author: Granger, C. J.

text:
    Despatch Line v. Glenny & Co.
    The petition averred that plaintiffs delivered to defendant in New York, one case of plate glass, which defendant received and agreed for a reward to be paid it, to transport to Cincinnati, and there safely deliver to plaintiffs; that when so delivered two lights were badly broken by reason of defendant’s negligence to the damage, etc. The answer denied “each and every” of said averments. At trial plaintiffs gave in evidence part of the deposition of H. This stated that a case containing plate glass in good order was shipped. In another part of the deposition H. testified that he never notified defendant that it was plate glass; and that defendant at the time gave a receipt for “ one case of rough glass.” A copy of this receipt (the original having been identified by the witness) was duly attached to the deposition by the officer. Next above the words “rough glass” was plainly printed: “ The actual contents of packages must be stated on this receipt.” At a proper time the defense offered to put in evidence said part of the deposition and said copy, but the court excluded it.

      Meld: The evidence excluded tended to prove part of the res gestae of the alleged delivery; and to show that defendant did not receive and agree to transport any plate glass.
    Error to the District Court of Hamilton County.
    On February 21, A. D. 1878, in a case appealed from a justice’s court, William Glenny & Co. filed a petition, in Hamilton common pleas, against the Great Western Despatch South Shore Line. Besides other averments and a prayer for judgment it contained the following:
    “ That on the eleventh day of June, 1877, they delivered to the said defendant in New York one case of plate glass which the said defendant received and agreed, for a reasonable reward to it to be paid by these plaintiffs, to transport to Cincinnati aforesaid, and there safely deliver the same to these plaintiffs within a reasonable time.
    “ That although a reasonable time has elapsed therefor, the defendant has not safely delivered said merchandise to these plaintiffs, but on the contrary, when delivered two lights of the said glass were badly broken by reason of the negligence of the defendant, whereby said plaintiffs have been damaged in the sum of one hundred and seventy-nine dollars.”
    The answer read thus:
    “Now comes the defendant and answers the petition of the plaintiffs, and for answer says, that it knows nothing of any of the facts in said petition alleged, except that the defendant is a firrh doing business under the law of the state of Ohio, and is a common carrier of goods, wares and merchandise for hire between the city of New York and the city of Cincinnati, and that a judgment was taken against it and an appeal from said judgment taken to this court, as in the petition alleged, and therefore the defendant denies each and every other allegation in the petition contained.”
    At the trial in the common pleas, the plaintiffs read in evidence a part of a deposition of one James Haughey, shipping clerk of the vendor of the plate glass taken by them. This tended to prove that a case of plate glass in good order was shipped. The defendant moved the court to order the plaintiffs to read in evidence the remainder of the examination in chief of said witness, and excepted to the refusal of the court to so order. At a proper time in the trial the defendant offered to read in evidence the remainder of Haughey’s deposition. This contained a statement that witness did not notify the defendant that the case contained plate glass; that he marked the case “ rough glass ” and that at the time the defendant gave a receipt (which was duly identified and attached to the deposition) reading as follows:
    “New Yoke, 11th June, 1877.
    “Received, in apparent good order, by the Cheat Western Despatch, from E. W. Boyd, No. 79 Murray St.,

      the following Package, subject to the conditions contained in the Bills of Lading of the GREAT WESTERN DESPATCH.

      “ This is to be exchanged for the usual Bill of Ladin'g of the Company, notice of the terms of which is hereby admitted; and this property is received subject to all the provisions limiting liability, therein contained.

      FURL NAME OF CONSIGNEE MUST BE GIVEN ON THIS RECEIPT.

      The actual contents of Packages must be stated on this receipt.

    MARKED:

      That he (Haughey) wrote the words “one case rough glass ” in said receipt pursuant to instructions in his employer’s order book. That he afterwards received, in exchange for said receipt, a bill of lading. This original bill was identified by him before the officer and duly attached to the deposition. This was a bill of lading given by the Great Western Despatch Company South Shore Line to William Glenny & Co. at New York, June 11, 1877, describing the goods as “rough glass,” delivered in apparent good order, to be for-warded in like good order (damages from navigation and from fire excepted) to Cincinnati, Ohio, at the rate “ 3d class, 41 cts. per 100 lbs.” * * *- And “subject to the terms and classifications as below.” * * * The following is printed on the face of the bill of lading, at the bottom thereof, to-wit:
    “ CONDITIONS.
    “ All articles entered on this bill of lading shall be subject to and governed by the latest tariff classification, as published by this line and in force at the date hereof, and to the rates properly belonging to such classification ; and the rates, as written in above, shall only apply to such goods as are included in the class opposite, or against which the rate is so written.”
    Immediately above the agent’s signature to the bill of lading was plainly printed,
    “ JESr“ Eor classification, see other side.”
    On the “ other side ” or back of the bill of lading was printed the following (among other classifications) to wit:
    “ ARTICLES. CLASS.
    “Plate glass, too large to be ) loaded in box cars, released, (own- i Pour times first class, ers’ risk), )
    “Plate glass, too large to be loaded in box cars, released, and in car load lots, estimated at 20,000 pounds. j-One.
    “ Plate glass, loaded in box cars, owner’s risk of breakage. J One.”

      Haughey also wrote the words “ rough glass ” in the bill of lading. The court refused to permit any of said deposition, or its exhibits, other than the said portion read by plaintiffs’ counsel, to go in evidence. Exception was duly noted'.
    The defendant also called a witness, Enoch Taylor, an agent in its employment, and offered to prove by his testimony that there was a difference in the rate of shipment between rough glass and plate glass; also that the glass referred to by plaintiffs’ witness was shipped on a bill of lading, and, for that purpose, put to the witness pertinent questions, unobjectionable in form, but the court sustained the objections made by the plaintiffs; defendant excepting.
    Thereupon the defendant asked leave, to amend its answer and set up therein a defense, that the glass in question had been shipped on a bill of lading, stating it to be rough glass, and that the rate of shipment of rough glass was less than that of plate glass, but the plaintiffs objected, and the court refused leave so to amend, and defendant excepted.
    Before the jury retired the defendant asked the court to charge the jury as follows, said charges so asked not being embraced or given in the general charge of the court, neither in language, nor in substance: “Before the jury can find for the plaintiffs, they must be satisfied from the evidence, that the plaintiffs, or some one for them, shipped from New York to Cincinnati plate glass as‘plate glass’ and not as ‘ rough glass.’ ” — “ That if the plaintiffs, or their agents, shipped the glass as ‘ rough glass,’ knowing it was ‘plate glass,’ and the carrier accepted it and shipped it, supposing it to be ‘rough glass,’ such concealment of its character by the plaintiffs defeats their right to recover against the carrier for an injury to it, unless the plaintiffs can show gross negligence on the part of the defendant, in the transportation of the glass.” To which charges the plaintiffs objected, and the court refused to give the same, to which refusal the defendant excepted.
    A verdict for the plaintiffs was rendered; a motion for a new trial overruled, a bill of exceptions taken and judgment rendered on the verdict. On petition in error the district court affirmed the judgment, which we are asked to reverse.

      Durbin Ward, for plaintiff in error.
    1. Under the general issue, are we allowed to prove the existence of the bill of lading, which shows the glass to have been shipped as “ rough glass,” or, must we plead specially that the goods were shipped on a bill of lading, before we are at liberty to prove it? We insist, that when the plaintiff alleges that he delivered “plate glass” and we deny it, that we can show that he represented himself as shipping “rough glass,” and took a bill of lading for it as such, for the purpose of showing that the shipper committed a fraud on the defendant by inducing it to receive a •superior article, requiring higher freight and more care, and ship it as an inferior article at lower rates and subject to less care. And we insist we could prove it on another •ground. Having denied the delivery of “plate glass,” and the plaintiff having proved, or offered evidence which he claimed to be proof that he delivered “ plate glass,” we are surely allowed to contradict such testimony by showing that he offered the glass for shipment as “ rough glass,” and acknowledged it to be such by taking 'a bill of lading for it as such. Such bill of lading would surely be competent evidence to weaken the force of plaintiff’s evidence that he delivered such plate glass. What rule of law requires us to plead the bill of lading specially ? The question is, what was the contract? The evidence of the contract is the bill of lading, and surely we are not bound to plead mere evidence. Or, if the plaintiff claims that the evidence of the contract — an implied contract — was the delivery of the article to a common carrier whose duty it was to ship it, and the delivery by mere implication is all he proved in this case ; then, we insist, we have a right to controvert the implied contract, even under the general issue denying delivery, by showing that there was an express contract in writing and ' thus showing that the implied contract, claimed to arise by mere delivery, was not the contract on which the goods were shipped. Under the general issue, the plaintiff offered evidence to prove, and claimed that it did prove an implied contract by mere delivery; now cannot the defendant offer evidence to prove an express parol contract, and if he should succeed, would not that defeat the plaintiff’s action entirely, because he can only recover on his own allegations, to wit: the implied contract ? Or if he could recover, would it not be on the actual express parol contract ? And why would not this be so, if the defendant under the general issue, denying the contract alleged in plaintiff’s petition, should prove a contract in writing evidenced by a bill of lading? Why would he have to plead it specially? When a defendant denies the contract sued on, he makes that denial good by proving that the shipment was made on another contract and not on the one sued on. We insist that the authorities fully sustain this doctrine. Davidson v. Graham, 2 Ohio St., 131. And see Simmons v. Greene, 35 Id., 104; Dean v. Yates, 22 Id., 389; Thatcher v. Heisey, 21 Id., 668; Hill v. Supervisor, 10 Id., 621; Satchel v. Doram, 4 Id., 543; Johnson v. Moss, 45 Cal., 515; Pomeroy on Remedies, § 557.
    2. As to whether fraud may be proven under the general issue, see Pomeroy on Remedies from § 642 to § 691; 1 Wash. Pl. & Pr., 177-8; Van Santford’s Pl., 252-7; 2 Saund. Pl. & Ev., 527; 1 Tidds’ Pr., 650; Doug., 433; 2 Term, 551; 2 Campbell, 272; 1 Chitty’s Pl., 471-2.
    3. We claim that in ruling out the rejected portions of the depositions and exhibits there was error. We claim that when a deposition is filed it is evidence for both parties, and if it is at the trial on file unexcepted to by either party, that it is evidence in the cause, and either party can read it in evidence so far as it is competent evidence on the issues joined. A party having taken a deposition can no more withdraw his questions or the answers to them, than he can, after the witness has testified in open court against him, withdraw the testimony. He has put the testimony into the case to be tried and can never withdraw it. It is testimony for the other side if he wishes to use it. Devin

