author: Spear, J.

text:
    French, Treasurer, v. Bobe, Assignee.

      Personal property in hands of assignee for creditors — Of manufacturing corporation — Being held and operated as before by corporation itself — Is subject to taxation and should be listed by assignee.

    Personal property in the possession of an assignee for the benefit of creditors of a manufacturing corporation, which is not being reduced 'to money for distribution among the creditors of the corporation, but is being held and operated, under the orders of the insolvency court, and at the joint request of the creditors of the assignee, in the conduct of a going business, such business being conducted as it had been theretofore by the corporation itself, is subject to taxation, and it is 'the duty of the assignee to list such property for taxation.
    (Decided March 26, 1901.)
    Error to the Circuit Court of Hamilton county.
    Tilden E. French, plaintiff in error, is the treasurer of Hamilton county... John B. Bobe, defendant in error, is the assignee in insolvency of The Jackson Brewing Company, a corporation having its principal place of business in the city of Cincinnati. The controversy out of which comes the present error proceeding arose in the court of insolvency of Hamilton county by the filing in that court, April 22, 1897, by French, as treasurer, of an application for an order upon the assignee to require him to pay certain state and county taxes upon personalty charged against him as such assignee on the duplicate of Hamilton county for the years 1894, 1895 and 1S96, and that he be further ordered and directed to make a correct return of all the property, moneys and credits in his hands for taxation for the year 1897. Issue was made up by answer and reply, and a trial had and judgment rendered in favor of the assignee, denying the application, from which the treasurer appealed to the court .of common pleas. That court upon trial, June 8, 1899, found the following facts, viz:
    “1. On the 3rd day of March, 1894, The Jackson Brewing Company, a corporation, operating a brewery and doing business in the city of Cincinnati, Hamilton county, Ohio, and being unable to pay its debts, filed its deed of assignment pursuant to the insolvent laws of the state of Ohio in the probate court of said county to John B. Bobe, assignee, for the benefit of its creditors, who accepted the trust and duly qualified as said assignee.
    “2. Upon the request and with the consent of all the creditors of the said Jackson Brewing Company, and pursuant to the orders of the said court made for that purpose, the said assignee was authorized immediately after the assignment to continue and did continue the business of the Company in the manufacture and sale of beer in the usual and ordinary way; and the assignee, ever since said time, has continued so to operate the business of said Company, and is still doing so, the debts of said Company having not yet been fully paid.

      u3. When the assignment Avas made the brewery plant and property was in very bad condition, and incapable, Avithout repairs and improvements, of successful operation. The assignee borrowed money and put it into the plant, to make it capable of operation, since which the operation of the brewery has been profitable. The assignee has paid the operating expenses, and repaid the costs of repairs and improvements from the earnings. He has also, from the earnings, paid off about 50 per cent, of the admitted mortgage debts of The Jackson Brewing Company, under orders of said court, but no part of the general and unsecured debts and liabilities thereof have yet been paid, or sufficient realized to pay any part thereof. The breAvery plant has not yet been converted into money, but some of the assets have been. There is a suit pending, on proceedings in error in the Supreme Court of Ohio, involving the question as to whether a certain amount of the mortgage bonds against said Company are valid obligations of The Jackson Brewing Company, the decision in the courts below having been against the validity thereof.
    “4. That the said John B. Bobe, as assignee of the said Jackson Brewing Company for the benefit of its creditors, stands charged on the tax duplicates of Hamilton county, as set forth in the application herein of Tilden R. French, county treasurer. The said John B. Bobe, assignee for the benefit of the creditors, refused to list any property for taxation, and the same was listed by the assessor, and the said taxes so charged have never been paid by the said John B. Bobe, assignee, and no part thereof; the said charges on the said tax duplicates, as returned by the assessor, were made upon the tangible personal property employed in the conduct of said business by the assignee, and being the property in his hands as assignee for the benefit of creditors.”
    By reference to the records of the probate and insolvency courts it appears that, by inventory and appraisement filed March 30, 1894, the assets of the corporation were appraised at $138,298.09, and that the liabilities amounted tó $134,505.10; that the order of March 7, 1894, authorizing a continuance of the business, directed the assignee to employ labor, purchase materials and supplies necessary to prevent waste, to preserve the property and assets and to manufacture beer in the usual and ordinary way until further orders; that February 9, 1895, the case was transferred to the court of insolvency; that that court, August 30, 1895, upon a written application of the creditors and the assignee, being satisfied that it would be for the advantage of the creditors that the business be continued by the assignee, ordered that said business be continued by him as theretofore until March 6, 1896, and until the further order of the court.' Also, that October 23,1897, the assignee made a report to the court showing, among other things, that the sales of the company for the year preceding the assignment were 14,715 barrels of beer, those of the first year under the assignment were 21,813, of the second year, 26,070, of the third year, 31,500, and the fourth year (estimated), 35,000; that substantial and necessary improvements and repairs of ice machine plant, boilers and engines, and machinery generally, as well as additions, etc., had been made; that he had reduced one mortgage on the plant from $24,-636.20 to $5,000; had paid from earnings for betterments, repairs and improvements aggregating $44,-455.18; also preferred claims, $1,446.18, his own services, $13,300; his attorneys, $1,500, for salaries and pay rolls, $89,678.73; that he had loaned the estate of his own money $3,000 in 1894, and during succeeding years sums amounting in the aggregate to $20,500, all of which was necessary for the successful conduct of the business, and all of which he has since repaid to himself; that there remained in merchandise indebtedness of the estate, which was due for current expenses and costs of administration, about $500; that he had cash on hand in bank $20,288.26; government stamps $1,700.87, and 7,272 barrels of beer in the cellar; that there had been large additions to the machinery, horses, wagons and cooperage, all paid for, and a sufficient quantity of supplies and materials, all paid for, to maintain the business in its present demands, and that the plant is in a much better condition than at the date of assignment. Having no need for at least $15,000 of the cash on hand he desired an order directing its payment on debts, and such order was made. The sales by the assignee have been of the manufactured products. No attempt has been made to sell the brewery plant or the personal property used in the manufacture of beer.
    Upon the facts found by the common pleas thax court adjudged that the assignee pay the taxes so claimed from moneys in his possession as assignee, and that he list the personal property for taxation during his continuance in the operation of the brewery. This judgment was reversed by the circuit court, and the treasurer brings error.

