author: MiNSHAi/r,, J.

text:
    Webster v. Clear.

      Real estate — Deed to, from the state — Character of title purchaser takes — Remedy where title fails.

    One who purchases and receives a deed of land from the state, after it has been sold and conveyed to another, though the purchase was made in good faith and without actual notice, takes no title to the land against the former purchaser, although the deed of the latter is not at the time on record in the county where the laud is situate. A purchaser from the state takes such title as the agents of the state are authorized to convey; and, by way of indemnity, the justice of the state has, through its legislature, provided for the return of the purchase money to the subsequent purchaser with interest from the time of the illegal sale; he has no title to, and cannot recover, the land.
    (Decided May 10, 1892.)
    Error to the Circuit Court of Van Wert county.
    The plaintiff below, Zadoc Clear, brought suit against James Webster and Eawrence H. Wise to recover the possession of a certain tract of land described in the petition. The case was commenced in Paulding county, where the land is situated, and was, for some reason, afterwards removed to Van Wert, wheré it was heard and determined by the courts of that county. By reason of the fact that the lands of which a recovery was sought, had previously been partitioned between Webster and Wise, the plaintiff subsequently amended his petition so as to demand the part held by Webster, and dismissed his action as to Wise.
    The plaintiff deduced his title from the state under a deed made by the state to Charles Elliott on July 24, 1854, and a deed subsequently made by Elliott to himself.
    The defendant answered denying all the averments of the plaintiffs petition, and, as a second defense, averred that in 1853 the lands belonged to the state as canal lands, and were subject to entry by actual settlers at a greatly reduced price; that in that year Charles Elliott made a pretended entry and purchase of the lands, by falsely representing that he -desired them for actual settlement, and afterwards falsely represented to the Auditor of State that he had made such settlement and thereby procured from the Governor a deed for-the lands; that he never caused the deed to be recorded, and. that the lands did not appear upon the books of the Auditor of State as having been entered by any one; that on December 21, 1871, there being no deed for the land on record in the Recorder’s office of the county, and having no knowledge of the pretended claim of the plaintiff, he purchased the-same of the state and received a deed therefor from the-Governor, under the act of April 5, 1866, and paid therefor the sum of $320, and has been in the actual possession of the-same ever since, and prays that .the deed to Elliott, and, those claiming under him, máy be cancelled and his title - quieted.
    The plaintiff in his reply admitted the original character and ownership of the lands, that an entry was made by Charles Elliot in 1853, and that a deed was made to him by the state in 1854, under whom he claims by intermediate conveyances, but denied all the other allegations in the answer.
    The case was tried to the court upon the pleadings and. the evidence, which at the request of the plaintiff found and stated its conclusions of fact and law separately, as follows:

      “First — That on the third day of January, A. D. 1863, the-lands described in the petition, to-wit, the south half of the southeast quarter of section twenty (20) in town two (2)-north, of range three (3) east, in the county of Paulding, and. state of Ohio, containing eighty acres, more or less, were-owned by the state of Ohio, having been theretofore granted to the state of Ohio, by the United States of America, to aid. in the construction of the Miami canal, north of Dayton.

      “Second — That-on said third day of January, A. D. 1853, one Charles Elliott duly entered, purchased, and paid the-State of Ohio for said lands the sum of $80.

      “Third — That on the twenty-fourth day of July, A. D. 1854, by its deed, duly executed by the Governor of said. Stale of Ohio, under the great seal thereof, in all respects according to law, the said state of Ohio, for the consideration. aforesaid, duly conveyed and granted said land to tbe said Charles Elliott, his heirs and assigns, in fee simple, forever. That said deed was duly recorded in volume four (4), page 245, of the record of deeds of canal lands, in the office of the Auditor of State of the state of Ohio, but was not recorded in the record of deeds of Paulding county, Ohio, until the twenty-fourth day of September, A. D. 1875, and until after the execution and delivery of the deed to James Webster and Eawrence H. Wise, hereinafter mentioned.

      “Fourth — That on the twenty-first day of December, 1871, said James Webster and Eawrence H. Wise, in accordance with the provisions of an act passed by the legislature oí Ohio, April 5, 1866, entitled, “An act to provide for the sale of the remaining canal lands belonging to the State of Ohio,” in good faith, and without any knowlege that the same had been theretofore sold and conveyed to the said Charles Elliott, by said state of Ohio, purchased said lands from the Auditor ol State of said state of Ohio, and paid therefor the sum of $320, and the governor of the said state of Ohio made and delivered to said James Webster and Eawrence H. Wise a deed for said lands from said state of Ohio, to them and their heirs and assigns, in fee-simple, forever.

      “Fifth — That by certain proceedings duly had in the court of common pleas of Van Wert county, Ohio, by and between the said James Webster and Eawrence H. Wise, and Samuel Neil, as the assignee of said Eawrence H. Wise, the land hereinbefore described was set off to said James Webster in severalty; and that, by deed duly executed and recorded in the records of Paulding county, Ohio, all rights, title and interest of the said Charles Elliott was, for a valuable consideration, conveyed to the plaintiff, Zadoc Clear, and his heirs and assigns, in fee simple, forever,
    “And thereupon, the court finds, and states, in writing, as its conclusions of law upon the facts hereinbefore found and stated, that the said James Webster and Eawrence H. Wise are bona fide■ purchasers of said lands, having, at the time of said purchase thereof, no knowledge of the existence of the former deed from the said state of Ohio to the said Charles Elliott, his heirs and assigns, for said lands, and that tie said deed from said state of Ohio to said Charles Elliott his heirs' and assigns, for want of such record in said county of Paulding, ought to be held and deemed to be fraudulent and void as to the said James Webster, his heirs and assigns^ forever.”
    Thereupon the court adjudged the 'deed of the state to Elliott to be null and void, and quieted the title of the defendant to the possession of the land. Exception was taken at the time to the conclusions of law as stated by the court and to'its judgment thereon in favor of the defendant. On error the judgment was reversed by the circuit court, and judgment rendered in favor of the plaintiff Clear for the possession of the land. And this proceeding is now prosecuted to reverse the judgment of the circuit court and affirm that of the common pleas.

      John Darnell, for plaintiff in error.
    At the time that Webster and Wise purchased the land under the provision of an act passed on April 5, 1886, (See Statutes of Ohio, Yol. 63, page 140.) if they did not have actual knowledge of the Elliott deed, then they had a right to buy from the Governor and receive a deed for said land, and were innocent purchasers without notice. See Section of Statutes 4134, which was in force at that time, amended in 1882, page 330 1st Vol. Williams Statutes of Ohio. Morris v. Daniels, 35 Ohio St., 436.
    The defendant in error was guilty of negligence in holding an unrecorded deed for more than six months after the same was made and delivered, and the title to this particular piece of land could not be affected by any unrecorded deed, over six months old, until said deed was placed on record in Paulding county, Ohio, where the land was situated. By analogy we refer to the Statutes of Ohio, section 5967, protecting a bona fide purchaser, without knowledge of a will, where he purchases from one of the heirs.

      Hill & Hubbard, for defendant in error.
    I. We maintain, that there was no law in force on the 21st day of December, 1871, or at any time prior thereto, by tlie provisions of which, the deed from the state to Elliott was required to be recorded in the records of Pauld-ing county. Act of April 16, 1857; Swan & C. 476.
    The provisions of the act of February 22, 1831, Swan & C. 458, do not apply. State deeds were not within the terms of said act. Woodbury & Co. v. Berry, 18 Ohio St., 456.
    This statute, which, for the reason that the considerations of policy that dictated the enactment of its provisions as to the registration of the deeds of natural persons, applied with equal force to the deeds of corporations, has been extended by the decision in Sheehan v. Davis, 17 Ohio St., 571, far beyond the natural effect of its language, so as to include the latter class of deeds, should not now, by judicial legislation, be further extended to include state deeds, which are not onfy not mentioned or referred to in the language of the act, but which, as we confidently maintain, are not required by these considerations of policy, to be held to be included within its provisions.
    The object of all recording acts, is the protection of bona fide purchasers against being defrauded by means of prior conveyances or incumbrances, of which they have no notice, or knowledge, at the time of their purchase.
    Where one, whether a natural person or a corporation, sells and conveys lands to two different purchasers, but one of such purchasers can hold and enjoy the land. The only remedy, the one who fails to hold the land can have, is an action against the seller to recover the purchase money paid.
    The state has made provisions for the protection of such purchasers, against loss. 1 Curwin Stat. 115 and 116; 1 Swan & C. 197; Giaque’s Rev. Stat., 1890, pages 2380 and 2381.
    II. But even if this court should hold otherwise on these propositions, we claim that the court of common pleas clearly erred in finding that Webster and Wise were purchasers of this land within the meaning of the recording act, and in holding that they were entitled to the protection given by the act to subsequent purchasers.

      The state of Ohio sold these lands to Elliott. The state of Ohio never did sell, or attempt to sell, these lands to Webster and Wise. The Governor made a deed to Webster and Wise, for these, lands. But he had no power or authority to make such deed.
    The only power or authority of the Governor to make deeds for, or in the name, or on behalf of, the state, was to make such deeds to tire purchaser from the state, of lands sold by the state, for the lands so purchased and sold. As the state never sold, or authorized a sale of these lands to be made, to Webster and Wise, the deed made to them was the unauthorized act of the governor, and was not the act or deed of the state.
    The state of Ohio never did deed, convey or attempt to convey, these lands to Webster and Wise. It did duly convey them to Charles Elliott, and to no one else. Roseberry v. Hollister, 4 Ohio St., 297.
    The law of caveat emptor, in such cases applies with all its force to the purchaser. He buys at his peril. If the land had not been previously sold, he acquires title; if it had, he gets no title.
    It is very clear that the state never intended to authorize the Auditor of State to sell any lands • which the state had theretofore sold and for which it had received full payment, and had executed and delivered its deed to the purchaser.
   MiNSHAi/r,, J.

