion, the cases above cited in 16 Wend., 16 Conn., 10 Vt, 1 Marsh., and others are cited.

In Parsons et al. v. Parsons, 52 Ohio St., 470, it is held: “In the partition of the lands of an intestate among his children and the children of a deceased son, the portion which the latter inherited should be charged with an advancement made to their father by such intestate.” In that case a deed from the father to a son recited a consideration of $4,046, and it was held competent to show that to the extent of $2,846 the consideration was an advancement.

In Carter et al. v. Day et al., 59 Ohio St., 96, it is held: “When partition is made by mutual releases, they should be read and construed together, in the light of the circumstances attending their execution; and it is competent to show that their only purpose was to accomplish the partition, and no other consideration passed between the parties, though a pecuniary consideration be expressed in the deeds.” Evidence that no consideration passed was held competent on the ground that partition, whether by a proceeding in court or by deed, does not change the character of the estate but only its enjoyment; it does not create any new title but merely severs the possession. “Where tenants in common execute deeds of bargain, sale and release, for the consideration of an agreement for partition, and one dollar, they inure as deeds of partition only.” Dawson et al. v. Lawrence et al., 13 Ohio, 544. But as intimated in the opinion by Lane, C. J., when the rights of a purchaser, for value and without notice, from such grantee are involved, a different rule may apply. See also Weeks v. Haas, 3 W. & S. (Pa.), 520; Harrison v. Ray, 108 N. Car., 215; Whitsett v. Wamack et al., 159 Mo., 14; Finley v. Cathcart, 149 Ind., 470.

Meeker v. Meeker et al., 16 Conn., 383, supra, was a case in respect to advancements, and it was held, “Where the consideration expressed in a deed from a father to his son, was two thousand dollars; it was held, that parol evidence was admissible to show, that nothing was in fact paid, but that the conveyance was made as an advancement to the son.” Rockhill v. Spraggs et al., 9 Ind., 30, was a case in partition. In the answer the defendants averred that another tract had been conveyed by the deceased in his lifetime, to the plaintiff, as an advancement. The deed recited a consideration of three hundred dollars. Parol evidence was admitted, against the plaintiff’s objection, to show that the land so conveyed was an advancement to the plaintiff. Finch v. Garrett, 102 Ia., 381, supra, was a suit in partition, and it was held, “Parol evidence is admissible to show that the deed from a parent to a child, expressing a valuable consideration, was in fact voluntary, where the purpose is to show that the conveyance was an advancement to the child, and not to avoid the deed.” Speer v. Speer, 14 N. J. Eq., 240, supra, was a suit in partition, and it was held competent to show that a deed reciting a valuable consideration was an advancement. In the opinion it is said by the chancellor (247) : “It is objected that, inasmuch as the deed purports to be a sale for a valuable consideration, it is not competent to contradict the deed by proof that it was made for natural love and affection or other good consideration. The evidence is not offered to invalidate the deed by showing a want of consideration. The title of the defendant is not called in question. The only design of the evidence is to show the intent with which the deed was executed, and to prevent the defendant from using it for a fraudulent purpose to the prejudice of the other heirs of the grantor.” And again, “It was well suggested by counsel, upon the argument that this objection, if valid, would render the statute inoperative. For where an advancement of land is made by father to son, it is the usual, if not universal practice, to do it by deed of bargain and sale, and the consideration is inserted as evidence of the value .of the advancement intended to be made. So much is this the case, that by statute in some of the states, the consideration, expressed in the deed' is conclusive proof of the value of the advancement made.” In Barbee v. Barbee, 108 N. Car., 581, supra, there was a question of advancements, and in the opinion Shepherd, J., quotes with approval as follows from Harper v. Harper, 92 N. Car., 300: “It was contended on the argument that the parol evidence introduced by the appellees was incompetent because its effect was to explain and contradict the deed. This is a misapprehension of the purpose of the evidence. The deed was not in question at all. There was no purpose to contradict, or change, or modify its terms, or to change its meaning in any degree. Its office was to convey the title to the land. The evidence was introduced in respect to a matter outside of and independent of it; it was intended to show with what intent the father and bargainer made it, apart from the purpose to convey land to his son. It was put in evidence not to prove title, but to show a particular .intent on the part of the maker of it, in another respect distinct from it.” In Sanford v. Sanford, 61 Barb., 293, supra, it is held, “When a parent conveys land to his child, without asking or receiving any consideration therefor, the presumption is that it is an advancement to the child, though the deed recites a money consideration, and contains an acknowledgment of the payment of it.” In Palmer v. Culbertson et al., 143 N. Y., 213, supra, a conveyance had been made by a father to the wife of his son, and it was held that parol evidence was competent to show that the deed was intended as an advancement to the son. In Bruce and wife v. Slemp and wife et al., 82 Va., 352, it was held that parol evidence was admissible to prove that a conveyance by a father to his daughter’s husband, by deed reciting a valuable consideration, was an advancement to the daughter.

