author: Owen, C. J.

text:
    Patterson v. Lamson.

      Descent and distribution — Pules of construction — Deed of gift — Deaitals—Parol proof — Pev. Stats., secs. 4158, 4159.
    1. Under the statutes of descent and distribution, the. course of descent of real estate is to be controlled by the legal title.
    2. Where the intestate’s title to real estate is free from controversy, in determining its course of descent and whether it is ancestral or non-aneestral property, the statutes of descent and distribution are not to be construed and administered upon equitable principles, but by rules of law.
    3. In determining, in such case, whether an instrument for the conveyance of land is a deed of gift or a deed of purchase, its recitals of the payment and receipt of the consideration are material; and a recital in such deed that the conveyance by the named grantor to the grantee is made in consideration of a specified sum of money received by such grantor from the grantee, so far concerns the operation and effect of the deed as that it is not competent to show, by parol proof, that such instrument is, in fact, a deed of gift from a person not named in it, and that the named consideration wa3 in fact paid by him.
    4. A father desiring to make his daughter a wedding gift, bargained for a tract of land, paid the agreed purchase price in money, and caused the vendor to convey it to the daughter just prior to her marriage. She thereafter died intestate, and without issue, leaving her husband surviving her. Held: The title to the land did not come to her “ by deed of gift from an ancestor,” within the meaning of section 4158 of the Revised Statutes, and the land, upon the death of the wife, descended to the husband in fee-simple under section 4159 of the Revised Statues, which provides that if the estate came not by devise, descent, or deed of gift, it shall, if there be no children or their legal representatives, descend and pass to the husband or wife relict of the intestate.
    (Decided March 22, 1887.)
    Error to tbe Circuit Court of Cuyaboga County.
    Edward L. Patterson, the plaintiff in error, brought his action in the court of common pleas to quiet his title to a tract of land of which he was in possession. The case went on appeal to the district court, and was finally tried in the circuit court, whose judgment the present proceeding is brought to reverse. The real estate in controversy was owned in fee by one Alexander J. Sited, who, on the 19th of September, 1879, conveyed the same by warranty deed to one Lillian E. Holbrook. This deed recites that Sked and his wife, “ the grantors, in consideration of six thousand dollars ($6,000), received to our full satisfaction, of Lillian E. Holbrook, the grantee, do grant, etc., to said grantee, her heirs and assigns, the following described premises ” — describing the land in controversy.
    On October 4, 1879, Lillian married one Charles W. Burrows, and on September 20, 1881, died intestate and without issue. The defendants in the action assert an estate in reversion in the lands in controversy after the death of the husband of Lillian, and it is against this claim that the plaintiff seeks to quiet his title, ho claiming fee-simple estate in the land.
    The defendant interposed the following as a defense to the plaintiff’s suit:
    “ Defendants further answering, and for their second defense say, that long prior to the 17th day September, 1879, by virtue of proceedings had in the probate court of Cuyahoga county, in the state of Ohio, under the statute laws of said state, said Lillian E. Holbrook, in plaintiff’s petition named, became and was the legally adopted daughter of Thomas H. Lamson, of Cleveland, Ohio, hereinbefore referred to; and that, by reason thereof, said Thomas H. Lamson was, at the death of Lillian E. Holbrook Burrows, possessed of all rights of inheritance from her as regards said described property, just as fully and to the same extent as he would have been, had Lillian E. Holbrook Burrows been his daughther as issue of his own body.
    “That sometime prior to the 17th day of September, 1879, and after Lillian E. Holbrook became his adopted daughter as aforesaid, and in view of the approaching marriage of his daughter Lillian E. Holbrook with Charles W. Burrows, and desiring to make Lillian a wedding gift, Thomas H. Lamson, in person, entered into negotiations with Alexander J. Sked, the then owner of the property in plaintiff’s petition decribed, for the purchase of the same, and soon thereafter concluded the negotiations and did purchase of Alexander J. Sked the described property, at and for the sum of six thousand dollars, and with his own money paid Sked for the same in cash the price agreed upon.
    “ That after the sale by Sked and purchase by Lamson of the property had been fully agreed upon and determined as between the parties thereto, Lamson instructed and directed Sked to make his deed of the property direct to Lillian E. Holbrook, which was accordingly done on the 17th day of September, 1879; and the deed thus made by Sked under and by the express direction and instruction of Lamson directly to Lillian E. Holbrook, is the deed referred to in plaintiff’s petition, and was delivered by Sked to Lamson, and was by him placed on record in the records of Cuyahoga county; and that he retained the deed in his possession until the night of the marriage of Lillian E. Holbrook to Charles ~W. Burrows, to-wit: October 7, 1879, at which time Thomas H. Lamson delivered the deed to his daughter Lillian as a wedding gift, thus vesting in her the equitable title of the property, the legal title to which had been conveyed to her by Sked in pursuance of the express instructions and directions of Thomas H. Lamson; and that as aforesaid, and in no other way, did Lillian E. Holbrook, wife of Charles W. Burrows, become vested with the title of the described property.

      “ Defendants further say, that the actual possession of the property was delivered by Sked to Lamson in person, and that Lamson retained the possession of the property for several weeks, during which time he spent a large sum of his own money in repairing and improving the property; and that Lillian E. Burrows did not come into the actual possession of the property until after her return to Cleveland, Ohio, from her wedding trip, to-wit: about the middle of November,. 1879, and was then put in possession of the same by Lamson, and not otherwise; that Lillian E. Burrows died intestate and without issue on the 4th day of September, 1881, leaving said Charles "W. Burrows, her husband, and Thomas H. Lamson, her father by adoption, surviving her; that Thomas H. Lam-’son died intestate and without issue, on the 17th day of August, 1882, leaving the defendant Abigail Lamson, his wife, and the defendants Isaac P. Lamson and Samuel M. Lamson, his brothers, and the defendants Mary A. Gleason, Salina M. Campbell, Esther Judson and Lucinda Camp, his sisters, surviving him.

      “ Defendants further say, that by reason of the facts herein-before set forth, said described property in the possession and ownership of said Lillian E. Burrows at the time of her death, was ancestral property coming to her from her father as aforesaid, and that all the title or estate in the property that descended to or vested in her husband, Charles W. Burrows, was a life-estate therein; and that if the plaintiff has any right or title in or to the property, it is only an estate during the life of said Charles W. Burrows, surviving relict of said Lillian E. Burrows.”
    The plaintiff’s demurrer to this answer was overruled, and judgment rendered for defendants. The action of the circuit court in overruling this demurrer is assigned for error.

      T. JE. Burton and George L. Bake, for plaintiff in error.
    For the purposes of descent and distribution, two classes of real estate are recognized by the laws of Ohio : Ancestral property, title to which came to the decedent by descent, devise or deed of gift from an ancestor; and non-ancestral property, title to which did not so come to decedent. Rev. Stats., secs. 4158, 4159. All real estate must be embraced in one or the other of these classes. By the policy and laws of this state, as well as that of many other states, a distinction is made between these two classes; and the fact of an estate belonging to one or the other of them is an inherent and distinguishing quality of such estate, dependent upon the deed, will, or act of law by which it is created.
    Defendants claim that the real estate m question is ancestral property, title to Avhich came to Lillian H. BurroAvs by deed of gift from an ancestor, to Avit, Thomas H. Lamson.
    Four distinct considerations disprove this claim.
    1. Title did not come to Lillian H. Burrows by deed of gift.
    Whether an estate created by deed is ancestral or not depends, under the statute, both upon the deed by Avhich it was created and the person from whom it came. As to the former particular the deed must be the sole evidence. An important quality of the estate created thereby depends upon Avhether the deed is or is not a deed of gift; and where the deed, of itself, determines this point, to vary it by parol would be contrary to settled rules of evidence. Greenl. Ev., secs. 275, 305; Stone v. Vance, 6 Ohio, 246; Serviss v. Stockstill, 30 Ohio St. 418.
    The deed in question does show, on its face, that it was not a deed of gift. Parties and privies to a deed, as regards any claim of title to the land conveyed by such deed, cannot prove a consideration different in kind from that described in it, except in cases of fraud, accident and mistake. Taggart v. Stanbery, 2 McLean, 543; Burrage v. Beardsley, 16 Ohio, 438-442; Vail v. McMillan, 17 Ohio St. 617-622; Williams v. Williams, 3 W. L. M. 258; Clifford v. Baessman, 41 Wis. 597; McConnell v. Brayner, 63 Mo. 461; Mason v. Buchanan, 62 Ala. 110; Galbreath v. Cook, 30 Ark. 417; Potter v. Gracie, 58 Ala. 303; s. c. 29 Am. Rep. 748; Harpur's case, 11 Coke Rep. 24, b; Clarkson v. Hanway, 2 P. Wms. Rep. 204, 205; 2 Whart. Ev., sec. 1048.
    2. Title did not come to Lillian H. Burrows by deed from Thomas H. Lamson.