Both parties in this case claim title to the lands in question from the state to whom they belonged in 1858, as a part of its canal lands. In that year Charles Elliott purchased the- lands for a valuable consideration, and in 1854, received a deed therefor, executed by the Governor in due form, which, as required by law, was duly recorded in the record of deeds of canal lands kept in the office of the Auditor of State. It was not, however, recorded in the recorder’s office of the county of Paulding, where the land is situate, until in 1875. The plaintiff derives his title from Elliott by a deed duly executed. In 1871, Webster and Wise, without actual notice of the deed to Elliott, for a valuable consideration purchased the same lands from the state and received a deed therefor in due form of law. Their purchase was made under the provisions of an act passed April 5, 1866, providing “for the sale of the remaining canal lands belonging to the state.” 63 Ohio Raws 140.

The principal question in the case is, as to the effect of the omission of Elliott, or his grantee, to cause the deed executed to him for the land in 1854, to be recorded in the office of the recorder of Paulding county, until after the purchase had been made by Webster and Wise. The defendant claims that under the provisions of our recording act the deed to Elliott is of no avail against him, as he and Wise are bona fide purchasers having at the time they made their purchase no knowledge of the existence of the former deed.

We do not adopt this view. Whether the provisions of the act providing for the recording of deeds and the effect of an omission to do so, in terms applies to a deed made by the state, need not be considered, as special provision is made by the act of April 16,1857, (54 Ohio Raws, 160), for the recording of all deeds made by the state, in the auditor’s office; and though this act was passed a few years subsequent to the sale to Elliott, it is made applicable by its terms to any lands, that “have heretofore been sold or may hereafter be sold; ” and this deed was recorded in the auditor’s office in the record of canal lands as found by the court. This special provision for the recording of deeds made by the state, must, agreeably to the decision in Betz v. Snyder, 48 Ohio St. 492, be regarded as superseding the general provision on the subject. It was there held that the deed of an insolvent assignor for the benefit of creditors, takes effect and is notice to all persons from the time it is filed in the office of the probate judge, without having been recorded in the office of the recorder of the county, on the ground “that special statutory provisions for particular cases, operate as exceptions to general provisions which might include the particular case.” Hence, a deed from the state, executed and recorded as prescribed by this statute, necessarily becomes notice to all persons, that the land described in it has been sold and conveyed to a purchaser; and no one, unless by his negligence, can be a subsequent purchaser without notice. The rule is a convenient one. All purchases of lands from the state must be made through the auditor’s office. It is therefore not only convenient but proper, that evidence as to title and power to sell, should be sought for and furnished in the department where the individual, in acquiring lands from the state, must transact the business.

Again the act of April 5, 1866, under which the sale was made to Webster and Wise in 1871, simply conferred power on the auditor to sell “the remaining canal lands belonging to the state.” (63 Ohio Raws 140). In Roseberry v. Hollister, 4 Ohio St. 297, it was held that, where an agent of the state, under a power to sell any of “the unsold lands” belonging to it, sold to a third person a lot that had previously been sold to another, a deed made in execution of the power was void for want of power to make the sale, although the subsequent purchaser had no notice of the purchase and rights of the first one. KeNNON, J. said, in the disposing of the case: “ The authority of the state’s agent depended on the fact of whether he had made a previous sale of the lot. If he had not, then he could sell to the defendant; if he had, then he was not authorized to sell. The superintendent having, according to the authority conferred on him by the state, offered at public auction, and sold, this very lot, he had no authority from the state to afterwards sell the same lot, at private or public sale, to anybody; and, therefore, the second sale was wholly unauthorized by law.” The provisions of the registration act were insisted on by the second purchaser, but the court held that it had no application to the case, and that the doctrine of caveat emptor applied to him with all its force. In that case the first purchaser had no deed at the time of the sale to the second purchaser, he had simply paid for the land and received a certificate of purchase; and if the principal of caveat emptor, applied in that case, for an equal if not stronger reason, it applies in this,, where the first purchaser had not only paid, but had received and held a deed, for his land. The principle seems to be, that in making purchases from the state, the individual is bound to inquire for himself as to the title of the state, and its power to convey; and can acquire no rights against a previous purchaser of the same lands from the state. He stands in the shoes of the state and takes such title as it had power and right to convey. In Governeur's Heirs v. Robertson, 11 Wheat, 332, it is said. “The state never intends to grant the lands of another; and where the grantee is ignorant of the previous patent, the maxim, caveat emptor, is emphatically applicable to this species of contract.” Again, in Best v. Polk, 18 Wal. 112, it was said by Justice Davis, in delivering the opinion, “ It has repeatedly been held by this court that a patent is void, which attempts to convey lands that have been “previously granted, reserved from sale, or appropriated.” Stoddard v. Chambers, 2 How., 284; United States v. Arredondo, 6 Pet., 728; Richart v. Felps, 6 Wal. 160. And in New Orleans v. United States, 10 Pet., 731, it is said. “ It would be a dangerous doctrine to consider the issuing of a grant as conclusive evidence of right in the power which issued it. On its face it is conclusive; and cannot be controverted; but if the thing granted was not in the grantor, no right passes to the grantee. A grant has been frequently issued by the United States for land which had been previously granted, and the second grant has been held to be inoperative.”

That such is the policy of this state, seems supported by the fact that, to such persons as purchase lands of the state, and the title fails by reason of a previons sale to some one else, the legislature has provided indemnity. Thus by the act passed January 29, 1844, (42 Ohio Daws 6), it is provided, that where a tract of land has been purchased from the state, the purchaser, on making proof to the Auditor of State that the same was erroneously sold, and surrendering the deed therefor, is entitled to a warrant on the treasury for the money paid with interest at six per cent, from the date of the illegal sale. And this act is still in force. 2 Giauque Statutes, pp. 2380-1. Before this, in 1834, an act was passed, relating directly to the Miami canal lands. It provided that all persons who have or may hereafter purchase land at the office for the sale of the Miami canal land, “when the same had been previously sold and conveyed,” should be entitled to receive the amount which the purchaser had paid, out of the state treasury on the warrant of the auditor. 1, Curwen, Stat., 115. These provisions consist with the justice of the state. But, it will be observed, that no provision is made, applicable to the case of the previous purchaser, should he loose by reason of a sale made to a second purchaser by the state. If the claim of the latter is allowed to prevail, the first purchaser is without any remedy; and yet the loss must résult as a direct consequence of the wrongful act of the agents of the state in selling his land to another person. This would be contrary to the justice of the state, and was, therefore, not intended. Injustice to either is avoided by providing an indemnity to the one who gets no title from the state, as has been done. In such case the first purchaser retains his land and the justice of the state is satisfied.

/ It is therefor clear that, upon the facts found by the common pleas, it erred in rendering judgment for the defendant below; and that the circuit court did not err in reversing the judgment of the common pleas and in rendering judgment for the plaintiff for the possession of the land.

Jiidgment affirmed.


source: Caselaw Access Project

author: DicemAN, J.

license: Public Domain

text:
    Jones et al. v. Kirbreth.

      Insolvent banking company — Draft delivered for collection — Payment in full out of company’s assets — Jurisdiction—Res judicata.

    P. the owner, on or about August 20, 1857, delivered for collection to a banking company a draft dated August 14,1857, payable in thirty days after date. On August 24, 1857, the banking company failed, and on that day credited P. with the amount of the draft. On the 26th of September, 1857, the banking company made an assignment of all its property, in trust for the benefit of its creditors. On the day of its failure, one of its creditors attached the draft and other property in the possession of the banking company. At maturity the draft was paid, and the proceeds were accounted for by the sheriff to the attaching creditor. Several months after the assignment, the trustee under the assignment had an adjustment with the attaching creditor, of his claim against the banking company, whereby, the company was credited on its indebtedness to the attaching creditor, with the proceeds of the draft, and the attachment of the draft and other property was released. In an action in the Superior Court of Cincinnati by the Trustee against F. for money alleged to be due on account, F. set up, by the way of cross petition, an indebtedness of the trust estate to him, on the draft, and recovered judgment for the amount claimed. By the terms of the judgment, it was “considered by the court, that'the defendant recover of the plaintiff, as trustee, the sum of $-” being the full amount, with interest, of the draft. An execution was issued on the judgment, and levied on the individual property of the trustee. On motion the court quashed the execution. An action was brought in the court of common pleas against the trustee, to recover the full amount of the judgment, out of the money and other assets in his hands as trustee.

      Held: 1. The court of common pleas had jurisdiction of the subject-matter of the action.
    2. The banking company, could not, by crediting, on the day of its failure, the owner with the amount of the draft before its maturity and collection, place him in the position of a general creditor of the company, entitled to receive only dividends out of its assets in the hands of the trustee.
    3. The relation between the owner of the draft and the banking company with which it was lodged for collection, was that of principal and agent; and a trust character was impressed upon the draft and its proceeds, which forbade their application, with the company’s or trustee’s acquiescence, as a credit in payment of a debt of the company.
    4. The judgment rendered for the owner of the draft in the Superior Court was not an adjudication that estopped him from obtaining equitable relief in the court of common pleas.
    (Decided May 10, 1892.)
    Ek-8.or to tbe Circuit Court of Hamilton county.

      Kittredge & Wilby, and Matthews & Cleveland, for plaintiff in error.
    I. Tbe common pleas court bad jurisdiction of the subject-matter of this action. Conger v. Atwood, 28 Ohio St., 184; Gandolfo v. Walker, 15 Ohio St., 251, 278; Gilbert v. Sutliff, 3 Ohio St., 129; David v. Davis, 11 Ohio St., 386 ;
    II. Fosdiclc is not a creditor of tbe Trust Company. Revised Statutes of Ohio, sec. 6352.

