author: McIlvaine, J.

text:
    Dinsmore, Trustee, etc. v. Tidball et al.
    If a principal, having knowledge, or a belief founded on reasonable and reliable information, that his agent is a defaulter, requires sureties for bis-fidelity in the future, and holds him out as a trustworthy person, whereby such security is obtained, he can not afterward avail himself of a guax-anty so obtained from a pei’son who was ignorant of what was known to, and ought to have been disclosed by, the employer.
    Error to the District Court of Stark county.
    The original action was brought by plaintiff in error on a bond executed to him by defendants in error, Tidball as-principal, and his co-defendants, Shimp and Brosius, as-sureties, to indemnify the Adams Express Company against loss from the unfaithfulness or dishonesty of the principal as station agent of the company at Alliauce, Ohio, to recover on account of money embezzled by Tidball while acting as such agent.
    The sureties defended, chiefly upon the ground that,, previous to the execution of the bond, their principal having been engaged in the same employment, had proved a defaulter by appropriating moneys belonging to the company to his own use, all of which was known to the company, but of which the sureties were ignorant, and that they were induced to sign the bond by reason of the fraudulent concealment of the dishonesty of their principal from-, them by the company, its agents, and managers.
    From a bill of exceptions containing all the testimony and part of the charge, it appears that Tidball had been station agent of the company at Alliance for some months-previous to the execution of the bond, during which period. he had embezzled moneys from time to time. After the first embezzlement, it was his habit, for the purpose of avoiding detection, to replace moneys appropriated to his own use, by other moneys abstracted from packages subsequently coming into his hands. About the 30th of December, 1871, the date of the bond, one Damsell, who ••resided at Crestline, Ohio, a route agent of the company, who had supervision of local agencies, was at Alliance, looking after a collection of $700 made by Tidball, and which had been delayed in reaching the consignee. At this time Damsell, in pursuance of general instructions, ■ demanded a bond with sureties from Tidball, and furnished to him a printed form, to he executed by him and his sureties, without knowledge as to the parties who were to become sureties. This printed form was afterward signed by the defendants, in the absence of Damsell, and being thus executed, was transmitted to Damsell at his home in •Crestline. This was the same bond upon which suit was brought, and, without referring to the former employment of Tidball, it does recite the fact that the company had required security for the faithful performance of his duties, •and that it had agreed to employ him as such agent.
    As to the knowledge of the company, previous to the •execution of the -bond, of the defalcations of the agent, Tidball, the testimony was conflicting.
    On the trial, in the court of common pleas, the court, ■among other things, charged the jury as.follows:
    “ If you find that William K. Tidball, at and before the time this bond was required of him, was intentionally and •dishonestly a defaulter to the Adams Express Company, as to moneys intrusted to said company, which he had received as its agent at Alliance, Ohio, and that the witness, Damsellj acted for said company in demanding and receiving said bond, and, before receiving the same, either knew of such default, or, if he did not know it, believed, upon reasonable and reliable ground of information or belief, that such default existed, then, if suitable and reasonable opportunity existed, it was the duty of Damsell, as the agent of said company, to make known to the sureties upon the-bond (and defendants), Shimp and Brosius, such fact of Tidball’s delinquency, or said Damsell’s belief of such de- • linqueney, before accepting said bond, although said Dam-sell did not know before said bond was signed by said Shimp and Brosius, who the sureties thereon were to be, and, as Damsell did not give such information, if you find further that the defendants, Shimp and Brosius, in signing • said bond, acted under a belief, from the recitals of said bond, that said Adams Express Company considered said Tidball a trustworthy person, and would not have signed the bond but for such belief, then the plaintiff can not recover against said Brosius or Shimp, or either' of them.
    “ But if said Tidball had not been a defaulter at the time of the acceptance of said bond by Damsell, or if he had been, was so by mere mistake, or other cause not involving intentional wrong, and Damsell, at the time aforesaid, knew or believed such delinquency existed, it was not the duty of Damsell to make this knowledge or belief known to said defendants, or either of them, and his failure to do so would not vitiate the bond.
    “ Or if Damsell was, at the time of accepting the bond,. at such a distance from the said sureties that under the cir- ■ cumstances shown by the testimony, he could not reasonably inform them of such delinquency of Tidball, he was not bound to give them this information, although Tidball had been dishonestly a defaulter, and Damsell knew or believed that fact, and his failure to do so would not vitiate the bond or prevent plaintiff from recovering upon it against the de- - fendants, Shimp and Brosius.”
    A verdict and judgment were rendered against the prin- - cipal and in favor of the sureties. This judgment was affirmed in the district court.
    The plaintiff now seeks to reverse the judgment below upon the grounds that the court erred in its charge, and - the verdict is contrary to the testimony.

      J. T. Brooks, for plaintiff in error:
    The fact that the agent was a defaulter at the time of the .giving of the bond, and known to be so by the employer, and that the employer did not seek out the sureties and inform them of it, they being ignorant of the default, is no ■ defense. Ætna Life Ins. Co. v. Mabbett et als., 18 Wis. 667; Etting v. Bank of U. S. 6 Peters (condensed), 217; 11 Wheat. 59 ; Atlas Bank v. Brownell, 9 R. I. 168 ; Magee et al. v. M. Life Ins. Co., 92 S. C. U. S. (2 Otto, 93); Ham v. Greene, 34 Ind. 18; Wayne v. Com. Nat. Bank, 52 Pa. St. 343 ; Lee et als. v. Jones, 17 C. B. (N. S.), 482 ; Hamilton v. Watson, 12 Cl. & Pin. 109 ; The N. B. Ins. Co. v. Lloyd, 10 Exch. 523; Smith v. Bank of Scotland, 1 Dow; Railton v. Matthews, 10 Cl. & Fin. 934; Franklin Bank v. Cooper, 36 Me. 179, 39 ; Ib. 542.
    The concealment or withholding of facts material for the surety to know must have been fraudulent, and this is :¡i question of fact for the jury. This the court did not do, .but declared that it was a fraud in law.
    The doctrine of the text-books and of the case of Franklin Bank v. Cooper, 39 Me., that if the defalcation be known to the employer, and concealed from the surety, amounts to .a fraud, is not really in conflict with the principle here claimed. Mere non-communication is not concealment. ■Concealment is something done intentionally, a design of ■¡the mind to hide the facts from the surety, having opportunity to communicate them. Be G-ol. on Guar. & Sur. 366. 'The intent and the opportunity are facts to be found by •the jury, before court or jury can say concealment exists. Understood in this way, it is no doubt correct to say that if the defalcation be known to and concealed by the employer it is a fraud. Perhaps the charge in the case of Franklin Bank v. Cooper, 39 Me. 546, goes farther, and de- . dares it to be a fraud in law ; but it will be noticed that the facts were exceptionally strong in that case, and were .not really disputed.
    Another objection to the charge of the court is that it instructed the jury that Bamsell was bound to give the information to the sureties, before accepting the bond, although he “ did not know, before said bond was signed by said Shimp and Brosius, who the sureties thereon were to be.”
    This goes farther than any decided case that we know of.
    Mr. Damsell lived in Crestline, Ohio, while the sureties lived in Alliance, Ohio, and the bond after its execution was sent to Mr. Damsell, at Crestline, when, for the first time, he learned who the sureties were, and yet, under this instruction, he was bound to abstain from accepting it until he had first communicated to the sureties his information •or belief as to the defalcations ; and this is in no wise affected by the fact that the court further left it to the jury to say whether he had reasonable opportunity to communicate with the sureties. We claim that if Damsell had no knowledge or information of who the sureties were to be, until after the execution of the bond, and its delivery to him as a completed instrument, there is no rule of law or equity, which bound him to refuse the instrument until he notified the sureties of their principal’s former misconduct.
    Equity is indeed based upon good morals, but in its application to the affairs of life it does not go to romantic lengths, it stops short at the practical, and does not pretend to enforce all principles deducible ex cequo et bono. The rule of the court in this instance carries us to the extreme limit of morals and conscience, beyond the practical in the affairs of life, and in a case, too, where there is no fiduciary relation in the true sense of that term.
    Take the bond in suit, does it not show upon its face that the company want faith in Tidball’s honesty, and desire a guaranty that he will be honest in their service ? Does it not in plain and unmistakable terms notify the sureties that the company had not full confidence in his honesty, and is it not sufficient to put them, the sureties, on their guard ? Nor do sureties in such cases — certainly they did not in this case — rely upon and sign the bond upon the faith of such holding out the servant as trustworthy; on the contrary, they sign because they are friends of the servant, and rely upon their own knowledge of his honesty, and their faith in it, and are willing to indorse him without inquiry. See-Nee v. Jones, ante.

