text:
    James v. Howell.
    1. Ordinarily tlie meander-lines run in surveying fractional portions of the public lands bordering upon navigable waters, are run, not as boundaries of the tract, but for the purpose of defining the sinuosities of the banks of the stream, or lake, and as the means of ascertaining the quantity of land in the fraction which is to be paid for by the purchaser.
    2. But when the government survey, field notes and plat show that a meander-line was run as the border, or boundary, between fractional sections and a marsh, and that the solid ground between the marsh and a lake was surveyed, meandered and platted as an island, with its acreage separately computed and marked by township and not by section, the first named meander-line is the boundary of the marsh. The fractional sections do not include any part of the ground surveyed, meandered and platted as an island.
    Ebbob. Reserved in the District Court of Lucas County.

      Section 2 of the act of May 18, 1796 (Brightley’s Dig., U. S. Stats., 498), provided that the public lands northwest of the river Ohio “ shall be divided by north and south lines, run according to the true meridian, and by others crossing them at right angles, so as to form townships of six miles square, unless where the line of the late Indian purchase, or tracts of land heretofore surveyed or patented, or the course of navigable rivers may render it impracticable ; and then this rule shall be departed from no further than such particular circumstances may require. One half of the said townships, taking them alternately, shall be subdivided into sections, containing, as nearly as may be, six hundred and forty acres each, by running through the same, each way, parallel lines at- the end of every two miles, and by marking a corner on each of said lines at the end of every mile, * * * . The fractional parts of townships shall be divided into sections in manner aforesaid, and the fractions of sections shall be annexed to and sold with the adjacent entire sections. * * * . These field books shall be returned to the surveyor-general, who shall therefrom cause a description of the whole lands surveyed to be made out * * ® ; he shall also cause a fair plat to be made of the townships, and fractional parts of townships, contained in the said lands, describing the sub-divisions thereof, and marking the corners. This plat shall be recorded in books to be kept for that purpose; a copy thereof shall be kept open at the surveyor-general’s office for public information, and other copies sent to the places of the sale, and to the Secretary of the Treasury.”
    Section 2 of the act of February 11, 1805 (Brightley’s Dig., U. S. Stats., 466), provides that “the boundary lines, actually run and marked, in the surveys returned by the surveyor-general * * * shall be established as the proper boundary lines of the sections, or sub-divisions, for which they were intended, and the length of such lines, as returned * * * , shall be held and considered as the true length thereof. And the boundary lines, which shall not have been actually run, and marked as aforesaid, shall be ascertained by running straight lines from the established corners to the opposite corresponding corners; but in those portions of the fractional townships where no such corresponding corners have been, or can be fixed, the said boundary lines shall be ascertained by running from the established corners, due north and south, or east and west, as the case maybe, to the water course, Indian boundary line, or other external boundary of such fractional township.”
    During the years 1834 and 1835, Ambrose Rice, a deputy surveyor, pursuant to a contract, dated August 31, 1833, with Micajah T. Williams, then the surveyor-general of the United States, for Ohio, Indiana and the territory of Michigan, surveyed and sub-divided into sections fractional townships nine (9) south in range nine (9) east, and nine (9) and ten (10) south in range ten (10) east, from the Michigan meridian, and duly certified his field notes to the then surveyor-general, Robert T. Lytle. Lytle, pursuant to section 2 of the act of May 18, 1796, made descriptions of the lands surveyed and a plat of said townships, showing the sub-divisions and marks of the corners. This plat showed a line beginning on the west line of section 19, township 9, south of range 9 east (on the south shore of Maumee ba}7), and thence, running easterly and southerly, winding, as if following a shore, until it crossed the south line of section eleven (11) in township 10, south of range 10 east. Nearly opposite the point where a north and south line through the center of section 22, township 9, range 10, crossed this shore line, and about one mile and a half from it, began an island called Cedar Island. This ran at first northerly for more than half a mile, and then southeasterly to a point opposite the “ meander ” along the north side of section 25, in said township. A short distance southeast of this point another island began, and extended southeasterly beyond the north line of section 5, Township 9, range 9, produced easterly. There was a narrow inlet. A third island began on the east side of this inlet, and extended southeasterly, almost to what would be the east line of section eleven (11), township 10, south of range 10, east. Between these islands and the winding line, first described as a shore line, was a space designated “ impassable marsh and water.” No surveyed lines crossed the islands except the township lines. The northwestern island was named Cedar, and was the largest. The one next east of it was marked as “ Sandy Island.” The plat showed that 7.52-acres of it were in township 9, range 9; 28.49 acres in township 9, range 10; and 1.18 acres in township 10, range 10. The southeastern island was marked as “Crane Island,” containing 18.38 acres, all in township 10, range 10. From the northwest end of Sandy to the southeast end of Crane, was about seven miles. The field notes on the plat showed that the circumference of each island was surveyed, or “ meandered.” So also was the southerly edge of the “impassable marsh and water.” The same field notes showed that the fractional sections south of said marsh and water had their marked corners at the southerly edge of the marsh. Their computed areas included no part of either marsh, water, or islands. While no surveyed section lines crossed any island, dotted extensions of those lines showed that the islands began in section 24, township 9, range 9 (no part of this section was ever surveyed as such; it was all water, marsh and island), and crossed sections 19, 30, 29, 32 and 33 in township 9, range 10; (sections 19, 29 and 33 were all lake, marsh and island), and sections 4, 3, 2 and 11, township 10, range 10. Sections 3 and 2 were all lake, island and marsh. Norman Strait separated Cedar and Sandy Islands, Lily Strait lay between Sandy and Crane, and Crane Creek entered the lake at the east end of Crane Island.
    On July 10, 1844, a patent issued Jo Margaret Bailey, reading thus:
    No. 17,698. The United States oe America.

      To all to whom these Presents shall come— Greeting:

    Whereas, Margaret Bailey, of Champaign county, Ohio, has deposited in. the General Land Office of the United States a certificate of the register of the Land Office at Bucyrus, whereby it appears that full payment has been made by the said Margaret Bailey according to the provisions of the act of Congress of the 24th of April, 1820, entitled “An act making further provision for the sale of the public lands ” for fractional section eleven, in township ten, south of the Michigan base line of range ten, in the district of land subject to sale at Bucyrus, Ohio, containing twenty acres and forty-five hundredths of an acre, according to the official plat of the survey of said lands returned to the General Land Office by the surveyor-general, which said tract of land has been purchased by the said Margaret Bailey.
    Now, know ye that the United States of America, in consideration of the premises and in conformity with the several acts of Congress, in such case made and provided, have given and granted, and by these presents do give and grant, unto the said Margaret Bailey, and to her heirs, the said tract above described, to have and to hold the same, together with all the rights, privileges, immunities and appurtenances, of whatsoever nature thereunto belonging, unto the said Margaret Bailey, and to her heirs and assigns forever.
    In witness whereof, I, John Tyler, President of the United States of America, have caused these letters to be made patent, and the seal of the General Land Office to be hereunto affixed.
    Given under my hand at the City of Washington the tenth day of July, in the year of our Lord one thousand eight hundred and forty-four, and of the Independence of the United State's the sixty-ninth.
    By the President, John Tyler,
    [seal.] By Wm. Tyler.
    N. M. Whitney, Recorder of the General Land Office. Signed by Recorder, 10th December, 1844.
    Ten other similar patents, all dated July 10, 1844, conVeyed to her fractional section 22, township 9, range 9, 142.15 acres; fractional section 25, township 9, .range 9, 255.58 acres; fractional section 26, township 9, range 9, 443.94 acres; fractional section 27, township 9, range 9, 588.58 acres; fractional section 30, township 9, range 10, 34.86 acres; fractional section 31, township 9, range 10, •33.72 acres; fractional section 4, township 10, range 10, 56.30 acres; fractional section 9, township 10, range 10, 585.09 acres; fractional section 10, township 10, range 10, 494.20 acres ; and fractional section 11, township 10, range 10, 20.44 acres.
    If the lines of fractional sections 30, 4 and. 11 were extended so as to embrace one mile square each, section 30 would include about one mile and one eighth of the western half of Sandy Island; section 4 would include about one eighth of a mile at the east end of Sandy Island and about one sixteenth of a mile off the west end of Crane Island, and section 11 would include something more than half a mile off the east end of Crane Island. Although the government plat showed no part of Sandy Island within the lines of section 25, if extended, a recent survey tended to prove that about one fourth of a mile,' or less, of that island is actually within the extended lines of that fractional section. John H. James had succeeded to all of Margaret Bailey’s rights under said patents, and he claimed all of said parts of said islands.
    All the rights and title conveyed by the United States to Margaret Bailey by the said ten patents passed by mesne conveyances, and are now held by John H. James.
    On October 10, 1876, a patent issued to Arthur Dudley Howell, reading thus :
    Certificate No. 20,126.
    The United States of America. .