      “ The title to real estate wbicb must have come to an intestate by devise or deed of gift from an ancestor, to constitute ancestral pi’operty, is the title under which the intestate immediately held.” Brower v. Hunt, 18 Ohio St. 311; Prickett v. Parker, 3 Ohio St. 394; Curren v. Taylor, 19 Ohio, 36; Cliver v. Sanders, 8 Ohio St. 504; Gilpin v. Williams, 17 Ohio St. 397; Gardner v. Collins, 2. Pet. 58; Clark v. Shailer, 46 Conn. 119; Wheeler v. Clutterbuck, 52 N. Y. 67.
    3. Lillian H. Burrows acquired the legal title from a stranger. Where a legal title and an equitable title unite in the same person, the legal title governs the course of descent.
    (a.) It is a general rule, that when the legal and equitable estates combine in the same person, the legal alone remains. 4 Kent Com. 102; Forbes v. Moffatt, 18 Ves. Jr. 390; Belt v. Tenny, 29 Ohio St. 243.
    (6.) In tracing title by descent, the general rule that the legal title controls has been invariably applied. Nicholson v. Halsey, 1 John Ch. 416; Shepard v. Taylor, 3 Atlantic Rep. 382; Goodright v. Wells, Douglass, 771; Selby v. Alston, 3 Ves. Jr. 339; Brydges v. Brydges, 3 Ves. Jr. 120; Mason v. Day, Prec. Ch. 319; 3 Cruises Dig. 383; 3 Pres. Con. 327; Doe v. Morgan, 7 T. R. (Durn. & East), 103; Price v. Langford, 1 Salk. 337; Martin v. Strachan, Willes, 444.
    4. Thomas H. Lamson, the adopting father, was not the ancestor of Lillian H. Burrows, his adopted child, within the meaning of the statutes of descent and distribution.

      (a.) An ancestor may be defined as “ any one from whom the estate Avas inheritable in right of blood.” Lathrop v. Young, 25 Ohio St. 451, 464.
    (b.) The artificial relation created by adoption did not. make him her ancestor, or give him capacity to inherit from. her. Upson v. Noble, 35 Ohio St. 655.
    Our statute does not justify any other interpretation. In interpreting statutes providing for adoption and defining its legal consequences, the courts, in all matters pertaining to inheritance of property by or from the adopted child, have jealously guarded the distinction between adopted and natural children. Statutes on the subject, being in derogation of the common kw, are strictly construed. Upson v. Noble, supra; Tyler v. Reynolds, 53 Iowa, 146; Keegan v. Geraghty, 101 Ill. 26.
    In numerous cases the right of the adopting parent, or his kindred, to inherit from his adopted child has been denied. Barnhizel v. Ferrell, 47 Ind. 335; Reinders v. Koppelman, 68 Mo. 482; Hole v. Robbins, 53 Wis. 514; Burger v. Frakes, 67 Iowa, 460; Commonwealth v. Powel, 20 Cent. L. J. 343; Schafer v. Emeu, 54 Pa. St. 304; Quigley v. Mitchell, 41 Ohio St. 375.

      Caskey & Calhoun, for defendants in error.
    The title to the property in question came to Lillian H. Burrows by deed of gift.
    We take issue Avith the position of the plaintiff that the recital in the deed “in consideration of six thousand dollars received to our full satisfaction of -Lillian E. Holbrook,” determines conclusively that the deed is a deed of purchase and not of gift, and that Ave cannot inquire into the facts, because (1) the recital is not of that character of Avhich the Lav forbids contradiction, and (2) it is not absolutely necessary for us to contradict any recital contained in the deed.
    It is not the province of a deed to determine upon whom the estate shall be cast in case of the death of the grantee. The deed in question passed a title in fee. We do not seek to challenge the title thus conveyed, but simply to determine who owns the title under the statute of descent and distribution. It is not sought to limit, change or vary the estate granted by the deed, but to show that the estate came to the grantee as a gift from an ancestor, and, therefore, follows a different line of descent. The proof we seek to make is necessary to determine in whose favor the statute shall operate. Under the laws of Ohio, two elements enter into the descent of property — the nature of the property and the kinship of the claimant. The determination of one question is as much open to parol proof as the other. Parol testimony is admissible to show whether the property of the intestate is real or personal; just as pertinent is the question as to whether it is ancestral or non-ancestral. And we claim in this case that parol testimony is just as admissible to prove that the property is ancestral as it would be to prove the deceased woman the child of Thomas H. Lamson. In neither case do we, in the slightest degree, impeach, change or invalidate the effect and operation of the Sited deed. In one case we simply identify the nature of the- property, and in the other we identify the person who is heir:
    Parol testimony is permitted to establish a resulting trust. Byers v. Wackman, 16 Ohio St. 440. To establish an express trust. Mathews v. Leaman, 24 Ohio St. 623; Harvey v. Gardner, 41 Ohio St. 642. To determine advancements to children. Speer v. Speer, 14 N. J. Eq. 240; Meeker v. Meeker, 16 Conn. 383. To transform a deed absolute on its face into a mortgage. Miami Ex. Co. v. Bank of U. S., Wright, 249. To establish rights of husband in property held in name of wife. Abb. Trial Ev. 170. And right of wife in property held in name of husband. Newton v. Taylor, 32 Ohio St. 399.
    A recital to work an estoppel must be of some material fact, and must have been intended by the parties to the instrument that it should have that effect. Stroughill v. Buck, 14 Q. B. 781; Young v. Raincock, 7 Com. B. 310; Bigelow Es. 299, 310; MoCrea v. Purmort, 16 Wend. 460; Brinegar v. Chaffin, 3 Dev. 108.
    The acknowledgment of the receipt of the consideration is not conclusive as to either the kind of consideration passing, the fact of payment, or by whom it was actually paid, but may be explained or disputed. McCrea v. Purmort, supra.

    The money paid for the property was the money of Lamson. Whose money it was that paid for the j>roperty is a fact not embraced in or covered by the recitals of the deed. It does not necessarily follow that because Lillian E. Holbrook paid the consideration to the grantor, that the money paid was her money.
    A recital to work an estoppel must be a recital of the identical fact upon which the right of the party hinges. The recital of a collateral fact, from which the existence of the material fact might be inferred, deduced or supposed, is not sufficient to create an estoppel. Kepp v. Wiggett, 10 Com. B. 35; Noble v. Cope, 50 Pa. St. 17; Parker v. Smith, 17 Mass. 413; Farrar v. Cooper, 34 Me. 394.
    A deed of gift, within the moaning of the statute, is any instrument transferring title of property which, in fact, the grantee receives and accepts as a donation or gift without having paid any valuable compensation or consideration therefor; and this either by way of advancement, or absolute gift. The plain intention of the statute is, that real property received from an ancestor, either by inheritance, by will or by conveyance during life, without having paid valuable consideration therefor, should, in the absence of lineal descendants, return to the channel from whence it came.
    The adopting parent, under the laws of 'Ohio., becomes the ancestor of the adopted child within the meaning of our statute of descent and distribution.
    An ancestor is any one from whom the intestate might have inherited the estate as heir in right of blood in the absence of other and nearer heirs. Birney v. Wilson, 11 Ohio St. 426; Brower v. Hunt, 18 Ohio St. 311.
    The legislation on the subject places an adopted child precisely in the position of inheriting from the adopting parent in “ right of blood.”
   Owen, C. J.

If the plaintiff below was not entitled to the relief sought, it was for the reason that the title he was seeking to quiet, came to Lillian E. Holbrook by deed of gift from Thomas H. Lamson.

The one fact which stands stubbornly in the way of this conclusion, is that the title did not come to her by deed of gift from Thomas H. Lamson. This fact not only stands at the threshold of our investigation, but confronts us at every step we take in it.

Section 4158 of the Revised Statutes, provides that: “ When a person dies intestate, having title or right to any real estate- or inheritance in this state, which title came to such intestate by * * * deecl of gift from an ancestor, such estate shall * * * if there are no children * * * pass to and vest in the husband or wife, relict of such intestate, during his or her natural life.” It is very clear that there is nothing in the recitals of the deed under which both parties claim title, to justify the claim upon which the judgment below is predicated. To establish that claim, it became necessary to invoke the aid of facts outside of the deed itself, which gave to the transaction which led to it, the legal effect of a deed of gift from Lamson to Lillian. These facts are stated in the second supposed defense of the answer, to which the demui’rer of the plaintiff below was interposed, and which the court below overruled. This action of the court is assigned for error; and is the one question to which we address our consideration.