      The deposit of paper for collection creates the relation of principal and agent between the depositor and the bank. Thomson v. Gloucester City Sav. Inst., 8 Atl, Rep, 97 (New Jersey Chan.); Levi v. Bank, 5 Dill. 104, 110.; First Nat. Bank v. Bank of Monroe, 33 Fed. Rep. 408, 411.
    This relation can not be terminated and the relation of debtor and creditor substituted without the consent of the depositor. Bank v. Bank, 76 Indiana, 561.
    The agency and authority to collect the draft or credit its proceeds had therefore terminated, and the entry of the amount of the draft to the credit of Fosdick on his account, whether made on the 24th of August, the day of the failure, or afterwards, is without effect upon the relation of Fosdick to the said Trust Company with reference to the Dows draft, and could not create him a creditor of the Trust Company therefor. In re Armstrong, 33 Fed. Rep., 405, and authorities there cited.
    III. The statute of limitations is not well pleaded.
    It is not suggested in the pleadings, nor was it suggested on the trial, nor in argument, what limitation, or the expiration of what number of years, was a bar to the plaintiff’s right to recover. No proof of any time elapsed was offered. A sufficient answer to this attempt to plead the statute of limitations would be that the Superior Court has rendered judgment in our favor upon our claim, which of itself disposes forever of any objection to it on the ground of lapse of time.
    IV. The plea of res adfidicata can not be maintained. The judgment that is claimed by Kilbreth to bar the plaintiff’s recovery in this cause is that of the Superior Court of General Term.
    The parties are the same, and the claim is that the judgment in that case concludes this. That can not be unless the subject matter and the real question necessarily determined in that case, were identical with this. We say “necessarily determined, ” for that is the test. Monday v. Vail, 34 N. J. U. (5 Vroom) 418, 422; Campbell v. Consalus, 25 N. Y. 613; People v. Johnson, 38 N. Y. 63; Spoors v. Coen, 44 Ohio St., 497, 502; Davüv. Brown, 94 U. S. 423, 428; Bur

      ton v. Barlow, 55 Vt. 434,437; Packet Co. v. Sickles, 5 Wall. 580, 592; Russell v. Place, 94 U. S. 606; Cromwell v. Sac., 94 U. S. 351; Lore v. Truman, 10 Ohio St., 45, 53; Revised Statutes of Obio, sec. 6726; Yeoman v. Las ley, 40 Ohio St., 339.

      Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
    I. The Court of Common Pleas had no jurisdiction of the subject matter of the action.
    This was a suit to compel the payment in full of this claim, out of the fund arising from the assets of The Ohio Rife Insurance & Trust Company, on the ground that that company, and Mr. Kilbreth as its trustee, had wrongfully received credit therefor in the settlement of their account with Brown Brothers. Whatever be the form, it is substantially an action to establish a preference in the distribution of those assets, and of such proceedings the probate court has exclusive jurisdiction. Sayler v. Simpson; 45 Ohio St., 141.
    II. The second defense pleaded is not correctly stated by counsel, who seem entirely to miss the point. It is not that Fosdick was a creditor of the Trust Company, for he was not until, by his answer to the amended petition in the case of Kilbreth v. Fosdick, he elected to accept the credit on the books of The Ohio Rife Insurance & Trust Company, set out in “Exhibit A” to said amended petition, but that the proceeds of this draft never came into Mr. Kilbreth’s hands as trustee; and the whole argument which counsel has built up out of his failure to state this defense correctly, must fall to the ground.
    The cases cited by counsel for plaintiff in error do not establish any other rule than this, that where a draft, endorsed for collection only, at the day of the assignment or of the appointment of the receiver, is in the hands of the bank or its agents, uncollected, or where, as in the Fidelity Bank cases, it is shown that, from the time when the collection of such a draft was made, up to the date of the assignment, the collecting bank was continuously indebted to the transmitting bank, in a sum larger than the amount of the collection, then the proceeds are regarded as having come to the hands of the receiver, but not otherwise. Such was the decision in Commercial Bank v. Armstrong, 39 Fed. Rep. 684, where the court, passing on a somewhat similar state of facts, held that the plaintiff could recover only such portions of the property as he could tráce into the possession of the bank’s receiver, either in their original or in some substituted form. In cases, however, where the creditor of the Fidelity Bank, having received the plaintiff’s paper for collection, had applied the same to the payment of debts to them from the Fidelity Bank, then, and in such case, the funds were not traced to the possession of the receiver.
    In the case at bar, under the facts shown, neither this draft nor any portion of its proceeds can be traced to the hands of Mr. Kilbreth or his predecessors in the trust. The case could be no stronger if Brown Brothers, instead of obtaining the draft by legal process and then applying it to the payment of the debt due from the Trust Company to them, had received the draft direct from the Trust Company, for collection, and had used it in the same way. In both cases alike Fosdick might have followed his draft into the hands of Brown Brothers. In the latter case he might have treated the Trust Company as his debtor, and proved his debt. In neither case can he claim that he has traced the proceeds into the hands of Kilbreth, as trustee.
    That decision is not inconsistent with any other case on this point. In Bank v. Bank, 76 Ind., 561, the facts were, in brief, these: The plaintiff bank had deposited in the Cook County Bank a draft endorsed for collection only; this draft had been, by the Cook County Bank, sent to the defendant for collection. Defendant, after the failure of the Cook County Bank, collected the draft and applied the proceeds to the payment of the debt due from the Cook County Bank to it. It was held that plaintiff might follow its draft and compel the defendant, which.had received it with notice that it was plaintiffs property, to account for its proceeds. So here Fosdick might have followed his draft and compelled Brown Brothers to account for its proceeds.

      In re Armstrong, 33 Fed. Rep., 405, is, in its facts, exactly like those parts of Commercial Bank v. Armstrong, where it was held that the funds were traced to the hands of the receiver; while Bankv. Bank, ib. 408, is similar in all respects both as to facts and results, to Bank v. Bank. 76 Ind.

      Levi v. Bank, 5 Dill. 104, is a case in which it was held, and properly held, that the plaintiff’s draft, in a substituted form, was traced, in specie, into the possession of the receiver. The language of the court, as applied to the facts of that case, is entirely correct, but it does not cover the case at bar.
    The same is true of the case of Thomson v. Savings Institution, 8 Atl. Rep. 97.
    In Bank v. Austin, 48 Fed. Rep., 25, the collection was made before the failure of the bank, and the money mingled with the general stock of the insolvent bank’s funds which came into the hands of the receiver. It was held that the money was not traced into the receiver’s hands so as to entitle the plaintiff to a preference.
    III. The Statute of Rimitations is well pleaded. It can not be essential that defendant should say, in his answer, what statute he relies on, when no motion is made to require him to make his answer more definite in that respect, but the answer is replied to by a general denial.
    IV. The plea of res judicata makes a good defense. The defendant relies not alone on the judgment quoted by plaintiff, but upon the judgment which is found on page 26 of the record, and the record of which case shows that the judgment was a judgment based on this claim as a debt of The Ohio Rife Insurance & Trust Company.
   DicemAN, J.

The original action was commenced on the 9th day of January, 1886, in the Court of Common Pleas of Hamilton county, by Frank J. Jones and Wood Fosdick, as executors of Samuel Fosdick, deceased, the plaintiffs in error, against James P. Kilbreth, trustee of The Ohio Rife Insurance & Trust Company, the defendant in error, to collect out of moneys and other assets in the hands of Kil-breth as trustee, the amount of a judgment for $7,007.34 recovered by Samuel Fosdick against Kilbreth, as trustee, in the Superior Court of Cincinnati.

The Ohio Rife Insurance & Trust Company, a corporation duly organized under the laws of Ohio, and engaged in the city of Cincinnati, Ohio, and in the city of New York, in the business of banking, receiving money on deposit, and paying the same upon the drafts or checks of depositors, became insolvent and closed its doors for the transaction of business on the 24th day of August, 1857, and on the 2fith day of September, 1857, made an assignment of all its property and assets in trust for its creditors, to certain trustees who accepted and entered upon the duties of their trust. Thereafter, on or about the 1st day of January, 1859, under an order of court, James P. Kilbreth was appointed, and qualified as trustee for the creditors of the Trust Company, and took charge of its property and assets in trust for the uses and purposes for which the first appointed trustees had held and administered the same.

In January, 1878, Kilbreth, as trustee, brought an action in the Superior Court of Cincinnati against Samuel Fosdick, then in life, wherein he sought to recover of him a sum of money upon an account alleged to be due the trust estate.

In that action Fosdick denied the indebtedness, and set up, by way of cross-petition, an indebtedness of the trust estate to him on a certain draft hereinafter described, and asked judgment therefor. At the June term, 1881, of the Superior Court, judgment was rendered for Fosdick against Kilbreth in the following words: “Whereupon it is considered by the court that the defendant recover of the plaintiff, as trustee, the sum of seven thousand and seven and 34-100 dollars with interest from the first day of this term, and his costs herein expended, taxed at $-.” Upon the death of Fosdick thereafter, this judgment was revived in the names of the plaintiffs in error, as executors of his last will and testament. On this judgment Fosdick or his representatives, never drew any dividends out of the assets of the Trust Company, although many dividends we redeclared, and paid to the creditors of the company.

On the 13th day of February, 1884, an execution was issued upon the judgment in favor of Samuel Fosdick. No goods and chattels being found whereon to levy, the sheriff levied upon certain lots of land situated in Hamilton county, and owned by and standing in the name of James P. Kilbreth. Kilbreth filed a motion in the case to quash the execution. The motion was reserved to the general term of the Superior Court, and at the November term thereof, 1884, was sustained; the execution was quashed, and entry was made upon the records of the court, as follows:

“This cause came on for hearing at the general term of said court, to-wit: the November, 1884 term thereof, on the motion of the plaintiff to quash the writ of execution issued in the court below, and the levy made under said writ, the-hearing of said motion having been reserved to the general term of said court, upon the pleadings and record of the judgment of the court below, and the execution and return thereto, and this court sitting in general term being fully advised in the premises, doth order and adjudge that said motion be and the same is hereby granted, and said execution and the levy thereunder are hereby quashed and set aside; and it is further ordered and adjudged that no further writ of execution issue, save and excepting for the amount of dividends heretofore declared upon claims against The Ohio Eife Insurance & Trust Company, and for such other sums as may hereafter be declared as dividends upon said claims, and upon application to the court, in special term, and the cause is remanded to special term for further proceedings.”