      To all to whom these Presents shall come — Gtreeting:
    Whereas, Arthur Dudley Howell, of Lucas county, Ohio, has deposited in the General Land Office of the United States' a cértificate of the register of the land office at Chilicothe, Ohio, whereby it appears that full payment has been made by said Arthur Dudley Howell, according to the act of Congress of the 24th of April, 1820, entitled “ An act making farther provisions for the sale of the public lands,” for Sandy Island and Crane Island, on the shore of Lake Erie, in section 24 in township 9 south of range 9 east, and in sections 19, 29, 30, 32 and 33 in township 9 south of range 10 east, and in sections 2, 3, 4 and 11 in township 10 south of range 10, East Michigan meridian, in the district of lands subject to sale at Chilicothe, Ohio, containing fifty-five and fifty-seven hundredths of an acre, according to the official plat of the surveyor of the said lands, returned to the surveyor-general, which said tracts have been purchased by the said Arthur Dudley Howell. Now, know ye that the United States of America, in consideration of the premises, and in conformity with the several acts of Congress in such cases made and provided, have given and granted, and by these presents do give and grant unto the said Arthur Dudley Howell, and to his heirs, the said tract above descz-ibed, to have and to hold the same, together with all the rights, pi'ivileges, iznznunities and appurtenances of whatever nature thereto belonging unto the said Arthur Dudley Howell, his heirs and assigns forever.
    In testimony of which, I, Ulysses S. Grant, President of the United States of America, have caused these letters to be made patezit, and the seal of the General Lazzd Office to be hereto affixed.
    Given under my hand, at the City of Washington, the tenth day of October, in the year one thousand eight hundred azid seventy-six, and of the independence of the United States the one hundred and first.
    By the President, U. S. Grant. By D. D. CONE, Sec’y.
    [seal.] S. W. Clark, Recorder of Gezi. Land Office.
    In Lucas common pleas, James sued Howell and Farley, to recover possession of part of these islands held by them, and Howell sued Jaznes and his tenants, for possession of other parts held by them. These actions were, by consent, tried upon the same evidence, a jury being waived. Judgments for Howell were rendered in each case. James filed petitions in error in the district court. By its order they were reserved for decision in the supreme court. The same bill of exceptions is in each case. It contains evidence tending to show — besides the facts hereinbefore stated — the' following: The so-called “ impassable marsh and water ” was composed of water mostly hidden by flags, wild rice, and similar vegetation. Through it no navigable water channel existed; even at low stages of the lake the water in the marsh was at lowest places six inches in depth. At a few points it could be crossed by wading. Ponds of water, separated by intervals of said vegetation, extended throughout from northwest to southeast. At times there was high water, partly from the lake and partly from inland streams, which covered the whole marsh, and also parts of the island and main land. As years passed by parts of the marsh gradually filled into a semblance of land. None of it was cultivable. In storms the lake sometimes beat over the islands, and to some extent changed their form and position. A recent survey, made with modern instruments, located a portion of Sandy Island perhaps a quarter of a mile southwesterly from the position indicated by Rice’s survey. This would place a small part of that island in section 25, township 9, range 9, instead of in section 19, township 9, range 10. On the islands trees — cottonwoods, sycamores and willows — were interspersed from the west end of Cedar all the way to the east end of Crane.
    J. B. Marston, a witness called on behalf of James, testified thus:
    “ Q. What is the character of this land between these old meandered lines and the sand beach? A. Well, it is what we call a flag marsh. Q. Did you ever see the beach or shore in very high water? A. Not in extreme high water, no, sir. Q. How much does the lake here vary in height? A. Six feet. Q. What do you mean by that, between the water in a northeaster and a soutliwester? A. Yes, sir; in storms. Q. Now, is there another variation running, along for ten or twelve years, where the tendency is to rise and then to fall ? A. I believe there is such a tendency, but I have not examined it enough to be able to testify. Q. State what the character of the land is between that sand beach and the meandered line of section 11, as to being capable of cultivation. A. It is not capable of cultivation. Q. How is it about being filled with pond holes ? A. There are pond holes in it. Q. Is there any channel running up and down, parallel with the beach, or anything like it along the inside of. the beach ? A. There is no definite, well defined channel; there are patches of water and then places to walk on and then other patches of water. Q. Do the channels all run back to the woods? A. The creeks and channels all run from the woods out to and spread over the marsh. Q. Does this sand beach frequently stop up the channels ? A. I have known cases where those channels would break away through the sand and then stop up again. I think Crane Creek and Norman’s Straits are well defined openings.”
    Jonathan Wynn, called by Howell, testified thus:
    “Q. Well, what has been your occupation the greater part of your life ? A. I was a mill-wright originally and surveyed some, which occupation I followed off and on for thirty-five years, perhaps. Q. And from 1853 to 1856, down to the present time, how familiar have you been with these localities? A. Well, from 1856-7, up to about four or five years ago, I was on the beach about every fall; last three or four years I have only been there once perhaps; I mean at Crane Creek. I was most acquainted with the beach there, from Cedar Creek to Frenchman’s Creek and Norman Straits; I have not been beyond that. I first went there to mow grass and afterwards to hunt ducks. Q. Is this a continuous marsh from Maumee Bay, east ? A. Yes, sir; commencing a mile and a half or two miles from Jamestown and extending down to Frenchman’s Creek. Q. What is the character of the marsh? A. Well, when the water is very high you can go almost all over it with a boat; this fall the water was very low, and you can go almost all over it on foot. Q. How is it as to bogs or pond holes? A. You get into these pond holes and there is a bog; I mean in these rice bogs. Q. How extensive are the pond holes through the marsh ? A. Well, there is a very large number of them in the neighborhood of Frenchman’s Creek or Norman’s Straits; when you get below that there is a kind of a continuous string of marshes or ponds all the way down, so that when the water is high you can run from one pond to another with a boat. Q. Well, as I understand it, the height of the water in the marsh depends upon the lake and not upon any streams that run into the marsh ? A. Yes, sir; but in the spring it depends upon the water that comes from the woods a good deal, and stands sometimes higher in the marsh than in the lake, where the outlets are not sufficient to carry off, when the water is coming in very flush from the woods; at other times it is on a dead level with the lake, and is affected by the rise and fall of the water in the lake. Q. What can you say as to the location of this beach from Frenchman’s Creek to Crane Creek, now, compared with what it was when you first knew it? A. I can say very little, if any, difference in it. Right at Norman’s Straits it is changed a little ; but, excepting that point, it is the same as when I first saw it; I mean .the identical trees are there yet. Q. How do you think that the width of that island or sand bar compares now with what it was when you first saw it? A. It was decidedly wider this fall than it ever was when I first saw it; the accretion is on the lake shore side; I travelled it four or five miles this fall, and found it wider all the way; I went down about two miles below Ward’s Canal; didn’t go down quite to Crane Creek; by sand bar I mean these islands.”

      W. J. Gilmore and Henry T. Niles, for plaintiff in error;

      Charles Kent, John H. Boyle and Isaac P. Pugsley, for defendants in error.
   Granger, C. J.

The deputy surveyor, Rice, plainly limited the fractional quarter sections to the territory separated by the meander-line from the “ impassable water and marsh,” and surveyed “ Sandy ” and “ Crane ” as separate and distinct “islands.” The surveyor-general, Lytle, so treated fractional sections and islands, in making the statutory plat. The patents to Margaret Bailey conveyed to her each fractional section “ according to the official plat of the survey of said lands returned to the General Land Office by the surveyor-general.” James, at the trial below, put in evidence a plat, which the commissioner of the General Land Office, on April 16, 1851, certified to be a “ true and literal exemplification of the plats on file in this office.” This copy showed “ Cedar” and “ Crane ” as islands. On it no township or section line crossed either, except that the north and east lines of section 4, township 10 south, range 10 east, are shown. -This north line crossed a small island west of “ Crane,” while th‘e east line crossed the west end of “ Crane.” The lines of no other fractional section, lying south of Sandy and Crane islands, extend into the marsh at all. About one fourth of Sandy Island (the western part), is shown as an island. The remainder appears, some of it as a straight black line extending southeasterly from said western portion, and part as the vevy small island above referred to as crossed by the north line of said section 4. Because of this certified plat, James claims that, under power given by the act of July 4, 1836 (Land Laws, vol. 1, p. 552), the commissioner had disapproved so much of what had been done by the surveyor-general and his deputy as treated Sandy and Crane as islands, and therefore, they became and remained parts of the fractional sections.

Howell put in evidence certified copies of the surveyor-general’s plats of the three townships, and a certified copy of a diagram of the islands, made pursuant to the act of January 22, 1853. This was certified July 30, 1875. All these showed the islands as separately surveyed and computed. They were not included within any surveyed section lines, although on each township plat appeared dotted projections of the section lines across water, marsh and. islands. It is evident that the copy certified April 16th, 1851, is unreliable. It shows townships 9 and 10 south of range 10 east, as lying west of townships 9 and 10 south of range 9 east. If the commissioner had disapproved of the separate survey and platting of the islands, his approved plat would not show all of Cedar and Crane, and part of Sandjq as islands not included in sections. Instead of entirely omitting the dotted lines of Lytle, crossing water, islands and marsh, he would have converted them into regular section lines. An inspection of the certified copy, we think, establishes that this claim of James is unfounded.

The lines and corners, as actually surveyed and marked, bound the fractional sections by what is called the “ impassable water and marsh,” and not by the main body of the lake. The “ meander ” line along the southerly border of the marsh Was, in fact, intended to be the boundary line of the fractional sections. It is clear that the United States Land Office did not treat the islands as parcel of those fractional sections; it did treat them as islands surveyed, platted and to be sold as such. Margaret Bailey’s patents by express terms, grant “according” to the surveyor-general’s plats. The patents must be so construed as to give effect to their true intent and meaning, but the rule favoring grantee as against grantor does not apply to them, because the vendor was the public, the nation.

It is urged for James, that, under the act of 1796, it was unlawful to bound the fractional sections by the .marsh; that by force of that act, each of them extends across marsh and island to the main lake; that the statute authorized no boundaries for fractional sections except (1) straight north and south, or east and west lines; (2) “the line of the late Indian purchase; ” (3) “ tracts of land heretofore surveyed and patented;” or (4) “the course of navigable rivers';” and, therefore, wherever the lines of one of these fractional sections, if projected so as to include a square mile, do not meet either of these legal boundaries until they enter the main lake, all of that square mile between said lines and the lake are parcel o'f thé section, and pass to its patentee.