The defendant in error maintains, through his counsel, that: “ The plain intention of the statute is that the real property received from an ancestor, either by inheritance, by will, or by conveyance during life, without having paid valuable consideration therefor, should, in the absence of lineal descendants, return to the channel from whence it came.” If this proposition be conceded to be sound, we are still far from the solution which would justify the judgment below.

By that judgment the property does not “return to the channel from whence it came.” It “ came ” from Sked, the grantor. The negotiations for the purchase were conducted on the part of Lamson, certainly for the benefit of Lillian, and with the single view of making her a wedding gift. The deed was made direct to her, and although the answer states that it was retained by Lamson until tbe nigbt of tbe marriage, it had theretofore been by him placed on record, in tbe records of Cuyahoga county. Tbis was a delivery to Lillian. True, while tbe answer states that on tbe marriage nigbt Lamson delivered said deed to bis said daughter Lillian as a wedding gift, thus vesting in her tbe equitable title to tbe property,” it also avers that tbe legal title bad already been conveyed to her by Sked in pursuance of tbe express instructions and directions of Lamson. It is not easy to see bow or when tbe legal and equitable title were ever severed. It was not contemplated at any time that Lamson should bold tbe equitable title. The only logical conclusion from tbe facts stated in tbis answer is, that when tbe legal and equitable title to tbis land passed from Sked it became vested in Lillian. At no time did Lam-son contemplate that be should retain any beneficial or equitable interest in it. Tbe delivery of tbe deed for record raised tbe presumption of its delivery to Lillian, and there is nothing to rebut tbis presumption. Mitchell v. Ryan, 3 Ohio St. 377; Black v. Hoyt, 33 Ohio St. 203; Hammell v. Hammell, 19 Ohio, 17. Tbe averred delivery to Lamson by Sked is explained by other averments, which show that tbe possession was for tbe purpose of improving tbe property for tbe benefit of Lillian, who was tbe only person then entitled to tbe possession. We feel justified, therefore, in concluding that there was no time during tbe transactions detailed in tbe answer when tbe legal and equitable title to tbis property were severed. No contingency was contemplated by Lamson, nor, so far as tbe facts appear, by Sked, in which tbe former was to be or become beneficially interested in this property. From first to last Lillian was the proposed beneficiary of tbe purchase, which was to be enjoyed by her and her future husband. Tbe controversy which chiefly engages tbe discussion in tbis case, arises from tbe necessity of showing facts outside of tbis deed which are expected to impart to it tbe essential qualities of 'a deed of gift from Lamson to Lillian. Counsel are practically in accord that oral evidence is not admissible to contradict tbe material recitals of tbe deed for tbe purpose of fixing its character as a deed of gift from an ancestor. The defendants in error maintain that: “ The recital in said deed which we seek to contradict, is not of the character which the law forbids contradiction of; and it is not necessary for us to contradict any recital in said deed.” The claim is that the recital, In consideration of $6,000, received to our full satisfaction of Lillian E. I-Iolbrook,” is not contradicted by showing that the consideration paid was the money of Lamson. That the deed is silent upon this fact. The right to show, by oral evidence, that the consideration was in fact furnished by another than the grantee named in the deed, is predicated upon the legal proposition that recitals in a deed are estoppels only when they are of the essence of the contract; that is, where, unless the facts recited exist, the contract, it will be presumed, would not have been made; and upon the assumed fact that neither party to this deed intended to determine the course of descent the property should follow; that they were not negotiating with a view to any such contingency. In this connection counsel assert that: “ The idea that any recital contained therein would thereafter determine the line of descent, never entered their heads, except so far as the transfer of title from one to the other would control the same,” etc.

In this we are left entirely to conjecture. How may we know that this form of transfer of the title to Lillian was not deliberately adopted by the alleged ancestor, Lamson ? That he looked with approval upon the union which he was about to assist in celebrating by a munificent wedding gift, which the future husband of his child was destined to enjoy in common with her, is abundantly attested by the gift itself. How can we know that he did not adopt this method of transfer as a form of marriage settlement, or as a form of transfer which should inure to the benefit of both parties to the marriage by conferring such a title as, in case of - the death of his child, would leave the surviving husband in the enjoyment of a-marketable fee-simple estate? "While we are left entirely to conjecture, it seems most reasonable that we should rest our conclusion upon the natural and legal hypothesis that the parties at least intended to do what they did, and to do it as they did. It seems to us rather a free construction of this deed to assume that it is silent upon the the question of who furnished the consideration named in it. But one inference can be gathered from it, and that is that Lillian was the purchaser of the property, and paid the named consideration for it. It is this recital which, more than any other in the deed, imparts to it the character of a deed of purchase, as distinguished from a deed of gift from one whose name nowhere appears in it. Here is a deed which, upon its face, justifies but one construction ; that it is a deed of purchase from Shed to Lillian E. Holbrook. To say that it is not contradicting its recitals to to prove that in fact it is a deed of gift from one who is not named in it to the grantee, is a theory which we are not prepared to adopt. That the' consideration clause of the deed may not, in any case, be contradicted, we are not called upon to declare. In many cases — -in fact in most cases — the consideration recitals in a deed have little or nothing to do with the effect of a deed, or with the title conveyed. But in the case at bar, how can it be said that these recitals have no relation to the effect of the deed, or the nature of the title conveyed ? While it may be said that the quality of real estate as ancestral or non-ancestral property, is never inherent in the estate itself, it does not follow that the character of a deed, as a deed of purchase or a deed of gift, has no relation to the quality of the estate as ancestral property or otherwise. The character of the deed as a deed of purchase or a deed of gift was determined at the time it was made and delivered. How can it be said that the form of the deed, as respects its recitals of consideration, can have no effect upon the kind of estate it conveyed, when the one questioh which has so long protracted the contention in this ease, is whether the deed was a deed of gift or of purchase ?

Our conclusion, upon this question is, that in determining whether an instrument for the conveyance of land is a deed of purchase or a deed of gift, we may look to its recitals, and that a recital in such a deed that the conveyance by the named grantor to the grantee is made in consideration of a named sum of money received by such grantor from the grantee, is of the essence of the deed, and so far concerns its operation and effect as that it is not competent to show, by parol proof, that in fact such deed was a deed of gift from a person not named in the deed, and that the named consideration was in fact paid by him.

II. In determining whether real estate is ancestral or otherwise, the course of descent is to be controlled by the legal title. In Shepard v. Taylor, (R. I.) 3 Atlantic Rep. 382, it was held: “ When a legal estate in reality and an equitable one, coming through different persons, unite in the same holder, the course of the legal estate, and not that of the equitable, determines whether the holder of both does or does not have an ancestral estate.”

This view is sustained by Chancellor Kent in Nicholson v. Halsey, 1 Johns. Chan. 416. Also by Goodright v. Wells, Douglass, 771; Selby v. Alston, 3 Ves. Jr. 338. As we have already seen, the legal title to the real estate in controversy was never vested in Lamson. We have also seen, that when the legal title became vested in Lillian there remained no equitable interest in any other person. The transaction was as if Lamson had made a gift of $6,000 to Lillian, and with it she had made this purchase. So far as the conduct and intention of Lamson appear by this answer, the legal and equitable title passed immediately and at the same time from Shed to Lillian, and however we may characterize the transaction as between Lamson and the other parties to it, it certainly was not a conveyance of real estate by deed of gift from him to Lillian.

III. The only estate that Lamson parted with was six thousand dollars in money. The doctrine of equitable conversion finds no place for its exercise in the case at bar. It is peculiarly an equitable doctrine. While it may be invoked, in a proper case, in fixing the title in the person entitled thereto under the immediate operation of a deed, it is never employed in determining the course of descent where the title is so fixed. In such case, the course of descent is to be determined by rules of law. In the case at bar, there is no controversy concerning Lillian’s title. By the concession of all parties she was vested with a fee-simple estate in the lands in controversy. This being so, the law can alone determine the course of descent. Our statutes of descent and distribution are not to be construed or administered by the rules of equity. Foster’s Appeal, 74 Pa. St. 391, 898-9; Armington v. Armington, 28 Ind. 74, 76.

IV. We are not left without the light of adjudication, however, upon the questions involved in this controversy.

In Brower v. Hunt, 18 Ohio St. 311, it was held:

“The title to real estate which must have come to an intestate by devise, or deed of gift from an ancestor, to constitute ancestral property, is the title under which the intestate immediately held.”

And, “ Where specific tracts of land had been allotted to codevisees in pursuance of directions in the will of their ancestor, and, afterwards, one conveyed his tract to a co-devisee for a monied consideration as expressed in the deed, but in fact for a like conveyance, by the latter, of the tract he had received in the partition; held, that the title of neither was derived directly by devise from the ancestor, and that, for the purposes of descent, each was to be regarded as a purchaser.”