The cause of action in favor of Samuel Fosdick, in the suit in the Superior Court, arose out of the collection of a certain draft, the property of F'osdick, dated August 14,1857, payable thirty days after date, and drawn on David Dows & Co., New York, for f> 2,883.86, which sum, with interest, madeup' the amount of $7,007.34, for 'which Fosdick recovered judgment. On or about tlie 20th day of August, 1857, Fosdick. sent or delivered this draft to The Ohio Rife Insurance &. Trust Company tor collection. The draft was accepted by the drawees and was paid at maturity. But, on the 24th day of August, 1857, before the draft was collected, the firm of Brown Brothers & Co., of the city of New York, creditors of The Ohio Rife Insurance & Trust Company, brought suit against that company in the county and state of New York, and issued an attachment therein, directed to the sheriff of the county, by virtue of which; the sheriff levied upon the draft and other property in the hands of the Trust Company, and took the same from the possession of the Trust Company, and collected the amount due on the draft, and accounted for the proceeds to Brown Brothers & Co.

Subsequently to the failure of The Ohio Rife Insurance & Trust Company, to-wit, after August 24th, 1857, Kilbreth, as trustee, had an adjustment with Brown Brothers & Co. of their claim against the Trust Company, by the terms of which adjustment the attachment above mentioned was released, and a credit was given to the Trust Company by Brown Brothers & Co., on the indebtedness to them of the Trust Company, of the proceeds of the draft drawn on Dows & Co., for two thousand eight hundred and eighty-three and 86-100 dollars.

• In the original action, the plaintiffs in error, claiming that the proceeds of the draft on Dows & Co. were traceable into the assets of The Ohio Rife Insurance & Trust Company, asked that Kilbreth might be adjudged and decreed to pay in full the judgment recovered by Eosdick in the Superior Court, out of the money in his hands as trustee, with such other relief as . might be e-quitable and proper in the premises. The court of common pleas found the equity of the case in favor of the defendant, and gave judgment accordingly. The plaintiff appealed to the circuit court, and that court also found in favor of the defendant, and dismissed the plaintiff’s petition. A motion for a new trial was made by the plaintiffs and overruled, to which ruling of the court they excepted, and presented their bill of exceptions embodying all the evidence offered by the parties, or either of them, on the hearing of the case, which was allowed and made part of the record. This proceeding in error is prosecuted to reverse the judgment of the circuit court.

It is urged in behalf of the defendant in error, that the court of common pleas had no jurisdiction of the subject-matter of the action. The contention is that the action is substantially one to establish a preference in the distribution of the assets of the Trust Company, and that of such proceedings the probate court has exclusive jurisdiction. If Fosdick, so far as the draft was concerned, was not a creditor of the Trust Company, the question of preference among creditors does not arise. The real question seems to be whether the Trust Company having received the draft on Dows & Co. for a specific purpose, there was not a wrongful application by the Trust Company of the proceeds of the draft, to extinguish a portion of that company’s indebtedness to the firm of Brown Brothers & Co.

The case of Sayler v. Simpson, 45 Ohio St. 141, is referred to as determining the exclusive jurisdiction of the probate court. In that case, the contest was between mortgagees and unsecured creditors, over the distribution of a fund in the hands of the assignee, arising from the sale of personal property in which the assignor confessedly had a property interest, although, at the time of the sale, the personal property was subject to separate mortgages given to secure separate indebtness to each of several creditors. But, as said in Lindemann v. Ingham, 36 Ohio St. 15, “the act regulating assignments does not undertake to invest the assignee with property which did not belong to the assignor;” and in the case at bar, it is not claimed that the Dows & Co. draft represented by the judgment for $7,007. 34, belonged to the assignor, the Trust Company. . On the contrary, it is contended that the draft never formed any part of the trust estate and never came within the administration of the assignment, and that the representatives of Fosdick are invoking equitable relief to obtain possession of his own property wrongfully placed in the trust estate. If the Trust Company, as an agent of the owner, received from him the draft for collection only, with an obligation to account for and pay over the proceeds to him, a fiduciary relation with the owner was thereby established, and if his representatives trace the proceeds into the hands of the Trust Company, and seek to impress upon the propertj in its substituted form a trust-character, the court of common pleas would not be without jurisdiction to afford equitable relief by declaring and enforcing the trust. Gilbert v. Sutliff, 3 Ohio St. 129; Carter v. Lepsey, 70 Ga. 417; Commercial bank v. Armstrong, 39 Fed. Rep. 684.

II. Again, it is contended that the relation between Fos-dick and the Trust Company was that of debtor and creditor, and that he was entitled, by virtue of that relation, to receive on the judgment he recovered in the Superior Court nothing more than pro rata dividends as other creditors of the insolvent company, The draft on Dows & Co. did not become due until about the middle of September, 1857, and therefore, was not paid by the drawees until after the 24th of August, 1857, when the Trust Company became insolvent and ceased to do a banking business. It is said that on the day of its failure, the Trust Company credited the amount of that draft to Fosdick as a depositor, and thereby became his debtor, and placed him upon the footing of an ordinary creditor entitled only to dividends when declared by the trustee of the company. But, as the Trust Company had failed before the draft was collected, and received the benefit of it after failure, in the form of a_credit by Brown Brothers & Co., its agency to make itself a general debtor to Fosdick, by crediting him with the proceeds of the draft, had terminated. -

In Levi v. Bank, 5 Dill. 109, 110, it is said by the court, “When the money was received;-and not before, the agency of the defendant bank to collect terminated, and its authority to credit the amount to the plaintiffs and to make itself an absolute debtor therefor would then arise, provided it was still a going concern; but inasmuch as before it received the money it had failed, its agency to constitute itself a general creditor for the amount had ceased to exist. It would hold the amount as the agent of the plaintiffs, or in trust for it, subject to any balance due it from the plaintiffs. * ****** Fhe force of the argument of the defendants’ counsel, that the defendant bank, on the very day of its failure, and when it was in articulo mortis, had the right, by a credit in advance of collection, or by its unauthorized act in receiving the check and in procuring its certification, to terminate, without the plaintiffs’ consent, the agencv, and to constitute itself the actual debtor for the amount, against the plaintiffs’ will and against their interest, I must confess I nave been unable to perceive.” See also the case In re Armstrong, 38 Fed. Rep., 405, and authorities there cited, in which the above doctrine is enunciated. Indeed, the rule seems to be well settled, that after a bank has suspended, it ought not to receive payments upon business paper previously deposited with it for collection, in such a manner that the money so received by it will, pass into its general assets, and the owner of the paper be placed in the position of one of its creditors, entitled only to take his dividend; and proceeds received after the bank becomes insolvent, will be held in trust, and may be recovered in full. Morse Bk. § 248 a.

The record plainly discloses that the Dows &'Co. draft was placed with the Trust Company for collection. It is true, that while in the Trust Company’s hands, it was attached by a creditor, and when paid at maturity by the drawees, the proceeds were accounted for by the sheriff to the attaching creditor. But the Trust Company received the full benefit of the draft. It went to pay a portion of its indebtedness. The Company and trustee might have opposed its application by the attaching creditor, as being the property of another, but they did not see fit so do do. On the contrary, Kilbreth, as a trustee, made an adjustment with Brown Brothers & Co., by which the firm’s attachment was released, and the proceeds of the draft were applied in part payment of the Trust Company’s indebtedness. The estate of the Trust Company was thereby increased to the extent of the amount of the draft, for the benefit of all its creditors. But, the creditors could not, with a show of equity, ask that the proceeds of a draft, clearly indentified as not the property of the Trust Company but of Fosdick, be applied to swell the trust fund for their benefit. To all intents and purposes, the proceeds of the draft went into the assets of the Trust Company — as much so, as if the Company had first collected the draft, and then paid over its canteáis to Brown Brothers & Co. The paper was impressed with a trust when received for collection, and its proceeds, bearing the same impress, are traceable and identifiable as having been used by the Trust Company in place of its own assets to pay a specific creditor. “Where the rightful owner is in pursuit of trust funds, he need not point out the very goods or bills or coin. He does all the law requires if he shows that the goods or bills or coin came to the hands of the defendant impressed with a trust to his knowledge. In every such case the holder must respond either in the article taken or its value.” Thomson v. Gloucester City Sav. Inst., 8 Atl. Rep. 97, (N. J. Chancery.)

If upon the maturity and payment of the Dows & Co. draft in the middle of September, 1857, the proceeds thereof were credited to the Trust Company before the date of its assignment for the benefit of creditors, that fact would not release the assignee from the performance of a trust impressed upon the paper or.its proceeds prior to the assignment. The general assignee of a debtor in failing circumstances stands in the same condition as the dedtor himself; he is deemed to possess the same equities only as the debtor himself would possess. Sto. Eq. Jur..§ 1228; First Nat. Bank v. Mastin Bank, 2 McCrary, 438.

When paper is deposited for collection, the relation between the depositor and bank is that of principal and agent. If an agent for that special purpose, collects or sells the paper of his principal, he becomes a fiduciary, and will hold the proceeds in trust for the principal; and if the agent fails, there will be no reason why his general creditors should invade such proceeds to satisfy their claims, if the principal can trace or ascertain his property in the substituted form. Whether, in a given case, the proceeds have been sufficiently traced and identified, must rest in the judgment of the chancellor who is called upon to declare the proceeds subject to a distinct trust. In the case at bar, we think, that in the light of undisputed facts, and upon equitable principles, the proceeds of the Dows & Co. draft should be deemed held in trust for the estate of Samuel Eosdick, and payable in full out of the assets of the Trust Company.