      J, A. Ambler, for defendants in error :
    The real question in this case is, can a company which has a known thief in its employ take the bond of an innocent third party, having no knowledge of his delinquencies, as surety for his honesty, without disclosing the facts, and hold the security thus obtained ?
    It is true that the bonds of such agents are taken, as is suggested, to provide against dishonesty of the principal;, and that the sureties must understand that his dishonesty is a contingency that may make them liable. But ordinarily the surety signs because he has confidence in the integrity of the principal — his dishonesty is only a possible-contingency. If this possibility has already, within the knowledge of the employer, ripened into a probability, or-if the employer knows that the supposed honesty of the agent is a myth — that he has already shown himself a criminal in the very employment — should he take the bond without disclosing to the surety ?
    The difference between the cases of carelessness or indebtedness or criminality of the agent, is the difference between an ordinary risk and one that is extraordinary. The ordinary risk is one that, in the absence of inquiry, the-surety may be presumed to know. In the experience of men, it is not uncommon to continue careless or insolv-. ent employes, but it is uncommon and extraordinary to continue known and dishonest agents in places of trust, and there is no presumption that the surety knows of the-increased risk! Concealment under the circumstances, amounted to a fraud. McGee v. Insurance Co., 2 Otto, 99 ; Bank v. Brownewell, 9 R. I. 168 ; 1 Story’s Eq. Jur., §§ 204, 214, 215, 324, 383 ; Hamilton v. Watson, 12 Cl. & Fin. 109 ; Etting v. Bank, 11 Wheat. 59.
    The cases cited in plaintiff’s brief, as establishing that in the absence of inquiry the party may be silent and accept the security, are cases of insolvency, prior indebtedness, mismanagement, or carelessness, and are not in point in the case at bar. I do not think any ease can be found, where the security was for honesty in a future employment, in a place of trust, in which the employe had already been purposely dishonest to the knowledge of the employer, and this undisclosed, in which the surety has been held; while many cases go much further, and hold that the failure to communicate material circumstances, which do not indicate dishonesty or crime known to the party taking the security, and which he would reasonably presume was not known to the surety, avoids the obligation, although no inquiry was made; and the text books-sustain the doctrine uniformly. 1 Story Eq. Jur., § 215 2 Parsons on Contract, 777; 1 Parsons on Notes and Bills, 236, 242 ; Franklin Bank v. Cooper, 36 Maine, 195 ; Franklin Bank v. Stevens, 39 Maine, 539 ; Franklin Bank v. Cooper, 39 Maine, 542 ; Kidney v. Stoddard, 7 Met. 252; North British Ins. Co. v. Lloyd, 28 E. L. & E. 456; Railton v. Matthews, 10 Cl. & Fin. 934; Small v. Currie, 23 E. L. & E. 633, 637; Guardians of Stokely Union v. Strothers, 24 E. L. & E. 183; Owen v. Homans, 25 E. L. & E. 1.
    The claim that the express company is relieved of liability for the fraud, because it did not designate the sureties, procure their signatures, or put their names in the body of the bond, but left Tidball to procure his own sureties, is-not tenable.
    The bond was drawn by Damsell, as the agent of the company, and by him delivered to Tidball to procure the-sureties. The recitals of the bond indicated that, in the judgment of the company, he was a proper person for the - employment; and when it was exhibited to the sureties they had a right to assume that there was nothing out of the ordinary course of things to be apprehended. Smith v. Bank, 1 Dow. 276 ; Hamilton v. Watson, 12 Cl. & Fin. 109, 119 ; Wyths v. Labouchere, 3 De Gex. & J. 593, 609 ; Phillips v. Foxall, L. R. 7 Q. B. 666 ; 3 Moak, 259.
   McIlvaine, J.

We think there was no error in the ■charge of which the plaintiff in error can complain. This is clearly so as to the second and third paragraphs, wherein •the liability of the sureties was affirmed in case the jury found the facts therein enumerated to be proved.

The only instruction, under which a verdict for the sureties •could bavebeen rendered, is found in the first paragraph. By this instruction, the elementary facts necessary to be found in order to exonerate the sureties were : 1. That the agent of the company, previous to the execution of the bond, ¡had been guilty of embezzlement while in the same employment. 2. That the company or its officers had knowledge of his default, .or, at least, believed, upon reasonable .and reliable information, that such default existed. 3. That such knowledge or belief was not communicated to the ¡sureties, although a reasonable opportunity to do so existed. 4. That the sureties had no knowledge or information in respect to such defalcation. 5. That the sureties, in signing the bond, “ acted under a belief, from the recitals of said bond, that said Adams Express Company •considered said Tidball a trustworthy person, and would not have signed the bond but for such belief.”

Admitting that a principal, in accepting a guaranty for •the faithful and honest conduct of his agent, is not bound, under all circumstances, to communicate to the guarantor 'every fact within his knowledge, which increases the risk; yet, we think there can be no doubt, either upon principal •or authority, that where an agent has acted dishonestly in his employment, the principal, with knowledge of the fact, can not accept a guaranty for his future honesty from one who is ignorant of the agent's dishonesty, and to whom the agent is held out by the principal as a person worthy of confidence. The failure to communicate such knowledge, under such circumstance, would be a fraud upon the guarantor.

The bad faith, in withholding from the guarantor such information, so material to the risk assumed, is manifested not only by the fact that the dishonest character of the ■agent was peculiarly within the knowledge of the principal; but the holding of him out as a person entitled to con.fidence by continuing him in the service, was equivalent to a declaration that the principal had no knowledge of the dishonesty of the agent.

Assuming that the company had knowledge of Tidball’s embezzlements (or a belief founded upon reasonable and reliable information, which is the same in effect), the •sureties were not deceived simply by the fact that the agent was continued in the service, but also from the fact that it was printed on the face of the bond, prepared by the company, that it had agreed to employ him as agent in its future business. That he had previously been in the .same employment, was known to these sureties, and while they are chargeable with a knowledge of the general character of their principal in the bond, they are certainly excusable, under the circumstances, for not making special inquiry of the company, as to the manner in which he had •conducted himself while in its employment.

As to the alleged error in overruling the motion for a new trial ou the ground that the verdict was contrary to the evidence, all that need be said is, that after reading the testimony, we do not feel warranted in disturbing the judgment on this ground.

It is, however, particularly claimed that under the charge, "the jury could not have found from the testimony that a reasonable opportunity existed for communicating to the sureties, the fact of Tidball’s delinquencies as agent before the execution of the bond, as it clearly appears that the ■company did not know, and had no means of knowing who the sureties were to be, until after the bond was signed and transmitted by mail to Damsell, at Crestline. In regard to this point, it is enough to say that under the circumstances of this case, the absence of such opportunity is not a matter •of excuse. But, if it were otherwise, then I would say that information of Tidball’s delinquencies could have been communicated upon the face of the bond, as was the fact that the company had agreed to continue him in its employment.