Upon this branch of the case, White, J., says, in the opinion:

“The remaiáing question is as to whether the lands described in the first cause of action, came to Thomas Hunt by devise from his father. In our opinion they did not. The •title mentioned in the statute is the title under which the intestate immediately holds. The title to these lands came to Thomas by deed of conveyance from Jacob, and the character of the consideration cannot alter the fact, and make that a title by devise from the ancestor which was in fact- a title 'by deed from Jacob. There was no mistake in the partition which the deeds between Jacob and Thomas were merely designed to correct. Without the conveyance from Jacob, Thomas had no title to these specific lands, legal or equitable; yet the operation of the will was the same without the deed as with it. The title of Thomas, therefore, cannot be said to have come to Tiim directly by devise from his father; and for the purposes of descent he must be regarded as a purchaser.”

There are weightier considerations pointing to the ancestral character of the property involved in. the case last cited than in the case at bar. The lands conveyed to Thomas came from the ancestor. The consideration for the conveyance came from the ancestor and came in land. No money consideration — no lands except ancestral lands — -intervened to affect the question.

All that could be said was that the title of Thomas did not technically come to him “ directly/’ by devise from an ancestor. The case holds that the character of the consideration cannot affect the estate as ancestral or non-ancestral property.

The logic of this case solves the case at bar. Lamson, the alleged ancestor, did not, it is conceded, directly deed these lands to Lillian. And, whatever right or equity he may have had in them as between himself and Sked after the negotiations for the purchase, and before the deed was executed, as between himself and Lillian he did not even indirectly convey the land; for he neither held nor claimed any interest, legal or equitable, asagainst her; and whatever rights the defendants assert, they claim through her.

It follows, therefore, that with or without the aid of proof of facts different from those recited in the deed, the defendants are not able to establish the one fact indispensable to their defense, that the property in question came to Lillian by deed of gift from an ancestor.

The facts alleged in the answer failed to constitute a defense, and the demurrer was well taken.

There was error in overruling it.

The views already expressed relieve us of the consideration of the questions arising upon the relation of Lillian to Lamson as his adopted child.

Judgment reversed.


source: Caselaw Access Project

author: Minshall, J.

license: Public Domain

text:
    Carey v. Kemper.

      Practice — Rev. Stats., sec. 5354 — Infant—Right to show cause against judgment on arriving at age.

    Where, in a proceeding in error, to which an infant is a party defendant, this court reverses a judgment that had been rendered in his favor, and remands the cause to the court in which it had been rendered, with direction to render a judgment against the infant in accordance with its rulings, which is done, the judgment so rendered is the judgment of the court to which the cause had been remanded for judgment. And where the infant, on arriving at full age, would avail himself of the right secured to him by the eighth paragraph of section 5354 of the Revised Statutes to show cause against the judgment, and have it vacated for error, he must commence the proceeding in the court below, where the 'judgment was in fact rendered; it cannot be commenced in the first instance in this court.
    (Decided March 22, 1887.)
    Petition to vacate or modify judgment of Supreme Court Commission.

      Samuel T. Crawford, for plaintiffs.

      Gasser & Spangenberg, for defendants.
   Minshall, J.

This purports to be a proceeding to vacate or modify a judgment of tbe. supreme court commission rendered at tbe January term, 1883, in tbe case of Jane Carey et al. v. Bernard Kemper et al., having been a case on error to tbe district court of Hamilton county. Jane Carey, as appears from tbe record, was at tbe time a married woman, and Jacob Jennings Richardson was a minor. He became of age on September 25, 1886, and this proceeding was begun in October following. Tbe former proceeding was begun by Jane Carey and ber husband to reverse tbe judgment that had been rendered in favor of Kemper against ber. Kemper filed a cross-petition to wbicb be made Jacob, tbe minor, a party, tbe judgment of the court below having been in favor of Mm. Tbe commission reversed tbe judgment in favor of tbe minor; and proceeding to render tbe judgment tbe district court, as -it adjudged, should have rendered, reversed the judgment of the common pleas, dismissing the action as to the minor, and remanded the cause to the court of common pleas “for a decree directing the receiver to apply the rents” in a particular way, and for an order of sale, if the rents should prove insufficient, when applied as directed, unless the requisite amount should be paid to the clerk in a time stated; and further ordered the action to continue pending in the common pleas for adjustment between the life-tenants and remainder-man. The case is reported sub nomine, Carey v. Kemper, 40 Ohio St. 79.

A motion was made at the same term by Jane Carey, and on behalf of the minor, for a vacation or modification of the judgment, and was overruled by the commission.

The present proceeding differs somewhat from the motion made before the commission. It is for (1) “ Errors that are apparent on the record of said cause; and (2) errors or erroneous proceedings, that were not apparent on the said record.”

The last ground embraces what is claimed to have been an error in the description of the property ordered sold for the satisfaction of the mechanics’ liens, whereby it is claimed the description includes part of a lot not affected by the liens, and that should not have been sold, or ordered sold for that purpose.

And again, it is a proceeding on behalf of Jacob J. Richardson, in which he seeks to show cause against a judgment rendered against him while a minor, he having arrived at full age within twelve months of its commencement.

The practice of awarding rehearings has uniformily been confined to courts of original jurisdiction; they are not awarded as a matter of right in appellate courts. The reason of this is not based upon any assumption of infallibility by such courts, but because, as stated by Ranney, J., in Longworth v. Sturges, 2 Ohio St. 104, “ There must at some time be an end of litigation, not only for the benefit of the parties to each particular case, but to enable others standing behind them to have their rights determined.”

Moreover, if the right to a rehearing were recognized as existing in the general practice of this court, the right must be regarded as having been exhausted by the motion that was made before the commission and overruled; for attention was. then called to the same errors in the record that are now insisted on as a reason for vacating or modifying the same judgment.

In Zink v. Grant, 26 Ohio St. 378, it was held that parties have not the right to a rehearing after the decision of a cause by this court, unless the application comes within the provisions of section 542 of the code of civil procedure. Those provisions are now embraced in the sections of the Revised Statutes, from 5354 to 5365, inclusive. And the remaining question is whether, under these sections, the plaintiffs, or either of them, are entitled to any relief upon their petition in this court. Section 5365 provides that the preceding sections above referred to shall apply to the supreme eourt * * * so far as the same may be applicable to their judgments and final orders.”

Section 5354 confers power on a court of common pleas, superior or circuit court, to vacate or modify its own judgment or order, after the term at which the same was made:

5. For erroneous proceedings against an infant, married woman * * * when the condition of such defendant does not appear in the record, nor the error in the proceedings :

8. For errors in a judgment, shown by an infant in twelve months after . arriving at full age, as prescribed in section 5330.”

Now, it is apparent that Mrs. Carey does not come within the provisions of the eighth paragraph, for it applies simply to infants; and we think it is quite as evident that neither she nor he bring their applications within the provisions of the fifth one, for it applies only to the, instances .where the condition of the defendant does not appear in the record, nor the error in the proceedings. But here the coverture of the one, and the infancy of the other, appeared in the record of the judgment reviewed by the commission; her coverture had been found as a fact, as appears from the special finding made by the court below, and the suit was against him. as an infant, as appears from the style of the case.

No power is conferred on the court by the fifth paragraph .of the above section to vacate or modify a judgment after the term at which it was rendered, unless the error complained of is outside of the proceeding in which it was rendered, and the condition of the defendant does not appear in the record.

The reason of this provision apparently is, that where the condition of the defendant as to coverture or infancy appears upon the record, such condition will arrest the attention of the court, and excite the care courts always exercise in dealing with persons not sui juris, and so the necessity for a special proceeding after judgment is, in such case, dispensed with.

It remains to consider whether, under the eigth paragraph of the above section, Richardson has the right, in this court, to show cause against the judgment of which he complains. It will be observed that the right here given an infant to have a judgment vacated is for errors in it, shown by him in twelve months after arriving at full age, as prescribed in Section 5330.” The language of this section is, It shall not be necessary to reserve in a judgment or order the right of an infant to show cause against it, after his attaining full age; but in any case in which, but for this section, such reservation would have been proper, the infant, within one year after arriving at the age of twenty-one years, may show cause against such order or judgment.” The practice in equity had been to reserve in every decree, affecting the inheritance of an infant, the right to show cause against it on arriving at full age, and it was error not to do so in all cases where he had the right, on arriving at age, to show cause. The effect of this statute is simply to abrogate the rule requiring that the right should be reserved in the entry of the judgment. It does not extend the right of the infant to judgments tQ which it did not apply before the statute.

No doubt but that he has the right within the time limited by the statute to show cause against the judgment that ordered the sale of his estate in the premises in question for the satisfaction of the alleged lien, if the order as to him was erroneous. We think it is also clear that he may do so by a proceeding in the nature of a bill of review; such is the right secured to him by the eighth paragraph of section 5354. And it is equally clear that he is not confined to this remedy; for, as held in Long v. Mulford, 17 Ohio St. 484, and in Rammelsberg v. Mitchell, 29 Ohio St. 22, he may do so by an original suit, in a court of competent jurisdiction, the substitute under our reformed pro- ’ cedure for an original bill.