      ney v. Jelly, Tappan, 127; Wilson v. Runyan, Wright, 651; Strader v. Day, 2 W. L. M., 388; Calhoun v. Hays, 8 Watts & Serg., 127; 16 Serg. & R., 264 ; Dwight v. Linton, 3 Rob. (La.), 57; Yeaton v. Fry, 5 Cranch, 335; Linfield v. Railroad Co., 10 Cush., 570; 1 Greenleaf on Ev. 322, 323, n. 1.

      Ramsey & Matthews, for defendant in error.
    The sole question in this case is whether the defendant ought to have been permitted to prove fraud, as a defense to the action, without pleading it. The plaintiffs alleged that the defendant was a common carrier between New York and Cincinnati, and that they delivered plate glass to it to be carried from New York to Cincinnati, that it was in good order when delivered to defendant, and was broken by defendant’s negligence in transit. The answer is a general denial. It devolved upon the plaintiffs, therefore, to prove the allegation of the petition. The defendant could only disprove it.
    The claim that defendant ought to have been permitted to prove fraud because his answer contained a general denial, and was, therefore, equivalent to the general issue at common law, overlooks the wide distinction between a denial under the Code and the general issue at common law. This distinction is pointed out in the elementary treatises upon Code-pleading. Bliss Code PL, §§ 324, 330, and authorities cited.
    As to the necessity of pleading fraud, as new matter, and the degree of certainty required in such pleading, see note to §§ 339, 352, Bliss Code Pl.
    The introduction of the bill of lading would not have changed any aspect of the case between the parties. It would have left the defendant under the same necessity of proving the breakage to have been without negligence that it was under in the absence of a bill of lading. Davidson v. Graham, 2 Ohio St., 131; Gaines v. Transportation Co., 28 Id., 418 ; Express Co. v. Graham, 26 Id., 595.
    No evidence was offered to show such a defense. The bill of lading was not offered for this purpose. It was offered to prove fraud. Being offered for an avowed purpose, it will not be considered with reference to admissibility for any other purpose. Sickman v. Lapsley, 13 S. & R., 224.
    The claim that the record presents a case of variance is untenable. If the plaintiffs, having alleged a general contract, had introduced proof of a special contract, the case would have been analagous to Davidson v. Graham, and it would have been necessary to ascertain the difference between the code and the common law upon the subject of variance. But that is not this case. The plaintiffs pleaded and proved a general engagement. The defendant, upon whom the duty was cast to plead and prove a special contract, offered to prove it without having pleaded it. The plaintiffs did not admit that it was the contract between themselves and the defendant. If an issue had been made up upon it, it would have been a proper subject of oral testimony to show that it was, or was not, the contract. But, under the code, variance is immaterial. Sec. 5294 Rev. Stats.
    Whether the court erred in refusing to allow the defendant to read the remainder of plaintiffs’ deposition not read by the plaintiffs, must be determined entirely with reference to its competency under the pleadings, and as it was offered to prove fraud, which was not in issue, it was properly rejected.
   Granger, C. J.

In support of the ruling of the trial court it is urged that the answer is like the plea “ not guilty” in an action against a carrier for the negligent loss of goods delivered to him to be carried for hire, and that under it proof that the owner of the goods misrepresented them is inadmissible. But the reason of the holding referred to is clearly stated by Tindal, C. J., in Webb v. Page, 6 Scott N. R., 955, and same case in 6 Manning and Granger, 200. The words “ not guilty ” applied to the wrongful acts charged upon the defendant by the declaration, and only operated “as a denial of the loss and damage, and not of the receipt of the goods by the defendant as a carrier for hire, or of the purpose for which they were received.” This was under a rule. See Pleadings in Particular Actions, IV. Of course, then, no evidence to establish the contract, or the delivery, was required of the plaintiffs, and the defendant could not dispute those facts. But the answer here expressly denies the delivery, the receipt of, and the agreement to transport the goods described in the petition.

Angelí on Carriers, 5th ed., sec. 265, says, the carrier “ ought either to plead the misrepresentation specially, or traverse the acceptance of the goods for the purpose of being carried.”

The defense elected to make such traverse. Glenny & Co., although holding the bill of lading, which was the real contract, refused to exhibit it to the carrier when they demanded payment of the damage, and framed their petition upon a contract made by delivery and acceptance of goods. If the claimants, with the written contract in their hands, failed to declare upon it, they ought not to complain if the defendant declines the attempt to set out a contract of which he has been denied an inspection, and is content with a denial of the contract alleged in the petition.

Glenny & Co. understood that they must prove the contract and delivery, and began to do so. The witness who shipped the case marked it “rough glass,” although he knew it contained plate glass; did not inform the carrier that it contained plate glass ; took the carrier’s blank receipt with its plain notification that “ the actual contents ” must' be stated “ on this receipt; ” filled in the words “ one case rough glass,” and obtained the assent of the carrier to such receipt.

Said Baron Parke in Walker v. Jackson, 6 Mees. & Wels., 169: “ And I now take it to be perfectly well understood, according to the majority of opinions upon the subject, that if anything is delivered to a person to be carried * * it is the duty of the person who receives it to ask questions. If they are answered improperly, so as to deceive him, then there is no contract between the parties.”

The printed notice in the receipt asked, “ What are the actual contents of this package ? ” Haughey’s handwriting on the receipt and his inark on the case answered, “ Rough glass.” That this materially deceived the carrier is made sure by the same deposition.

The case was received “ subject to the conditions contained in the bills of lading of the Great Western Despatch.” Under those conditions the carrier’s pay for transporting plate glass would be larger than for rough glass; such a case, loaded in box cars, would be at “owner’s risk of breakage ” unless he could prove actual negligence by the carrier or its employees. The' carrier had a right to know the nature of the goods in order to determine the amount of care required to defeat any charge of negligence.

The trial court permitted the witness to relate so much of what was said and done in the attempt to deliver as tended to support the petition, and- refused to allow the jury to hear the remainder of his history of that delivery. To complete a contract, or a delivery, something must be done by both sides. One party alone cannot complete either. If a shipper secretly places a package in a freight car and it is lost or destroyed, he cannot, on those facts alone, establish a contract liability on the part of the carrier. If he hands to a freight agent a box marked “ fifty pounds sugar,” and takes a bill of lading, or receipt, so describing the package, can he hold the carrier responsible on contract for diamonds concealed in the sugar, in case of loss ? It seems clear to us that at the trial below the defense had full right to show all that was said and done material to the questions, “Was there a delivery of plate glass?” — “Was plate glass received by the carrier?”— “ Did he undertake to transport plate glass ? ” Upon the state of facts shown by Haughey’s deposition these questions ought to have been answered in the negative. Although plate glass was actually in the carrier’s hands, it was there without his knowledge or consent. Hence the defendant did not “ receive ” it. Taking the evidence admitted and excluded together, it proved that no such contract as the one sued on was made by the carrier.

We think the plaintiffs were not bound to read the whole of the deposition. Upon their declining so to do, it became the right of the defense to read all of it that was competent evidence, under the pleadings, in the usual order of procedure m a trial.

It is unnecessary to say anything upon the charge to the jury, or upon 'the question, “Was the refusal of leave to amend the answer an abuse of judicial discretion?”

Judgments below reversed, and cause remanded for a new trial.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Woog v. Barnhart.
    Error to the District Court of Montgomery County.

      G. W. Dustin and Craighead & Craighead, for plaintiffs in error.

      John Schuster and Gunckel & Rowe, for defendants in error.
   By the Court.