The act of 1796 is the instruction given by the government, as principal, to its agents in the land office. If construed literally and strictly, lake Erie itself could not be a legal boundary. Although in the mind of- a geographer it may be considered as part of the river St. Lawrence, it'is in legal terms, and in popular parlance, not a river, but a lake. But there is no dciubt that it is. a legal boundary under the true intent and meaning of the act of 1796. 'The waters of this lake are added to by the streams that drain the lands around it. The contributions of , such streams, mingled with other water of the lake,' fill the straits between Cedar, Sandy and Crane islands, and the space platted as “impassable water and marsh.” Even at low water in the lake, there is six inches of water in this marsh. Witnesses speak of a chain of ponds. These are merely spots in the marsh where, because of the depth, or for some other reason, vegetation has not been able to find support. The water is under the vegetation that covers the so called marsh, as well as in the so called ponds. The islands are in fact surrounded by water, although' vegetation of a certain sort grows thickly in much of that water. The meandered line along the southerly edge of the so called marsh, was in fact along a shore of the lake. In order to form a statutory boundary, the navigable river need not be actually navigable at every point. Lake Erie as a whole is navigable. For that reason every part of its shore, under the act, might be 'trsated by the surveyor as a legal boundary for fractional townships and sections. In so treating so much of the lake as lay behind these islands, Rice and Lytle did not exceed their authority. According to’the evidence put in by James, as well’ as by Howell, it appears that even at a low stage <jf the lake there is six inches depth of water in this inarsh, and a greater depth in the straits. Moreover, the act of 1805 expressly provides that “ the boundary lines actually run 'and marked in the surveys returned by the surveyor-general, shall be established as the proper boundary lines of the sections or subdivisions for tohich they were intended, and the length of such lines as returned shall be held and considered as the true length thereof.” Including the “ meander,” all the lines o£ Margaret Bailey’s fractional sections were actually run; marked and returned. Hence the provision touching lines not so run and marked, does not apply to her lands.

On behalf of James, her assignee, R. R. Co. v. Schurmeir, 7 Wall., 272, is cited in support of his claim, that the “meander” line, along the southern edge of the marsh, was run, not as a boundary for the fractional sections, but “ for the purpose of defining the sinuosities of the banks of the marsh, and as the means of ascertaining the quantity of land in the fraction which was to be paid for by the purchaser.” In that ease the court so held, but in stating the facts it said: “ In the government survey, no mention of, or reference to, this bar or island, was in any way made in the field notes, plat or map. The fractional parcel, as already said, was represented as lying immediately upon, and bounded by, the Mississippi river.” The opposing claimant based his title on a second survey, made after the patent had been issued under the original survey. Clifford, J., in the opinion, after reciting the facts and quoting the statutes, said: “Express decision of the Supreme Court of the state was, that the river, in this case, and not the meander line, is the west boundary of the lot, and in that conclusion of the state court we entirely concur.” This decision was made at December term, A. d. 1868, Miller, J., concurring. Sitting in the circuit court for Wisconsin in April, 1865, the latter judge tried Granger v. Swart, Woolworth C. C. Rep., 89. He said to the jury: “ The patents .....under which the defendant claims, do not pass the title to the premises in question, unless, at the date of the entries on which they issued, the Rock river, where it is called a river, and lake Koshkonong, where it is called a lake, extended to and bordered upon the meandered line which constitutes the boundary of the lands described in the patents. In other words, if, between the meandered line, which by the government survey was made one of the boundaries of the land sold to Walker, and the 'bank of Rock river and shore of lake Koshkonong, there was at that time a body of swamp, or waste land, or flats, on which timber and grass grew, and horses and cattle could feed, and hay be cut, then the patents to Walker did not cover this land, but was confined to the actual limits of said meandered line.”

If the claim of counsel lor James be true, this charge was bad law; the surveyor could not, by the meander line, deprive the fractional section of its right to go as far as to the river or lake.

These two cases do not conflict. In each case it seems to us the same principle was applied. In the absence of plain indication of an intent to make the “ meander line ” the actual boundary of the fractional section," it must be treated as run for the purpose of ascertaining the quantity to be paid for by the purchaser, and the section extends, with the lines of its square mile, to the actual stream or lake. In the case before us, the intent to limit the fractional sections by the marsh, and to exclude the islands, is unmistakable. Hence, even if the evidence had shown that the marsh contained far more earth than water, and that hay could be cut, or cattle pastured, thereon, James could not hold the islands beyond the marsh.

But, as already stated, that evidence established the permanent presence of water between the islands and James’ meander line; that this water was maintained there by the lake and, for the purpose of constituting a boundary under the act of 1796, was a part of the lake. It is true the channel between the meander line and the islands was not navigable, but that, in our view, is immaterial. The statute does not read “ navigable water,” or “ navigable channel,” but “ navigable rivers.” Hence, where a river itself is navigable, the government surveyors may treat any part of such river as a boundary, as well a part that will not permit the passage of a boat, as those deep enough to float the largest vessel. .

Rice and Lytle treated the bank along the southern edge of the so called “impassable marsh and water” as the shore of lake Erie; the marsh as a part of the lake, and Cedar, Sandy and Crane, as islands in that lake. It does not appear that the commissioner of the land office disapproved, their action. We think their action was legal, and the judgments complained of are

Affirmed.


source: Caselaw Access Project

author: Granger, C. J. Nash, J.

license: Public Domain

text:
    Christy vs. Commissioners of Ashtabula County.
    1. Under section 20, Revised Statutes, the board of county commissioners of any county in Ohio may take and hold, any property devised or bequeathed to it, or to its members, for any lawful public purpose recognized by statute, in which the tax payers of the whole county are interested.
    2. Although the actual disbursement of the school fund is by statute committed to township, city and village boards of education, the maintenance of schools is such a lawful public purpose in which all tlie people of the county are interested.
    3. A testator devised and bequeathed the residue of his property “to tlie county of Ashtabula in the state of Ohio,.for educational purposes, to be under the full control of said commissioners, to use and expend as seems best in their judgment to promote and advance the cause of education in said county of Ashtabula.” Held:

    1. This residue was devised and bequeathed to the board of county commissioners of Ashtabula county.
    2. That board is competent to take and hold it; and may authorize its expenditure by the respective boards of education within said county, for such legal educational purposes, and in such proportions as the board of county commissioners shall deem best to promote and advance the eause of education in the county.
    3. Under existing statutes said county commissioners, in ease an orphan asylum or children’s home, for the county, be established, may themselves expend money of this devise and legacy in furnishing a room, books, etc., for a school therein, and may set apart another portion for disbursement in support of said school by the proper board of education.

      i. Being competent to take, hold and administer this devise and legacy, said eommissoners may exercise, in the disbursement of said fund, such additional powers as the general assembly of the state shall see fit to grant; but no statute passed after the decease of the testator can authorize them to do any act not beforehand assented to by him under a proper construction of the will.

      Error reserved ,in the District Court of Ashtabula County.
    On the 12th day of November A. d. 1880, James Christy died testate in Ashtabula countjn He left no issue of his body, no adopted child, and no legal representative of any such issue or child. On the 18tl} day of December, 1880, his will was duly admitted to probate. It contained the following clause. “ Fifth. — The balance or residue of my property, both real and personal, I will, devise and bequeath, to the county of Ashtabula, in the state of Ohio, for educational purposes, to be under the full control of said commissioners, to use and expend, as seems best in their judgment, to promote and advance the cause of education in said county of Ashtabula.”
    Some of the heirs at law of the testator, by writing, requested the executor to begin an action in Ashtabula common pleas “ asking its direction and judgment as to the just effect of said will in the disposition of said residue of said estate, and as to his duty in the distribution thereof.” Thirty days having elapsed without action by the executor, said heirs-at-law began suit against the executor and the county commissioners of Ashtabula county asking the court to construe the will and direct a proper distribution of said “ residue.” The other heirs-at-law were made defendants but by answer they adopted the prayer of the petition. The common pleas held that the residue passed to the commissioners and directed the executor to distribute it to them. A petition in error was filed by the heirs in the district court, and that court reserved the ease for decision here.

      Greorge M. Tuttle and E. JE. Hutchins, for plaintiff in error.

      Theodore Hall and Boynton ¿- Hale, for defendants in error.
   Granger, C. J.

Section 20 Revised Statutes reads thus :

“ The state, county commissioners, township trustees, boards or officers of municipal corporations, and the boards of directors, trustees or other officers of any of the benevolent, educational, penal or reformatory institutions wholly or in part under the control of the state and any of said municipalities or institutions, shall be capable of receiving by gift, devise, or bequest, moneys, lands, or other property, for their benefit, or the benefit of any of those under their charge, and to hold and apply the same according to the terms and conditions of the gift, devise or bequest; but this section shall not be held to affect or change the statutory provisions as to devises or bequests for such purposes.”

It seems to us that the words “ commissioners of the ” wei'e intended to precede the word “ Ashtabula ” in the second line of the fifth clause of the will. The subsequent words “to be under the full control of said commissioners” indicate that the writer supposed that they had previously been named or referred to. Be that as it may, the fair construction of the clause as a whole, makes it a devise and bequest to the count}* commissioners for the county. See Welch, J. in Carder v. Commissioners, 16 Ohio St., 369. Could they take, hold and administer?