Where, however, the infant, on arriving at full age, avails himself of the provisions of section 5354, it is clear, as we think, that the proceeding should be had in the court where the judgment, it is sought to vacate or modify, was rendered; for the power conferred upon either of the courts to which its provisions extend, is to “vacate or modify its own judgment or order, after the term at which the same was made; ” it is not conferred upon any other court. It is in the nature of a proceeding coram, nobis. 2 Nash Pl. 1265; 2 Tidd Pr. 1136.

Now, in this case, the supreme court commission rendered no judgment against the infant. The judgment that had been rendered in his favor was, upon the cross-petition in error of Kemper, reversed, and, proceeding to render the judgment that in its opinion, the district court should have rendered, reversed the judgment of the latter court, and remanded the cause to the court of common pleas with direction to render a judgment in accordance with the principles it had announced. It is then, as we think, manifest that under the circumstances disclosed by the record, the infant in proceeding under the provisions of the above section should institute his proceeding in the court of common pleas, where the judgment was in fact rendered against him. The fact that the judgment was rendered in pursuance of the rulings of an appellate court on a proceeding in error, does not alter the case. A judgment is rendered by the court that hears the case and applies the law to it; and it is immaterial in this regard from what source it derived its knowledge of the law applicable to the case.

Where, in the exercise of its original jurisdiction, this court pronounces a judgment, or when it reverses a judgment and proceeds to render a final judgment in the case, and remands it for execution only, as is sometimes done, we have no doubt that an infant may show cause against any such judgment of this court, by a proceeding commenced in it under section 5354, within the time limited. It is with reference to such judgments that the provisions of this section are made applicable to this court by section 5365; they do not apply to judgments of affirmance, nor to judgments of reversal, where the cause is remanded for further proceedings in the court below, except in so far as it confers a power possessed by all courts of controlling their own judgments during the term; or of setting aside judgments and decrees obtained in them by fraud, mistake or irregularity. See Longworth v. Sturges, supra.

Petition dismissed without prejudice to any rights Richardson may have in the premises in a court of competent jurisdiction.


author: Williams, J.

text:
    City of Columbus v. Street Railroad Company.

      Municipal corporations — Street railroad — Ordinance—Duty to repair street — Rights of city.

    The city of Columbus, by ordinance, granted the privilege to a company to construct and operate a street railroad on one of its streets for a specified period. The ordinance provided that the company should make, construct, and keep in order and repair, all that part of the street included between the rails of its tracks and switches, in the same manner, and witlx like material, as the street is constructed and repaired, so long as it shall use the same for its railroad; and any failure to comply with the provisions of the ordinance, or with any general ordinance of the city, regulating the use of its streets, or the police regulations thereof, should render such railroad company liable to the city, in an action of damages for such failure; and the council after giving the company twenty days notice, should have the right to order any work to be done on the railroad, necessary to keep it in repair, and charge the cost and expense thereof upon the railroad company. Held :

    1. That the ordinance did not divest the city of its control of the street, or abridge its right to improve the same; and it might, during the period named, cause to bo made new improvements thereof, including the part occupied by the street railway, and determine the kind of improvements to bo so made.

      2. By constructing and operating its railway, the company accepted the burdens, with the privileges of the ordinance, and thereby incurred the continuing obligation, to make, construct and keep in order and repair, as long as it enjoyed those privileges, the portion of the street between the rails of its track, including such new improvement thereof as the city might determine and direct.
    3. When, after notice, the company fails to do the work so required of it, and the city then causes it to be done, its reasonable cost may be recovered by action against the company; and it is not essential to the liability of the company therefor, that the notice to make such improvement precede the letting of the contract by the city for the same. It is sufficient if such notice be given before the work is done, and while the company may still perform the same.
    4. Where the company, after receiving such notice, without attempt to perform any part of the work required of it, permitted the city, without objection or complaint, to commence and complete it, adjusted the track of its railway to conform thereto, as it progressed, and with knowledge that the city expected it to pay for the same, and of all the circumstances, received all the benefits thereof as fully as if it had been performed by the company, the city may recover the reasonable cost of the work so done, although the notice does not strictly conform to the requirements of the ordinance.
    (Decided April 26, 1887.)
    Error to the District Court of Franklin County.
    The plaintiff, a city of the second class, had, prior to 1874, granted to the defendant, an incorporated street railroad company, permission to construct and operate, until November, 1882, a street railroad on High street. On the 16th of November, 1874, the city council, by ordinance, authorized the company to extend its road on Goodale street and Neil avenue, and continue the operation of the same thereon, as well as on High street, for the period of twenty years.
    The defendant accepted the privileges and conditions of the ordinance, extended its road accordingly, and has ever since been so operating the same. This ordinance, among other things, provides that the company shall “ make, construct and keep in order and repair all that part of said street included between the rails of its tracks and switches, in the same manner and with like material as the said street is constructed and repaired so long, as it shall use the same for its railroad. Any failure by said railroad company to comply with the provisions of this ordinance, or with any general ordinances of the city regulating the use of said streets, or the police regulations thereof, shall render such railroad company liable to said city in an action of damages for such failure; and the council of said city, after giving said company twenty days’ notice, shall have the right to order any work to be done on said railroad necessary to keep it in repair as required by this ordinance, and when said work is done, to charge the cost and expense thereof upon said railroad company, and upon recovery of such damages, or upon such work being done, the said railroad company shall be liable for the payment thereof.”
    On the 1st of March, 1875, the city council desiring to improve High street, including the portion between the rails of the track and switches of the defendant’s railroad thereon, by paving, etc., duly passed and published an ordinance for that purpose; and after the necessary preliminary proceedings, on the 26th of April, 1875, let the contract for such improvement. On the 19th of April, 1875, a resolution was adopted by the city council, directing the defendant to proceed immediately to make that part of the improvement between the rails of the tracks and switches of its road. A copy of this resolution was served upon the superintendent and general manager of the company. The defendant failed and refused to make any part of the improvement, and the contractors, under their contract ■ with the city, constructed the whole improvement, including that part which the defendant was directed to make. The work was completed in December, 1875, and on the 24th day of January, 1876, the council, by ordinance, assessed upon the defendant’s road the cost of that portion of the improvement included within the rails of its tracks and switches, amounting to $7,967.00, and directed the same to be paid by the defendant to the city treasury August 5th, 1876. The defendant failing to make payment, the plaintiff thereafter brought its suit in the court of common pleas to recover the same. The plaintiff’s petition alleged in substance the foregoing facts, and that the sum sued for was the reasonable cost of the part of the improvement referred to. Tbe defendant’s answer in substance denied that the sum sued for was'the reasonable cost or price of that part of the improvement mentioned, and also denied that it was notified to construct the same until after the city had let the contract for the whole improvement. The case was tried to the court, whose findings of fact and conclusions of law are separately stated as follows:
    “ First — That the ordinance passed by the city council, November 16, 1874, as alleged in the petition, was duly accepted and ratified by the defendant. Second — That the plaintiff did not notify the defendant to improve or repair the part of High street between the rails of its railway 'until the plaintiff had contracted in writing with Hastings & Beeson to improve the entire width of said street, including the part so between the rails, with the Parisen asphaltum pavement, and not until the said Hastings & Beeson had commenced the construction of said pavement on said High street. Third — That at the date when said plaintiff did notify the defendant to improve and repair the street between the rails of its railway, it was, because of the action of the plaintiff, not practicable or possible for the defendant to have complied with said notice, and to have made said improvement and repairs, except by the consent of said Hastings & Beeson, which consent was not procured by the plaintiff, nor otherwise given by said Hastings & Beeson; nor did the plaintiff, after the service of such notice, take any step whatever toward enabling said defendant to make said improvement and repairs between the rails. Fourth — That there was nothing in the official action of the plaintiff, by its council or officers, with reference to the construction of said Parisen pavement prior to the passage of the resolution on the 19th day of April, A. D. 1875, directing the city solicitor to serve notice on the defendant of a demand on the part of the plaintiff that the defendant should, after receiving twenty days’ notice, proceed to make, construct, etc., the said Parisen pavement which, if brought to the knowledge of the defendant, would have been notice to the defendant of an intention on the part of the plaintiff to require the defendant to construct the said Parisen pavement between the rails of its railway.