On September 12, A. d. 1870, E. B., a married woman, brought suit in the superior court of Montgomery county against S. B., also a married woman, to quiet title to a parcel of land. Neither husband was a party, and E. B. did not sue by her next friend. S. B. answered, claiming title in fee to the land under a specified deed. This answer incidentally showed that both parties were married women, but it sought no advantage from the omission of a next friend, and did not disclose that the land in controversy was not claimed as her separate property by the defendant. A reply denied the validity of the deed set up in the answer. In May, A. D., 1871, the superior court. found the issues in favor of E. B., and made a decree establishing her title. No bill of exceptions was taken. E. B. died in 1877, and on January 8, A. D. 1881, S. B. and her husband filed a petition in error in the district court making the heirs of E. B. defendants. That court reversed the judgment below. The heirs here ask a reversal of the judgment of the district court.

Held: 1. As S. B. went to trial without objecting to the omission of a next friend, she could not afterwards complain of it.

2. Although the pleadings in the superior court did not show whether E. B. claimed the land as her separate property or not, evidence on that point was admissible at the trial,- and the presumption is that such evidence produced the finding and decree then made by showing that the action related to land claimed as her separate property.

Judgment of the district court reversed and that of the superior court affirmed.


text:
    Johnson v. Connable.
    Error to the District Court of Greene County.

      T. L. Magruder and E. P. Martin, for plaintiff in error.
    E. H. Manger, for defendant in error.
   By the Court.

C., a judgment creditor of L., sued L. and J.’s administrators, praying a sale of land incumbered by a mortgage to J., and a distribution of the proceeds. The administrators, having filed an answer and cross-petition on the mortgage, L. and C., by separate answers thereto, charged that J. himself had received usurious interest on said mortgage debt. Separate replies denied this. The common pleas, finding that under the pleadings, $8,842.78 was due on the mortgage, decreed a sale which was made. At a subsequent term the issues as to usury were tried and determined in favor of said administrators, and distribution ordered accordingly. C. alone appealed. In tbe district court L. was allowed to testify to the agreement made with J. and usury paid to him, notwithstanding the administrators objected to L.’s competency as a witness to said facts. That court, as between C. and J.’s administrators, found that usury had been so paid, and deducted it from the preferred sum payable to the administrators.

Held: 1. The appeal did not carry up the issues made by L.’s answer. As against him the common pleas decree remained in force, and J.’s administrators may have execution for the actual unpaid balance of the sum found due them in that court.

2. L. was a competent witness to said facts upon the issue between J.’s administrators and C.

Judgment affirmed.


text:
    Veach v. Kerr.
    Error, to the District Court of Perry County.

      Perry P. Veach, for plaintiff in error.

      Butler & Hoffman, for defendants in error.
   By the Court.

V., a creditor of R., claiming a lien upon money of R., then in the hand of K., sheriff of the county, began in the common pleas a civil action against them to enforce the lien. J. and R. Jr., claimants of said fund, were also made defendants. K.’s demurrer to the petition was overruled. J. and R. Jr., filed separate answers, but K. filed no other pleading. Upon the issues thus made, the court found for V., and on October 22, 1878, decreed that K. should, out of said fund, pay all the costs, and then pay the remainder to V. K. had no interest in the fund. He held it as an officer of the court, subject to its orders in pending suits, and all claimants of the money were parties to said decree. No bill of exceptions was taken, but K. filed in the district court a petition in error against Y. alone, assigning as error the overruling of his demurrer. That court, without bringing in any of the other parties to the .decree below, reversed that judgment.

Held: 1. This was error. Jones v. Marsh, 30 Ohio St., 20, followed.

2. The judgment of the common pleas affected no right of K. His sole interest and duty was to obey the court. Pie did not represent any of the omitted parties. The decree of 1878 still bars their claims to the fund.

Judgment of the district court reversed and that of the common pleas affirmed.


author: Nash, J.

text:
    Wildermuth v. Koenig.
    In October, 1877, the judgment of W. against K. became a lien upon K.’s real estate. In June, 1878, but before the property was about to be levied upon or seized under an order of sale, it was occupied by K. and his family as a homestead.
    HeldThat under an order for the sale of the premises, issued in January, 1879, and as against such judgment lien, K. is entitled to an assignment of a homestead in such property.
    Error to the District Court of Meigs County.
    At the October term, 1877, of the court of common pleas of Meigs county, the plaintiff in error obtained a judgment against Y. Koenig upon causes of action which arose subsequent to the taking effect of the act of 1869 exempting the homesteads of families from sale on executions. Prior to the rendition of this judgment, in September, 1876, Koenig and wife conveyed the real estate involved in this action to one C. J. Diehl, who at once re-conveyed the property to Elizabeth Koenig, the wife of V. Koenig. Wildermuth, the plaintiff in error, in his petition in the court of common pleas, asked that the deeds of Koenig and wife to Diehl and of Diehl to Mrs. Koenig, be declared null and void and that they be wholly set aside and that said real estate be ordered to be appraised, advertised and sold and the proceeds of the sale applied to the pajrment of his judgment and costs. Issues on the allegations of the petition were raised by the answer of the defendants. The court found that the deeds were fraudulent and in September, 1878, granted the prayer of the petition. Under this decree the land was sold, but at the May term, 1879, the court on motion of the defendant Koenig, set the sale and appraisement aside, it having been made to appear to the court that Koenig, in due time and form demanded his homestead under the statute and that the sheriff ignored the same.
    It is claimed that the court of common pleas erred in sustaining this motion and that the district court erred in affirming the judgment of the court of common pleas, The admitted facts are that the lien of Wildermuth’s judgment attached to Koenig’s real property upon the first day of the October term, 1877, and that the real property now claimed as a homestead did not become such until June, 1878.

      Guthrie & Giles, for plaintiff in error.
    In order that the quality or character of homestead may be imparted to real estate, two things must concur. The party must intend to make the property his permanent family residence; and he must actually occupy and use it as such. Neither alone will be sufficient. The result then is that the owner of real estate has a purely statutory right to impress upon it a character which the law regards as in some sense sacred. But until that be done, it remains his general property, liable, as other property, to be applied to the payment of his debts. Gibson v. Mundell, 29 Ohio St., 523, 527. This right of the owner is not to be confounded with another right which he has under the statute; that is the right to demand that his homestead be set off, when the sheriff is about to levy execution. He has no right to demand that realty shall be set off to him to be then or thereafter, for the first time, occupied as a homestead. His right is to demand that the sheriff shall respect and treat as his homestead, the property to which he has already imparted that character.

      Grosholz v. Newman, 21 Wall., 481, was an action to set aside a deed on the ground that the premises were a part of the family homestead, and the wife had not joined in it, the constitution of Texas providing that, as to a homestead, “ the owner thereof, if a married man, shall not be at libberty to alienate the same, unless by the consent of the wife.” See page 486. Thompson on Homesteads and Exemptions, ch. 3.
    The lien of the plaintiff’s judgment was a vested right of property and as such protected by the constitution of the United States; and neither the defendant nor the legislature of Ohio, could lawfully withdraw the land from that lien without the plaintiff’s consent. Green v. Barry, 15 Wallace, 610, expressly decides this.

      Ira Graham and W. N. Lasley, for defendant in error.
    The second section of the act of 1869 (66 Ohio Laws, 49), provides that the sheriff or other officer executing any writ of execution founded on any judgment or decree, such as is mentioned in the first section of this act, on application of the debtor, his wife, agent or attorney, at any time before sale, *• * * * * shall set off to such debtor a homestead not exceeding one thousand dollars in value.
    It is an admitted fact that Koenig was the head of a family, living with his wife and children in the real estate in question at the time of the levy and sale of said property, and that a homestead was legally demanded to be set off by the sheriff.
    The legislature enacted the homestead laws for the benefit of the wife and children — the family of the debtor. Hence the courts, with few exceptions, appear to be now agreed that these statutes, beneficial in their operation and founded in a wise policy, should be liberally construed so as to give full effect to the intention of the legislature. See Roff v. Johnson, 40 Ga., 555; Bevan v. Hayden, 13 Iowa, 122; Buxton v. Dearborn, 46 N. H., 44; True v. Morrill, 28 Vt., 674; Montague v. Richardson, 24 Conn., 338; Moss v. Warner, 10 Cal.; Robinson v. Wiley, 15 N. Y., 469; Campbell v. Adair, 45 Miss., 178; Kuntz v. Kinny, 33 Wis., 510; Deere v. Chapman, 25 Ill., 610; Franklin v. Coffu, 18 Texas, 416; Marsh v. Larenby, 41 Ga., 153, and many others.
    The protection of the family from dependence and want is the express object of all the homestead exemption laws. The immunities created by these statutes are 'extended to this association of persons, or the head thereof, for the benefit of all the members of the family; and the state of Ohio, through its legislature, by special enactment, has pointed out the manner in which the debtor, his wife, agent or attorney may proceed to procure for the family the benefit of said exemption, to wit: at any time before sale to apply to the proper officer for a set-off under the law. This was done by Koenig long before; and at the time of demanding a homestead he occupied the premises as a homestead, and did on the 16th day of January, 1879, demand of the sheriff a set-off under the Homestead Act. Said, premises were not sold until twenty-three days afterward, to wit: on the 8th day of February, 1879. The law having been strictly complied with, Koenig was at that time entitled to the benefit of the exemption which the sheriff wrongfully ignored; for as long as Koenig actually resided in the state and used the property as a home he can not be denied the benefits secured by the law. Dawley v. Ayres, 23 Cal., 180; Buxton v. Dearborn, 46 N. H., 43; Bunker v. Locke, 16 Wis., 638.
    If at any time before the sale of the property Koenig occupied the premises as his homestead, he is entitled to the exemption allowed by law. Trotter v. Dolls, 88 Miss., 198; Irwin v. Lewis, 50 Id., 363 ; Macmanus v. Campbell, 37 Texas, 267; Hawthorne v. Smith, 3 Nev., 182; North v. Shearn, 15 Texas, 174; Furman v. Dewell, 35 Iowa, 170; Cooper v. Cooper, 24 Ohio State, 488; Close v. Sinclair, 38 Id., 533.
    Under our statute there never comes a time when the “ quality or status of a homestead ” is or can be impressed upon a piece of real estate until an execution is issued and a levy is made; for then only can be made a demand for a set-off. The land owner may waive his right to a set-off under the homestead act, then as between him and the judgment creditor and all other lien holders, all liens remain in force. But if he demands a set-off, all judg•ment and execution liens yanish from the property selected.
   Nash, J.