Section 20, quoted above, took the place of section one of the act of February 11, 1869, (66 Ohio Laws, 8), section 20 of the act of March 1, 1877 (74 Ohio Laws, 38), and section one of the act of March 7, 1878 (75 Ohio Laws, 42). The last named act related to trustees of any of the benevolent, educational, penal and reformatory institutions of the state and authorized them to take “ for the benefit of any of such institutions, or of any of the inmates of the same.” The revisers evidently intended a section, sufficiently comprehensive to furnish a representative for the people of the state in each of their subdivisions, as well as in their aggregate, capable of taking, holding and administering any property that any testator might choose to devise or bequeath for the benefit of that aggregate, or of any of its recognized parts, to be used for any purpose recognized by the statutes controlling the beneficiary. Primarily the subdivisions are counties and townships; secondarily cities, villages and hamlets ; thirdly, collections of individuals segregated from home-dwelling people by physical or mental defect or infirmity, or by affliction, poverty or crime. The'se last inhabit what are referred to as “institutions.” In every case the actual beneficiaries are the people, or some definite portion of them recognized as such by legislation. The only designated representative of that part of the people of the state which inhabits and constitutes a county, is the board of county commissioners. That board has no “charge” of persons. It has charge of certain county property and manages such business of the county (that is, of that fragment of the state population which dwells within the county lines) — as has been committed to it by statute. The persons, whose interests are under the charge of these commissioners are the people of the count}'-. But while the boards controlling the “institutions” before referred to, have in charge the iudividuals, who are inmates, the board of county commissioners does not represent the several interests of the persons who inhabit the county. It does represent many property interests of those persons as an aggregate. As an aggregate those people, — in a corporate capacity, — own buildings such as court house, jail etc., and the ground under and appurtenant thereto; roads of divers kinds; bridges; stocks in certain corporations; moneys raised by taxation etc. These are named as examples; not as an attempted enumeration of all.

Section 3956 directs the auditor of state to apportion the state common school fund to the several counties, of the state semi-annually. Thus the county as a county, owns the portion so assigned to it. As it is payable to the treasurer ; apportioned to the townships by the county auditor, and paid out under direction of the several boards of education within the county, no part of this fund is directly controlled by the commissioners. But it is their duty, each September to count all the funds in the treasury, examine and compare books and vouchers, and remove a treasurer who has embezzled any of the funds. .Moreover they are expressly required, when called upon, (see 3969) to so far’ examine into the action of the several boards of education as to see whether or not, they provide funds enough to give to all the youth of school age in each district sufficient school privilege ; that in each district a scho.ol shall be continued for at least six months in the year, or that each school shall have an equitable share of school advantages as required by the statutes relating thereto; and if any school board fails to so provide, the commissioners make the needed levy. Under section 401Q, they must, under the circumstances therein named, provide the necessary school room or rooms, furniture, apparatus and books for the school in any infirmary, children’s home or orphan-asylum belonging to the county.

It seems to us that the county, in its corporate capacity, is,the owner of the money that supports the schools within the county. Its auditor divides that money amongst the townships before it is expended, but that fact does not affect the county ownership of the fund so long as it remains in the county treasury. This ownership is in trust for the county school system, as regulated by statute. By its legislation the state has made the county the trustee and custodian of the school fund for all the schools within the county lines, while the people of each school district manage its school through a board chosen by themselves. This board calls upon the county for the share of the money in its charge, which that portion of its people have a right to expend. Moreover, the county maintains and furnishes the school in its infirmary, its children’s home, and its orphan asylum. So, as already stated, we think that section 20 intended to create a representative of the people of the county — capable of taking, holding and administering money, or property, that could, under the terms of the will, be used for any purpose for which said quasi-corporation aggregate might lawfully hold, or expend money. Section 8964 seems to contemplate the possible presence in the county treasury of money for schools, other than the county’s share of the moneys apportioned by the state auditor, or raised by taxation. After providing for these last named moneys, it concludes with a provision that “ all ether money in the county treasury for the support of common schools * * * shall be apportioned annually in the same manner as the state common school fund.”

If then, this so-called corporation aggregate, the county, may hold and expend any funds for schools within its territory, its designated representative may take and hold any devise or bequest therefor unless the will requires its expenditure in an unlawful manner, or for an unlawful purpose.

This will designates the purposes as “ educational,” and prescribes, as the manner, to use and expend as seems best in their judgment to promote and advance the cause of education in said county.” The purpose is the identical one for which our school tax is collected. No word in the will requires an unlawful act. The commissioners can pay into the county school fund so much as they deem best. The auditor will apportion this under section 3964. They may apply part of it to furnish the room, furniture, apparatus and. books under section 4010. If they find that any board of education has failed to provide the funds required by section 3969, they may use part of it instead of making a levy.

It is urged that the clause does not sufficiently define its object; also, that unless the commissioners can legally exercise the wide discretion allowed by the terms of the will the actual intent of the testator cannot be carried out; that he would not have made the devise and bequest if he had supposed that the discretion of the commissioners would be limited to the sphere of their statutory powers.

These claims can best be considered together. The presumption must be that the testator knew the law. When he selected public officers, whose powers were granted by statute, to administer his bounty for a public purpose, in law he knew the limitations of their powers, although in fact he may have been ignorant of them. Whether actually ignorant of those limitations or not, the testator used well chosen words. They convey his consent that the commissioners may freely exercise their discretion. Hence no matter how largely the legislature of the state may add to the power of county commissioners in educational matters, the terms of the will permit, the board to exercise those powers according to their discretion — “ as seems best in their judgment to promote and advance the cause of education in said county.”

In Carder v. The Commissioners, 16 Ohio St., 353, the devise was to the county of Fayette. No object was named. The court held it good; that the property could be used for any purpose for which a county could lawfully hold property. The will of James Christy is more definite. If a county can hold and distribute, or expend any funds for educational purposes within its own bounds, the case cited is in point, and supports the judgment of Ashtabula common pleas.

That a county, under the statutes in force in 1880, could so hold, distribute and expend some funds, we have already shown. While it may not. be material to show that such funds could be held, distributed or expended by the commissioners, section 4010 expressly directs such expenditure by them.

Unless under section 20 the commissioners can take and hold for every purpose for which a county can hold, own or expend, counties are left unrepresented in the subject matter of said section, as to important interests. It is true that each board of education is competent to take a devise or legacy for its schools, but that does not supply representation for the educational interests of the people of the county. If this will had named the school boards of Ashtabula county as devisees and legatees, infinite difficulty and embarrassment in administration would result. We cannot think that the legislative body intended that the testator’s bounty should either be given to the whole state, or limited to a school district. As we read it, county commissioners may take and hold title to anything that a county may hold or own, although in the actukl custody or expenditure the county must, under some statute, act by an officer, or officers, other than its commissioners.' Section 20 clothes that board with power to take and hold, and transmit to the proper custody, the subject of the devise and legacy. In so far as the actual expenditure of the Christy residue must, under the statutes, be made by boards of education, such expenditure is within the county for educational purposes. The will in effect directs the commissioners to determine what schools, and in what sums, the residue shall be apportioned. Section 20 gives them power to receive from the executor. Other statutes make it their duty to place county money, that conies to their custody, in the treasury. Moneys so placed, designated as for expenditure in special school districts, the auditor must credit to those districts, and the proper school board is charged with the actual expenditure.

Under the terms of this will we think the legislature may add to the powers of the commissioners in educational matters, and the board can use such powers as far as the terms of the will permit.

The judgment of the common pleas is affirmed.

Nash, and Martin, JJ., dissented.

Nash, J.

I am unable to concur in the conclusion that the commissioners of Ashtabula county have capacity to take and hold the real and personal property attempted to be given by James Christy in his will to the county of Ashtabula “ for educational purposes, to be under the full control of said commissioners to use and expend as seems best in their judgment to promote and advance the cause of education in said county of Ashtabula.” This proposition is not sound unless “ the cause of education ” is one of the objects committed to the care of county commissioners.

In the case of Carder v. Commissioners of Fayette County, 16 Ohio St., 353, it was held that a county can take property by devise, and when the devise is made to the county by name, without limiting the uses of the property, it vests in the board of commissioners for the use of the county, and may be appropriated by them to any and all authorized county purposes. These are the support of the poor, the maintenance of local government, the establishment and repair of roads and bridges, and perhaps other purposes. But the cause of education is not one of these. For this the state is divided into school districts, styled respectively city districts of the first class, city districts of the second class, village districts, special districts and township districts (section 8885, Rev. Stats.), and each district is provided with a board of education. These boards are bodies politic and corporate, capable of suing and being sued, contracting and being contracted with, acquiring, holding, possessing and disposing of property, both real and personal, and taking and holding in trust for the use and benefit of such districts any grant or devise of land, and any donation or bequest of money or other personal property, and of exercising such other powers as have been conferred by the general assembly. Section 3971, Rev. Stats. For the support of the schools under their charge, money is provided by the state, and also by the boards themselves, by annual levies, which it is their duty to make. The money thus provided is expended under their direction. Full provision is thus made for the proper promotion of the educational interests of a county by bodies corporate, independent of the county commissioners.

Section 3969, Rev. Stats., gives to county commissioners power to do certain things in case any board of education fails to perform its duty. They acquire jurisdiction only where there has been a neglect, and then only over the district where the omission occurred. In such case they care not for the educational interests of the county, but have temporary control óf this interest in a small sub-division of the county.

By section 4010, Rev. Stats., the board of any school district in which a children’s home or orphans’ asylum or a county infirmary is located, is required, when requested by the trustees of such children’s home or orphans’ asylum, or by the directors of such infirmary, to create a separate school therein, so as to afford to the children therein the advantages of a common school education. All that the county commissioners are required to do in such Case at the expense of the funds under their control, is to furnish a room or rooms for the school. The money necessary for the support of such school comes from the funds of the school district, or from the funds of the institution, and the furniture, apparatus and books for the school, although furnished in the first instance by the county commissioners, must be paid for out of the funds of the institution. The exceptional cases wherein the county commissioners have a remote and comparatively unimportant connection with schools, do not make “ the cause of education ” one of the objects of their official care.