In this state, as to advancements, it is provided by statute (Sections 4169-4172, Revised Statutes), that if any advancement has been made, it shall on distribution be treated as taken by the recipient towards his share, and as of the value expressed in the deed or in the written receipt given. The statute does not provide the mode of proof, and the statute would probably be inoperative if, as suggested in one of the cases noticed, the consideration expressed in a deed could not be explained, but in the view taken of the law it is unnecessary to consider whether, if the law were otherwise, it would be changed by the statute.

The present case does not involve the title to the land, no question is made as to the validity of the deed, nor is it sought to change the course of descent of the land by proof that the deed was one of gift and not of purchase. The suit was brought by the plaintiff to recover from his sisters his share of the purchase price for other lands he had'joined with them in conveying; they contend that he should be charged with an advancement of $4,700 made- by the father, by a conveyance of the ninety-nine acres to him, and he objects to the evidence on the ground that it contradicts the consideration clause of the deed, and only in this collateral way is the deed involved‘in this case.

As to the legal' sufficiency of the evidence there does not seem to be any ground upon which to raise a question. When the consideration expressed in a deed is natural love and affection, the presumption is that it was intended as an advancement, and when (or if) the plaintiff admitted that such 'was the consideration, as he practically did when he admitted that nothing was paid, and said that his father said, “There’s your pay for what you have done for me,” the burden was upon him to rebut the presumption.

Affirmed.

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


author: Crew, C. J.

text:
    Wright, Administrator, v. Masters et al.

      Lands acquired by testator — Subsequent to the execution of will —Do not pass, when — Section 5969, Revised Statutes.

    Lands acquired by a testator subsequent to the execution of his will, do not pass thereby unless the testator’s intention to include therein such after-acquired property, clearly and manifestly appears on the face of the will itself, as required by Section 5969, Revised Statutes.
    (No. 11368
    Decided December 21, 1909.)
    Error to the Circuit Court of Hocking county.
    On June 5, 1893, Robert Masters duly executed his last will and testament of which the following is a copy:
    “In the name of the Benevolent Father of all, I, Robert Masters of Murray City, Hocking county, Ohio, do make and publish this my last will and testament.
    “Item 1st: — I give and devise to my beloved wife, Mary Masters, in lieu of her dower the following real estate, to-wit: Being inlots number one, two, three, four, five and twelve in Murray City, Hocking county, Ohio, with all appurtenances thereto, also a lot recently purchased from James Watkins, being and lying on the west end of Lot No. 13, now owned by Dr. J. Trimmer and joining my Lot No. 1 on the north side, during life, and all the stock, moneys, household goods, furniture, provisions, and other goods, and chattels which may be thereon at the time of my decease, during her natural life as aforesaid; she however selling so much thereof as may be sufficient to pay my just debts; at the death of my said wife the real estate aforesaid, I give and devise to my children and their heirs; I give and devise to Lucy Babbs or Lucy Masters, the child I am raising and apprenticed to me by its mother, Margaret Babbs, the organ I now own, also five hundred dollars ($500.00) in money, the same to be paid her out of the lands and chattels aforesaid.
    “Item 2d: — I do hereby nominate and appoint, without bond, my beloved wife, guardian of the above named Lucy Babbs and known as Lucy Masters, until the said Lucy Babbs or Lucy Masters arrives at the age of eighteen years or intermarries.
    “Item 3d: — I do hereby nominate and appoint my wife executrix without bond of this my last will and testament hereby authorizing and empowering her to compromise, adjust, release and discharge in such manner as she may deem proper the debts and claims due me; I do also authorize and empower her, if it shall become necessary in order to pay my debts, to sell by private sale or in such manner, upon such terms of credit or otherwise, as she may think proper, all or any part of my real estate and deeds to purchasers to execute, acknowledge and déliver in fee simple. I desire that no appraisement and no sale of my personal property be made, and that the court of probate direct the omission of the same in pursuance of statute.
    “In testimony hereof, I have hereunto set my hand and seal, this 5th day of June, A. D. 1893.
    “Robert Masters. [Seal.]