The important question to be decided in this case arises under the homestead act of April 9, 1869 (66 Ohio Laws, 48). The debt upon which Wildermuth obtained his judgment was contracted after the enactment of this law. The judgment became a lien upon a certain parcel of real estate belonging to the defendant in error' upon the first day of the October (1877) term of the common pleas court. The real estate was' not used as a homestead until June, 1878. The principal question presented is: “Was the judgment debtor, as against this lien, entitled to the assignment of a homestead in the premises? ”

The determination of this question must depend largely upon the intention of the legislature as it is made manifest in the homestead act of 1869. The supreme court, in speaking of the homestead act of 1850, said, in effect, that its object was not to protect the debtor, but to protect his family from the inhumanity which would deprive its dependent members of a home, and further said that “ in aid of this wise and humane policy, the whole act should receive as liberal a construction as can be fairly given to it.” Sears v. Hanks, 14 Ohio St., 298.

The legislature in the act of 1869 had in mind the same liberal policy, and by its amendments to the act of 1850 increased the benefits given to the families of debtors. Remembering that the statute must be given a liberal construction, we now proceed to consider it in connection with the question made in this case.

Section one gives to the head of a family the right to have a homestead exempt from execution, and reads as follows : “ That the family homestead of each head of a family shall be exempt from sale on execution on any judgment or decree rendered on any cause of action accruing after the taking effect of this act, provided that such homestead shall not exceed one thousand dollars in value.”

One of the prominent features of this section is that the legislature was careful not to impair the obligations of existing contracts. It provided that the exemption should only be given in cases founded upon causes of action arising after the taking effect of the act. The language of the section is broad enough to cover any real estate impressed with the character of a homestead at the time a levy or seizure is about to be made. A legislature so careful as this one seems to have been in exempting from the provisions .of this act judgments upon causes of action accruing prior to its taking effect, would have made another exception if it had intended that its broad words should not cover real estate taking on the character of a homestead after a judgment lien had attached, but before the premises were about to be seized upon execution or order of sale.

Section two of this act only provides the manner in which, the right given to debtors and their families by section one may be secured, yet its words are significant as showing the intent of the general assembly. The following are its words:

“ That the sheriff or other officer executing any writ of execution founded on any judgment or decree, such as is mentioned in the first section of this act, on application of the debtor, his wife, agent or attorney, at any time before sale, if such debtor have a family, and if the lands or tenements about to be levied icjpon, or any part or parcel thereof, shall be the homestead thereof, shall cause the inquest of appraisers, etc.”

We are not compelled to resort to a liberal construction of these words to see that the legislature intended that real estate having the character of a homestead, when it is about to be levied upon, should be set off for the use of the debtor’s family. A literal construction gives this meaning to them.

Section four recognizes two classes of liens — liens which preclude the allowance of a homestead and liens which do not preclude such an allowance.

The supreme court in the case of Gibson v. Mundell, 29 Ohio St., 523, held that a mortgage lien created by the debtor before the premises had been impressed with the character of a homestead, was a lien which precluded the allowance of a homestead. We conclude that a judgment lien attaching before the realty has received the characteristics of a homestead, is not a lien precluding the allowance of such homestead. One lien is created by the act of the head of a family for a present consideration. The other is created by the operation of law.

Before real estate has assumed the character of a homestead the owner has the right to convey it to another by a mortgage deed. To subsequently permit him to decrease the value of his contract by taking possession of the property as a homestead, would encourage the practical repudiation of contracts. The same objection does not bar the allowance of a homestead in real property to which a judgment lien 'attached before it became a homestead.

In reaching this conclusion we have followed the evident policy of the act of 1869.

Judgment affirmed.


text:
    Brannan v. Purcell.
    E., as general agent of J., so acted that both were jointly and severally liable to many creditors; while others had a right to elect which of the two to hold as debtor. J. became insolvent. E. owed no debts except those thus incurred with, or instead of, J. Both believed that J. owed no debts upon which E. was not liable in one, or the other, of said modes. E. had no property. In order that J. might not publicly appear as an insolvent assignor, and with intent to so provide that J.’s property should be divided among all of his creditors under the insolvent laws of Ohio, E. and J. agreed that J. should convey the property to E. in fee simple, and that E. should instantly make a deed of assignment to H. in trust for all of E.’s creditors. This was done. E., J. and M. all, at the time, understood that the trust was for the benefit of all who were then entitled to hold J. as their debtor-.

      Held: 1. By so acting E. and J. waived the right to claim that any creditor, by electing to hold either, released the other.
    2. To the extent of the property conveyed E. became absolutely liable with J. for all of J.’s debts as they were when the deed was delivered; and J. remained liable for all. No creditor by proving his claim against E. and taking a dividend loses his right to hold J. for the unpaid balance. All creditors of J. are entitled to share in the dividends, upon proving their claims as required by the statute. No creditor by taking judgment against J. loses his right to such share.
    ERROR to the District Court of Hamilton County.
    On tbe 4th day of March, A. D. 1879, John B. Purcell by deed conveyed all of his real estate to Edward Purcell his heirs and assigns. The nominal consideration was one dollar. On the same day Edward Purcell by deed conveyed all of said property to John B. Mannix his heirs and assigns “ in trust for the equal benefit of all my (his) creditors, and to be administered for their benefit under and in pursuance of the assignment laws of the state of Ohio.” This deed was duly filed in the probate court of' Hamilton county, and Mannix duly qualified as such assignee.
    On the 7th day of March, A. D. 1879, Patrick Brannan, a creditor of John B. Purcell, began a civil action in the court of common pleas of said county against the brothers Purcell and Mannix, charging that John’s deed to Edward was made “contrary to the rights of the creditors of said John B. Purcell and with intent to hinder and delay them, and ■within the provisions of section ten (10) of the act relating to insolvent debtors (75 Ohio L., 938) ; ” of all which Mannix had knowledge. .The prayer- asked that both deeds be declared void and for “ all other' proper relief.” Brannan published the statutory notice of suit and several other creditors filed answers and cross-petitions as parties in the case. Amongst them was the Jefferson National Bank of Steubenville. Edward Purcell’s answer admitted that he was indebted to the plaintiff, and the fact of the conveyances, but denied want of consideration and the fraudulent intent as charged, and averred that the deed to him was made “ in good faith for a good and valuable consideration.”
    Mannix by answer denied “ all and singular the allegations ” contained in the petition and in all the cross-petitions.
    John B. Purcell’s answer contained the following paragraphs :
    “He says that all of his indebtedness, whatsoever the amount thereof, was incurred in his behalf by his co-defendant Edward, who had given his individual obligations therefor, either severally, or jointly and severally, with this defendant, except in a very few instances, where the persons dealing with him had demanded security and had obtained the signature of this defendant on their promissory notes, together with mortgages on real estate, fully securing said notes; that he had no other debts than those so contracted on his account by Edward; that he believes and so avers that he has never had a monetary or business transaction of any nature with the plaintiff or any of the defendants, who have filed cross-petitions in this cause, and if they, or any of them, have any claim or claims against him, they are founded upon transactions had by said parties with Edward, and upon evidences of-indebtedness given them by him; and the plaintiff was not, nor was any of the defendants, in .any wise prejudiced by said conveyance of March 4, 1879, from this defendant to Edward, which, on the contrary, inured to the equal advantage of all.
    “ Defendant denies that he did, for the nominal consideration of one dollar, convey to the defendant Edward the premises described in the petition, and that said Edward did without consideration convey the same to John B. Mannix; he avers, on the contrary, that said conveyances were made for sufficient and valuable considerations; he denies that said' conveyance by him was made contrary to the rights of his creditors, or with the intent to hinder and delay them, or in trust in contemplation of insolvency with intent to prefer certain of his creditors; and he further denies each and every other allegation contained in said petition and cross-petitions not herein admitted and asks to be hence dismissed with his costs.”
    A reply denied all the new matter in the answer of John B. Purcell.
    The common pleas dismissed the action. The plaintiff and cross-petitioners appealéd. The district court, upon the request of the appellants, found the facts as follows:

      First. — That notice of the pending and object of this suit has been duly published according to law, for at least four consecutive weeks, in a newspaper of general circulation in Hamilton county, Ohio, and that all of the defendants who have filed cross-petitions herein, did so within fifteen days next, after the expiration of said notice, and within said time duly secured the payment of their pro rata share of the costs and expenses of this action, as provided by law.