III. But it is urged that the claim of the plaintiffs in error has been adjudicated against them by the Superior Court, in the judgment at general term quashing the execution, and also in the judgment at special term. The execution was levied upon real estate, the individual property of James P. Kilbreth, but in the decision of the motion to set aside and quash, the only question directly involved and necessarily tried and determined was, whether the judgment was against Kilbreth individually. The court held that the judgment was not against him individually, and for that reason quashed the execution. But no other controversy was properly concluded by the decision of the motion.

The judgment rendered at the special term was, “that the defendant recover of the plaintiff, as trustee, the sum of seven thousand and seven dollars and thirty-four cents, with interest” etc. If it was thereby designed that execution should issue only for the amount of dividends declared or to be declared upon claims against the Trust Company, the form of judgment prescribed by statute would naturally be suggested, that the assignee or trustee “allow the claim in settlement of his trusts.” The judgment contains no limitation or qualification as to the amount to be paid by Kilbreth “as trustee.” By its terms, it may apply to a trustee who, in his representative or fiduciary capacity, has come into the possession of property or money found upon legal inquiry to belong to a particular claimant, and not subject to dividend among creditors of the insolvent. Conger v. Atwood, 28 Ohio St. 184.

The purpose of the suit at bar is to obtain equitable relief in aid of the judgment recovered in the Superior Court, upon which there was a failure to realize anything by levy of execution. It is claimed that a trust attached to the proceeds of the Dows & Co. draft, which were wrongfully placed in the trust estate, and which cannot be reached without the interposition of a court of equity. In seeking equitable relief in such case, we do not think that the plaintiffs in error are estopped by the judgment rendered in favor of Samuel Fosdick in the Superior Court. In our opinion therefore, the judgment of the circuit court should be reversed, and the cause, remanded for further proceedings.

Judgment accordingly.


author: BeadbuRY, J.

text:
    Craig v. State.

      Homicide. — Confession in open court — Duty of court — Constitutional law — Section 1316, Revised Statutes, construed — Trial by jury— When waived.

    The provisions of section 7816, Revised Statutes, which provide that “if the offense charged is murder, and the accused he convicted by confession in open court, the court shall examine the witnesses, and determine the degree of the crime, and pronounce sentence accordingly,” are constitutional and valid.
    (Decided May 10, 1892.)
    Error to the Circuit Court of Hamilton county.
    At the October term, 1890, of the Court of Common Pleas of Hamilton county an indictment was found by the grand jury charging the plaintiff in error with the crime of murder in the first degree. He was afterwards arraigned, and pleaded not guilty; a jury was drawn, summoned and in attendance for his trial on November 17, 1890, when in open court, by leave thereof and by the advice of counsel, he withdrew his plea of not guilty in the following words: “ And thereupon the defendant Charles Craig, after, being fully advised in the premises by his counsel, and -being cautioned by the court, pleaded guilty as charged in the indictment herein * * The court thereupon proceeded, under section 7316, Revised Statutes, to hear evidence “and determine the degree of the crime and pronounce sentence accordingly.” After hearing the evidence, the court found the grade of the -homicide to be murder in the first degree, and sentenced the prisoner to suffer death. The proceedings and evidence were embodied in a bill of exceptions, and the cause taken to the circuit court on error where the judgment of the lower court was affirmed. Thereupon proceedings were begun in this court to obtain a reversal of both of said judgments.

      Wade Cashing, for plaintiff in error.

      D. Thew Wright, for defendant in error.
   BeadbuRY, J.

The only question arising on the record is the constitutionality of that provision of section 7816, Revised Statutes, which requires the court, where, upon a charge of murder, the accused confess his guilt in open court, to “ examine witnesses and determine the degree of the crime and pronounce sentence accordingly.”

The record discloses that the plaintiff in error, voluntarily, by the advice of counsel, and after being cautioned by the court, entered a plea of guilty, and then, without objection or protest, permitted the court of common pleas to hear evidence offered by the state, and submitted evidence himself, tending to show the degree of the crime he had committed. That this action of the court was warranted, by the statute above quoted, is clear. Counsel for plaintiff in error contends, however, that the general assembly transcended its constitutional powers in enacting that statute. That the right, upon an indictment for a felony, especially if capital, to be tried by a jury, is so sacred, that the accused could not waive it, even when authorized by a statute enacted by the legislature for that purpose.

The denial, in criminal cases, of the power of waiver, has, in many instances, been carried to an extreme, if not absurd, length. The doctrine had its origin at a period in the history of the law of England when offenses that would now be regarded as comparatively trivial, were, upon conviction, visited with death, and when the criminal procedure was as crude and imperfect as the criminal code was harsh, the accused being allowed upon the trial of an issue of not guilty, neither counsel nor witnesses to aid him in his defense. The judges, frequently more humane than the law, were reluctant in many instances to pronounce the sentence of death prescribed by the statute, and were ready to seize upon any irregularity occurring in the course of the procedure, to save the life of the prisoner when neither the nature of the offense of which he had been convicted, nor the circumstances of its commission, indicated any considerable depravity or viciousness of character. In addition to this the judge’was, in theory at least, the counsel for the accused, and if, through the act, advice or omission of the judge, the accused was induced to omit making an available objection, or consented to relinquish a right, this was deemed not an act of the accused, but of the court, and the law would not permit the party to suffer for it. Bishop on Cr. Pr. 120. In this state, however, the court is no longer, in fact, the adviser or counsel of the accused; instead, other counsel is guaranteed to him, and if he is indigent, provided at the public expense. He is entitled to compulsory process to secure the attendance of witnesses in his behalf, and may, under the sanction of a judicial oath, if he so chooses, detail to the court and jury every fact or circumstance known to him that may bear on the question of his guilt or innocence. Every reasonable facility is thus provided for a complete and thorough investigation of the charge against .him, which is the surest shield of innocence. Also, the penalties prescribed for violations of our criminal laws are more humanely and reasonably apportioned according to the character and magnitude of the crime to which they are respectively attached. Under this state of the law there can be but little sound reason for maintaining a doctrine, defensible mainly if not solely, by the circumstances under which it originated, and which have long since ceased to exist, and, therefore, as might be expected, courts and legislatures view with diminishing respect that strict ancient doctrine on the subject of waiver in proceedings and trials of even the higher grades of crimes. '

A plea of guilty is not an unusual proceeding in criminal prosecutions. The accused is arraigned to afford him an opportunity either to admit or deny the truth of the accusation. The subsequent proceedings are within his control and depend upon his plea. By a plea of not guilty he denies and puts in issue every material fact alleged in the indictment, thus imposing upon the prosecutor the burden of proving them. 1 Bish. Cr. Pr. 799; 1 Chitty’s Cr. Raw, 471; Wharton’s Cr. Pl. & Pr. 408. People v. Aleck, 61 Cal. 137.

On the other hand a plea of guilty, from an early period in the history of criminal procedure, both in England and in the several states of the Union, has been regarded as an admission of every material fact well pleaded in the indictment, dispensing with the necessity of proving them, and authorizing the court to proceed to judgment. 4 Blackstone 829; 1 Chitty’s Cr. Law, 429; Crow v. The State, 6 Tex. 334; 1 Bish. on Cr. Pr. 795.

It may be true that a court of common pleas in the exercise of its discretion may refuse to accept a plea of guilty of a capital or other infamous offense, or even in a prosecution for a misdemeanor, until it has ascertained by an examination . of witnesses whether or not the accused is of sound mind, and free from the influence of promises and hopes unduly raised on the one hand, and of threats and intimidation wrongfully made or used upon the other. This course was pursued in Massachusetts at an early day in at least one capital case. Commonwealth v. Battis, 1 Mass. 94. But the exercise of this humane discretion by the court, before permitting a plea of guilty to be entered, in no way detracts from the force or effect of the plea when it has been finally accepted.

In the case before the court, the indictment charged upon the accused, both deliberation and premeditation. The plea of guilty was, in its nature, as much a judicial confession of the truth of those two allegations as of any other contained in the indictment, and but for the provisions of section 7316, Revised Statutes, making it the duty of the court to hear witnesses and determine the degree of the offense, would have warranted a capital sentence. That provision, therefore, confers upon the accused a benefit, instead of depriving him of a right, by forbidding that extreme sentence, which would otherwise follow his plea, until the court hears evidence and ascertains that it is warranted by the facts as well as by the plea.

The contention made on behalf of the plaintiff in error, as we understand it, goes, however, a step further. It is insisted that the framers of the constitution of 1851 intended to make the punishment for crime, at least in its higher grades, an act of society, to be accomplished only through the intervention of a jury, the special representatives of society. This doctrine would exclude a plea of guilty, and force upon the accused as well as the state a trial by jury to establish facts about which there was no dispute.

It was, no doubt, competent for the framers of the constitution to provide that no person shall be convicted or punished for an offence by his own confession, or in any other mode than by a trial by jury; but the history of the struggle by which the right to trial by jury was established, does not afford sufficient ground to require us to construe a constitutional provision, that in terms merely guarantees to the accused a right to a trial by jury, as absolutely prohibiting any other mode of trial, even with the consent of the accused. The only provisions in the constitution of 1851, of this state, relating to trial by jury, are found in sections 5 and 10 of the bill of rights. Section 5 provides simply that “The right of trial by jury shall be inviolate,” while section 10 provides that “ In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury.”