      “Signed and acknowledged by said Robert Masters, as his last will and testament in our presence and signed by us in his presence.
    “A. M. Shrader,
    “Eloid Si-irader,
    “A. J. Shrader."
    The testator, Robert Masters, died July 13, 1902, leaving surviving him Mary Masters his widow, and Daniel Masters, Frances Spencer and Anna B. Thomas, his next of kin and only heirs at law. On July 30, 1902, the will of said Robert Masters was duly admitted tc probate by the probate court of Hocking county and Mary Masters, his widow, was appointed executrix thereof. Prior to his death, but after the making and execution of his will, Robert Masters sold and conve3^ed lot number twelve, which hy item first of said will he had devised to ’his wife, Mary Masters, for and during her natural life. Thereafter the testator Robert Masters acquired by purchase, and at the time of his death owned and was seized of, the following described parcels of real estate: Being ten feet off of the north side of lot number fifteen of Watkins’ addition to the village of Murray City, Hocking county, Ohio. Also that strip of land lying between the west boundary of said ten feet off of said lot number fifteen and the stream known as Snowforlc, and extending from said west boundary of said ten feet to the stream, said strip being in Flocking county, Ohio. Also twenty feet off of the south side of lot number sixteen of Watkins’ addition to the village of Murray City, Flocking county, Ohio. Also that strip of land lying between the west boundary of. said twenty feet off of the south side of said lot number sixteen and the stream known as Snowfork and extending from said west boundary of said twenty feet to the said stream, said strip being in Hocking county, Ohio. Mary Masters having formally elected to take under the will of her deceased husband, claimed, as devisee, a life estate in the premises last above described, and in her lifetime collected and appropriated to her own use rents and profits arising therefrom to the amount of $651.00. Mary Masters died February 7, 1905, and subsequently plaintiff in error; O. W. FI. Wright, was duly appointed administrator of her estate. On July 14, 1906, the defendants in error herein brought suit in the court of common pleas of Flocking county against said O. W. H. Wright as administrator of said Mary Masters,. to recover said sum of six hundred and fifty-one dollars so received and collected. by her as rental from said after-acquired property. In said action Frances Spencer refusing to join as plaintiff was made a defendant. By way of answer to the petition of plaintiffs in said action the administrator pleaded three several defenses: First, that Robert Masters did not die intestate as to the property described in plaintiffs’ petition, but that under and by the provisions of his will said property passed to, and became the property of, Mary Masters for and during her natural life. The second defense was. a plea of estoppel. The third defense went out on demurrer and is not here involved. Plaintiffs replying to the second defense denied specifically the several matters relied upon as creating an estoppel so far as the same were pertinent and well pleaded. The trial in the court of common pleas resulted in a verdict and judgment in favor of the defendant O. W. IT. Wright, administrator. This judgment was reversed by the circuit court, and we are now asked to reverse this judgment of the circuit court and to affirm the judgment of the court of common pleas.