      Second. — That on March 4th, 1879, the defendant, John B. Purcell, executed and delivered to Edward Purcell, a conveyance of the real estate described in the petition of that date, which conveyance is made a part of the bill of exceptions of record herein.

      Third. — That no money consideration whatever, for said conveyance, passed from the said grantee to said grantor at any time, nor did any other consideration move from said grantee other than hereinafter stated..

      Fourth. — That at the time of said conveyance, the defendant, John B. Purcell, was Archbishop of the Roman Catholic Church, for the Diocese of the city of Cincinnati, and the said Edward, his brother, was a priest of said church, and Chancellor and sole manager of the temporal and monetary affairs of the said diocese.
    And that at the time of said conveyance, the said John and the said Edward were, and each of them was, largely indebted to many persons, including the plaintiff and the cross-petitioners herein, and at said time they were, and each of them was, wholly insolvent and unable to pay said indebtedness in full.

      Fifth. — That the said John believed that he owed no debts which were not also owed by Edward, and the said Edward owed no debts which were not also the debts of John.

      Sixth. — That the said John made said conveyance to Edward upon the agreement, and in trust that the said Edward should make a general assignment for the benefit of creditors, whereby all said property embraced in said conveyance should be applied according to law, to the equal benefit of all the creditors of the said John, they being also the creditors of said Edward, as hereinbefore set forth, and that the same was not made with any intent to defraud, hinder, or delay, or to prefer any of the creditors of the said John.

      Seventh. — That the sole and only object such assignment, through said Edward, was to avoid the appearance of an assignment made directly by an archbishop of said church, which was supposed by said persons to be unseemly.

      Fighth. — That immediately after making the said conveyance, and in pursuance of the agreement and trust aforesaid, said Edward executed the deed of assignment described in the petition to John B. Mannix, Esq., for the benefit of the creditors of the said Edward.
    Ninth.— That the moneys owed by the said John at the time of the said conveyance were on account of deposits theretofore made with him, or for sums borrowed by him, all of which he and the said Edward had jointly used for the benefit of the church, and not for their own personal uses; that said indebtedness was evidenced partly by negotiable notes of the said John, negotiated by said Edward, and partly by paper of the same kind endorsed by Edward, and partly by negotiable notes of Edward endorsed by John ; partly by the notes of Edward signed by him alone, and partly by pass-book accounts, kept in the name of said Edward, who had personally received all of said deposits, and managed all of said business on behalf of himself and his said brother, as hereinbefore set forth; that said Edward, at the time of said conveyance, was the duly appointed guardian of certain minors, and was indebted to them for moneys received by him as such, and not accounted for, and for which indebtedness judgments have been recorded against him, and paid by the sureties upon his bond ; but that all said moneys so received by him went into the fund which was jointly held and expended by his brother and himself, as has been heretofore set forth.

      Tenth. — That at the time of said conveyance the said John and the said Edward were, and each of them was, indebted to the said plaintiff, and to each of the said cross-petitioners, as claimed by them in their several pleadings, and that said indebtedness has been merged in judgment as set forth therein.
    As matter of law, the court found that John was liable, at the time of said conveyance, for the payment of each and every debt owed by Edward, and that Edward was liable for the payment of each and every debt owed by the said John; and that in the transactions aforesaid there was no fraud in law, and the same had not the effect to hinder, delay, defraud or prefer any of the said creditors, or either of them.
    A motion for a new trial was overruled ; a bill of exceptions containing all the evidence was taken, and judgment rendered dismissing the action. On error the district court affirmed the judgment. The errors relied on in this court are (1) the findings of facts are not sustained by the evidence ; and (2) the court erred in its conclusions of law.
    We are asked to reverse the action of the district court.

      Willy & Wald, for plaintiffs in error.

      The conveyance to Edward Purcell should be set aside for fraud.
    From the facts as found we submit that the conclusion of law necessarily resulting from them is that the conveyance was within section 6344 of the Revised Statutes, made with intent to hinder, delay and defraud the creditors of John B. Purcell, because the effect of that conveyance must be to hinder, delay and defraud them.
    Here we have surely the facts which are essential in an action under this statute.
    1. The indebtedness to the plaintiff and the cross-petitioners.
    2. The insolvency of the grantor.
    3. The conveyance without consideration.
    If it be urged that this conveyance would not have the effect to hinder, delay, or defraud the plaintiffs in error, or any of the creditors of John B. Purcell, because it may be said to appear by the findings that the plaintiffs in error were creditors of Edward as well as of John B. Purcell, and therefore could share in the property conveyed, as well after the conveyance and assignment as before, we would answer:
    1st. Even if the plaintiffs in error originally could have been creditors of. either Edward or John B., they could never become creditors of both. By suing the principal and taking judgment against him, they have lost their right to hold the agent. They originally had recourse on either, but once having made their election of which one they would hold as their debtor, they then lost their right to hold the other. Lee v. Insurance Co., 1 Handy, 217 ; Jones v. Insurance Co., 14 Conn., 501; Coleman v. Bank, 53 N. Y., 394; Tuthill v. Wilson, 90 Id., 423 ; Kingsley v. Davis, 104 Mass., 178; Clealand v. Walker, 11 Ala., 1058 ; Garrard v. Moody, 48 Ga., 98; Priestly v. Fernie, 3 H. & C., 977 ; Patterson v. Grandesequi, 15 East, 62; Thompson v. Davenport, 9 B. & C., 78; Calder v. Dobell, L. R., 6 C. P., 486; Curtis v. Williamson, L. R., 10 Q. B., 57; Wharton on Agency, §§ 470, 790 ; Paley on Agency, §§ 246, 247 ; Chitty on Contracts, 11 Am. ed., 302; Wald’s Pollock on Contracts, p. 229 and note c; 2 Smith, L. C., 7 Am. ed., 376.
    If, therefore, by electing to hold the principal, John B. Purcell, and suing him, and taking judgment against him, the plaintiff below has lost his right to hold Edward as his debtor, then the conveyance of March 4, 1879, operates to defraud him, because it attempts to withdraw from liability for his claim, the property conveyed. He can only share in that property by proving his claim as a creditor of Edward Purcell, which he can not do, as he has taken judgment against his principal.
    2d. There may be some of the cross-petitioners, or other creditors, who have not yet cut off their rights against Edward, by electing to hold John B., yet the conveyance is fraudulent as against them. They can only share in this property by proving their claims against Edward’s estate, and by this act they extinguish their right to hold John B.
    The effect of the conveyance as to them is fraudulent, because it compels them to abandon their right to hold John B. Purcell, in order to share in the proceeds of so much of his propertyas is conveyed, and which it is their right as his creditors to hold liable for his debts without the abandonment of any of their rights against him.
    3d. Further, it appears from the findings and the pleadings that some of the cross-petitioners and other creditors hold negotiable paper, upon which Edward as well as John B, is liable, either as maker or endorser.
    It also appears from the findings that Edward had other creditors to whom he was liable for money received by him as guardian. The effect of the conveyance is to give to all such creditors of Edward a fund, properly belonging to the creditors of John B. alone.
    The holders of negotiable paper bearing the name of Edward, as well as that of John, have, under this conveyance, not only the right to share in the property conveyed to the exclusion of the creditors of John B., such as the plaintiff below and those of his class, but they have also the right to share equally with them in any assets remaining to John after this conveyance.
    The guardianship creditors have no relation nor connection with John B. Purcell, and by this conveyance a part of his property is diverted from his creditors for their benefit.
    There never was a case of a fraudulent conveyance if this is not one, and without going back of the findings of the court below, we contend that we are entitled to a decree setting aside the deed of March 4,1879.
    King, Thompson & Maxwell, for Jefferson National Bank.
    L Edward Purcell testifies that all of his indebtedness had been contracted as John’s agent, but that he had given evidences of indebtedness (pass books and notes) in his own name, and had therefore made himself personally liable.
    These creditors, on discovering that Edward was in fact only an agent, and John the principal, could hold either Edward or John, but not both. An election to hold one would be a release of the other. Lee v. The Fraternal Mut. Ins. Co. et al., 1 Handy, 217; Priestly v. Fernie, 3 H. & C., 977; Evans on Agency, 450-452; McNaughton v. Partridge, 11 Ohio, 223; Wharton on Agency, § 464; Pollock on Contracts, 229.
    But no one could take under this assignment except as a creditor of Edward, for the trust was in express terms for the benefit of Edward’s creditors. Acceptance of a dividend would be an election to hold Edward, and consequently a discharge of John. The fact that the property came from John, and that he was the assignor, would only strengthen the case by adding the element of estoppel in his favor, as against creditors who should elect to take in terms as creditors of Edward.
    The release of the assignor, John B. Purcell, would therefore be the condition upon which alone the creditors provided for by this assignment, could avail themselves of it. Such a condition inherent in the assignment itself, is not less vicious than if annexed in express terms.