Judgment affirmed.


source: Caselaw Access Project

author: White, O. J.

license: Public Domain

text:
    Rhea v. Dick et al.
    Under section 557 of the code (67 Ohio L. 116), a person in the possession of real property may maintain an action to quiet his title against a person who claims an estate or interest in the property adverse to the title of the party in possession. It is not necessary that the adverse claim' should relate to or affect the right of present possession. Collins v. Collins (19 Ohio St. 468) explained.
    Error to the District Court of Butler county.
    Thomas L. Rhea, filed his petition in the court of common pleas, against David Franklin Dick and Jennie E. Gray (and Henry C. Gray, her husband), children and heirs-of David Homer Dick, deceased, to quiet title.
    The petition avers that the plaintiff is seized in fee simple of the land in controversy, and that he is in the actual' possession thereof. That he derives title under the following clause in the will of Elizabeth Dick:
    “ I give, devise, and bequeath to my brother, Thomas L* Rhea, my farm, situate in the county of Butler, aforesaid, on the road leading from Rossville to Millville, containing" about one hundred and forty acres. It is my will that if my son, David Homer Dick, should survive my brother Thomas, aforesaid, that said farm, at the death of my said brother,, shall go to my son, David Homer Dick.”
    The petition avers that David Homer Dick is dead; and that the defendants claim that plaintiff has only a" life estate, and that by the terms of said will they own the estate-in remainder after plaintiff’s death.
    That the claim of defendants is unfounded, and is a cloud upon plaintiff’s title, and which ought to be removed.
    The prayer of the petition is that the title of the plaintiff be quieted as against the said claims of the defendants.

      The defendants demurred to the petition, on the ground, among others, that the court had no jurisdiction of the action.
    The court sustained the demurrer on this ground, and •dismissed the petition, declining to pass upon the merits of the petition in other respects.
    To reverse this judgment, the present petition in error is prosecuted.

      Thomas Millikin, for plaintiff in error.
    Under the facts stated in the petition, Rhea had a right to have his title quieted. 67 Ohio L. 116.
    In the district court, it was claimed, and the court so held, that the adverse claim must be one affecting the present possession. The statute do n’t so limit it, and there is no ■authority for so limiting it.
    Is it not as important to determine an estate in remainder as any other estate or interest ?
    There is neither reason nor law for giving the statute this narrow construction.
    In the case in 12 Ohio St. 321, the adverse claim was only as to the estate in remainder, and there was no attempt to ■interfere with the estate.
    If Thomas L. Rhea claims an unconditional fee, and defendants claim that he only has a life estate, and that they own the fee in remainder, is not this an adverse claim or interest ?
    The whole difficulty in the decision rendered by the district court, arose from a misapplication of the decision of the supreme court in Collins v. Collins, 19 Ohio St. 468.
    I claim that case is not in point.

      Josiah Scott, H. L. Morey, and James JE. Campbell, for defendants, relied on Collins v. Collins, 19 Ohio St. 468.
   White, O. J.

The plaintiff in error, who was also the plaintiff below, is in possession of the land in controversy, .and claims to hold the same in fee simple. The defendants claim to hold a vested remainder in fee in the property,, subject to the determination of a life estate in the plaintiff.

The plaintiff and the defendants claim under the same-will, but this constitutes • no objection to maintaining the action. Parish v. Ferris, 6 Ohio St. 563; s. c. 2 Black. 606.

The action is brought under section 557, of the code of' civil procedure, as amended April 18, 1870. 67 Ohio L.. 116.

The oi-iginal section was as follows: “An action may be brought by any person in possession, by himself or tenant,, of real property, against any person who claims an estate or interest therein, adverse to him, for the purpose of determining such adverse estate or interest.” As amended, the section also provides that, “ in all actions brought for the recovery of purchase money of real estate, by vendor against vendee, it shall be competent for such vendee,, notwithstanding his continued possession, to set up, by way of counter-claim, any breach of the covenants of title acquired by him from the plaintiffs, and to make any and all persons claiming an adverse estate or interest therein parties to the cause; . . . and if the adverse estate or interest of said claimants shall be an estate in reversion or remainder, or contingent upon a future event, the court may, at its discretion,” decree as therein provided.

The question arising in the case, is whether the adverse-estate or interest, which the defendants claim, must be adverse to the plaintiff’s right to present possession. It is said, in argument, that the district court 'held that such must be the nature of the adverse claim, and that the action is-maintainable only against persons who claim a right to-present possession.

Whatever doubt may have been supposed to exist as to-this question, under the original section, the doubt is removed by the section as amended. The amended section shows that persons claiming an adverse estate, or interest in the property, include those who claim “ an estate in reversion or remainder, or contingent upon a future event.”'

The estate claimed by defendants, in the present case, is a vested remainder in fee. Such an estate may be conveyed or levied on and sold under execution. If a conveyance should be executed by the defendants, or if an execution against them should be levied on the estate in remainder, which is claimed to be vested in them, such proceedings would east a cloud on the title of the owner of the fee simple estate. And on the principle laid down in Burnet v. Cincinnati, 3 Ohio, 73, the owner of the fee could maintain an action to remove the cloud and quiet his title. The same principle is decided in New Jersey, under a statute similar to that passed upon in Burnet v. Cincinnati. The New Jersey case is Bogart v. City of Elizabeth, 27 N. J. 568. In speaking of the statute in that case, the Chief Justice, in delivering the opinion, says: “ The act is plainly remedial, and its language is very comprehensive, and, in my judgment, it should be construed to give jurisdiction in every case in which a claim or lien upon real estate appears to be asserted, or to exist. It is highly desirable that lands should be freed from every lurking and unsubstantial claim, for even the suspicion of such claim, no matter how ill-founded, affects the value of property when on sale.” Ib. 572.

To substantially the same effect is the language of Lane, judge, in speaking of our own statute, in Douglass v. Scott, 5 Ohio, 195,196.

The case of Niles et al. v. Gray et. al., 12 Ohio St. 320, was an action brought under the original section, to quiet the title of the plaintiffs. As in the present ease, both parties claimed under the same will. The defendants admitted, in their answer, that the plaintiffs held an estate in the land during the life of their grantor, Margaret Harper, who was still living, but claimed that the estate of the plaintiffs would determine at her death, and the defendants then take the estate in fee simple, under the will.

It was decided that the plaintiffs held an estate in fee in the land, subject to be determined by the contingency of Margaret Harper dying without issue living at the time of her death, on the happening of which the estate would pass over to the testator’s oldest son, by way of executory devise. The claim set up by the defendants was therefore denied, and the title of the plaintiffs quieted as against such claim.

The statute of California on the subject is like the original section of our code. G-eneral Laws of California, 1850 to 1864, inclusive, paragraph 5193, § 254.

In Joyce v. McAvoy, 31 Cal. 274, it was held that a person in possession was entitled, under the statute, to have his title quieted against an adverse claim, whether such claim be legal or equitable, or whether it entitles the adverse ■claimant to present possession or not.

In speaking of the construction of the statute, the court, quoting from a former case decided by the court, say:

“ The statute giving this right of action to the party in possession does not confine the remedy to the case of an adverse claimant setting up a legal title, or even an equitable title, but the act intended to embrace every description of claim whereby the plaintiff might be deprived of the property, or its title clouded, or its value depreciated, or whereby the plaintiff might be incommoded or damnified by the assertion of an outstanding title already held or to grow out of the adverse pretension. The plaintiff has the right to be quieted in his title whenever any claim is made to real estate of which he is in possession, the effect of which claim might be litigation or a loss to him of the property.”