■ - Section 20, Rev. Stats, does not authorize county commissioners to receive bequests for educational purposes. It reads as follows: “ The state, county commissioners, township trustees, the councils, boards or officers of municipal corporations, and the boards of directors, trustees,, or other officers of any of the benevolent, educational, penal, or reformatory institutions, wholly or in part under the control of the state, and any of said municipalities or institutions, shall be capable of receiving, by gift, devise, or bequest, moneys, lands, or other property, for their benefit or the benefit of any of those under their charge, and to hold and apply the same according to the terms and conditions of the gift, devise, or bequest; but this section shall not be held to affect or change the statutory provisions as to devises or bequests for such purposes.”

This section does not enlarge the powers possessed by county commissioners when the case of Carder v. Commissioners, before referred to, was decided. It is contended that the words “ or the benefit of any of those under their charge,” contained in section 20, have extended their power of receiving bequests. The commissioners have certain business interests and property of the county ii^ their keeping, but they do not have persons 'under their charge. The commissioners who codified our laws, made this section comprehensive in conferring the power to receive bequests upon the state, county commissioners, township trustees, the councils and boards or officers of municipal corporations, and the boards of directors, trustees or other officers of any of the benevolent, educational, penal or reformatory institutions wholly or in part under the control of the state, and of any such municipality. To do this they were compelled to use language which would apply to some of the bodies or official boards named, but not to others. The directors, trustees and officers of the benevolent, educational, penal and reformatory institutions of this state, and of municipalities and counties, have persons wholly or in part under their charge, but county commissioners do not. Hence I think that the words of section 20 applicable to county commissioners are these : “ County commissioners shall be capable of receiving by gift, devise, or bequest, moneys, lands or other property for their benefit ” — for the benefit of the objects under their control — •“ and to hold and apply the same,” etc.

An examination of the law relating to orphans’ homes, shows that county commissioners have a much nearer relation to these benevolent institutions than they have to the educational interests of a county. If the general assembly intended that section 20 should have the broad application which is now sought to be given to it, it was an unnecessary labor for them to place section 928, Rev. Stats., in the statutes, and give again to the commissioners of the several counties power to receive bequests for the purpose of a siti and erection of an orphan asylum thereon and to maintain the same.


author: Johnson, C. J.

text:
    Lugenbeal v. Lemert.

      Replevin — Title.
    One who claimed a right to the possession of personal property by virtue of a lien, obtained possession thereof from the defendant as general owner or mortgagee, by giving a bond in an action in replevin against such owner or mortgagee. On the trial the jury found for the defendant, and judgment was rendered against the plaintiff for costs, but no damages were assessed against him for the value of the property. Subsequently the general owner or mortgagee, under his claim of title, rc-took the properly and converted the same to his own use.
    In an action by the plaintiff in the replevin suit to recover damages for the conversion of the same — Held :

    1. That the possession obtained by the proceedings in replevin, under a claim to a special interest therein by virtue of a lien, did not vest in the plaintiff a greater title or interest than he claimed in the action of replevin.
    2. In such a case, the rule “ that the replevin bond takes the place of the property replevied to the extent of the interest of defendant in re-plevin,” does not operate so as to vest in such plaintiff the absolute ownership in the property, nor create in him a new and independent title greater than the one claimed by him in replevin.
    3. Possession obtained by a plaintiff in replevin who claims a special ownership and possession as against one claiming possession as general owner, vests in the plaintiff the title he claims, and as against the general owner, the bond takes the place of the property to an extent not exceeding the interest claimed by the plaintiff.

      4. In an action by such plaintiff, against tbe general owner, for a conversion of tbe property, it is competent for tbe defendant to show tbe nature and extent of tbe plaintiff’s interest; and in assessing damages, it was error in the court to charge tbe jury to return a verdict for the full value of tbe property. If he is entitled to recover, it is only to tbe.extent of bis special interest in tbe property.
    Eeeor to District Court of Muskingum county.
    Lemert, plaintiff below, brought an action against Lu-genbeal and others, charging that they unlawfully took a horse and buggy, the property of the plaintiff, and converted the same to their use, for which he asks damages $140, that being, the alleged value of the property.
    The defendants deny the unlawful taking and conversion, also that plaintiff was the owner of said property.
    Por a second defense they deny that plaintiff owned the horse and buggy, and aver that the same was levied upon by the sheriff as the property of one Mason, and was by the sheriff placed in the hands of plaintiff to be kept, and that all the interest he had was' acquired under the act of the sheriff, and that defendant, Moses Lugenbeal, at the time he took the property from the plaintiff’s possession was the mortgagee or owner thereof.
    To the second defense plaintiff replied as follows : “ In reply to the second defense, plaintiff says that on the 11th day of April, 1877, plaintiff began a replevin suit before J. P. Starner, justice of the peace of Jackson township, Muskingum county, Ohio, against the defendant, Moses Lugenbeal, claiming a special ownership to said mare and buggy, by virtue of a lien, and that plaintiff was entitled to the immediate possession of said property ; that said Moses Lugenbeal was then a resi - dent of said township, and said justice had full and complete legal jurisdiction of said action, and duly issued a summons and writ of replevin thereon, which, on said 11th day of April, 1877, were received by J. E. Horn, a constable of said township ¡ and legal service having been made by him of both writs, the constable duly took possession of said mare and buggy, and caused the same tobe duly and legally appraised, and the plaintiff according to law duly gave, in due form of law, to the satisfaction of said justice of the peace,'an undertaking in replevin, in double the appraised value of said mare and buggy, to wit: in the sum of $240, with R. P. Men-denhall, a good and sufficient surety ; and said constable duly then and there delivered said mare and buggy to this plaintiff —the plaintiff in said action of replevin — and made due return of. said writs and undertaking according to law; and thereupon, whatever questions existed before, the plaintiff became and was the owner of said mare and buggy. All statements in the answer inconsistent with this reply are untrue.”
    Upon the issue thus joined a trial was had, resulting in a verdict for the plaintiff. A motion for a new trial on the ground of error in excluding evidence, and in the charge, was overruled, and judgment was rendered on the verdict, and ■ a bill of exceptions' was taken by defendants.
    The district court affirmed this judgment.
    The bill of exceptions shows that the plaintiff, to maintain the issue on his part, offered in evidence the transcript of the justice, showing that in 1S77 he replevied this property from Lugenbeal, gave bond in double the appraised value of the same, and received the property from the officer; that the case was then tried to a jury, who returned their verdict: “We the jury do find in favor of the defendants,” upon which the justice rendered a judgment against Lemert for costs, but there was no assessment of damages to defendants. Defendants gave notice of appeal and gave bond, but did not perfect their appeal within the time, whereupon the appellee filed a transcript, and had a judgment entered carrying into effect that of the justice.
    Plaintiff also gave in evidence the replevin bond, which is in the usual form. lie also testified in his own behalf.
    On cross-examination, the defendants proposed to show by the plaintiff that he did not own the property — that it was placed in his care by the sheriff; that he fed and took care of the property to the value of $37, which was all the interest he had in the same, but the court refused to allow such proof,-to which defendants excepted.

      The defendants, in support of their defence, offered to prove by Moses Lugenbeal that he had an interest in the property, at the same time admitting that ho had not acquired any such interest since the action in replevin, but the court sustained an objection to such proof, and held that the action of replevin, and taking the property thereunder by plaintiff being ■ admitted by defendants, the only question before the jury was as to the value of the property; that the action of replevin vested the ownership of the property in the plaintiff, and that no inquiry was admissible as to whether, within the commencement of such action, the plaintiff had an absolute or qualified interest in the property. To this decision defendants objected.
    The defendants then offered plaintiff’s affidavit in the re-replevin case, but on his objecting it was excluded.
    This affidavit shows that the plaintiff had “ a special ownership in this property by virtue of a lien,” that he whs entitled to the immediate possession of the same, and that it was wrongfully detained from him by Moses Lugenbeal.
    The court not only refused evidence showing Lemert’s interest or want of interest in the property before the replevin was sued out, but also evidence of any interest of Lugenbeal prior to that time as owner or mortgagee'. On the trial, defendants admitted they took the property in controversy from the plaintiff under claim of ownership.
    The court charged the jury among other things, “That the only thing for them to determine was the value of said property at the time it was converted to their use by defendants.”
    In response to this charge the jury assessed the plaintiff’s damages at $100.

      John O' Weill, for plaintiff in error.

      M. M. Granger and Evans & Van Vorhis, for defendant in error.
   Johnson, C. J.

From the foregoing statement the undisputed conclusions of fact and law are :

1. That Lemert obtained possession of the property in the replevin suit, under a claim to a special property and right to hold the same, by virtue of a lieu thereon, for services rendered at the request of the sheriff; said property being delivered to him in the replevin suit by the constable, on his giving a replevin bond in double its appraised value, conditioned that he would duly prosecute his action and pay all costs and damages that might be awarded against him.

2. That the verdict and judgment against him in the action in replevin is in full force, and, as between these parties, conclusively determined that Lemert had no special ¡property, nor right of immediate possession therein, and that Lugenbeal, as owner or mortgagee was the sole owner and legally entitled to the possession, except only so far as the plaintiff acquired title by his suit in replevin.

3. That after said verdict and judgment Lugenbeal took and converted the property to his own use, whereupon Lemert brought his action as owner, to recover its full value, basing his right solely on the title acquired by the proceedings in re-plevin.