      An assignment which stipulates for a release of the assignor as a condition of claiming under it, is fraudulent and void. Woolsey v. Urner, Wright, 606; Barrett v. Reids, Id., 701; Atkinson v. Jordan, 5 Ohio, 298; Repplier v. Orrich, 7 Id., pt. 2, 246.
    II. There were creditors who held the individual paper and obligations of John B. Purcell, alone.
    Assuming, therefore, that, because Edward’s debts had been contracted on John’s account, John had the right to dispose of his property to pay them, even as against his individual creditors, his conveyance was nevertheless “ an assignment in trust to a trustee, in contemplation of insolvency, with intent to prefer” the class of creditors provided for over those who were creditors of John alone. Such a conveyance is illegal and fraudulent. 75 Ohio Laws, 938, § 9. Dickson v. Rawson, 5 Ohio St., 224.
    It is true that the property included in such a deed is not available to a subsequent attaching creditor. [ Conrad v. Pancoast, 11 Ohio St., 685], but the making of such a deed is the conveyance of property with intent to do an illegal and fraudulent thing, and furnishes the ground for an order of attachment, which may be levied on any other property the assignor may have remaining. It is the making of a conveyance, with the intent that it shall operate illegally and fraudulently, that is the ground for attachment, not the realizing that intent. No fraudulent intent can be realized if challenged. The law will frustrate the attempt. As to deeds in trust to prefer creditors, our statute thwarts the illegal intent, not by setting the deed altogether aside, but by substituting lawful trusts, in the place of the illegal and fraudulent trusts declared by the grantor.

      Hoadly, Johnson & Colston, and John B. Mannix, for defendant in error.
    I. The creditors of Edward and John B. Purcell are identical, but if not, the property in dispute is liable for the claim of those who are creditors of both, and the complainants are all creditors of both. The creditors of both are not entitled to relief against a conveyance from either to the other until they show that they have been injured thereby. There is no proof that the combined dividends from both estates will be any less if this conveyance is sustained than if it had never been made. Unless the combined dividends will be smaller, how have any creditors who have claims against both been damaged? And all the complainants are creditors of both.
    Creditors are not entitled to claim that the transfer of property from one joint debtor to another is fraudulent; more especialty when the transfer was intended, as it unquestionably was in the case at bar, in good faith for the benefit of the very creditors who are now complaining. A conveyance from one joint debtor to another, for the purpose of enabling such other to make an assignment for the benefit of the joint creditors, can not be successfully assailed by those who are creditors of both the debtors, however objectionable it may be as to the creditors of one only.
    II. It is also contended that the plaintiff is a creditor of John B. Purcell alone, because, having originally a right of action against John B. Purcell or Edward Purcell, at his election, but not against both, he has, by recovering judgment against the former, waived any right he might have had against the latter ; and to support this, it is contended that, when an agent and his principal are both liable upon an instrument, whether because the agent has failed to disclose his principal, or for any other reason, no action can be brought or judgment taken against them jointly.
    This is ingenious ; and, if it were true, Patrick Brannan and John G. Hendricks would be creditors of John B. Purcell, and not of his brother Edward, though, even in that case, they can not complain. ■ The difficulty with this argument, however, is that its premises are unsound. The proposition of law above stated is so far from being true that nothing short of satisfaction, by either agent or principal, will bar an action against the other. M'Alexander
      v. Lee, 3 A. K. Marsh., 483 ; Stewart v. Strasburger, 7 Hun, 337; Beymer v. Bonsall, 79 Pa. St., 298; Cobb v. Knapp, 71 N. Y., 348.
   Granger, C. J.

The complaining creditors urge that the evidence proved that Edward Purcell owed debts on which John B. was not liable.

The trial court found otherwise, and we have no right to disturb that finding unless the record shows that it is clearly wrong.

Edward was dead when the appellants proved his liability for moneys in large sums received by him as guardian and not accounted for. It was not claimed that Edward was dishonest. His intent to do no wrong was admitted. The testimony of John was that Edward for all the time covered by the transactions, .was a priest of the Roman Catholic church; that he had no property or business of his own; that his business was the management of the financial affairs of John in furtherance of the interests of the arch diocese; that his payments out were for John; that Edward had no debts except such as were John’s debts, and that he (John) was liable for all of Edward’s debts. Although Edward’s deposition, taken prior to the trial, contains no question or answer touching directly upon his liabilities as guardian, it did contain the following questions and answers:

Q. 15. State whether the moneys received by you in the course of said business were to any extent used or expended by you for yourself or your own benefit, or for the benefit of the archbishop, and if for the latter, state in what way and for what purposes? A. They were .not expended for my use or benefit, but for the use of the archbishop, as archbishop of the diocese, for building churches, school houses, orphan asylums, taxes, and several other and divers purposes; much of course was paid back as demanded by the depositors, with interest; also to persons calling for charities or for the education of young men in Rome, France and elsewhere, who aspired to the priesthood.

Q. 16. State, if you know, whether on March 4th, 1879, John B. Purcell had any debts of any kind, excepting those so contracted by you on his account ? A. He had not.

Q. 17. State whether or not, at that time you had any debts excepting those so contracted by you on account of John B. Purcell? A. I had no debts other than the above.

Q. 25. Look at the affidavit signed by you and marked “ P. S.” for identification, and now-exhibited to you, and state if the statements made therein are true, and if you now adopt and make those statements part of this deposition, and if so, attach a copy of said affidavit hereto, and make it a part hereof and mark it “ Exhibit Z.” A. The statements referred to above are true, and I now attach the affidavit marked “ Z.”

Q. 26. Look at the affidavit signed by J. B. Purcell, and marked for identification “ P. S.,” and now shown and read over to you, and state if the statements therein made by him are true, and if so, attach a copy of said affidavit hereto, and make it part hereof, and mark it “ Exhibit W.” A. These statements I believe to be true, and I attach a copy of the affidavit marked “W.” I know of no other indebtedness of the archbishop, excepting that which was contracted by me on his account.

In said “ Exhibit W.” John B.' Purcell testified thus : “ Having no other debts than those standing in the name of Edward, or for which Edward was liable jointly and severally with affiant, and all the indebtedness of Edwmrd having been contracted on affiant’s account, and affiant being morally, equitably and legally as much bound therefor as if he had in his own name given the evidences of such indebtedness to the creditors, affiant took counsel of some of the prominent laymen of his church as to the best course to pursue under the circumstances, and they considering it more befitting and less unseemly that the assignment should be made by Edward than by affiant, and in order to prevent complications from' arising thereunder by reason of affiant holding in his own name by virtue of his office of archbishop of the Roman Catholic church for the diocese of Cincinnati, the legal title to the parochial property of the several congregations under his charge, which had been purchased by them respectively for their own use and was, in fact, held by him in trust for them, advised affiant to convey to Edward all property which he had the right to dispose of for that purpose, to the end that Edward should make a general assignment for the equal benefit of all creditors, and on the 4th day of March, 1879, by deed of same date, recorded March 5, 1879, in Book No. 492, page 627, of the records of Hamilton county, he conveyed to Edward the property therein described, being all the property of which he considered he had any right of disposition, for the benefit of creditors, to the end and with the sole intent that the same should be at once conveyed by-Edward, together with all the property, real and personal, by him owned, to John B. Mannix, by deed of general assignment for the benefit of his creditors, who, as before stated, were likewise the creditors of affiant; that Edward did, simultaneously with the execution of said deed to him, and as part of the transaction, make, execute and deliver to said John B. Mannix a deed of general assignment under the laws of Ohio, conveying to him, for the equal benefit of all of his creditors, all his property, real and personal, and said deed of assignment was filed in the probate court of this county on the 5th day of March, 1879, at eight o’clock A. M., and said John B. Mannix was on the 12th day of March, 1879, duly qualified, and is now engaged in the execution of his trust as assignee under said deed. That being subsequently advised that it was contended that said conveyance and deed of assignment discriminated against the creditors of affiant, he, to remove all misapprehension in the premises, on the 11th day of March, 1879, by deed of that date, conveyed to the said John B. Mannix, in trust for the payment of his debts, including as part thereof the said indebtedness of Edward incurred on his account, all and singular the real and personal property of which affiant was seized at law or in equity, or to which he had any claim, or in which he had any interest at law or in equity, including every species of estate, real or personal, which might by any proceeding at law or in equity be subjected to the payment of his debts, but not including property held by him in trust for others, or which catínot in law or in equity be subjected to the payment of his debts; and said deed of assignment was filed in the office of said probate court, on the 12th day of March, 1879, and said assignee was on the next day duly qualified, and is still engaged, in the execution of his trust under said deed. Affiant further says, that said deed of March 4th, 1879, was made by him in the utmost good faith, and solely for the benefit of his creditors, and that he has not at any time conveyed or assigned .any portion of his property, with intent to hinder, delay or defraud, them, or any of them.”