In New York and Massachusetts there are statutory remedies provided for the determination of claims adverse to the title of the party in possession of real estate; and although the mode of procedure differs from ours, yet the adverse claims which may be determined include as well claims to estates in reversion and remainder ;as claims to the right of possession. 3 New York Rev. Stats. 579; Rev. Stat. of Mass. (ed. 1860), chap. 134, §(49. Under these statutes, provision is made for trial by jury in proper cases.

Cases may arise under our statute in which the parties may have a constitutional right to have the issues of fact tried by a jury. Should such cases arise, the court is competent to authorize such trial, either in the case, or by requiring-a separate action to be brought for the purpose before the rendition of the final decree.

The defendants in error rely on the decision in Collins v. Collins, 19 Ohio St. 468.

That case was decided before the section of the code in question was amended. And it must be admitted that language is used in the opinion which seems to imply that the defendants must claim a present right of possession adverse to the possession of the plaintiff before the action can be maintained. The case of Niles v. Gray, sufra, was cited in the argument for the plaintiff' in error in that case ; but •it is not referred to in the opinion, nor was it intended to be overruled or qualified by the decision.

In the case of Collins v. Collins the defendants did not ■claim an estate or interest in the land. Under the statute, the action can only be brought against a person who does claim such estate or interest; and the estate or interest thus claimed must be adverse to the plaintiff.

The charge against the defendants was not that they claimed to have an interest in the land, but that they claimed and asserted that if the plaintiff should die leaving no issue, the estate would go in remainder to the persons who might then be the heirs of the testator. "Who such persons might be could not be determined until the contingency happened upon which they were to take the estate. That such was the view taken is apparent from the following language in the opinion : “Should he” (the plaintiff) ■“ die without issue, and should the.then living heirs of the testator set up% claim to th-5 land, or should the defendants undertake to inurfere with t'.e plaintiff’s enjoyment of the premises during life, it will be lime enough then to entertain an action for quietii g the title.”'

Judgment reversed and cause remdfhded for further proceedings. .


author: Gilmore, J.

text:
    Timmons v. The State.
    The force necessary to push open a closed, but unfastened, transom, that, swings horizontally on hinges over an outer door of a dwelling-house, is sufficient to constitute a breaking in burglary under our statute, which requires a forcible breaking.
    ' Motion for leave to file petition in error to reverse the judgment of the Court of Common Pleas of Plamilton county.
    The plaintiff was indicted, convicted, and sentenced for burglary in the court below.
    The entire testimony in the case is not brought upon the record, but the tendency of so much thereof as is necessary to an understanding of the question made is set out. From this, it appears that the prisoner was found in the-dwelling-house of the prosecuting witness in the nighttime ; that the doors of the house were still locked when the prisoner was found therein; that the only means of ingress was through the transom over the door; that the transom was found open when the prisouer was found in the-house; “ that the transom swings on its hinges like an ordinary door;” that there was a button for fastening it,but that the transom was closed, by the wife of the prosecuting witness, on the evening of the night of the entry, with a broom, but she did not fasten it with the button.
    The court charged: “ That if the jury was satisfied, beyond a reasonable doubt, as to all the other elements necessary to constitute a burglary (which were explained) except a breaking, and found that the said transom was closed on the night in questiou, though not fastened, and that the prisoner used sufficient force to push it from its place, so-that it would swing-open, that that was a sufficient breaking in law, and that their verdict under these circumstances,, if satisfied beyond a reasonable doubt, should be guilty.”

      It is assigned for error that the court erred in the part of its charge, as to the force that will constitute a breaking in burglary.

      F. M. Coppock, for plaintiff in error,
    cited Rex v. Russell, 1 Moody, 377; Rex v. Hewitt, R. & R. 157; Rex v. Hyames, 33 Eng. C. L. 577; Rex v. Haines, R. & R. C. C. 450; Rex v. Hall, R. & R. 355 ; Hale’s Pl. Cr. (1st Am. ed., by Stokes & Ingersoll), 552, 557; 8 Pick. 354; 24 Wend. 369; The State v. Wilson, Cox, 439 ; The State v. Boon, 13 Iredell, 244; 39 Miss. 705; 3 Park Cr. Rep. 552; 27 Mich. 151.

      S. H. Brew, prosecuting attorney, for defendant in error,,
    cited Rex v. Hall, 2 R. & R., C. C., 355 ; Rex v. Haines, Ibid. 450; Rex v. Bailey, Ibid. 341; Rex v. Russell, 1 Moody’s C. C. 377; 39 Miss. 705; 20 Iowa, 413; 2 East’s Pl. Cr. 488; 1 Wheeler’s Cr. Gas. 371; 18 Ohio, 380.
   Gilmore, J.

It is contended, in argument by counsel for plaintiff in error, that there is, in this case, an element of negligence on the part of the owner of the house entered, which, under the circumstances disclosed in the record, rendered the offense charged a trespass and not a burglary.

The law on the point is, that if the owner leaves his-doors open, or partly open, or his windows raised, or partly raised and unfastened, it will be such negligence or folly on his part, as is calculated to induce or tempt a stranger to enter; and if he does so through the open door or window,, or by pushing open the partly opened door, or further raising the window that is a little up, it will not be burglary. 4 Blackstone, 226 ; Comm’rs v. Stephenson, 8 Pick. 354.

But we do not see how this doctrine can have any application here. The testimony tended to prove that in this case the house was securely fastened in every respect, except as to the transom in question, and that it was closed. There is in this no evidence of such negligence on the-part of the owner as could have induced or tempted the prisoner to enter. . Nor are we at liberty to adopt the suggestion of counsel that the transom, after being closed, may have been opened by currents of air within or without, or by other sufficient causes, and that the prisoner may thus have been tempted to enter through the open transom, for the jury found that the transom was closed,'till it was pushed open by the prisoner. There was, therefore, no such negligence on the part of the owner of the house as affects the question in this case in any way.

This brings us to the only question in the case. Did the court err in charging the jury that if the transom was closed, though not fastened, and the prisoner used sufficient force to push it from its place, so that it would swing open, that that was a sufficient breaking in law ?

Our statute, defining burglary, provides : “ Whoever, in the night season, maliciously and forcibly breaks and enters any dwelling-house,” etc. The word forcibly is not used in the common-law definition, in which the words are “ break and enter.” But in our statute the word forcibly only expresses the degree of force that was implied at common law from the word break. Hence, under statute, as at common law, there may be a constructive forcible breaking, as where an entrance is obtained by trickery or deception. Ducher v. The State, 18 Ohio, 308.

We may, therefore, look to the principles of the common law in determining what will constitute a forcible breaking under our statute.

In England, for more than two hundred years it has been settled that there can be no burglary without an actual ■ breaking. And in Sir Matthew Hale’s time (1 Hale’s P. 0. 552) these acts amounted to an actual breaking, viz.: “ Opening the casement, or breaking the glass window, picking open a lock of a door with a false key, or putting back the lock with a knife or dagger, unlatching the door that is only latched, and to put back the leaf of a window with a dagger,” etc.

In Brown’s case, decided in 1799 (2 East’s P. C. 489), there was an aperture communicating with an upper floor,, which was closed by folding doors, with hinges, which fell over it, and remained closed by their own weight, but without any interior fastening, so that those beneath could push them open at their pleasure by a moderate exertion of strength. It was held that the pushing open of these folding doors was sufficient to constitute a breaking.

And it has subsequently been held (1 Moody’s O. C. 377} that the lifting of a flap of a celler, usually kept down by its own weight, is a sufficient breaking for the purpose of burglary. And in Rex v. Hall, 2 R. & Ry. C. C. 355, it is-held that where a window opens upon hinges, and is fastened by a wedge, so that pushing against it will open it, forcing it open by pushing against it is sufficient to constitute a breaking. And in Rex v. Haines, Ib. 450, it is decided that the pulling down of the sash of a window is-a breaking, though it has no fastening and is only kept in its place by the pulley-weight; it is equally a breaking-although there is an outer shutter which is not put to. In Rex v. Hyams, 7 Car. & Payne, 441, it is held that raising a -window which is shut down close, but not fastened, though it has a hasp which might have been fastened, is-a breaking of a dwelling-house.