The same provisions of the constitution that secures a trial by jury to the accused in capital cases, also secures it to one charged with a misdemeanor, punishable with imprisonment only. Section 10, Art. 1. The constitutional guaranty in the one case is no stronger than in the other, and this court very soon after the adoption of the constitution held that, in a prosecution for a misdemeanor: “The constitutional right of trial by jury is not infringed when the option is given to the accused to have the issue tried by the court or the jury, and he submits the cause to the court, Dillingham v. The State, 5 Ohio St., 280; Dailey v. The State, 4 Ohio St., 57. There is no necessary 'conflict between these cases and that of Williams and Haynes v. The State, 12 Ohio St., 622. In the latter case the plaintiffs in error were indicted for altering bank notes, and pleading not guilty, they waived a jury trial and consented to be tried by the court; they were convicted and sentenced to imprisonment in the penitentiary. The attorney-general submitted to a reversal of the judgment and sentence upon the ground “that upon the trial of an issue raised by a plea of not guilty, in the higher grades of crime, it is not in the power of the accused to waive a trial by jury, and, by consent, submit to have the facts found by the court, so as to authorize a legal judgment and sentence upon such finding.” The court neither gave a reason nor cited an authority for the proposition. The case was no doubt correctly decided, for whether the defendants could or could not waive a trial by jury in a prosecution of that character, the court of common pleas had no authority to try the case without one. It was a mode of trial unknown to the law. The legislature had not clothed the court with that form of jurisdiction, and no act or consent of the accused could create or confer a jurisdiction not established by law. The question would have been very different had the general assembly by statute, authorized the court, with the consent of the accused, to hear the evidence and render judgment accordingly, and the record had disclosed their consent, The power of the court to hear evidence and determine the degree of the crime is maintained m Pennsylvania. Jones v. Commonwealth, 75 Penn. St., 403.

California has a statute similar to the provisions of section 7316, Revised Statutes, now under consideration, and the Supreme Court of that state has held that the examination after a plea of guilty to an indictment for murder, to ascertain the degree of the crime, is not a trial, and the legality of the inquiry was sustained. People v. Noll, 20 Cal. 164. And in People v. Lennox, 67 Cal. 113, it was held that a plea of guilty in a prosecution for murder, is a waiver of trial by jury.

But whatever may be the rule elsewhere, in this state all legislative power is, by the constitution of 1851, vested in the general assembly, (Section 1, Article II,) subject of course to any limitations that may be found in other parts of that instrument. It is only necessary, therefore, in order to determine whether in any particular instance the general assembly has transcended its power, is to enquire (1) if the act is, in its essential character, legislative; and, (2) if so, whether it is prohibited by the constitution; and if it is found to be legislative in its nature, and not prohibited by the constitution, it must be held to be within the power of the general assembly. The power to clothe the courts of the state with jurisdiction to hear and determine causes, is in its character legislative; and, as we have already seen, there is no constitutional prohibition against vesting in the court of common pleas the power to examine witnesses and 'ascertain the degree of the crime, where, in an indictment for murder, the defendant enters a plea of guilty. Therefore it necessarily follows that the proceeding, whether it possesses the essential attributes of a trial or not, authorized by the provisions of section 7316, of the Revised Statutes, now under consideration, is constitutional and valid.

Judgment affirmed.


author: By the Court :

text:
    Fisher v. Cassidy et al.

      Action on an administration bond — Equitable set-off by a surety against the claim of a distributee, who is also a distributee of the estate of a co-surety.

    (Decided May 17, 1892.)
    Error to the Circuit Court of Muskingum county.

      W. H. Ball and F. A. Seaborn, for plaintiff in error.

      H. F. Auchauer, for defendant in error.
   By the Court :

Action by a distributee on an administration bond. The bond had been executed by Addison Palmer, as administrator of the estate of Asa R. Cassidy deceased, with Joseph Fisher and Nancy Cassidy, his sureties. Fisher, by way of counterclaim, set up the decease of Nancy Cassidy, his co-surety, the settlement and distribution of her estate, and the receipt by the plaintiff of $23,75, as one of the distributees of her estate, which he asks to have set off against the claim of the plaintiff on the bond.

It is clear, that, if Fisher should pay the full amount of the claim of the plaintiff, he would have the right to recover one-half the amount so paid, from the estate of his co-surety, Nancy Cassidy, deceased; and, it is also clear, that, under our administration law, and the decision in Camp v. Bostwick, 20 Ohio St., 337, he would have the right to recover on the same claim against the plaintiff as a distributee, to the extent of the assets received by him from the estate of the co-surety ; and it therefore follows, that he has, in this action, the equitable right to have the amount he might recover of the plaintiff, set off against the claim of the latter upon the bond.

Judgment reversed and cause remanded to the court of common pleas for further proceedings upon the equitable set-off, set up by Fisher in the “ second defense " of his answer.


author: Bradbury, J.

text:
    Rife v. Lybarger et al.

      Real Contract— What is a marketable title— When specific performance will be decreed. -

    1. Where, in a contract for the sale of real estate, there is no stipulation to the eifect that the premises shall be free from any in-cumbrance or cloud, the vendor is only bound to tender a marketable title.
    2. If the vendor has a perfect chain of title from the United States, it should be regarded prima facie as marketable, where the only cloud upon it is an uncancelled mortgage made contemporaneously with, and to secure, a series of promissory notes, which notes are all barred by the statute of limitations, and which mortgage, the mortgagee being dead, his estate solvent and finally settled, his widow and heirs at law released by a quit-claim deed of the premises, made to the vendor for that express purpose. And, in such case, where, upon the trial of an action brought by the vendor to specifically enforce the contract, no evidence was introduced from which it could be inferred or presumed that either the mortgage or any of the notes had been assigned, and it was shown that the vendor had offered to leave in the hands of the vendees, until this alleged cloud could be removed, an amount of the purchase money sufficient to indemnify them against any claim that might be made by some possible but unknown as-signee, and the contract in other respects was fair, its specific performance should be decreed; the decree to provide for and render effectual the proposed indemnity.
    (Decided June 21, 1892.)
    Error to tbe Circuit Court of Seneca county.

      N. L. Brewer, for plaintiff in error.

      Seney & Scliaufelberger, and McCauley & Weller, for defendants in error.
   Bradbury, J.

Tbe plaintiff in error seeks to reverse a judgment of tbe Circuit Court of Seneca county, denying bim tbe specific performance of tbe following written contract for tbe sale of real estate:

“ Tbis agreement, made at Fostoria, Ohio, this 15th day of April, 1887, by and between S. E. Rife, of tbe village of Mount Corey, county of Hancock and state of Ohio, party of the first part, and R. N. Eybarger and Alonzo Emerine, of Fostoria, Ohio, party of tbe second part, witnessetb:
“ That said party of tbe first part hath tbis day agreed to sell unto tbe party of tbe second part, their heirs, executors, administrators or assigns, the following described tract or lot of land, situated in the township of Jackson, county of Seneca and state of Ohio, and is known as being a part of section thirty-one (31), township three (3), north of range thirteen (13), east, commencing in tbe center of tbe Bulkly road, on tbe east and west quarter section line of section thirty-one; thence east on tbe said line fifty-three rods, more or less, to tbe west line of lands heretofore deeded to Aaron Bochey; thence south twenty-eight rods and eighteen links, more or less, to the center of the Eeigh & Stove road; thence south thirty-six and one-half degrees west oq and along the center of said- Eeigh & Stove road to the center of the Bulkly road; thence north along the center of said road eighty-four rods and eighteen links, more or less, to the place of beginning, containing eighteen acres <of land.
“Together with all hereditaments and appurtenances thereunto belonging, but subject to all legal highways.
“And the said party of second part doth hereby agree to pay to the said party of first part, his heirs, executors, administrators, or assigns, for the land aforesaid, the sum of seven thousand dollars ($7,000) being the value of said premises, payable as follows :
“ One thousand dollars cash in hand, the receipt whereof is hereby acknowledged, and twenty-five hundred dollars in thirty days, and thirty-five hundred dollars in one year at six per cent, interest, together with interest thereon from this date at the rate of six per centum per annum, payable annually.
“And the said party of the second part also agrees to pay all taxes and assessments of every description that may be assessed, or levied, upon said land, from and after the date of these presents, except the June tax of 1887.
“ It is expressly agreed by and between the parties to this agreement, if any one of said installments, or the interest accrued thereon, shall not be paid within three days after falling due, then all said installments remaining unpaid shall at once become due and payable at the election of the first party.
“ Now, if the said party of the second part, their heirs, executors, administrators or assigns, shall well and truly pay the said purchase-money, interest, taxes and assessments, named in this agreement, as it becomes due, the said party of the first part, or his heirs, will well and truly make, execute and deliver unto the said party of the second part, or their legal representatives, a good and sufficient deed for the land aforesaid; but on failure of the party of the second part to pay the purchase-money, or any part thereof, interest, taxes and assessments, as above mentioned, then this agreement shall be void as it regards the party of the first part. Said warranty deed tp be made out and left with Andrew Emerine, and he is to deliver said deed to parties of second part upon payment of the twenty-five hundred dollars, and a mortgage and note, secured by mortgage on said premises, of thirty-five hundred dollars, due in one year, at six per cent. — Party of the first part agrees to pay one-half the cost of an abstract on above lands.”

One defense interposed was, that, by mistake, the written contract omitted to embody a stipulation agreed upon by the parties, to the effect that the plaintiff in error should, within thirty days from the date of the contract, furnish and deposit with Andrew Emerine, for the defendants in error, an abstract of the title to the premises sold, showing that the title to the same was without defect or cloud, and that they were free and clear of any incumbrance. The plaintiff in his reply denied the averments constituting this defense, and upon the issue thus joined the circuit court found for the plaintiff. It was. no doubt, competent for defendants to stipulate that the title should be of such character and in such condition as they desired, and if it did not substantially conform to the terms of the contract, they would not be bound to accept a conveyance of the premises, though the title would be marketable in absence of such special stipulations. The finding of the court, however, upon the issue above stated, absolves the plaintiff from any obligation to furnish any other or better title than is imposed by law upon vendors of real estate generally.