And Exhibit X ” contains the following sworn statement of Edward Purcell:

“ Affiant further says that for the past forty years he has been the financial agent and representative of the said John B. Purcell, and has had the control and management of his financial affairs, and in said capacity he received and loaned out during said period large sums of money, and purchased with part of said deposits divers tracts and parcels of real estate ; that the title to said real estate was generally taken in the name of John B. Purcell, but the accounts of said deposits were kept in the name of affiant, who gave his individual obligations therefor, and evidences of indebtedness and securities for loans were taken by affiant .in his own name; that in the course of his financial agency and management affiant contracted a large indebtedness on account of his co-defendant, for all of which he was personally liable and bound, having obligated himself therefor individually, or jointly and severally, with said John B. Purcell; that this affiant had no debts whatsoever other than those so contracted by him on account of his co-defendant, nor did the said John B. Purcell have any such item whatsoever other than that so contracted on his account by this affiant; that when affiant became unable to meet the demands of creditors, and after many suits had been brought against his co-defendant and himself upon evidences of indebtedness so given by affiant, the said John B. Purcell, being thereunto advised by prominent laymen who did not consider it seemly that the assignment should be made directly by him, and in order to prevent complications which might arise from such direct assignment by reason of his holding in his name, by virtue of his office of archbishop of the Roman Catholic church for the diocese of Cincinnati, the legal title to the parochial property of the several congregations under his charge, which had been purchased by them respectively for their own use, and was in fact held in trust by him for them, made the said deed of March 4th, 1879, conveying to affiant the premises therein described, most of which had been purchased by affiant with part of said deposits with the object and intent that affiant should at once convey said premises, together with all property, real and personal, owned by him, to John B. Mannix for the equal benefit of all creditors.”

In addition to the ordinary presumption which holds that a witness is truthful until the contrary is in some way shown, counsel have assured us that they do not question in any degree, or manner, the integrity of Edward, or of John. While John was ignorant of the business, Edward was familiar with it. It was his life-work. Either he had wholly forgotten his indebtedness as guardian, or he did not tell the truth when he said that he owed no debts except those contracted for John; or the moneys that he did not refund to his wards were disbursed for like objects with the moneys that he failed to repay to the depositors, to wit, for purposes of the arch-diocese “ in John’s business; ” for purposes that made John a debtor for the money of Edward’s wards, as fully as for the moneys due to the depositors. The record discloses no evidence tending to show any expenditure of money by Edward for any purposes of his own, yet not less than $12,000, and possibly (the evidence is not clear) over $20,000 of moneys received by Edward as guardian had disappeared. Edward had been repeatedly cited to account for them. Suits had been brought. His sureties had paid moneys for him. We think the trial court ought not to have found that he had forgotten his indebtedness as guardian. The alternatives were either (1) his statement that he owed no debts besides those for which John also was liable was wilfully false; or (2) he had expended the money as John’s financial agent under such circumstances that John himself was liable to every creditor of Edward for the whole of Edward’s debts.

We therefore think the finding of the trial court in favor of said second alternative was right. We think it unnecessary to discuss the other findings of fact. It is enough to say that it does not clearly appear that either of them is not supported by the evidence.

But it is urged that for much of the indebtedness Edward and John were liable only in the alternative. That every creditor who so dealt with Edward that he might hold either brother as his debtor, by electing to file a claim against Edward with the assignee, will thereby release John. That the legal effect of the deeds is to compel this class of John’s creditors to release him from all liability, as a condition precedent to sharing in the assignee’s dividends; that he could not lawfully impose such a condition, and therefore his deed was made with an intent, in law, to defraud his creditors. It is true that, ordinarily, one who so deals with an agent that he may choose whether he will make the agent, or the principal, his debtor, by taking judgment against the agent, or by accepting a dividend from the agent’s assignee, estops himself from thereafter suing the principal. But the principal and agent may by agreement, or by act, convert this alternative liability into a joint and several liability; or a liability in succession. Either may estop himself from claiming that the election of the creditor to treat the other as his debtor has released him. It seems to us plain, that the archbishop had no thought of any such release; that neither of the brothers contemplated any such condition precedent, or any advantage over any creditor. Any such stipulation would be a fraud upon that class of creditors. But while courts are continually announcing that “fraud will not be presumed,” we are asked to presume that these brothers so intended, because every such creditor who proves a claim and accepts a dividend from assignee Mannix will thereby release the archbishop. That there is a legal though not an actual fraudulent intent.

In most solemn form both brothers, as shown by this record, have testified that these deeds were made so that the property should be equally distributed to John’s creditors ; that Edward was used for John, in order that an archbishop should not appear as an assignor under the insolvent laws of Ohio; that John’s property should, nevertheless,, be distributed under those very laws to all of his creditors. John, Edward and Mannix, all believed that Edward’s assignment would have precisely the same effect upon property and upon creditors as an assignment by John himself would have; and they intended that it should have that precise effect. The presumption, therefore, is that they intended to reserve no right to either that would prevent the accomplishment of this main purpose. They assumed as the basis of their action that Edward was so liable for all of John’s debts, that his assignment would stand as John’s under the Ohio Statute. John expressly declared that all of Edward’s debts were his debts and all his debts Edward’s debts. Edward by accepting the deed agreed to that basis ; John, by so making the deed, authorized all his creditors to present their claims against Edward. So doing, without express reservation, he estopped himself from setting up such presentation as a release to him.

It seems to us, therefore, that John is forever estopped from claiming that any creditor by proving his claim and taking a dividend from the assignee, thereby released him from liability for the unpaid balance. By equally solemn statements Edward estopped himself, and all claiming under him, from asserting that any creditor who, before, or after, March 4,1879, pushed his claim to judgment against John, thereby lost his right to a dividend from the assignee. This record shows, in effect, that on March 4,1879, Edward assumed (at least to the extent of the property conveyed) all the debts of John, and that John assumed all the debts of Edward; that all the creditors could from that time safely prove their claims before the assignee and share his dividends, withont in anjr manner affecting their right to hold John B. Purcell for unpaid balances; and that Mannix, who took with full notice, is bound to treat every creditor of John B. Purcell, who proves his claim, as a creditor of Edward Purcell to the extent of a pro rata dividend out of the trust property, whether such creditor has taken judgment against John B. Purcell, or not. The making by John, and the acceptance by Mannix, of the deed dated March 9, 1879,'following so promptly the first intimation that the deed to Edward was questioned, we think confirms the inference we have drawn from the last named deed, and the agreement under which it was made.

Although the case was argued in print as well as orally, counsel urged nothing under their other assignments of error. We therefore have considered no question touching evidence admitted or excluded. The judgment of the district court is

Affirmed.


text:
    Burt v. Wilcox Silver Plate Co.
    Error to the District Court of Cuyahoga County.

      J. E. Ingersoll, for plaintiffs in error.

      Boynton Hale and J. H. Webster, for defendants in error.
   By the Court.

On May 20, A. d. 1875, a proceeding in bankruptcy was begun against B., C., F. and R., partners as B. & Co. On December 21, 1875, the court, on motion of the W. Co., entered an order making said company a party to the proceeding, with leave to sign the petition and complete its process by January 1, 1876, It did neither, and on December 27,1875, the court vacated said order by an entry that did. not recite on whose motion it was made. On the same day the case was dismissed as against C. & E. In February, 1876, the W. Co. proved a claim against B. & Co. on notes signed only in the firm name. B. was discharged in August, 1876, and R. in January, 1877. In October, 1876, the W. Co. sued the four partners on said notes in the common pleas. R. & C., by separate answers, pleaded the pendency of said proceeding, and that no discharge had been refused to R. C. also denied the facts stated in the petition, and pleaded the adjudication of December 27,1875, as made while the W. Co. was a party, and as a bar to its claim against her. A reply to C.’s answer was filed. At the trial the W. Co. asked the court to charge the jury that if satisfied that the only ground on which they could find for the defense was that the action was prematurely brought, the verdict should so state. This the court refused. A general verdict and judgment “ for the defendants ” was set aside by the district court.

Held: 1. The entry of December 27, 1875, was valid notwithstanding a rule of court directed that such an order should state on whose motion it Was made.

2. The W. Co. was not a party to the adjudication dismissing the proceeding against C. & F., and is not affected thereby.

3. Under section 5105, U. S. Rev. Stats., the W. Co. should have delayed suit until after the discharge of R.

4. The trial court should have instructed the jury as so requested by the W. Co., and for that reason the district court did not err in granting a new trial.

Judgment affirmed.


text:
    Bills v. Bills.
    Error to the District Court of Huron County.

      G. R. Walker, for plaintiff in error.

      T. R. Strong, for defendant in error.
   By the Court.

In an action by a creditor to set aside a deed made by an insolvent debtor to his wife (through a third party), the petition averred that the conveyance was made after the debt accrued, without any valuable consideration ; and that it was made with intent to hinder, delay and defraud creditors. At the trial the defendants made no claim that any valuable consideration supported the deed, but offered to prove that when it was delivered the land was the family homestead; that it was incumbered by a mortgage paramount to the homestead exemption, and was worth only $700 more than the mortgage debt. The trial court excluded this evidence as immaterial, set aside tbe deed and decreed a sale.