The issues joined conceded that the ownership and right of possession was in Lugenbeal, as settled in the replevin suit, but Lemert claimed, and so the court charged, that by virtue of the action in replevin, and the receipt of the property on his giving the bond and the verdict and judgment therein, a new and independent title was created, which vested in him, as absolute owner, by virtue of the statute, paramount to that of of the actual owner, and that no evidence was admissible on behalf of this general owner to establish his title prior to the commencement of the action in replevin, nor to reduce the damages below the value of the property

Under this holding, Lemert received a verdict for the full value of the property as general owner, although he never claimed but a lien thereon for something like one-third its value, and although it had been conclusively determined that this claim was unfounded, and that he 'had no right whatever in the property.

This anomalous result is sard to be the legal effect of the re-plevin verdict and judgment against the plaintiff, whereby a new and paramount title to the whole ownership was vested in him.

It is conceded that if that verdict and judgment had been in his favor it would have vested in plaintiff a special ownership only to the extent of his lien, and that when that was satisfied, Lugenbeal would then be entitled to resume his possession as general owner.

In such a case it is said in the brief of defendant in error; “ No person entitled to a mere possession or other special interest in personal property can inorease that interest by getting a verdict and judgment in his favor in replevin. If he win in such a suit, so soon as his special interest is at an end the real owner becomes entitled to possession. ”

If by winning he cannot increase his interest from that of a special to a general owner, it is difficult to discover upon what principle he can increase that interest by losing a claim of special ownership.

Again, the verdict and judgment in defendant’s favor entitled him to compensation, but none was given, and the result claimed is, to take from the owner his property without compensation, which is in violation of his constitutional right.

As the bond was to “pay all costs and damages that may be awarded against him Lemert’s bond was not liable for compensation because there was no award against him, except for costs.

The trial resulted in a judgment in favor of Lemert for the fnll value of the .property, so that in order to enjoy his own property, the owner must pay that value to one not having a scintilla of right, except as derived from the proceedings in replevin.

The pleadings, and the evidence offered which was excluded, show that the sheriff had seized this as the property of one Mason, and had left it with Lemert to be kept, and that for this service he asserted a lien, and replevied it from Lugenbeal, who claimed ownership adversely to the levy of the sheriff and of his bailor, Lemert. Hence, the verdict and judgment in the replevin suit of Lemert v. Lugenbeal, settled nothing as between the sheriff’s levy and Lngenbeal’s claim. As between them the former could have maintained replevin or trover against the latter, and if he established Mason’s title, as against that of the latter, could have recovered, thus subjecting him to a judgment in the sheriff’s favor, for the property, or its value to the extent of his execution, notwithstanding Lemert had already recovered its full value. So that Lugenbeal, the acknowledged owner as against Lemert, would not only be deprived of his property without compensation, but would be compelled to pay its full value to Lemert, and also be again deprived of it by the sheriff, or pay him its value, if the sheriff’s levy was paramount. Such a result may well lead us to inquire upon what principle it is founded..

The claim is: that the title of the plaintiff in replevin is a new one, derived from the possession- under the re-plevin bond, and that the verdict and judgment in that action vests an absolute ownership in the plaintiff, in no way depending on the amount of the compensation adjudged to defendant; and that if the jury erred in giving defendant no compensation, he could have corrected that by prosecuting an appeal, or upon error. In short the claim is founded upon a remark of Judge Read in Jennings v. Johnson, 17 Ohio, 155, that in replevin : “ The bond takes the place of the property to the extent of the interest of defendant in replevin.”

That remark was made when the defendant was the sheriff, claiming under a levy made on property as belonging to one Warner, which was taken from him by a writ of replevin issued by one Johnson.

The trial resulted in a verdict for the sheriff, and the sole question was as to the rule of damages, which the sheriff was entitled to recover. The court held that, if the value of the property exceeded the amounts of the writ, the amount due on the latter was the rule, but if it did not, then the value of the property. The sheriff is here treated as having a special interest in the property, and entitled to recover to the extent of that interest, and it is therefore said: “but the judgment debtor is no party to the replevin suit, and we leave him to prosecute such remedies as he may have against any person who wrongfully obtains possession of his property.”

Again, it is there said, if the plaintiff in replevin was the fraudulent assignee of the debtor, no one would claim that the sheriff could recover the full value, in order to return the balance to the fraudulent debtor.. The only point here decided was that the sheriff, who had a special ownership, could not, as defendant in replevin, recover beyond the extent of his interest, if the value of the property exceeded that interest, and to that extent the bond took the place of such interest. This clearly recognizes the principles that the rule of damages in such a case is to be determined by the extent of the title established in reple-vin, and not by the fact that a new title is thereby created.

In remarking upon this case in Williams v. West, 2 Ohio St. 87, Judge Thurman says: For as the replevin transferred only the special property, it left untouched the right of the judgment debtor, who was no party to the suit.” In the latter case it was decided that the gist of the action is the unlawful detention of the property, and therefore a general owner is liable to a special owner for such detention.

Rut it is claimed, that in an action of replevin by a special, against a general owner, when possession is acquired under a bond, the general owner can never recover the same property by replevin or its value in trover, though the special ownership has ceased, or shown to be unfounded, because the statute requires an affidavit that the property was not taken by any writ of replevin. As was shown in Williams v. West, this is too literal a construction, and does not prevent the general owner from maintaining replevin after the special ownership has ceased.

So it is there said, if a judgment debtor pay off a judgment after levy, he may replevin the property. So also in case of a tax or amercement, though the statute expressly provides that the affidavit must state that the property was not taken in execution, or for the payment of any tax, fine or amercement, or by virtue of any order of delivery.

This question again arose in Smith v. McGregor, 10 Ohio St. 461. That was replevin by one claiming a general ownership, with the right of possession against one making a like claim. It, was held: “That in such case” (italics by the court), “ the bond takes the place of the property to the extent of the interest of defendant in replevin.” In thus italicising the words, “such case,” the implication is, that it is only true where each claims a general ownership.

In the very able opinion of Judge Peek harmonizing this rule, as thus applied, with principle and with the constitutional right of an owner to be protected in his property, it is urged-with great acumen, that this rule does not apply when the plaintiff in replevin claims possession under a special interest against the general owner. It is there said that, in such a case, to this rule that the bond takes the place of the property to the extent of defendant’s interest, should have added to it the words: “not exceeding the title or interest of the plaintiff in replevin,” or other equivalent words.

In other words, when a plaintiff in replevin gets possession, under a claim of a special interest against the general owner, the bond takes the place of the defendant’s interest, to the extent of the interest claimed by the plcdntiff. Apply that rule to this case.

The plaintiff claimed a right to possession under a lien. To the extent of that lien the bond transferred the title, and upon failure to maintain his claim, the bond stood good to the general owner as security for his damages. In that case, if the plaintiff should fail, the defendant’s recovery “ would be limited to the estate or interest claimed by plaintiff;” and a recovery by the plaintiff would present no obstacle to a suit by the defendant on the termination of the bailment to regain the property, if still withheld from him. 10 Ohio St. 472.

This modification of the rule in cases of a special interest is reiterated in Crittenden v. Lingle, 14 Ohio St. 182.

In that case plaintiff, as mortgagee, by giving bond, obtained possession from the constable, who held the same as the property of the mortgagor. After this the sheriff seized and sold the same as the property of the mortgagor to the defendant in the action, from whom it was again replevied by the plaintiff. His title as mortgagee under .which his first replevin was obtained having been shown to be fraudulent and void, he claimed, as is done here, that by giving the bond in the replevin suit he obtained a new title, and that the bond took the place of the property, and that the title so acquired entitled him to the property. The court held that by obtaining possession under his proceedings in replevin, the plaintiff acquired a right to the possession, not as absolute owner, but to all the interest which the constable had acquired by his levy on it as the property of the mortgagor. We think this case, in principle, is like Jennings v. Johnson, sujyra, and that it decides the case at bar, as the plaintiff in that case only acquired by his replevin the special interest of the constable, and not the full ownership of the property, so here he only acquired the special interest claimed in his affidavit. At most the plaintiff was a bailee having a lien. His bond took the place of the property to that extent. Had he recovered in that action, the true owner could have paid the lien and recovered back the property. Lugenbeal, as owner or mortgagee, by taking possession, at most, only divested Lemert of the title he claimed, and by the conversion of the property, subjected himself to damages to the extent of the interest acquired by the action in replevin, and not to the whole value. This would have been the measure of his damages had he recovered in replevin. A fortiori this must be the most he could recover when he loses.

We hold, therefore, that Lemert by his replevin proceedings, only acquired the title he claimed as against Lugenbeal, and that the bond did not operate to create a greater interest.

Judgment of District Court and Common Pleas reversed and cause remanded.


author: OweN, J.

text:
    Yoho v. McGovern.
    1. It is no defense to an action under section 5366 (Rev. Stats.) to make one of the makers of a joint note a party to a judgment theretofore rendered upon it against the other maker in an action in which the former was not served with process, that at the commencement of the original action the days of grace allowed the makers had not expired. Clinton Bank of Columbus v. Bart, 19 Ohio 372, distinguished.
    2. A judgment rendered by a justice of the peace upon a joint note against one of the makers, the other having been a non-residént of, and not found within, the county, is no bar to a subsequent action upon such note against the latter.
    ERROR to the District Court of Noble county.
    On June 2,1877, Thomas McGovern commenced an action, as indorsee, before a justice of the peace upon a joint note made by Reuben Yoho and Jacob 0. Yoho, dated February 2, 1877, whereby they promised to pay one hundred and ten dollars on the 1st day of June next after date. Summons was served upon Reuben, but as to Jacob it was returned not found, the latter being a non-resident of the county and making no appearance in the action. On June 8, 1877 (the return day), Reuben failed to appear and judgment was entered against him. Execution was stayed. The stay having expired execution against Reuben was returned wholly unsatisfied. Proceedings against the bail for stay were duly but fruitlessly prosecuted. On May 22,1880, the judgment remaining wholly unsatisfied, McGovern commenced an action against Reuben and Jacob before the successor of the magistrate who rendered the original judgment, the object of which seemed, by the bill of particulars, to be to recover upon the note, and make Jacob a party to the judgment.
    This action was appealed to the court of common pleas, wherein McGovern set forth in his amended petition the note, the judgment and the proceedings thereunder, and prayed (1) that Jacob be made a party to the original judgment, and (2) for judgment against him upon the note. Jacob interposed as grounds of defense that if the action be regarded as one to make him a»party to the judgment, it could not be sustained, for that the original action upon it having been commenced before the expiration of the three days of grace allowed the makers, that is, before the maturity of the note, he could have had a complete defense in that action; and that if the action was to be treated as one upon the note, the judgment already recovered upon it against Reuben was a bar to further proceeding upon it against him, Jacob. The court held these defenses bad and rendered judgment against Jacob that he pay the amount of the note and interest, and that he be made a party to the original judgment.
    On proceedings in error, this judgment was affirmed in the distinct court. To reverse these judgments is the purpose of the present proceeding.