These authorities clearly show that only a slight degree of force is necessary to constitute a burglarious breaking at common law.

The following American cases are to the same effect as Rex v. Hyams, above cited. The State v. Boon, 13 Iredell, 244; Franks. The State, 39 Miss. 705; The People v. Edwards, 1 Wheeler’s Cr. C. 371.

The principle, as laid down in the cases above cited in 2 East and 1 Moody’s C. C., as to the cellar or flap doors kept down by their pwn weight, is followed in the case of Dennis v. The People, 27 Mich. 151, where it is held, that an entry into a building by raising a transom window, attached by hinges above, and arranged to fall into the frame by its own weight, when the window was shut into the frame, so as to require some force to open it, is a sufficient breaking, under the statute of that state punishing the ■breaking and entering an office, shop, etc., in the night time.

Eo court or text writer has undertaken to define the exact degree of force that is necessary to constitute a breaking in burglary; nor indeed would it be practicable to do •so. ' The law on the subject is found in decided cases in which it is announced in connection with a given state of facts, to which it is applied; and, in that way, reasonable certainty has been attained as to what facts will, or will not, in most eases, constitute a burglarious breaking. But there are cases in which the facts are of such a character as to render it difficult to determine whether, in law, they constitute a burglary or a trespass.

But, from the cases above cited, it is plainly the law that where no force is used,.as in entering through an open door •or window, there is no breaking, and, hence, only a trespass.

On the other hand, where only slight force is used, as where a flap door, or a window is closed down and kept in place only by its own weight, the force that is necessary to vertically raise it so as to effect an entrance, is sufficient to constitute a burglarious breaking.

There may exist an appreciable difference between the ■force that would be required to vertically raise a window that was closed and held down by its weight and that which would be required to push open a closed, but unfastened transom, that swings back horizontally on hinges, as in the ■case before us; and, admitting there is such a difference, the question is, whether the force required to accomplish the latter is sufficient to constitute a burglarious breaking ? We think an affirmative answer may safely be given.

The application of the law does not depend upon the degree of the force used, but upon the fact that force of some degree, however slight, was used. The force required to push open the transom in question was undoubtedly •slight, but still it must have been an appreciable force, suf.ficient to overcome the friction of the hinges, occasioned by tbe weight of the transom, and this, under the circumstances, is all that the law requires.

The case of The State v. Reid, 20 Iowa, 413, is in point. It is there decided that “ the pushing open of a closed door, wiih the intent expressed in the statute, is a sufficient breaking, within the meaning of the law, to constitute burglary.”

We find no error in the charge .of the court, under which the jury had to find that the transom was pushed from its place, which implies some degree of force, before they could find the prisoner guilty; and this finding is .not before us for review on the evidence.

Motion overruled.


author: White, C. J.

text:
    In the Matter of the Assignment of Judges to hold District Courts.
    Amici Curl®.

      George Iloadly submitted an argument in support of the constitutionality of the acts, and R: A. Harrison and L. J. Gritehfield, contra.
   White, C. J.

In the matter of the assignment of judges to hold district courts, under the act of May 10, 1878, entitled “An act to change the common pleas districts of the state,” etc. (75 Ohio L. 139); and the act of May 13, 1878, amending the first-named act. 75 Ohio L. 537.

These acts undertake to reconstruct the common pleas districts of the state. The eight districts existing outside •of Hamilton county are reduced to four; and the subdivisions are, in the main, left as they existed under the former organization.

As organized under these acts, the second district consists of seven subdivisions; the third, of eight subdivisions ; the fourth, of six subdivisions, and the fifth of eight •subdivisions.

Section 2 of the act first named provides that “ in each judicial district three common picas judges shall be designated and assigned to hold the district courts in such district.” . . .

Section 3 is as follows: “ The supreme court, or a majority of the judges thereof, shall designate said three common pleas judges in each district, and by rule of court, or otherwise, arrange for a presiding judge in holding district courts.”

In section 4 it is provided that “ in fixing the terms of courts, in each of said districts, a majority of said designated judges shall fix the times for holding district courts,, and they, with the other common pleas judges, the times for holding the common pleas courts, as now provided by law.”

The act providing for fixing the terms of court, requires the judges, or a majority of them, in each common pleas district, on or before the first day of November in each-year, to issue their written order to the clerk of the court of common pleas of each county in the distr^t, specifying the commencement of the terms of the district court, and of the several terms of the court of common pleas in each of the counties of the district.” S. & S. 600.

It becomes, therefore, of the highest importance to know whether the terms of the courts of common pleas, and of the district court, are to be fixed by the judges of, and with reference to, the districts as constituted by the acts first above named, and the courts held in accordance with these-acts, or whether the terms of the several courts are to be-fixed, and the courts held in the several districts as they existed independent of said acts.

If the acts are constitutional the terms of the courts must be fixed by the judges of the new districts and with reference to such districts; and the several courts must be constituted and held in accordance with the provisions of the acts. But if the acts are unconstitutional, the terms of the courts must be fixed, the courts constituted, and held as they would have been had the acts not been passed.

The first question with which we are met, in entering-upon the duties required of us by the act as amended, is,, whether it is competent-for the general assembly to devolve-upon this court, or the judges thereof, the duty of designating from the judges of the courts of common pleas,, those who are to hold the district courts as prescribed, by the act.

Some members of the court question the authority of the-general assembly to devolve the duty upon us. But, in the-opinion of the-majority, we would not be warranted in refusing to perform the service required of us by the act, if the plan or scheme of reorganization contemplated by the-act could, consistently with the constitution, be carried into-effect.

The object of providing for the organization of the new districts in the mode prescribed by the act, was to secure the permanent holding of the district courts in each district by the three judges of the court of common pleas designated for the purpose. The new districts were formed by the consolidation, in whole or in part, of former-districts, allowing the subdivisions to remain substantially as they were for all the purposes of the court of common pleas. This was, in effect, creating the new districts for the purposes of the district court alone, without reference to the courts of common pleas; and the purpose of consolidating the former districts was to so enlarge them that the holding of the district courts in each might occupy all the-time of the judges assigned to that duty.

In being called upon to set this new organization of the-courts in motion two questions arise:

1. "Whether the act, in so far as it undertakes to reconstruct the common pleas districts of the state in the mode therein provided, is constitutional.

2. Whether the district courts can, consistently with the constitution, be constituted in the districts thus sought to-be created, as provided in the act.

In determining the answers to be given to these questions it is to be observed, in the first place, that our judicial ¡system was established and organized by the constitution itself. The districts and the subdivisions of districts were •formed, and the courts of the several districts fully organized by the constitution, independent of any aid from the ■general assembly.

The plan upon which the common pleas districts and the subdivisions were constituted, and the courts of common pleas organized, is found in section 3 of the judicial article •of the constitution.

The section is as follows:

“ Sec. 3. The state shall be divided into nine common pleas districts, of which the county of Hamilton shall constitute one, of compact territory, and bounded by county lines; and each of said districts, consisting of three or more 'counties, shall be subdivided into three parts, of compact territory, bounded by county lines, and as nearly equal in population as practicable; in each of which one judge of the court of common pleas for said district, and residing therein, shall be elected by the electors of said subdivision. Courts of common pleas shall be held, by one or more of these judges,, in every county in the district, as often as may be provided by law; and more than one court, or sitting thereof, may be held at the same time in each district.”