Held: 1. Notwithstanding the decree, the $500 exemption in lieu of a homestead may be allowed out of the proceeds.

2. As the case was, the evidence excluded was immaterial

Judgment affirmed.


text:
    Loudon v. Patterson, Administrator.
    Error to the District Court of Columbiana County.

      Clark & Mc Vicker, for plaintiff in error.

      Wallace & Billingsley, for defendant in error.
   By the Court.

Under section 6275, Rev. Stats., a probate court made an order directing the then guardian of a lunatic to pay, as a preferred claim, a debt incurred by a former .guardian for the support of the lunatic and his family. The sum due was not disputed. The second guardian, when appointed, had received “ much more than enough ” assets to pay all the costs of guardianship to that time and all then existing liabilities. She neglected to pay them, and incurred new debts. Before the order first above named, she had filed an account showing her receipts and payments. The court had approved it and found due to her from her ward a sum larger than all the remaining assets. She appealed from the order first above named, to the common pleas. Pending the appeal her ward died and she became his administratrix. The common pleas found the facts as above stated and directed her to pay debts incurred during the guardianship in the order in which they were contracted.

Held: 1. The probate court had jurisdiction, under said section, to make the order.

2. The approval of the guardian’s account and its finding did not operate as a bar to the application for said order.

3. The death of the ward did not take away the creditors’ right to the order.

Judgment affirmed.


author: McCauley, J.

text:
    Dillenbach v. City of Xenia.
    Where a city, under the authority given by section 3283, Revised Statutes, granted to a railroad company the right to construct and use its track in a street:

      Held: That the city is not liable to the owner of a lot adjacent to the street for damages to his property resulting from the use of the street by the railroad in the manner thus authorized.
    Error. Reserved in the District Court of Greene County.
    The plaintiff in error alleged in her petition in .the common pleas that she was the owner of a certain lot in the city of Xenia, described in her petition; that the city counoil granted to the Dayton and South Eastern Railroad Company the right to locate, construct and operate its railroad through and along one of its streets; that the railroad company did locate, construct and operate its road in the street, and that the property of the plaintiff abutted on the street so occupied by the railroad, and was damaged by the grading of the track and by the obstruction of the street by the track. And for this damage she asked a judgment against the city. • The petition was demurred to and the demurrer sustained in the common pleas. Upon this record the district, court reserved the case.

      F. P. Cunningham, for plaintiff in error.
    The sections of the statutes prescribing the powers and duties of city councils over streets, pertinent to this case, are §§ 2304, 2315, 2640, 3283, Revised Statutes.
    Section 2640 provides that the city council shall have the care, supervision and control of all streets, &c., within the city, and shall keep the same ópén and in repair and free from nuisance.
    Section 3283 provides that the authorities (city council in this case) having care of the, streets and a railroad company may agree upon the terms and conditions under which the said road shall use a part of the street.,
    Council has no right to grant the right of way through a public street, so as to entirely destroy it for the use of a street; or if they do, then the city must be liable under section 2640.
    The city council is not relieved from its responsibility to keep the street in question open and in repair, since it granted the right of way through said street to said railroad. It is as much liable to keep the street open and in repair to-day as it ever was before said railroad company got the right of way through said street. Just the same. And if the city council fails now to keep the street open and in repair the city is liable for damages. The petition alleges that said street is now entirely unfit for the use of a street; that plaintiff has no way of getting to her lot; that she cannot use said street for the purposes of a street. Cooley on Constitutional Limitations, 206.
    The city council could not have the cut made in the street without being liable for damages done the adjoining property, without giving notice to property owners to file claims for damages. Sections 2304 and 2315.
    Plaintiff never had notice that such cuts were to be made until after the railroad got the right of way through the street.
    If the city could not have made the out through the street without the city being liable for damages to adjoining property owners, then the city could not grant the right to do the same to the railroad and thereby relieve the city of liability for damages done.
    If the city makes an unreasonable cut, or a cut and grade, in improving a street, such a cut and grade as would not have been contemplated for the purposes of a street, then in that case the city would be liable. 7 Ohio St., 460.
    A person, in improving his lot, has only to improve with reference to a reasonable grade of the street for the purposes of a street, and not with reference to the grade of a railroad through the street. 7 Ohio St., 460.
    Now the petition states that the cut and grade made for said railroad is such a cut and grade as never would have been contemplated for the purposes of'a street.
    A city has no right to divert a street from the purposes of a street, or destroy the street, or do anything that excludes the original use of the street, or lay additional burdens upon the land, or destroy or impair the incidental easements of the adjoining lot owners in the street. This interest is protected by the Constitution, article I, sec. 19 and notes. 18 Ohio St., 92.
    Some of the authorities bearing upon’the question are: 10 Ohio, 160 ; 15 Id., 475 ; 30 Ohio St., 142 ; 67 Ill., 477; 64 Mo., 149; 85 Ill., 377; 45 Iowa, 406; 66 Me., 485; 2 Dillon on Mu. Corp., §§ 998, 1018, 1027, 1037.

      James Winans, for defendant in error.
    A municipal corporation has a double character, and acts in either of two capacities ; one its public, the other its private or corporate capacity. 1 Dillon on Mun. Corp., (2d ed.), sec. 39 and notes; 2 Id., sec. 764.
    For injuries resulting from the exercise of its corporate powers, from acts done in its private capacity, it may be liable to an action ; but for injuries resulting from the exercise of its public powers, from acts done in its public capacity, it is not liable unless an action be given by statute. 2 Dillon on Mun. Corp., sec. 764.
    We think that, in granting the right to the railroad company to construct and operate its railroad, as complained of by plaintiff, the defendant acted in its public character or capacity, and that, therefore, no action being given by statute in Ohio, it is not liable for the injuries resulting from that act. We think this because the legislature alone has power to authorize the taking of private property for public purposes; and, if the legislature may, and does delegate this power to a municipal corporation, the latter, in exercising the power, acts as the agent of the state, on behalf of the state and not for itself. The right to use the street for the purpose of a railroad is a franchise, and must emanate, either directly or indirectly, from the legislature. 18 Ohio St., 262; 2 Dillon on Mun. Corp., sec. 658.
    Section 3283 of the Revised Statutes of 1880 does delegate to the city the power to authorize the taking of private property for public purposes, because it authorizes it and the railroad company to agree, if they can, upon the terms upon which the streets, &c., maj' be occupied by the railroad company/authorizes it to authozlze the taking of the interests of abutting property owners whose interests in the streets upon which their property abuts is property. Crawford v. Delaware, 7 Ohio St., 459.
    Section 3283 confers upon muzzicipal or other corporations, &c., the right to grant only the public interest in the streets, &c., which they control, leaving the railroad company to procure the interests of individual owners of abutting property as they may. If this was all the defendant did or was authorized to do, no damage resulted to plaintiff from its act. The railroad could not be constructed upon the grant of the municipal authorities alone, any more than it could on the authority or grant of the abutting property holders alone. And if the company did construct its road on the street in front of plaintiff’s property without first obtaining her leave or condemning her interest, the tort was the railroad company’s, not the city’s.
   McCauley, J.

Section 2640, Revised Statutes, provides that the city council shall have the care, supervision and control of all public highways, streets, avenues, alleys, sidewalks, public grounds and bridges within the corporation, and shall cause the same to be kept open and in repair and free from nuisance. Section 3283 provides that if it be necessary, in the location of any part of a railroad, to occupy any public road, street, alley-way or ground of any kind, or any part thereof, the municipal or other corporation * * * and the company may agree upon the manner,' terms and conditions upon which the same may be used or occupied; and if the parties be unable to agree thereon, and it be necessary * * * to use or occupy such road, street, way or ground, such company may appropriate so much of the same as may be necessary for the purposes of its road, in the manner and upon the same terms as is provided for the appropriation of the property of individuals ; but every company which lays a track upon any such street, alley, or public ground, shall be responsible for injuries done thereby to private or public property lying upon or near to such ground * * *

The claim of the plaintiff in error is that the city was under obligation to keep the street open and in repair, and free from nuisance, and that it failed to perform this obligation when it permitted the railroad track to be laid in the street. Section 2640 imposes this duty on the city, and section 3283 authorizes the city to permit its streets to be occupied by railroad tracks subject to liability for injury done thereby to the owners of adjacent property.

When the city authorized railroad tracks to be laid in one of its streets, it granted nothing only its rights in the street, leaving the rights of adjacent lot owners therein unimpaired. The building of the railroad track could have been enjoined by the adjacent lot owner until the right to use the street for this purpose had been appropriated. Railway Co. v. Lawrence, 38 Ohio St., 41.

The duties imposed by section 2640 are modified by the provisions of section 3283, so that permission given to do what is authorized by section 3283 would not be a' violation of section 2640.. These two provisions of the statute relating to the same subject matter are to be construed together, and giving permission to do what is authorized by one section should not be held to be a violation of the other.

Judgment affirmed.