      Hunter & Mallory, for plaintiff in error :
    1st. The answer shows that the note sued on is a joint note and that a judgment has heretofore been taken on it against Reuben Yoho, the joint obligor ; that judgment is a bar to an action on the note against this defendant. See Sloo v. Lea, 18 Ohio, 279, 805 ; Barda v. Hart, 5 Ohio St. 33, 35 ; Reynolds v. Railroad, 29 Ohio St. 602; Avery v. Vansiclde, 35 Ohio St. 271; Rev. Stats. § 5054 ; Bigelow on Estoppel, 47 et seq./ Sheehy v. Mandeville, 6 Cranch, 253, is overruled in 6 Wall. 231.
    2d. If it be claimed, which we assume will be claimed under the amended petition, that this is an action, under section 5365 of the Revised Statutes, to make Jacob C. Yoho a party to the judgment rendered against Reuben, we insist that the action cannot be maintained; because, if that section applied to proceedings before justices (see chap. 13, title 3), yet the answer shows that no judgment could have been legally rendered against this defendant in the original suit. The note sued on was entitled to three days of grace in payment (see Rev. Stat. § 3175), and the action was commenced before default in payment or the legal maturity of the note. The defendant could have successfully made that defense, had he been served; “and he cannot be placed in a worse situation, in consequence of not having been served with process, than if he had been served. He is now entitled to the same defenses he could have made in the original suit. OUnton Banh v. Hart, 19 Ohio, 372, 373 ; Benson v. Adams, 69 Ind. 353 ; s. o., 35 Am. 220 ; Estes v. Tower, 102 Mass. 65 ; s c., 3 Am. R. 439.

      Bedford c& Ohey, for defendant in error, filed no brief.
   OweN, J.

1. The plaintiff in error maintains that if the proceeding below was one to make him a party to the judgment rendered by the justice of the peace against Reuben, by virtue of section 5366 of the Revised Statutes, it ought not to have prevailed, for that the judgment was rendered upon a note not matured at the commencement of the action, that the three days of grace allowed the makers had not then expired. He relies upon Clinton Bank of Columbus v. Hart, 19 Ohio, 372, to support this position. In that case suit was originally brought by the bank upon a promissory note of which four persons were charged as joint makers. One of them was returned as not found, and the case proceeded against the remaining three. One of them was in default and judgment was entered against him. The other two joined issue, and judgment was entered for them upon the finding that they did not undertake'and promise. Scire facias was afterwards issued against the one not served in the original suit, to which he demurred, and the demurrer was sustained ; the court holding that as no judgment could have been legally rendered against him had he been served in the original suit, he was entitled to the same defense he could have made therein. Upon the peculiar facts of that case, we have mo disposition to question the entire soundness of the conclusion reached. No joint liability was ever incurred upon the note in suit, and so, in legal effect, the court found, although one of the defendants was in default. At the common law, if two or more persons are charged as joint makers of a note, the plaintiff suing upon it cannot recover unless all charged are found to be liable. The defense was radical and substantial. In the case at bar, there is no claim that Jacob was not liable upon the note. He interposed no defense which went to the substantial merits of the claim.

Section 5366, under which the proceeding was had, provides : “ When judgment is rendered in this state on a joint contract or instrument, parties to the action who were not summoned, . . may be made parties thereto by action in the same court, if they be summoned in the state; . . ” The proceeding,' then, was a civil action, and it was to be expected of Jacob, in fact it was incumbent upon him, to interpose as many defenses as he had. His silence upon every subject except the prematurity of the note is an admission of the entire justice of the claim against him. At the time judgment was entered the note had fully matured. There is nothing in the case of Clinton Bank v. Hart, supra, which calls upon us to apply the principle of it to a case wherein the defense is so extremely technical and unsubstantial as in the case at bar.

2. But it is not necessary that we dispose of the case upon the conclusion just announced.

The plaintiff in error further maintains that if the action be treated as one upon the note (and the averments of the petition are broad enough to impart that character to it), the original judgment upon it isa harto further proceedings upon it against him as one of its joint makers. This presents a question more important and difficult than the one just considered.

That a joint obligation creates but one debt, and a judgment upon it, whether against all or part only of the obligors, merges it in the higher security, and operates as a bar to further proceedings upon it is so well established, as a general proposition, as to place it beyond serious controversy. Reedy v. Burgert, 1 Ohio, 160; Sloo v. Lea, 18 Ohio, 279; Clinton Bank v. Hart, 5 Ohio St. 34; Reynolds v. Railway Company, 29 Ohio St. 602; Avery v. Vansickle, 35 Ohio St. 274.

Section 5054 (R. S.) provides that when service has been made upon one or more, but not upon all defendants jointly indebted upon contract, the plaintiff may juoceed against the defendants served unless the court otherwise direct.

While this provision modifies the common law rulé upon the subject, it will be seen, in the light of the cases last cited, that notwithstanding this section, if the plaintiff further pursue the defendants not served, it must be, as a general rule, by an action under section 5366 to make them parties to the judgment already recovered against those served. ,

The question remains, then, whether there is anything in the case that takes it out of the operation of the rule- which merges a joint contract in a judgment upon it against one or more of the parties to it, and thus operates as a bar to further proceedings upon it against those not originally served. The rule, in its general application, is reasonable, and not necessarily one of hardship or injustice. But as it has been shown to be capable of much hardship, the courts have not hesitated, in proper cases, so to qualify it as to avert the harsh or oppressive consequences of its literal and rigid enforcement, where this would lead to a manifest failure of justice. So, where one of several joint contractors was under disability of infancy at the time of contracting, or had thereafter been discharged in bankruptcy, the plaintiff has been allowed to proceed without joining him in the action. Rand v. Nutter, 56 Me. 341. In obedience to this tendency, it was in England provided by statute (3 & 4 William 4, c. 42), “ that no plea in abatement for the non-joinder of any person as co-defendant, shall be allowed in any court of common law, unless it shall be stated in such plea that such person is resident within the jurisdiction of the eourtP

It follows from this that if the joint contractor not joined be without the jurisdiction of the court, the action could proceed against the one served. See Joll v. Curzon, 4 Man. Grr. &_S. 249. The rule is well established, that where one of several joint contractors is without the state, so that no service can be made upon him, judgment may be rendered against such of them as are found within the jurisdiction, and such judgment, remaining unsatisfied, is no bar to a subsequent suit and judgment against those not served upon the original cause of action. Burt v. Stevens, 22 N. H. 232; Dennett v. Chick, 2 Greenl. 193; Brown v. Birdsall, 29 Barb. 549; Bigelow on Estoppel, 71; Freeman on Judgments, § 234; Rand v. Nutter, 56 Me. 341; Tappan v. Bruen, 5 Mass. 193; Olcott v. Little, 9 N. H. 259. In the case last cited, Little was defending on the ground that Slyfield was his joint con-' tractor, and judgment had been rendered against the latter upon the joint contract. The plea to this was that Little was without the jurisdiction of the court at the commencement of the original action.

This case strongly supports the proposition above declared, and Upham, J., spealdng for the court, says it is a well settled rule that “if judgment is obtained against one of two or more persons jointly liable, in a separate action against him on said contract, the plaintiff cannot afterwards proceed against parties omitted, but must lose their security.” The learned judge cites numerous cases in support of the proposition, and adds : “ But these cases are all subject to exceptions, whenever the necessity of the case requires a separate suit to be brought. In the present instance, a sufficient excuse appears for the several character of the action heretofore bi-ought against Slyfield, so as clearly not to manifest an election to proceed against him to the discharge of the present defendant. This excuse arises from the fact that but one of the defendants was within the jurisdiction.”

In Tappan v. Bruen, supra, Parsons, J., says : It has been an immemorial practice, in the service of a writ sued on contract against two or more defendants, if some of the defendants are without the jurisdiction of the Commonwealth, and have no usual place of abode within the state at which summons may be left, to cause the writ to be served on the defendants within the state, and proceed only against those-for the breach of the contract by all the defendants. . . . This practice originated from necessity / as no mode of service is provided by our laws upon a debtor without the state, who has no place of abode or property within it.”

A careful examination of the authorities will demonstrate that the principle upon which this rule is grounded is, that if one of several joint contractors is beyond the jurisdiction of the court — out of the reach of its process — this creates a necessity of allowing the action to proceed against those within the jurisdiction, and this without affecting the liability of the former, in order to avert an entire failure of justice.

It is but the application of this principle to the case at bar which leads us to the view we have adopted.