      Mr. O. W. H. Wright, for plaintiff in error.
    Our contention in this case is, that Robert Masters did not die intestate as to the real estate described in the petition. This is apparent from the whole will; and is so as a matter of law, in view of the will and the facts admitted to be true by the pleadings below.
    Robert Masters intended that his wife should have all his property at his death.
    The common law rule as to after-acquired property does not obtain in Ohio. Section 5969, Revised Statutes; Ridenour v. Callahan, 8 C. C., N. S., 585.
    It is, or may be claimed, that it does not “clearly and manifestly appear” from Masters’ will that he intended to devise after-acquired property. As to the rules of construction in wills see Carrel v. Carrel, 24 C. C., 416; Brimmer v. Sohier, Exr., 55 Mass., 118; Winchester v. Forster, 57 Mass., 366; James, Exr., v. Pruden, 14 Ohio St., 251; Lessee of Smith v. Jones, 4 Ohio, 116; Farrar, Admr., v. Fallestine, 4 C. C., 235; Cushing et al. v. Aylwin, 12 Met., 169.
    Section 5964, Revised Statutes, makes it “the duty of .the court to explain the provisions of the will, the rights under it, and by law in the event of a refusal to take under the will.” Rockel’s Probate Practice, Section. 1223.
    Then, if there is still doubt, either party concerned can file a petition in court for construction of will under Section 6202, Revised Statutes.
    All the parties accepted the situation. If it was a mistake, Mrs. Masters could have filed a petition to set aside her election. But she died before anyone claimed, or discovered any mistake; and it would be injustice now to disturb the relations and situation of the parties as they mutually placed themselves. Mrs. Masters was estopped by her action, in the absence of fraud or mistake, after she elected. Page on Wills, Section 814.
    The doctrine of estoppel is set forth in: 5 Michie Ohio Digest, 721; Castalia Trout Club Co. v. Sporting Co., 8 C. C., 194; Buckingham v. Smith, 10 Ohio, 288; Tone v. Columbus, 39 Ohio St., 281; Seeds v. Simpson, 16 Ohio St., 321.
    The old, harsh definitions of estoppel, such as Lord Coke gave, and their applications, have been greatly mollified by modern decisions. The new doctrine is called “equitable estoppel,” a more potential name than the former common law “estoppel in pais.” Pomeroy’s Equity Jur. (3 ed.), Section 802. The best definition of “equitable estoppel” is from Stephen’s Digest, page 124.

      Mr. S. Weldy and Mr. H. E. Sparnon, for defendants in error.
    There is no language used in any part of the will whereby it could or would embrace after-acquired real estate. After-acquired property will only pass to the devisee when the will purports to embrace all the property of the testator.

      Before the act of the first Victoria, enacted in 1837, there was no such thing as after-acquired property passing under a will in England without a re-publication of the same. The same rule pertains in every state of the United States except where the rule has been changed by legislative act. The exact time when- the rule was changed in. Ohio by the enactment of Section 5969, Revised Statutes, we are unable to say, but we are able to say that it was passed after the year 1836, which is manifest from the case of Lessee of Reynolds v. Shirley, 7 Ohio (part 2), 39.
    The distinction of the construction of devises of after-acquired property since the enactment of Section 5969 is that after-acquired property may now pass without a re-publication of the will, if such is the clear intention of the testator from the language used in the will. Applegate v. Smith, 31 Mo., 169; 1 Jarman on Wills (5 Am. ed.), 606.
    At common law rule, property acquired after making a will did not pass under a general disposition “of all my real estate.” Havens v. Havens, 1 Sand. Ch., 324.
    The language used by Masters, the testator, in his will, is not ambiguous or equivocal. The property devised is specific. The general clause in his will conferring on the devisee, the wife, the power of sale of any or all of his real estate, is also for a specific purpose, to pay debts if necessary. This conferred to the devisee a naked power of sale, nothing more.
    We have yet to learn that a naked power of sale confers title. Bane et al. v. Wick et al., 19 Ohio, 328.

      The second defense pleaded by the plaintiff in error is acquiescence on the part of the heirs at the probating of the will.
    The defendants in error as the heirs and residuary legatees of Robert Masters acquiesced when the will was read, and they still acquiesce in all the provisions of the will as it reads, and as it is; they are not responsible for the misdirections given by the probate judge to the widow. The fact is, that both parties labored under a mistake. Mrs. Masters believed that the testator had given her a life estate in all his real estate, and the defendants in error were of the same opinion. Where two parties labor under a mutual mistake, neither party can lose any rights thereby. McAfferty v. Conover’s Lessee, 7 Ohio St., 99; Pennsylvania Co. v. Platt, 47 Ohio St., 366.
   Crew, C. J.