The finding of the court was that the plaintiff had a perfect title extending back to the United States, but that the premises were encumbered by “ a mortgage given by said Wm. Rosetter and wife on the 16th day of March, 1866, to one Morris P, Skinner, then living in Eostoria, O., and recorded in the mortgage records of said Seneca county, Ohio, rol. 18, p, 29B, March 19th, 1866, securing to said Morris P. Skinner the promissory notes of the said William Rosetter for the following sums: Two hundred dollars on the 16th day of March, 1867; two hundred and seventy-two 75-100 dollars, March 16th, 1868; two hundred and ninety-nine and 47-100 dollars, March 16th, 1869; and the court do find that as to the said two hundred dollar nóte all claim is barred by the statute of limitations,

“The court also find that said Morris P. Skinner died at Fostoria, Seneca county, Ohio, on the- day of April, 1876, intestate, that Jane M. Skinner was appointed and qualified as his administratrix; that his estate was settled up, and that his administratrix was discharged by the Probate Court of Seneca county, Ohio, on the 25th day of March, 1888; that his children were all of age at his decease; that his estate was largely solvent; that on the 27th day of April, 1887, the said widow and administratrix, Jane M. Skinner, and all the children of the said Morris P. Skinner, executed and delivered to the said plaintiff their quit-claim deed in proper form and with proper acknowledgment, releasing and quitclaiming to the said plaintiff all their interest and estate in said real estate,- and for the purpose as therein expressed of releasing the said mortgage of the said William Rosetter and wife to said Morris P. Skinner, dated March 16, 1866, calling for $771.72, recorded vol. 18, page 298, in the mortgage records of said Seneca county, Ohio, and that the execution-and delivery of such deed to the plaintiff was fully made known to the defendants before the expiration of thirty days from April 15, 1887.”

The only question that arises on the record for our consideration is whether this uncancelled mortgage created an incumbrance of such character that it should defeat the plaintiff’s right to a specific performance of tire contract. The circuit court found, as a fact, that all claim arising out of the first, or two hundred dollar note, was barred by the statute of limitations. The same evidence that supports that finding would require a finding that an action founded directly upon the other two notes was also barred by the statute, for the last one of them to fall due had been due more than eighteen years when the contract was made, and more than nineteen years when the trial was had. More than twenty-one years had elapsed from the due date of the first note to the time of the trial, but the other two notes had then been due only nineteen and twenty years respectively. The shorter period, however, was longer by four years than that required by the statute to bar an action directly founded upon the notes themselves, The circuit court therefore must have held that there was a cause of action arising upon the mortgage, independent of the notes and unaffected by the bar that had attached to the latter, which was only barred by the lapse of twenty-one years, for,, upon no other hypothesis can the finding, that all claim to. the sum represented by the first note was barred by the statute of limitations, be reconciled with the finding that the statute had not attached to that part of the debt which was-represented by the second and third notes. We do not care to discuss at any length the question whether an action may be maintained upon a mortgage to recover a debt, where the-notes representing the debt'are barred by the statute of limitations. Section 4979, Revised Statutes, provides that, “civil actions other than for the recovery of real property,, can only be brought within the following periods, after the' cause of action accrues;” and the longest period within, which other than real actions can be brought, is provided by-section 4980, Revised Statutes, which permits an action “upon a specialty, or an agreement, contract or promise in. writing,” to be brought within fifteen years. The only actions known to our code of civil procedure are "civil actions; ”' this description therefore includes those proceedings that before the adoption of the code were governed by the rules-of equity, as well as those denominated legal; and it would seem to follow that, if the statute is not wholly disregarded,, the only action that can be maintained upon a mortgage after fifteen years from the time the debt secured by it fell due, if one can be maintained at all, is one to recover the mortgaged, property. 'Conceding that such action may be maintained generally, yet as the mortgagee, Morris P. Skinner, was dead, his estate solvent and fully settled, and his administratrix formally discharged by an order of the probate court having jurisdiction of the administration of the estate, no one could have any beneficial interest in any part of his estate, except his widow and heirs at law. These persons executed to the-plaintiff a quit-claim deed of the premises for the express, purpose of releasing the lien of the mortgage thereon. Whether it would have been more formal and regular to-have had the release of the lien made by his personal; representative, or whether, in view of the fact that the only remedy not barred by the statute of limitations, was an action, to recover the mortgaged property itself upon a title which by the death of the mortgagee descended to his heirs at law,. a release by them was equally regular, need not be determined; for, however this may be, a release executed by those having the entire beneficial interest will bind them, if not at law, at least in equity. Therefore any claim or lien that belonged to the estate of the mortgagee was released by the quit-claim deed executed by his widow and heirs at law, all of whom were of full age.

Any claim that the representatives of the mortgagee could assert having been released by the quit-claim deed, no cloud remained on the plaintiff’s title, except what might arise from a possibility that the mortgagee might have assigned the notes, and that they were outstanding in the hands of the assignee. No testimony was introduced from which an ■assignment could be inferred. The contention at the trial does not seem to have embraced this question, but was confined almost entirely to the issue respecting the mistake in reducing the contract to writing.

It is evident, however, that if the notes were assigned, it must have been before the death of Mr. Skinner, the mortgagee, and that occurred more than eleven years before the contract was made, and more than twelve years before the trial, and during that long period the assignee in no way had made known or asserted his claim. In the absence of evidence. tending to show that an assignment or transfer of the notes was in fact made, the circumstances that the mortgagee continued in life for ten years after the mortgage notes were made, that at his death the notes were not found among his papers, and for a period of more than ten years after his death no claim was asserted upon either the mortgage or the notes, makes the inference that the debt was discharged by its payment to the mortgagee in his life-time very strong ; and against this inference no contrary presumption arises from any incident disclosed in the record. The doubt, if any can be said to exist, arises not from any circumstance found by the court or suggested by the evidence, for no such circumstance is disclosed; but, because in the nature of things an assignment or transfer was possible, and the evidence does not exclude that possibility.

The title of the plaintiff was complete and perfect, and this title he:could convey subject to the possibility that the mortgage debt was outstanding. To parties who really-wished to complete the purchase, this would present no impediment that could not be readily overcome. The plaintiff did all in this respect that reasonably could be required of him, when he offered to leave in the hands of the defendants a sum sufficient to pay all that part of the debt which the court did not find to be barred by the statute of limitations, until the incumbrance could be formally removed, thus affording them complete protection against the claim, if ultimately one was found to exist.

An objection to a title should have some merit in order to defeat the claim of the vendor to the specific performance of the contract of sale.

Captious objections to the title ought not to prevail, when made by a purchaser who seeks to avoid the performance of his contract.” Walsh v. Barton, 24 Ohio St., on page 40 of Judge McIllvaiNE’s opinion. And in Ludlow v. O'Neil, 29 Ohio St. 183, Judge Welch employs the following language: “It will never do to say that a doubt * * * however honestly entertained by the purchaser, will justify him in refusing to execute his contract. .As I understand the rule in equity, it is only in cases where the court itself is in doubt as to the title, that a specific execution will be refused on the ground that the title is not marketable. ”

If the title is such that it ought to satisfy a man of ordinary prudence, it is sufficient, In the case under consideration the title was perfect, but was. subject to a mere possibility that a claim might be asserted on an old, uncancelled mortgage, against which full indemnity was tendered. Under such circumstances the objection presents all the features of an excuse for the non-performance of a contract no longer desirable. It is said that the vendees bought the land with a view to its sub-division into town lots, and its immediate re-sale, which purpose was made known to the vendor, and that by reason of this incumbrance, they lost a sale at a considerable advance on the price they were to pay. This may be true, but the plaintiff is no more to be affected by the captious objections of possible purchasers of the ven-dees, than by similar objections on the part of the vendees themselves. Whether the sale should be of the entire purchase as a whole, or in parcels upon its sub-division into building lots, a perfect title, free from any reasonable apprehension of danger from this possible lien, could be made to contemplating purchasers.

The case presents an aspect of some hardness, however viewed. The real estate market at Fostoria, at the time the contract was made, and for a short period thereafter, seems to have been highly excited, and the plaintiff had reason to believe that he could sell the premises for as great, or perhaps a greater, price than he was to receive from the defendants, and when the uncancelled mortgage was discovered, of which he had no previous notice, he offered to rescind the contract, which proposition the vendors declined, and an opportunity to sell upon an excited, if not an inflated market, was lost to the plaintiff. The excitement soon began to subside, and within less than four weeks from the time the sale should have been completed, as the court found, .the premises were only of the value of four thousand dollars, a shrinkage of three thousand dollars from the contract price. If specific performance of the contract is refused, there is thrown upon the plaintiff’s hands property of the value of four thousand dollars, which he had sold for seven thousand dollars, and which if defendant had accepted his offer to rescind, he might have sold at even a greater price. On the other hand the defendants by a specific performance of the contract will be compelled to pay seven thousand dollars for the property when it is worth only four thousand dollars.

The contract, however, was fairly made; moreover it was entered into at the solicitation of the defendants, who were at the time speculating in real estate at Fostoria, and presumably more familiar with its values than the plaintiff, who resided in an adjoining county, though just how distant from Fostoria does not appear. The title of the plaintiff was perfect, and full indemnity offered against what in all human probability was an imaginary incumbrance. Therefore the hardship resulting from the halt in completing the sale should be attributed to the excessive particularity of the defendants. We think that upon the facts found by the court, together with such circumstances as appear from the undisputed evidence, the plaintiff is entitled to a specific performance of the contract. The decree in the circuit court, if it had been rendered in fav-or of the plaintiff in error, should have provided for an indemnity against any claim that might be asserted under the Rosetter mortgage; but if no claim has been yet asserted, as any claim founded on the mortgage itself has become barred, the provision for indemnity is no longer necessary.

Decree accordingly.


author: By The Court.

text:
    Gleason et al. v. Cleveland.