McGovern invoked the action of a court having abundant jurisdiction of his cause. Reuben Yoho, one of the joint makers of the note, was found and served within the jurisdiction of that court. Jacob Yoho, the other joint contractor, was not a resident, nor could he be served, within that jurisdiction. The court was as powerless to send its writ beyond the borders of the county as a court of general jurisdiction would have been to send its writ without the state.

The necessity of proceeding against Reuben, in order to prevent a failure of justice, was as imperative as if the action had been in the court of common pleas, and Jacob a non-resident of, and not to be found within, the state. The suggestion that the sum involved was sufficient to give the latter court jurisdiction, and that McGovern could as well have selected that tribunal, is of no force except to provoke vain discussion. It only appears in the record that Jacob was not within the reach of the process of the court. "Whether he was or not a resident of the state does not appear, and the mere circumstance that the sum involved was sufficient to clothe another court with jurisdiction will not avail to affect the application of the rule.

McGovern has not shown a disposition to elect, voluntarily, to proceed severally against one of his joint obligors. For anything that appears in the record, he did what was in his power to call upon both his joint debtors to answer to his suit. He vainly invoked and exhausted the resources of the court in the pursuit of his remedy against ' both his joint debtors; and there is nothing in reason, justice, or authority which calls upon us to declare his cause of action merged in his judgment, or to hold him barred from proceeding upon it against the joint debtor who was beyond the reach of service in his original action. No question of misjoinder of parties or causes of action was made or considered below or in this court.

Judgment affirmed.


author: Follett, J.

text:
    Dietrick v. Noel.
    Adverse possession oí real estate loses its adverse character when the holder thereof, for a sufficient consideration, agrees with the true owner that suit to recover such possession shall not he brought during the lifetime of each of them.
    Ebeob to the District Court of Pike county.
    Dietrick brought suit against Noel to recover possession of real estate. This involved a question of boundary between their adjacent farms. Plaintiff claimed to the true division line, and defendant sought to defeat recovery by showing ■adverse possession by himself and those under whom he held, for twenty-one years. There is no question here as to the location of the true line, but only as to the character of the possession of Noel and those under whom he held. On this question the bill of exceptions taken on the Dual in the court of common pleas shows that “ evidence having been offered by the defendant tending to prove that the defendant, and those under whom he claims, had been in open, notorious, exclusive and adverse possession of the land in dispute for more than twenty-one years prior to the commencement of this suit, claiming title thereto; and on the part of .the plaintiff, evidence having been offered tending to prove that such possession had not been adverse to the plaintiff and those under whom he claims, for the full period of twenty-one years prior to the commencement of this suit, but that such possession had been held under an acknowledgment of title in one John Merritt, under whom the plaintiff claims; and evidence having been offered tending to prove that a difficulty arose between one James Wallace, under whom the defendant, claims, and John Merritt, under whom the plaintiff claims, Wallace threatening to close up an outlet that Merritt claimed the right to use over the land of Wallace; and Merritt threatening to sue Wallace to ascertain the title to the land, or where the true boundary line was between them, and evidence having been offered tending to show that some time between the years 1849 and 1853, and while said controversy was going on between them, that said Wallace and Merritt agreed, in writing, that the outlet should not be closed by Wallace, and that his possession of the land in dispute should not be interfered with by any suit by Merritt, and that such arrangement should last as long as either, or both of the parties thereto should live; and it appearing from - the evidence that said Wallace died in the year 1853, and said Merritt in the year 1870, thereupon, after the submission of the cause to the jury and the arguments, the defendant, among other things, asked the court to charge the jury as follows, to wit:
    “If, within twenty-one years before the beginning of this suit, it appears that Wallace (under whom the defendant claims), was in adverse possession of the land in dispute, and a difficulty arose between him and Merritt (under whom the plaintiff claims), Wallace threatening to close up an outlet that Merritt claimed a right to use over the land of Wallace, and Merritt threatening to sue Wallace to ascertain the title to the land, or where the true boundary line was between them, and thereupon the parties agreed, in writing, that the outlet should not be closed by Wallace, and that his possession of the land should not be interfered with by any suit by Merritt, and that the arrangement should last as long as either, or both of the parties should live, such agreement would in no way prevent the running of the statute of limitations in favor of Wallace, just as though no such agreement had been made.”
    Which charge the court refused to give to the jury; to which refusal of the court to charge the jury as requested, the defendant, by his counsel, at the time excepted.
    The jury rendered a verdict in favor of the plaintiff, Die-trick ; Noel filed a motion to set aside the verdict and for a new trial, which was overruled and judgment was entered, and a bill of exceptions was taken. On error the district court reversed the judgment of the court of common pleas; and a petition in error was filed in this court asking fora reversal of the judgment of the district court.

      O. F. Moore, J. W. Washburn and J. T. Moore, for plaintiff in error,
    cited Angelí on Lim. §§ 384, 413; Wood on Lim. §§ 256, 269; 270 ; Sedgwick and Wait on Trial of Title to Land, §§ 730, 738,744; Hunt v. Guilford, 4 Ohio 310 ; Webber v. Williams College, 23 Pick. 302; Utica Ins. Go. v. Bloodgood, 4 Wend. 652, Gaylor v. Van Loan, 15 Wend. 308 ; Bówe v. Thompson, 15 Abb. Pr. 380 ; Andrea v. Bed-field, 98 U. S. 238.

      G. A. Hutchins and Geo. D. Oole, for defendant in error,
    insisted that the agreement between Merritt and Wallace could in no way be construed into either an abandonment of possession, an ouster, or the creation of a tenancy. That an agreement to have the effect of putting a stop to the running of the statute must be made expressly for delay, and must bo founded on a sufficient consideration. A mere equitable es-toppel can never be set up against a statutory bar, even under “ strong equitable considerations.” BanJc of Hartford v. Waterman, 26 Conn. 324; Goodwin v. Inswrance Go., 20 N. H. 73, Ball v. Wyeth, 8 Allen (Mass.) 275; Golemam v. Wal-Tcer, 3 Met. [Ey.] 65 ; Harvey v. Tobey, 15 Peck, 99.
    The agreement in question in no way constituted an agreement for delay in the sense that such agreements affect the running of the statute.
   Follett, J.

Was there error in refusing to give the charge requested by Noel? If the agreement between Merritt and Wallace in any way did prevent the running of the statute of limitations in favor of Wallace, there was no error in the court of common pleas, and there was error in the district court. The written agreement is not set out, but the testimony and charge requested, show that Merritt and Wallace agreed in writing that the outlet should not be closed by Wallace, and that the possession of this land should not be interfered with by any suit by Merritt, as long as either or both of the parties should live.

Wallace agreed that the outlet should not be closed up, but might be used by Merritt; and Merritt agreed that the posses sion of the land should not be interfered with by suit by him, during the lifetime of either one of them; and by fixing a limit they provide for suit when the limit shall be passed.

Had Merritt sued Wallace or his successor in possession, for the possession of .the land, Wallace had secured this agreement to set up in bar : and W allace, only by having this agreement, remained in possession of the land until his death, and transmitted such possession until the death of Merritt. After the death of both, this action was commenced.

Adverse possession must be actual, open, continuous, hostile, and exclusive. The very essence of an adverse possession is, that the holder of it claims the right to his possession, not under, but in opposition to the title to which his possession is alleged to be adverse. Nor is possession adverse when it is held by agreement with the true owner. After the agreement the possession by Wallace was peaceable, because of the agreement. Erom that time forth the adverse character of the possession ceased to be hostile and exclusive, and its continuity was broken.

We will not presume that Wallace intended a sly fraud, but that the agreement was between neighbors and honest farmers. Wallace secured an agreement from Merritt that suit for the possession of this land should be suspended during the lifetime of each, and having accomplished this object he could not avail himself of it to the prejudice of Merritt; no more can Noel to the prejudice of Dietrick.

The running of the statute of limitations may be suspended by the mutual agreement of the parties. See Webber v. Williams College, 23 Pick. 302; 15 Abb. Pr. (N. Y.) 377; Holladay v. Little, 2 Munf. (Va.) 316; Ball v. Wyeth, 8 Allen 275.

So an agreement not to plead the statute of limitations is binding: Utica Ins. Co. v. Bloodgood, 4 Wend. 652; Gaylord v. Van Loan, 15 Wend. 310.

The case of Lovell v. Frost, 44 Cal. 471, was where the party in possession inquired of the true owner, “ whether he would not rent or sell the land to him if it should be allotted to him ” — the true owner in a partition suit then pending; and tbe supreme court of California beld that, “ If a party in possession of land offers to purchase it from the true owner, and this offer is made, not merely to buy an outstanding or adverse claim in order to quiet his possession or protect himself from litigation, the offer is a recognition of the owner’s title, and will stop the running of tbe statute.”

That a party by his agreement may be estopped not only from setting up the statute of limitations, but from claiming his possession to be adverse, was shown by this court in Lessee of Hunt v. Guilford, 4 Ohio, 317. In that case this court said, “ An agreement to submit a question of boundary to arbitration defeats the operation of the statute of limitations ;” and also, that on the trial of the case such an agreement may be evidence proper to show the character and nature of plaintiff’s possession, whether adverse or not.”

In that ease the agreement recognized a claim in dispute, and that the same could be settled by arbitration ; in this case the agreement recognized not only a claim in dispute and that the same could be settled by suit, but agreed that such suit.should be postponed during their lives.

By this agreement Wallace obtained peace and retained the peaceable possession of the land in dispute ; and the hostile and exclusive character of his adverse possession was gone. This agreement changed the adverse character of the possession of Wallace, and stopped the running in his favor of the statute of limitations. t

As this question determines the result of this case, we do not comment on any other.

There was no error in refusing to give to the jury the charge requested, and the distinct court erred in reversing the judgment.

Judgment of the district court reversed, and that of the common fleas affirmed. .