The mode of constituting the district courts is prescribed by section 5, which is as follows:

“ Sec. 5. District courts shall be composed of the judges -of the court of common pleas of the respective districts, and one of the judges of the supreme court, any three of wriiom shall be a quorum, and shall be held in each county •therein, at least once in each year; but if it shall be found inexpedient to hold such court annually, in each county of any district, the general assembly may, for such district, provide that said court shall hold at least three annual sessions therein, in not less than three places: provided, that -the general assembly may, by law, authorize the judges •of each district to fix the times of holding the courts therein.”

Section 12, article 11, apportions the state for judicial purposes, in accordance with section 3 of the judicial article above quoted.

The county of Hamilton is constituted the first district, which, it is declared, shall not be subdivided. The remaining counties of the state are formed into eight districts, ■each district being composed of three subdivisions; and thus section three, above quoted, as respects the formation ■of the districts and subdivisions, is carried into full effect.

The constitution likewise provides for the first and the ■subsequent election of the judges; and thus by its own provisions completes a permanent judicial system for the state.

The only power conferred upon the general assembly to . ■interfere with the system thus established is found in section 15 of the judicial article. This section is as follows :

“ Sec. 15. The general assembly may increase or diminish the number of the judges of the supreme court, the number of the districts of the court of common pleas, the number of judges in any district, change the districts, or the subdivisions thereof, . . . whenever two-thirds of the members elected to each house shall concur therein; but no such change, addition, or diminution shall vacate, the ■office of any judge.”

It was claimed by the learned counsel who submitted an ■argument to us. in support of the constitutionality of the act, that the power conferred by this section, of the constitution on the general assembly, to increase or diminish the number of districts, authorized the diminution of the number of districts established by the constitution, in the mode provided for in the act, leaving the subdivisions substan- • tially as they were before.

This, it seems to us, is a clear misapprehension of the power. The districts to which the power refers are organized districts. The new districts which, by diminution, are to take the place of the former districts, must be constituted upon the plan laid down by the constitution for the formation of districts. The districts of the state may be made less in number, but tbe principles upon which, they are formed must remain the same. Whether the districts-are increased or diminished in number, they must nevertheless be constituted in accordance with the requirements of section 3 of the judicial article. Each district must be composed of compact territory, and be bounded by county lines ; and each district, “ consisting of three or more counties,” must “ be subdivided into three parts, of compact territory, bounded by county lines, and as nearly equal in population as practicable.” Section 3 furnishes a permanent rule for the organization of districts under the judicial system established by the constitution; and, while full authority is given by section 15 to increase or diminish the number of districts, yet, in the exercise of this authority, the new districts must be organized in accordance with the principles laid down in section 3.

If, on the other hand, section 3 is not to govern in the-organization of new districts, and two or more districts may be consolidated into one, leaving the internal organization by subdivisions to remain as they were before, it follows, upon the same principle, that all the districts of the state may be consolidated without disturbing the existing subdivisions.

The effect of this would be to extend the jurisdiction of each jiidge of the court of common pleas throughout the-state, without regard to the subdivision in which he may have been elected; for the judges of the court of common pleas are judges of their respective districts, and not of the mere subdivisions thereof. The subdivision of the districts is for election purposes merely. Harris v. Gest, 4 Ohio St. 472 ; Railroad Company v. Sloan, 31 Ohio St. 1.

The further effect would be that all the common pleas-judges of the state would, under section 5 of the judicial article already quoted, become members of the district court to be held in each county of the state.

This would be the substantial destruction of the system ordained by the constitution. A principle adopted in the--reorganization of the districts of the state, which leads to «rich results, can not he reconciled with the constitution.

It may here also be remarked that if the third section is ■the basis, as we think it is, on which all new districts must be formed, it operates as a limitation upon the power of creating new districts, and the observance of its requirements will practically operate as a check against the making of such districts either too large or too small for the public convenience.

Again, authority is not only given to increase or diminish the number of districts, but also to “ change the districts or subdivisions thereof;” and it is said that the power to change must be understood in its generic or unlimited sense, and consequently that power is given to multiply the subdivisions of a district at the discretion of the general .assembly.

The argument is, that as the general assembly may diminish the number of districts, and as they are not limited in the number of subdivisions that may be created in a district, they may consolidate districts and adopt the subdivisions existing at the time of the consolidation.

If the assumption as to the meaning and force of the word “ change,” in the connection in which it is used, is •correct, such result would follow; but it seems clear to us that the assumption is not warranted.

In the first place, it seems quite plain that the power .given to “ change the districts,” taken in the connection in which the terms are used, has reference to altering the territorial limits of the districts; and that the word “ change ” is used in the same sense as applied to the sub•divisions as it is when applied to the districts.

In the second place, the power to “ change the districts or the subdivisions thereof” is limited by the conditions prescribed in section 3 in respect to the mode in which the districts and subdivisions are to be constituted. If the power is not thus limited, there is no restriction against the ■division of counties in changing the districts or subdivisions. Section 3 requires the districts to be formed of compact territory, and to be bounded by county lines. It also-requires each district to be subdivided into three farts of compact territory, which are also to be bounded by county lines.

The declaration that the districts shall be divided into-three parts of compact territory, is as explicit and imperative as the declaration that the districts and subdivisions: shall be formed of compact territory, and that counties-shall not be divided; and, in exercising the power of changing the districts or the subdivisions, the one requirement of the section can be no more disregarded than the other.

It is also said that the authority to reduce the number of subdivisions of a district below three is implied from the general power given in section 15 to reduce the number of judges in a district.

It is, however, conceded that the power of reducing the-number of judges is not unlimited; and that the power is-subject to the implied limitation that the number in a district can not be reduced below what is required to constitute the district court. But it is said that the judges in any district may be reduced to two, for the reason that two-judge^ of the district and a judge of the supreme court is all that is required to constitute the district court.

That this position is untenable it seems to us is obvious. It is an attempt to overthrow the express requirement of section 3, which declares that each district shall be subdivided into three parts, by an implication sought to be raised, from the general power given in section 15 to increase or diminish the number of judges in a district.

The implication would seem to be that the number of judges in a district can not be reduced below the number of subdivisions, rather than that the general power to diminish the number of judges carried with it by implication the power to diminish the number of subdivisions.

, It is not necessary to the exercise of the power of reducing the number of judges that the number of subdivisions should also be reduced. Under the power given of changing the districts or diminishing their number, or-•where the judges in a district have been increased, ample occasion may arise for the exercise of the power of reducing the number of judges, without affecting the subdivisions.

A further answer to the position is, that section 5, which provides for the organization of the district courts, shows,, by clear implication, that the number of judges in each district was not intended to be less than three. The section declares that the “ district courts shall be composed of the judges of the court of common pleas of the respective districts, and one judge of the supreme court, any three of whom shall be a quorum.

It could not have been intended that the number of judges competent to hold district courts in the several districts might be diminished permanently to the number essential to constitute a mere quorum.

But it appears that the general assembly, commencing as far back as 1862, have repeatedly exercised the power of creating a fourth subdivision in a district. On the faith of such legislation, the subdivisions of districts have been reorganized, and judges have been elected, who have exercised and are still exercising the functions of office under such authority. And it is urged that this constitutes such a practical construction of the constitution in respect to the power in question, and such a general acquiescence, as that the power ought not now to be drawn in question. How this may be in regard to the particular instances, we are not called upon in the matter before us to determine. But such action can not be made the basis or foundation of a new innovation, which, if carried out, we can not but regard as, in its effect, subversive of the judicial system established by the constitution.

In regard to the second question, namely, whether the district courts can be constituted, in the districts sought to be created by the act, as therein provided, little need be added to what has already been said. Eor, if the districts which were sought to be created by the act fail, the mode prescribed for organizing district courts in such districts must, of course, fail.