      “ The court finds, as a matter of law: First — That the said ordinance of the said council of November 16, 1874, constituted a contract between the plaintiff and defendant as to the liability of the defendant to make, construct and keep in repair the pavement between the rails of its railway on said High street, between the streets named in said ordinance, conferring or reserving to the plaintiff the power and right to determine what kind of pavement should be constructed and maintained on said street as well inside as outside of the rails of the defendant’s railway for the future and during the twenty years that was, by said ordinance, fixed as the term granted to defendant. Second — That by the terms of this ordinance the plaintiff can only have a right of action to recover for the cost and expense of making or repairing the pavement between the rails, in the event of the failure of the defendant to make and construct the same after having received notice for twenty days that plaintiff required the defendant so to do, or at least in case of a new construction, a reasonable notice of the plaintiff’s demand of the defendant in that behalf. Third —That any notice to be effectual in giving the plaintiff a right of action against the defendant for its failure to make or repair the pavement, must have been given to the defendant for such reasonable time as would have enabled the defendant to do the work before the plaintiff proceeded to do the work, or contracted with another to do the work, without reserving any right to the defendant to do the work between the rails of its railway. Fourth — That the plaintiff having contracted with Hastings & Beeson to construct the entire pavement, in which contract no allusion is made to any right or duty of the defendant to make or pay for the pavement between the rails of its railway before serving any notice on the defendant requiring it to perform such work, the serving of such notice by plaintiff, through its solicitor, on the defendant, some weeks after the making of such contract with said Hastings & Beeson, is not such a notice as will, by the terms of said ordinance of November 16, 1874, authorize the plaintiff to recover in this action. Fifth — The court finds upon the whole case for the defendant, and that said defendant is not indebted to said plaintiff as alleged in this action, and said defendant is entitled to judgment against said plaintiff for its costs.”
    The plaintiff properly excepted, and in due time filed its motion for a new trial. This was overruled, and a bill of exceptions taken containing all the evidence; and judgment having been entered in favor of the defendant, proceedings in error were prosecuted to the district court, where the judgment of the common pleas was affirmed. The reversal of those judgments is now sought in this court, on the ground that the facts found are not -sustained by the evidence, and do not warrant the conclusions of law.

      James Caren, city solicitor, for plaintiff in error.

      Henry T. Chittenden, for defendant in error.
   Williams, J.

'Whether there is error in the judgments requiring their reversal, depends' largely upon the effect to be given to the ordinance of November 16, 1874. So much of that ordinance as is important is given in the statement of the case. The court of common pleas found the defendant accepted the ordinance, and held that it constituted a contract between the parties, under which the plaintiff might rightfully determine the kind of pavement that should be constructed and maintained on the street, including that part within the rails of the defendant’s roadway, during the period named in the ordinance. That it might do so, is sufficiently clear. There was no intention on the part of the city, in the passage of the ordinance, to surrender the powers conferred on it by law, or abridge their reasonable and proper exercise. It is equally clear that one of the material-and important things intended to be secured to the city by the ordinance, as part of the consideration for the privileges thereby granted the defendant, was the continuing obligation of the defendant, to make and keep in repair, during its enjoyment of the grant, those portions of the street occupied by its railway. That obligation is, by the terms of the ordinance, imposed upon the defendant, which it assumed by accepting the privileges thereby conferred. A mode therein provided of enforcing that obligation is, that the plaintiff, after notice, may do the 'work the defendant so bound itself to do, and recover its cost from the defendant. "Whether this is the exclusive mode of enforcing the defendant’s obligation may admit of doubt; but is unnecessary to be now determined.

The court of common pleas found that notice was not given the defendant to make the improvement between the rails of its roadway until the plaintiff had contracted with Hastings & Beeson to improve the entire width of the street, without reserving in the contract, or otherwise obtaining from the contractors, permission to the defendant to make that part required by the notice, and held that such notice was not sufficient, although no part of the work the defendant was so required to do had been done; but that to make the defendant liable the notice should have been given it a reasonable time before the city contracted for doing the work. Upon 'this ground alone it was adjudged the plaintiff could not maintain its action. This was error.

Assuming that the ordinance constitutes the contract between the parties, and that by its terms, the right in the first instance is given the defendant to make the improvement and repairs referred to, and that the plaintiff is authorized to make them and recover their cost, only after the notice therein provided for, it does not follow as a necessary or legal consequence, that the contracting with another therefor, before notice, made compliance therewith impracticable, or otherwise relieved the defendant of its obligation to do the work required. If the ordinance conferred upon the defendant the rights claimed, no subsequent contract of the city could extinguish or impair them. The contractors could not, in virtue of the contract, any more than the city, in any way interfere with them. They were as effectually saved and secured to the defendant as if expressly reserved in such contract.

So long as the improvement and repairs which the defendant, by accepting the ordinance, bound itself to make, remained unmade, its duty continued to make them when notified to do so ; and it was no concern of the defendant what contract the city had made with another, or what liability it had thereby incurred. There is nothing in the ordinance, or in the nature of the defendant's obligation, that required the notice to be given it before the city entered into a contract for the work; it is sufficient, if after the notice, opportunity be given the defendant to perform the work. No particular form or manner of notice is necessary. It may be shown by circumstances, which properly apprise the defendant of the city's purpose, and call for the action of the defendant in that behalf. The fact, that before notice to the defendant, the city had let the contract for the improvement of the entire width of the street, would at most be but evidence tending to show an intention at that time, ex gratia, to relieve the defendant from the construction of any part of it. But such intention might be abandoned any time while that part of the work within the defendant's roadway remained unperformed, and the defendant be called upon to do it. The passage of the resolution by the city council, before letting the contract, requiring the defendant to perform such work, and serving a copy on the defendant, after the contract was let, sufficiently acquainted the defendant that no such intention ever existed or was abandoned. It appears, both from the finding of facts and the evidence, that the copy of the resolution was served before any part of the work required of the defendant was done. There is no finding, nor any evidence tending to show, that the contractors prevented, or attempted to pi’cvent, the defendant from complying with the resolution. If they had done so, another question might arise. It is a mistake to suppose that the mere letting of the contract and commencing the work, somewhere in the street, prevented the defendant from complying with the requirements of the resolution, or discharged the obligation of the defendant to do the work required.

If, however, the notice failed, in time, to meet the strict demands of the ordinance, the plaintiff nevertheless had a substantial and satisfactory ground of recovery as shown by the record. There is no finding, or evidence tending to show, that the city by letting the contract, or otherwise, intended to release the defendant from its obligation under the ordinance, or have that part of the work done for the defendant, as a mere gratuity. Quite the contrary appears from the evidence. 'The passage and service of the resolution indicate, that the plaintiff expected the defendant to perforin the work required, or pay for it, if it did not; and it is difficult to see how the defendant could have had any different understanding, or expectation. It is evident the delay in service of the resolution, was an oversight or neglect of the city solicitor. Besides, it is shown by the evidence that the general superintendent and manager had the sole possession and control of the road, under an agreement with the directors that he was to run it, pay all charges and keep all the proceeds ; and, as he testified, had entire and unlimited authority, control and care in the management of the road, its business ■and affairs. The copy of the resolution was served on him before any work was done, except some excavating in the street. No attempt was made to comply with it, nor any intimation given to the plaintiff or contractors of an intention to do so; nor any objection interposed to the j^erformance of any of the work by the contractors, although he saw it from its commencement to its completion, and he,, or his agent, was along the line of the railway almost every day superintending the re-laying of the track, to accommodate it to the new improvement; and as fast as the track was laid cars were run over the same. He knew the city expected the defendant to do its part of the work or pay for it, and said, while the work was progressing, he would be liable, and would do what was right.

The defendant had an election to assert its right and perform its duty under the ordinance, or permit the contractors to do the work required of it. With full knowledge of all the circumstances it chose the latter, and received and accepted the beneficial results of its choice. This should place it in no better position than if it had chosen the former. If it had done so, it would have incurred the expense of the work, and thus received its benefits. It has the benefits at the expense of the city, and is bound to pay the reasonable outlay made in its behalf. It is estopped from controverting its liability to do SO;

In City of New Haven v. Fairhaven and Westville R. Co., 38 Conn. 422, it appeared that the defendant’s charter required it to keep that portion of the street between its rails, and two feet on either side, in repair. The plaintiff improved the street, and assessed upon the defendant’s road, that portion of the cost, and sued for the same. It was contended by the defendant that its charter gave it the right to make the repairs in its own way; and the city could not deprive it of this privilege, or recover their cost. The court thus disposes of that claim. “ The defendant suffered the city to go forward and incur the expense, with full knowledge of the proceeding, and without objection at the time. The defendant must have known that the improvement would largely benefit it in the matter of repairs; that the proceeding was under the statute, and consequently at the expense, in part at least, of the parties benefited. There was no reason to suppose that the city was doing the work of the defendant at its own expense, or at the expense of other parties. The presumption therefore is, in the absence of any finding to the contrary, not only that the defendant consented to the making of the improvement by the city, but that there was an implied understanding that the defendant was to bear its fair proportion of the'expense. We think, therefore, that the defendant should be estopped from setting up this claim.”