The soie controversy between the parties hereto is as to who is entitled to receive the rent arising from certain real estate purchased by the testator, Robert Masters, after he had made and executed his last will and testament. The amount of the rent — -six hundred and fifty-one dollars — arising from said property is not in dispute, and it is admitted that Mary Masters, widow of testator, in her lifetime collected and appropriated said rent to her own use, she claiming the right thereto, as devisee of a life estate in said after-acquired property, under the will of her deceased husband. Upon the record now before us one of the questions presented is: Did this real property acquired and purchased by Robert Masters after the making and execution of his last will and testament, by force of the provisions of said will, pass to and become the property of Mary Masters for and during her natural life? We are clearly of opinion that this must be answered in the negative. It is well known that at common law a testator could transmit by devise only such lands as were owned by him at the time of executing his will, and after-acquired real property was not permitted to pass by testamentary devise unless, after the acquisition of such property; there was' a re-publication of the testator’s will. This rule of the common law has, however, been so far modified by statute in this state that' property acquired by a testator subsequent' to the execution of his will, shall pass thereby, if, from the will itself, it shall appear with sufficient clearness that such was the intention of the testator. Section 5969, Revised Statutes, provides that: “Any estate, right or interest in lands * * * acquired by the testator after the making of his will shall pass thereby in like manner as if held or possessed at the time of making the will, if such shall clearly and manifestly appear by the will to have been the intention of the testator.” The language of this statute clearly indicates its limitation, and shows it to have been the purpose of the legislature to restrict its operation to those cases where the intent of the testator to pass after-acquired property is clearly and sufficiently disclosed in his will. Hence, in every instance the question involved becomes one of construction, and the intent of the testator must be sought in the will itself. The will under consideration in the present case makes no reference whatever in any of its provisions to after-acquired property. The property therein devised by item one to Mary Masters during her life is definitely designated and specifically described, and there is in the provisions of said will no hint or suggestion anyjvhere of a purpose on the part of the testator to give her more than the property thus specifically described. This will contains no residuary clause, and there is in it no clause, either general or specific, under which the property in controversy would or could pass to Mary Masters as devisee, even if the testator had owned the same at the time he executed said will. While the presumption is,- where one has made a will, that he did not intend to die intestate as to any part of his property, yet this presumption against partial intestacy neither requires nor authorizes the court to make for the testator a new will, or to include in the will made by him property not comprehended by its terms. It is, however, insisted by counsel for plaintiff in error in his brief, that the language employed in item three of this will, taken and considered in connection with the other provisions thereof, show it to have been the intention of testator .that his wife, Mary Masters, should take by said will all the real property of which he should die possessed; but by what logic such conclusion is, or may be, properly reached, we are not told. Item third reads as follows: “I do hereby nominate and appoint my wife executrix without bond of this my last will and testament, hereby authorizing and empowering her to compromise, adjust, release and discharge in such manner as she may deem proper the debts and claims due me; I do also authorize and empower her, if it shall become necessary in order to pay my debts, to sell by private sale or in such manner, upon such terms of credit or otherwise, as she may think proper, all or any part of my real estate and deeds to purchasers to execute, acknowledge and deliver in fee simple.” This provision, while it confers upon Mary Masters as executrix the power to sell part or all of testator’s real estate if necessary to pay debts, does not purport to give to her any title to, interest in, or control over said real estate, except such as may be necessary to the proper execution of the power so conferred. We. are, therefore, upon a consideration of all the provisions of the will of said Robert Masters, of opinion that Mary Masters, his widow, did not, under the devise to her in said will, take any title to the property described in plaintiffs’ petition which was acquired by testator subsequent to the execution of his will. It follows therefore necessarily, that as devisee, she was not entitled to collect and receive the rents and profits arising therefrom. As to the second defense pleaded — estoppel—there being no conflict or dispute in the evidence introduced at the trial upon this issue, the question here presented becomes one of law, and without now attempting to review or discuss this evidence at length, we think it sufficient to say upon this branch of the case, that assuming as established every fact which this evidence tends to prove, it wholly fails to sustain or make out the defense pleaded.

Judgment of the circuit court reversing the judgment of the court of common pleas affirmed, and final judgment entered for defendants in error.

Summers, Spear, Davis, Shauck and Price, JJ., concur.