It is apparent from the provisions of the act, that the object, as already remarked, of organizing the new districts was to secure the permanent holding of the district courts in each district by the judges designated for the purpose. Section 4 provides that the “designated judges shall not be required to hold common pleas courts, and shall continue to act as such district court judges until the expiration of "their several terms for which elected, unless sooner relieved by assignment otherwise by the judges of the supreme •court.” . . . And in section 6 it is provided that ■“the common pleas judges not assigned, as aforesaid to hold district courts, shall be subject to the orders of the judges so assigned, or a majority of them.”

We do not mean to question the authority of the general assembly, by legislation, to require such an apportionment ■of the judicial force of the district as to secure the efficient .administration of justice, in both the courts of common pleas and district courts, throughout the district.

But where, as in the present instance, it undertakes to ■consolidate districts and to provide for the assignment of pai’t of the judges, during their terms of office, to the performance exclusively of district coui't duty, and the x’emainder of the judges to the perfonnaxxce of the duties of the court of common pleas, it assumes an authority which, in our opinion, is cleaily not warranted by the constitution.

We fully assent to the doctrine that a statute which has received the sanction of the general assexnbly should only be held void, as repugnant to the constitution, when the repugnancy is clear, and the provisions of the statute and of the constitution can not be fairly recoxxciled.

But the constitution must be interpreted and effect given to it as the paramount law of the land, equally obligatory upon the legislature as upon other departments of the government and individual citizens, according, to the spirit and intent of its framers, as indicated by its terms. An act violating the true intent and meaning of the instrument, .although it may not be within the letter, is as much within the purview and effect of a prohibition as if within the strict letter; and an act in evasion of the terms of the constitution, as properly interpreted and understood, and frustrating its general and clearly expressed or necessarily implied purpose, is as clearly void as if in express terms forbidden. People ex rel. v. Albertson, 55 N. Y. 55.

Gtlmore, Boynton, and Okey, J.J., concurred. Mc-Ilvaine, J., dissented.


author: Okey, J.

text:
    Sanderson v. Ætna Iron and Nail Company.
    land was conveyed to a manufacturing company in payment for shares of its capital stock, and the company, exceeding its powers, rescinded the contract, reconveyed the property and canceled the stock, but no ac- • tual fraud or unfairness appeared, and no complaint of the transaction was made for sixteen months, during which time the company became insolvent, and the land reconveyed was sold to an innocent purchaser— Held: That a stockholder, having full knowledge of the facts from the-beginning, is precluded, in equity, by his laches, from asserting the invalidity of such rescission.

      Empire Frans. Co. v. Blanchard, 31 Ohio St. 650, followed.
    Error to the District Court of Cuyahoga county.
    This action was brought in the Court of Common Pleas of Cuyahoga county, January 20,1870, by Robert Sander-son, John B. Cowle, and Samuel Lord against The ¿Etna. Iron and Nail Company, Warwick Price, William B. Price,. Morrison Foster, E. T. Hamilton, and others. It is a creditor’s suit to enforce payment of a judgment. The only facts alleged in the petition which are not denied in the answer are the following :
    The .¿Etna Iron and Nail Company was organized as a corporation, under the laws of Ohio, July 15, 1867, “ for the purpose of engaging in the manufacturing of iron, merchant iron, nuts, spikes, bolts, and all other kinds of iron, manufactured, including nails, hoop iron, rivets, etc., and selling the articles and things so manufactured.” The capital stock was $200,000, divided into shares of $500 each. The places where the manufacturing establishment and branch thereof were required to be located were the-city of Cleveland and Newburgh township, Cuyahoga county.
    Warwick Price and William B. Price subscribed for twenty shares ($10,000) of the capital stock, and the plaintiff for twenty shares ($10,000), all to be paid in cash. The-plaintiffs are still stockholders.
    At the time of the organization, at a meeting of the-stockholders then held, Warwick, Price & Co. subscribed for sixty additional shares ($30,000), to be paid for by certain coal lands at Salineville, Columbiana county, Ohio. The directors were authorized to examine the property,, and, if in their opinion it would be for the benefit of the company, to approve the subscription, and that a. conveyance should then be executed and the stock issued.
    On July 18, 1867, the proposition was accepted and approved, and on September 9, 1867, W. and W. B. Price-conveyed the property to the company, and received the-certificates of stock, and thereupon the company took possession of the property, improved it, and mined coal therefrom for use in the company’s business.
    At a meeting of the directors, September 4, 1868, certain proceedings were had, which were entered on the rec■ords of the company, as follows: “ Sept. 4, 1868. Board met pursuant to adjournment. All the members present. "Whereas, this company purchased of Warwick and William B. Price certain coal lands near Salineville, Ohio, at or for the sum of $30,000, and paid for the same in the stock of the company; and, whereas, a number of stockholders are dissatisfied with the purchase, and desire that the said coal lands be conveyed back, and the stock taken up and canceled ; and the said W. and W. B. Price being willing to receive back said lands, and deliver up the stock to be canceled: Therefore, resolved, that the president be, and is hereby authorized and directed to reconvey to said Warwick and William B. Price said lands, and to receive from them said amount of stock, and cancel the same .....The above resolution was adopted by the following vote: In the affirmative, W. C. Moody, James Loveday, James Farmer, and W. B. Price; in the negative, Robert Sanderson. Then adjourned to meet 14th inst., at :9 o’clock a. m. W. B. Price, Secretary.”
    Sanderson is one of the plaintiffs. .
    The stockholders, on the same day, at a meeting held by them, confirmed the action of the board of trustees by the-following vote: In the affirmative, fourteen stockholders, representing one hundred and eighty-two shares of stock; in the negative, five stockholders (including plaintiffs), representing sixty shares of stock.
    The reconveyance of the .land and transfer of the stock were made accordingly, and that action was confirmed by the board of directors on September 14, 1868.
    At the same time W. and W. B. Price sold their remaining stock to Loveday, and ceased to have any connection with the company.
    August 28, 1869, the .¿Etna Iron and Nail Company made .an assignment of its property and assets of every kind to E. T. Hamilton for the benefit of its creditors.
    November 1, 1869, Warwick and William B. Price ■conveyed the lands in controversy to Morrison Foster, and placed him in possession, and he still retains possession.
    At the November term, 1869, of the Court of Common Pleas of Cuyahoga county, the plaintiffs obtained a judgment against the company for $9,370.24, which remains-unsatisfied of record; and on January 11, 1870, they caused the lands reeonveyed to the Prices to be levied on by virtue of an execution issued on the judgment, there being no other property.
    It is not admitted in the pleadings that anything is due from the Prices for improvements ; and, although it is admitted in their answer that at the time they transferred their sixty shares of stock to the company, and received a reconveyance of the land, the company was in debt, it is. averred that the company was solvent, and had assets-more than sufficient to pay all its debts. A large amount of indebtedness remains unpaid, but the Prices deny in their answer that the plaintiffs are creditors of the company. The petition contains many other averments, but they are denied in the answer of the Prices.
    The prayer of the petition is that the judgment may be enforced against the land, and that the land be sold for the benefit of the plaintiffs and other creditors; that, in case-the land can not be so subjected to the payment of the debts, that Warwick Price, William B. Price, and others named, be compelled to account for the value of the property ; and that other and further appropriate relief be granted.
    Morrison Poster says, in his answer, that he is a purchaser-in good faith, for a full consideration, to wit, $27,000, without any notice of any adverse right or claim on the part of the plaintiffs or the company or on its behalf.
    The company, by answer and cross-petition, adopts the petition of plaintiffs, and asks that the relief prayed for • may be granted for the benefit of the creditors of the company.
    Hamilton, as assignee, in his answer, admits the state-merits contained in the plaintiffs’ petition, and prays for a .sale of the property in dispute, or that the Prices be compelled to account for the value of the property, for the benefit of creditors.
    The district court, at the September term, 1872, dismissed the petition of the plaintiffs and the cross-petition of the -company. The opinion of the court was reduced to writing and adopted as a finding of law and fact, as appears by .a bill of exceptions, to which the opinion is attached.
    The errors relied on by the plaintiffs are that the finding is contrary to law, and that the court erred in denying the relief, and in dismissing the petition and cross-petition.
    The company relies on the same errors in its cross-petition in error.