In Bishop on Contracts, section 217, the author says it may be stated as a sound rule, supported by authority, that “any benefit, of a sort commonly the subject of pecuniary compensation, which one, not intending it as a gift, confers on another who accepts it, is, in the absence of any agreement in fact, an adequate foundation for the law’s created promise to render back its value.”

And “ in equity whenever the rights of other parties have intervened, by reason of a man’s conduct or acquiescence in a state of things, about which he had an election, and his conduct or acquiescence, or even laches, was based on a knowledge of the facts, he will be deemed to have made an effectual election; and he will not be permitted to disturb the state of things, whatever may have been his rights at first.” Quinlan v. Myers, 29 Ohio St. 511. “Estoppels in pais are called equitable estoppels, not because their recognition is peculiar to equitable tribunals, but because they arise upon facts which render their application in the protection of rights, equitable and just. Courts of equity recognize them in cases of equitable cognizance; but the courts of common law just as readily and freely; and it is never necessary to go into equity for the mere purpose of obtaining the benefit of an equitable estoppel, when the case is not otherwise of equitable jurisdiction.” Barnard v. German American Seminary, 49 Mich. 444.

The judgments of the district court and court of common pleas are reversed, and the court of common pleas .having made no finding in regard to the cost of the work in question, the cause is remanded to that court for trial upon that issue.


author: Dickman, J.

text:
    Flanders v. Blandy.

      Gifts inter vivos — Delivery—Contract—Consideration—Trusts.
    A father set apart certain United States bqnds as a gift to his daughter. The bonds were never delivered to her, but remained in the possession and under the dominion and control of the father, with whom they were left at her request and with liis assent for safe keeping. lie collected and transmitted to her the accruing interest on the bonds tip to a certain date, but thereafter, and without her knowledge, authority or consent, invested the bonds in a business in which he had become interested. He then wrote to his daughter a letter, which by his direction was duly stamped as a contract, in which he promised, if she did not elect- to accept the investment in lieu of the bonds, ho would retain it himself and pay her two thousand dollars with interest. The daughter accepted the written promise in lieu of the bonds, and upon the death of her father, brought an action on the promise, against his representative, to recover the two thousand dollars and interest. Held :

    1. That there was no good and sufficient consideration to support the promise on which the suit was brought.
    2. That the transaction between the father and daughter was not a valid gift inter vivos.

    3. That there was no valid declaration of trust of the bonds in favor of the daughter.
    (Decided April 26, 1887.)

      Error to tbe District Court of Muskingum County.
    Tbe original action was brought by Amanda B. Flanders, the plaintiff in error, in the court of common picas of Muskingum county, against Frederick J. L. Blandy, administrator on the estate of her father Henry Blandy, deceased, to recover the sum of two thousand dollars, with interest thereon from the 1st day of April, 1866, upon an alleged promise to her in writing from her father to pay her the same, contained in a letter to her from him dated April 19, 1866. After the commencement of the action, Frederick J. L. Blandy resigned his trust, and George L. Phillips was appointed administrator, and substituted as defendant in his stead. The remaining facts necessary to be stated are found in the opinion of the court. The defendant demurred to the petition. The court sustained the demurrer and rendered judgment against the plaintiff. To reverse the judgment of the court of common pleas, the plaintiff prosecuted a petition in error in the district court, where the judgment was affirmed. To reverse the judgments of the district and common pleas courts the present petition in error is prosecuted.

      Frank II. Southard, for plaintiff in error.
    ' Did the transaction between the father and daughter touching the bonds constitute a gift inter vivos ?

    When the father purchased and set aside the bonds as a gift to the daughter, notified her to that effect, she accepted the gift and requested him to take and hold possession of them for her and to collect and transmit to her the accrued and accruing interest, and the father consented so to do and entered upon the discharge of his duties in such respect, there was then a perfect and completed trust, and the father thereafter held the bonds as agent or trustee. The manual possession and dominion of the bonds remained in the father, but the legal possession and dominion, or right to it, remained in the daughter.
    A person desiring to make a voluntary disposition of personal property for the benefit of another, may do so by retaining the possession and declaring himself a trustee for the donee, and thus clothe the donee with the beneficial estate; and there need be no technical words creating or declaring a trust, but there must be language showing an intention to create a trust in a third person, or declaring a trust in himself. 2 Pom. Eq. Jur. 997.
    Was there such delivery of the bonds as would vest the daughter with the title to the same or a beneficial interest therein? A gift is founded on the mutual consent of the parties in reference to an interest passing between them. The donor renounces and the donee accepts and acquires title. Bedell v. Carll, 33 N. Y. 581; Irish v. Nutting, 47 Barb. 370; Allen v. Polereczky, 31 Me. 338.
    There must be mutual consent and concurrent will of both parties to a valid gift. The donor must have the present intention to give, and a complete renunciation of right over the thing given, without power of revocation. Hanson v. Millett, 55 Me. 184; Bond v. Bunting, 78 Pa. St. 210.
    The gift was complete and could not be revoked without the consent of the donee. Little v. Willets, 55 Barb, 125; 37 How. 481.
    To constitute a gift it is only necessary that there shall be such a delivery by the donor to the donee as will place the property within the legal dominion of the latter, with intent to transfer the title to him. Champney v. Blanchard, 39 N. Y. 111; Gray v. Barton, 55 N. Y. 72; Westerlo v. DeWitt, 36 N. Y. 340.
    While a delivery is necessary to a completed gift, there need be no manual handing over of the subject matter of the gift. It is only that there should take place between the donor and donee that which in law amounts to a delivery. Tenbrook v. Brown, 17 Ind. 410; Wing v. Merchant, 57 Me. 383; Hillebrant v. Brewer, 6 Tex. 45.

      G. L. Phillips, for defendant in error.
    The attempted gift failed for want of delivery.
    To constitute a valid gift of chattels inter vivos, there must be (1) tbe intention to make it, and (2) a delivery of tbe property. In this case the intention is manifest, but delivery is wanting.
    To constitute delivery, the donor must part with the possession and the dominion of the property. There must be actual delivery, so far as the subject is capable of such delivery. It must be secundam subjeetum, and . must be the true and effectual way of transferring the command and dominion of the property. The donor must part not only with the possession, but with the dominion and control of the property. 2 Kent. Com. 438; Hamor v. Moore, 8 Ohio St. 242; Phipps v. Hope, 16 Ohio St. 586; Simmons v. Savings Society, 31 Ohio St. 461; Gano v. Fisk, 43 Ohio St. 462; Young v. Young, 80 N. Y. 422; Wilcox v. Matteson, 53 Wis. 23; s. c. 40 Am. Rep. 754; Baskett v. Hassell, 16 Cent. L. J. 347.
    A gift cannot be sustained without delivery, although the subject of the gift was at the time out of the reach of the would-be donor, so that delivery was impracticable. Case v. Dennison, 9 R. I. 88.
    The transaction cannot be sustained as an executed gift without abrogating the rule that delivery is essential to gifts of chattels inter vivos.

    A court of equity will not supplement an imperfect gift by turning would-be donor into a trustee. If the transfer was intended to be effectuated by gift, the court will not give it effect by construing it as a trust; for by such means every imperfect gift would be made effectual by being converted into a perfect trust. Moore v. Moore, 43 L. J. Ch. 623; Colman v. Sarrel, 1 Ves. 50, 54; Ellison v. Ellison, 6 Ves. Jr. 656; Young v. Young, 80 N. Y. 422, 436.
   Dickman, J.

As appears from the original petition, the decedent, Henry Blandy, desiring in his life-time .to make provision for the support and maintenance of his daughter, the plaintiff in error, purchased and set apart as a gift to her, certain United States seven-thirty bonds of the par value of two thousand dollars, and bearing interest at the rate of six per cent, per annum. These bonds were never delivered to the daughter. She never had manual possession of them, but by her request and his assent, they were left in the manual possession and under the dominion and control of the father for safe keeping. As her residence was distant from his home, he collected and transmitted to her the accruing interest down to the 1st day of April, 1866. About that time, he became interested in the Cashmere goat business, and being under the impression that an investment in that branch of business would be more profitable to his daughter than the ownership of the bonds, invested them in that business, but without consultation with her, and without her knowledge, authority or consent. After making the investment, and on the 19th day of April, 1866, by letter of that date to the plaintiff, stamped as a contract by his direction with a United States internal revenue stamp duly cancelled, the decedent promised and agreed to and with the plaintiff, that in case she did not elect to accept the investment in the proposed business in lieu of the bonds, he would l-etain the investment himself, and pay to her in place of the bonds the sum of two thousand dollars, with interest thereon from the 1st of April, 1866. The plaintiff accepted the offer and promise so made in writing, and having notified the decedent of her acceptance, he thereupon retained the investment as his own. It was upon the promise contained in the letter of April 19, 1866, that the original action was founded.