      Soldiers' and Sailors’ Monument, Cuyahoga county: Act of the General Assembly, passed April 16,1888, (85 Ohio Laws 56l¡), authorizing the selection of the southeast quarter of the public square in Cleveland, as the site for its erection, held constitutional.

    (Decided June 21, 1892.)
    Eeros, to the Circuit Court of Cuyahoga county.
    The plaintiff in error, defendants below, were appointed by the Governor of .the State, Commissioners, under the act passed April 16, 1888, (85 Ohio Raws, 564), for the erection of a monument to the soldiers and sailors of Cuyahoga county in the late war; and, in pursuance of the power conferred on them by that act,. have selected the southeast corner of the public square in the city of Cleveland, as the site for the monument, and propose to build the same thereon. The city of Cleveland objects, and claims that, without its consent, which has not been given, the site selected cannot be appropriated to that use; and. furthermore that the act of the legislature is unconstitutional. The case having been determined in the common pleas, was appealed to the circuit court, where, upon the trial, the court stated its conclusions of fact and of law separately, and rendered judgment for the plaintiff. The findings are as follows:
    (Parts deemed immaterial being omitted.)

      “ 1. That the Connecticut Hand Company was in 1796, and for some time prior thereto, the owner in fee simple of all the lands now comprised within the limits of the city of Cleveland.
    “ 2. That on or about the first day of October, 1796, the Connecticut Hand Company caused a survey and plat and allotment of what was then intended by said company to be the city of Cleveland, to be made, designating as shown upon said plat, the location of streets, alleys and public places, and the boundaries and number of lots; that said survey and map were made for the purpose of selling lots designated and numbered as aforesaid with reference to said plat and allotment, and to dedicate to the public the streets, public highways and public places as shown by said allotment, survey and map — a copy of which map is attached to plaintiff’s petition and made a part of these findings of fact.
    “That afterwards, on the 6th day of November, 1801, the Connecticut Hand Company, being still the owner of said lands, caused a re-survey of all the lands included in the first plat and survey to be made, differing in no essential particular from the first survey and plat, and recorded in the office of the Recorder of Trumbull county, the premises at that time being within the limits of that county.
    “ This re-survey and record were made in compliance and in conformity with the act of the Territorial Eegislature of December 6, 1800. (1 Chase’s Statutes, 291-292.) That said last map, minutes and survey were subsequently recorded in the records of Cuyahoga county, on the 22nd day of November, 1814, Cuyahoga county having been organized in 1810.
    “That upon the said map and by said survey and re-survey, there is marked and designated a square space at the intersection of Superior and Ontario streets, and in said survey the following language is used as to such square space: ' “The square is laid out on the intersection of Superior street and Ontario street, and contains ten acres. The center of the junction of the two roads is the exact center of the Square.” There is no other provision in reference to said square on said map or on said survey.

      3d. When this original allotment was made no streets extended into the square except Superior and Ontario streets, which two streets extended through its center, or nearly so, at right angles. In 1816, when the village of Cleveland was incorporated, Euclid road was extended where Euclid avenue now is, from its intersection with Huron street to the southeast corner of said square space known as the Public Square.
    “For many years after this allotment was made, the Public Square was kept or permitted to be an open space, and free to the public to walk or drive upon, and to cross it as they saw fit.
    “A traveled roadway existed across the southeast quarter of the Square, and teams and stage coaches to and from Buffalo to Cleveland, coming along the Euclid road, passed diagonally across this section of the Square into Superior street near the center of the Square, and this roadway was so used until about 1838, when the four sections of the Square were enclosed with fences, leaving a roadway around, and Superior and Ontario streets extending through the Square. This condition continued until about 1857, when fences were placed across Ontario and Superior streets, and around the whole space known as the Square, except so much thereof on the four sides of the same as was necessary for the purpose of streets; and about ten years later, by order of the court of common pleas of this county, the city of Cleveland was ordered to remove so much of the fences as interfered with the use of Superior and Ontario streets as public streets through the Square.
    “From the year 1812 to 1830 there was a county court house upon the northwest corner of the Square, used as a court house and jail, and in the year 1828 a two-story brick court house was erected by the county on the south-west quarter of the Square, about the center thereof, which remained until 1858 or 1860, when it was taken down and rernoved. During the war of the Rebellion, temporary “Sanitary Fair” buildings were erected on those portions of the square now designated as Superior and Ontario streets, and remained about a year wben tbey taken down and removed.
    “These are the only buildings ever erected upon the Public Square, and ever since the removal of the court house in 1858 or 1860 this space has been wholly under the control of the city of Cleveland, used as" a public ground, and improved and beautified after the manner of a park, having a rostrum or speaker’s stand in the northeast quarter, and latterly the Moses Cleveland statue and Commodore Perry monument, the latter erected in the center of the Square in 1860 by direction of the city council, but subsequently removed to its present site in the southeast quarter of the Square, where it has remained for many years and still remains. For many years past public walks have been maintained diagonally across the southeast section as well as the other sections of the Square, excepting that there is no diagonal walk from the southwest corner of the southwest quarter.
    “That said walks diagonally across the southeast section of the Pubic Square are daily used to a great extent by a great many people; and in the northwest quarter of the Square the walk goes around the fountain 48 feet in diameter. For ten years and more prior to February 26,1891, the Park Commissioners of the city have had charge of the beautifying and improving of the parks of said city, and of the parks themselves including this open space or Square, and that such Park Commissioners were duly appointed and constituted, and continued in office from the time of their appointment until the re-organization of the city of Cleveland under the act passed March 16, 1891, and the charge and control of said city parks were devolved upon said Park Commissioners by ordinances of the city in addition to such control as was conferred upon them by statute, in the following language: “Said Commissioners shall take charge, and have the entire management, control and regulation of all public grounds and parks belonging to the city, subject to the city ordinances, and shall lay out such grounds and parks, with avenues, walks and paths, and make such other improvements and embellishments therein as they may deem proper, and shall protect and preserve the same.”
    “4. That the defendants, the Board of Monument Commissioners, were appointed by the Governor, with the advice and consent of the Senate, and qualified and organized and entered upon the performance of their duties. That at the time of said appointment, and at the time of the passage of the act of April 16, 1888, under which they were appointed, the Monumental Committee of the Cuyahoga County Soldiers’ and Sailors’ Union consisted of only twelve members, eleven of whom only were appointed by the Governor as members of the said Board of Monumental Commissioners, the membership of which also consisted of but twelve who were not all residents of Cleveland. The court further find that said Monumental Commissioners so composed selected the southeast corner of the Square as the site for the proposed monument.
    “That the amount of money provided by the said tax levies is- sufficient only for the erection and completion of the monument as designed by the Commissioners on said site, without any expenditures for a site.
    “ 7. The court further find that the Park Commissioners of the city of Cleveland never gave any consent or authority to said Monumental Commission to occupy this section oi the Public Square for the purpose of erecting said monument, but upon application therefor refused their consent.
    “That the monument would be of a public character and of a highly ornamental and worthy character as such and as a work of art.
    “That in the fore part of April, 1891, but prior to the re-organization of the city goverment under said act of March 16, 1891, the said Monument Commissioners were forcibly prevented by the Park Commissioners of said city, from taking possession of said section of the Square for the purpose of erecting thereon said monument, and that the re-oganization of the said city government under said act took place on the 21st day of April, 1891, and some time after the commencement of this action.”

      The court thereupon also states its conclusions of law as follows:
    “1. That said survey and map, made and recorded as aforesaid, operate as a dedication of the said Square to the public for the uses contemplated and intended by the donors at the time of the dedication.

      “2. That upon the incorporation and organization of the city of Cleveland, the said Public Square became subject to the exclusive control of the proper city authorities for the purposes so intended, and to be used for such purposes.
    “3. That the city has not conferred upon said Monument Commissioners any right to occupy said section of said Square for the purpose of erecting said monument thereon.
    •'4.. That upon the facts above found, the monument cannot legally be placed on said section on the Public Square.
    “5. That the clause in the act of the legislature of April 16, 1888, attempting to confer upon the Monument Commissioners the right to select the southeast quarter of the Square as the place for such monument, would not confer such right without the consent of the city of Cleveland.”
    And thereupon rendered judgment perpetually enjoining the defendants from constructing the monument on the site selected.
    The plaintiff in error alleges that there is error in the conclusions of law and the judgment of the circuit court, and asks that its judgment be reversed.

      L. Prentiss, J M. Jones and A. T. Brinsniade, for plaintiffs in error.

      Edward S. Meyer, Corporation Counsel, Boynton, Hale & Horr and Estep, Dickey, Carr & Goff, for defendant in error.
   By The Court.

The donation of the “Public Square” in the city of Cleveland by the Connecticut Band Company, was not made to the city of Cleveland, but to the public generally; and the court erred in so holding. It was therefore competent to tbe legislature to authorize the erection of a soldiers’ monument upon this square without the consent of the city, as done by the act passed April 16,1888, (85 Raws 564).

The objection that the persons composing the commission created for the erection of the monument, are officers; virtually appointed'by the legislature, and that the act is there-, fore unconstitutional, is, we think, untenable. If they are officers, within the meaning of the constitution, the direction for their appointment by the Governor from “the present Monumental Committee of the Cuyahoga County Soldiers’ and Sailors’ Union, ” is impersonal, and does not require the appointment of specific persons; whoever at the time the appointment is made, compose that committee, may be appointed by the Governor, whether they were such members at the passage of the act or not.

But it also seems clear from the previous decisions of this court, 'that the members composing this commission, are not officers within the meaning of $ec, 27, art. 2, of the constitution, denying to the legislature the power of appointment to office. Walker v. Cincinnati, 21 Ohio St. 14, 50.

They are created for the accomplishment of a particular purpose — the erection of a monument, and their functions end with the accomplishment of that purpose. It was held in the case just cited, that persons clothed with such temporary functions are not regarded as officers^ within the meaning of the constitution.

Judgment reversed, and petition oj the plaintijp below dismissed.