      Bishop l¡¡ Adams, for plaintiffs in error:
    The coal land was a trust fund for creditors. Green’s Price’s Ultra Vires, 800, 311, 315; 2 Story’s Eq. Jur., § 1543. A corporation can not purchase its own stock. 17 Bai’b. 397; 2 N. Y. 18; 2 Sand. Ch. 259. The reconveyance to W. B. Price and cancellation of their stock was woid, and acquiescence can confer no right contrary to law. .8. & C. 304, § 81; lb. 309, §§ 90, 91; lb. 273; S. & S. 167, :242 ; Green’s Brice’s Ultra Vires, 30, 404, 462, 466 ; 38 Cal. -311; Herman on Est., § 414; 2 Sand. Ch. 273 ; 9 Paige, 158; 10 Ohio, 97; Abb. Big. Corp. 738, §§ 30, 81; 12 E. L. & E. 402 ; 5 Be G. & S. 402 ; 1 Edw. 84; 48 Pa. St. 29; 1 Red. on Railw. 583, 617; 18 Ohio St. 169; 1 McQueen, 461; 3 Mason, 309 ; 11 Ohio, 444; 2 Ohio St. 373. Those ■claiming under a corporation, however remotely, must take notice of its want of power. Ang. & Ames on Corp., §§ 183, 223, 299 ; 18 Ohio St. 269 ; 25 N. Y. 298; 21 Howard, 441; 23 Howard, 381; 2 Black, 715 ; 1 Smith’s L. C. (5th <ed.' 684.

      It. P. Panney, for defendants in error:
    There is no bill of exceptions which the court can notice, and hence the court can not consider any of the questions discussed by counsel for plaintiffs in error. Empire Trans. Co. v. Blanchard, 31 Ohio St. 650. There can be no rescission of the transaction, whereby the land was reconveyed and stock canceled, after such lapse of time and change of circumstances as occurred, before any steps were taken to rescind, and before suit was brought. New Albany v. Burke, 11 Wall. 105 ; Twin Lick Oil Co. v. Marbury, 91 U. S. 591; Grymes v. Saunders, 93 U. S. 62; Sullivan v. Portland, etc., R. Co., 94 U. S. 811; Brown v. Buena Vista Co., 95 U. S. 160 ; Hayward v. National Bank, 96 U. S. 617. If the transaction had been ultra vires, it could not, after being fully executed on both sides, be set aside for that reason. Whitney Arms Co. v. Barlow, 63 N. Y. 62; Railway Co. v. McCarthy, 96 U. S. 267. The whole transaction having been approved by the body of stockholders, no section of them, or the corporation itself, can now object to it. 2 Hare, 461.

      S. Burke, also for defendants in error :
    The company had no power to receive the subscription for shares of the capital stock payable in land. S. & S. 166; 18 Ohio St. 150; 20 Ohio St. 199 ; 5 Ohio St. 59; Abb. Dig. 799. In view of the controversy as to retaining the lands, the directors and stockholders might adjust their differences as they did. 4 Dana, 620; 8 Md. 230; 25 Miss. 559; 5 W. & S. Ill; 1 Head, 563; 2 Disney, 323; 1 Disney, 144. Foster has an indefeasible title. S. & C. 273; 7 Ohio (2 pt.), 165; 18 Johns. 515; Sug. Vend. 198; 10 Ohio, 498; 2 Ohio, 415 ; 5 Ohio St. 319; lb. 70 ; 6 Ohio St. 580 ; 10 Ohio, 83; 2 Barb. 158; 1 Johns. Oh. 574; 5 S. & R. 252; 10 Watts, 412; 14 Pick. 224; 32 Mo. 305; 6 N. H. 269 ; 1 Sand. Ch. 280 ; 21 Howard, 414 ; 16 Iowa, 284; 7 N. Y. 466; 5 Ohio, 207. The company had power to take from the Prices a valid title to the stock, and there is •no ground to compel them to account for the value of the land. 1 R. I. 164; 3 Blatch. 431; 1 Ed. Ch. 84 ; 17 N. Y. 507; 3 Md. Oh. 418; Abb. Dig. Oorp. 537; 2 Bosw. 75; 26 Ga. 17; 6 Ham. 218; 11 Wall. 96. Under the circumstances, the plaintiffs and the company are estopped to-avoid the transaction. Kerr on Fraud, 298-312; 22 Ala. 249; 1 Md. Oh. 496 ; 6 Gill, 156; 6 B. Mon. 553; 8 Conn. 145; 18 Maine, 94; 7 Howard, 234; 7 B. Mon. 305; 2 Cowen, 139; 16 Ohio St. 321; 2 Disney, 30; 5 Ohio, 386; 6 Gill & J. 424; 1 Denio, 69.
   Okey, J.

1. Where a party seeks a reversal for error in the finding, under section 280 of the civil code (75 Ohio L.. 645), it is essential that the record should show a substantial compliance with the statutory provision. In this case’ it is sought to substitute the opinion of the court, delivered in deciding the case, for such finding. While it is possible that an opinion may be in such terms as to fulfill the requirement of the statute in that particular, this opinion is not of that character; and, in fact, the case can not be distinguished from Empire Trans. Co. v. Blanchard, 31 Ohio St. 650, to which we adhere.

2. Whatever rights the company had to maintain the suit for the purpose of avoiding the rescission, were probably transferred to the assignee by the assignment, which is general in terms; at least, the company has no greater' right in that respect than the plaintiffs. Creditors may occupy a more favorable position than stockholders (Green’s Brice’s Ultra Yires, 133; 38 Cal. 311, 315); but, while the rendition of the judgment in favor of the plaintiffs is admitted, it is denied that they are in fact creditors ; and the assignee is not here asking' a reversal of the judgment. The only question, then, is whether the plaintiffs, as stockholders in this insolvent corporation, are entitled to relief on the admitted facts set forth in the statement of the case. It will be observed that these facts contain no statement of fraud or unfairness, or even want of form in the transaction, but the right of the stockholders to interfere is based solely on the want of power to rescind the transaction in> which W. & W. B. Price conveyed to the company the land in controversy in payment of $30,000, in shares of the company’s capital stock.

Admitting the right of stockholders to proceed in such cases (Field on Corp. § 398), the validity of the contract by which the land was conveyed to the company (Green’s Brice’s Ultra Vires, 108), and the invalidity of the transaction by which the contract was rescinded (1 Swan & Or. 309), are these stockholders, who have had notice from the first of the transaction, in a position 1o assert the invalidity of the reconveyance to W. & W. B. Price and the cancellation of the stock?

It appears that on the 5th of September, 1868, when the reconveyance was made, the stock was par, and it does not appear from the facts admitted that the company was then seriously embarrassed. Though the conveyance was made at the time stated, the action in that regard was not ratified by the directors for ten days thereafter. The plaintiffs have continued to be stockholders, and one of them has acted as a director. The company suffered embarrassment and made an assignment for the benefit of creditors, and the land was sold by the Prices to an innocent purchaser; yet no step was taken during the time, nor until January 20, 1870 — a period of sixteen months — to set aside the transaction ; nor was a claim made, so far as the record discloses, at any time before the commencement of this suit, that the transaction was unfair or invalid. Under these circumstances, we may fairly say that in view of the laches of these plaintiffs, we are precluded from granting to them the relief which they ask.

Judgment affirmed.