If the promise in writing by Henry Blandy to pay the two thousand dollars and interest, was not supported by a good and sufficient consideration, no right of action accrued to the plaintiff. It is contended, however, that such a consideration was furnished in the government bonds which the decedent invested in his business. The plaintiff claims that the transaction between her father and herself was no less than a valid gift of the bonds to her by him in his life-time. We think, however, that she acquired no title to or beneficial interest in the bonds, and that he was never divested of his absolute ownership therein.

A gift inter vivos has been defined as an immediate, voluntary and gratuitous transfer of his personal property, by one to another. It is essential to its validity that the transfer be executed, for the reason that there being no consideration therefor, no action will lie to enforce it. A gift inter vivos has no reference to the future, but goes into immediate and absolute effect. To render the gift compléte, there must be an actual delivery of the chattel, so far as the subject is capable of such a delivery, and without such a delivery the title does not pass. If the subject be not capable of actual delivery, there must be some act equivalent to it. “ The necessity of delivery,” says Chancellor Kent, “has been maintained in every period of the English law.” The donor must part not only with the possession, but with the dominion and control of the property. An intention to give is not a gift, and so long as the gift is left incomplete, a court of equity will not interfere and give effect to it. Gray v. Barton, 55 N. Y. 68; Martin v. Funk, 75 N. Y. 134; 2 Kent. Com. 438; Noble v. Smith, 2 John. 52; Pearson v. Pearson, 7 John. 26; Grangiac v. Arden, 10 John. 293; Hooper v. Goodwin, 1 Swanst. 486; Picot v. Sanderson. 1 Dev. 309; Pennington v. Gittings, 2 Gill & Johns. 208; Gano v. Fisk, 43 Ohio St. 462. That the rights of creditors may not be prejudiced; that the donor may not be circumvented by fraud; that he may be protected from undue influence, which would result in an unequal and unjust distribution of his estate; that efficacy may not be given to donations made under legal incapacity, as well as on other grounds, gifts inter vivos, like gifts causa mortis, are watched with caution by the courts, and to support them clear and convincing evidence is required.

The record discloses that Henry Blandy, though he intended to give, never consummated a valid gift of the bonds to his daughter. They were in his possession, and under his dominion and control, until he invested them in the Cashmere goat business. They were property of such a nature that they were capable of actual delivery to his daughter if he had seen fit so to deliver them. But he never delivered them to her, actually or otherwise, and when the occasion arose on which to use them in his business, he then, in the exercise of an absolute ownership, appropriated them without her knowledge, authority or consent. It is alleged that the bonds were left with him for safe keeping; but he was the custodian of property which the law regarded as his own, until for a valuable consideration, or by a perfected gift, he might conclude to divest himself of all title thereto. His acts indicate that he preferred to hold on to the bonds to meet any contingency which might necessitate him to use them, and not to place them irrevocably beyond his reach. His transmission of the accruing interest to his daughter might indicate an intention to donate the bonds themselves; but while the one may be incident to the other, the two are essentially separable and distinct, and a delivery of the one is not a delivery of the other. If before the decedent invested them in his business, the plaintiff had demanded possession of the bonds and been refused, she could have shown no consideration establishing a title whereby she might maintain an action, to recover either the bonds or their value in money. An agreement proved to set apart the bonds for her support and maintenance, would not have availed. An agreement to give for the consideration of love and affection, whether the gift is to be of goods and chattels or of a chose in action, neither transfers the property to the donee, nor secures him a right by suit to compel a completion of the contract. Carpenter v. Dodge, 20 Vt. 595.

The original petition contains an allegation that the bonds were a “gift” from the decedent. But it is further contended that there was not only a gift, but that the father constituted himself a trustee for his daughter. In this connection the language of the court in Young v. Young, 80 N. Y. 430, finds a direct application to the present case. “The transaction,” says Rapallo, J., in delivering the opinion of the court, “is sought to be sustained in two aspects. First, as an actual executed gift, and secondly, as a declaration of trust. These positions are antagonistic to each other, for if a trust was created, the possession of the bonds and the legal title thereto, remained in the trustee. In that case there was no delivery to.the donee, and consequently no valid executed gift, while if there was a valid •gift, the possession and legal title must have been transferred to the donee, and no trust was created.” It is manifest that there was an inchoate gift of the bonds by the decedent which he never completed; but we find nothing that can be construed into a declaration that he held them in trust, or that he regarded himself as standing, in reference to the bonds, in a fiduciary relation to his daughter. If a gift is imperfect at law, and for want of consideration cannot therefore be enforced, a court of equity will not aid the donee by construing it into a declaration of trust. In Milroy v. Lord, 4 De Gex. F. & J. 264, in referring to the modes of making a voluntary settlement, the principle is announced that if the settlement is intended to take effect by transfer, the court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being convei’ted into a perfect trust. The owner of property that is meant to be donated, may at the last moment before delivering it change his mind, and in such case equity will not virtually divest him of his property by creating a trust in favor of a volunteer. By the' civil law, however absolutely a donation inter vivos might have been made, yet, if the object of the donor’s bounty proved ungrateful, he was permitted in certain specified cases, to revoke the donation. But by the common law, when the gift is perfect by delivery and acceptance, it is then irrevocable, and hence, until there is a final delivery of the subject, the donor will continue vested with the title.

The leading case on this point is Antrobus v. Smith, 12 Ves. Jr. 39, in which Gibbs Crawford made the following indorsement upon a receipt for one of the subscriptions in the Forth and Clyde Navigation: “ I do hereby assign to my daughter, Anna Crawford, all my right, title and interest of and in the inclosed call, and all other calls, of my subscription in the Clyde and Forth Navigation.” As this was not a legal assignment, and was therefore without effect as a gift, it was argued that the father meant to make himself a trustee for his daughter of the shares. But Sir W. Grant, M. R., observed, Mr. Crawford was not otherwise a trustee than as any man may be called so who professes to give property by an instrument incapable of conveying it. He was not in form declared a trustee; nor was that mode of doing what he proposed in his contemplation. He meant a gift. He says he assigns the property. But it was a gift not complete. The property was not transferred by the act.' Could he himself have been compelled to give effect to the gift by making an assignment ? There is no case in which a party has been compelled to perfect a gift, which, in the mode of making it, he has left imperfect. There is locus penitential as long as it is incomplete.” In Jones v. Lock, Law Rep. 1 Ch. App. Cas. 25, a check for 900l. was put by the father into the hands of his child, signifying in strong terms his intent to give inpreesenti the check to the child. He subsequently took the check and locked it up, saying he should keep it for the child, and died the same day. A bill was brought in behalf of the child against his father’s representatives, to enforce his interest in the check as a trust. Lord Chancellor Cranworth said: This case turns on the very short question, whether the father intended to make a declaration that he held the property in trust for the child, and I cannot come to any other conclusion than that he did not. * * * It was all quite natural, but the father would have been very much surprised if he had been told that he had parted with the 900i., and could no longer dispose of it; and it was not his meaning to enable the child, by his next friend, to bring an action of trover for the note.”

It is obvious and well settled by authority that before the owner can be held as a trustee for the benefit of a mere volunteer, there must be a distinct, perfect and unequivocal declaration of trust. There should be an expression of an intention to become a trustee, not that the owner should use technical words or language, but he should declare in unmistakable terms that he means to stand in a fiduciary relation to the object of his bounty. The record shows no such declaration by the decedent, and his acts were wholly inconsistent with the idea of making himself a trustee. There are no reasonable grounds for concluding that when he invested the bonds in his business without the knowledge of his daughter, he deemed himself as acting under a trust which he had assumed and declared. If in the alleged purchase and setting apart of the bonds as a gift to his daughter, and assenting to their being left in his custody, he had made use of words expressing a gift which was never perfected by delivery, such words would have shown an intention to give property over to another, and not to retain it in his, the donor’s, hands for any purpose, fiduciary or otherwise. Richards v. Delbridge, Law. Rep. 18 Eq. Cas. 11, 15. In the case last cited, Delbridge, who was possessed of leasehold business premises and stock in trade, purported to make a voluntary gift in favor of his grandson, E. B. Richards, -who was an infant, and assisted him in his business, by the followdng memorandum signed and indorsed on the lease: This deed and all thereto belonging I give to E. B. Richards from this time forth, with all the stock in trade.” The lease was then delivered to the mother of the grandson in his behalf. It was held by Sir G. Jessel, M. R., that there was no valid declaration of trust of the property in favor of the grandson. In the same line of decision are numerous other authoritative eases, but we deem it unnecessary to refer to them.

The court of common pleas and district court did not, in our opinion, err in sustaining the demurrer to the plaintiff’s petition, and the judgment of those courts should be affirmed.

Judgment accordingly.