      Gideon G. Wilson; Otway J. Gosgrave and Oliver B. Jones, county solicitors, for plaintiff in error.
    The question to be determined in this case is whether tangible. personal property in the hands of an assignee for the benefit of creditors, and used by the assignee in continuing the business operated under the orders of the coxirt of insolvency, is chargeable with taxes, and whether, it is the duty of such assignee to list such property so held by him for taxation, and to pay the taxes levied thereon.
    The claim of the plaintiff in error is that property held and used by the assignee in operating and running the brewery is subject to taxation in the same manner as other property, and that the assignee should list the same for taxation and pay the taxes thereon while so holding it.
    Section 2, article 12, of the constitution provides that: “Laws shall be passed taxing by uniform rule * * * all real and personal property, * * * but burying grounds, public school houses and houses used exclusively for public worship, institutions of purely public charity, public property used exclusively for any public purpose, and personal property to an amount not exceeding in value |200 for each individual, may, by general laws, be exempted from taxation.” Pursuant to this constitutional provision, section 2731, Revised Statutes, provides that: “All property, whether real or personal, in this state, and whether belonging to individuals or corporations, * * * shall be subject to taxation except only such as may be expressly exempted therefrom.” Section 2732, and the sections supplemental thereto, specifically provide for all exemptions which have been allowed by the general assembly under the authority of the section of the constitution above quoted. Exemptions from taxation are strictly construed, and must be expressed in clear and unmistakable terms. Cincinnati College v. State, 19 Ohio, 110; Library Assn. v. Pelton, 36 Ohio St., 253; Lee v. Sturges, 46 Ohio St., 153; Sturges v. Carter, 114 U. S., 511, 521. All property must bear an equal and just proportion of the burden of taxation. Toledo Bank v. Toledo, 1 Ohio St., 622.
    Our opponents will hardly claim that any of the property sought to be taxed in this case is exempt from taxation by direct provision.' Rut it will probably be contended, m order to avoid the listing and payment of taxes thereon by the assignee, that the several creditors should each be taxed on his interest in said property. Section 2734, Revised Statutes, provides who shall list personal property, and among other things, that the property “of every person for whose benefit property is held in trust” shall be listed “by the trustees.” Sections 2735 and 2736 provide where and when property shall be listed for taxation. Section 2737 provides for a distinct statement of the several classes of personal property under separate numbered paragraphs. The paragraphs named in the statute applicable to the property held by the assignee in this case, are: (1) horses, (3) mules, (7b) wagons, etc., (7f) office furniture, etc., (12) average value of articles purchased, held as a manufacturer, (12a) average value of articles on hand, manufactured, etc., (12b) tools, engines, machinery, etc., (13) moneys. This section also provides, under the 14th item, for listing the amount of credits as defined by section 2730, and provides that no indebtedness can be deducted from any item enumerated in the section except from the 14th item. In the returns that have been made on which it is sought to collect taxes in this proceeding, nothing has been listed under the 14th item, only “the tangible personal property employed in the conduct of the business;” therefore, for the purpose of determining whether taxes should be paid, it is immaterial whether this estate is insolvent or not. The other side makes the argument that the creditors of this estate should separately list their credits and in that way the entire property would be at once listed for taxation, except a possible surplus which should be listed by the assignor. In answer to this it is sufficient to say that no creditor owns any particular horse, or any certain interest therein, nor any particular piece of machinery, barrel of beer, or any specific part of the tangible property required to be scheduled under section 2737, and, therefore, could not, in the way prescribed by that section, list his beneficial interest or credit. We also call attention to section 2742, which requires every manufacturer to list for taxation certain property in accordance with its terms. Even though Mr. Bobe is an assignee for the benefit of creditors, he is in that capacity, while carrying on his business, a manufacturer, and is by the terms of this section required to list property, for taxation. It is contended that because the chapter on insolvent debtors in no place makes it the specific duty of the assignee iri trust for creditors, as such, to list or pay the taxes upon the personal property, that it is therefore intended in the law that he should be free from that duty. Section 6355, however, provides that all taxes of every description assessed against the assignor on any personal property held by him before his assignment, shall be paid by the assignee or trustee, out of the proceeds of the property assigned in preference to any other claims against the assignor. It is claimed that because this provision refers only to taxes “assessed against the assignor” that therefore taxes assessed against the assignee after the assignment are not contemplated ; but it seems to us under the general provisions of the chapter on taxation that it Avould more readily appear that the duty of listing and paying the taxes assessed against himself would go as matter of course against the assignee, especially as section 6357 expressly authorizes the allowance by the court of all actual and necessary expenses of the assignment. • Surely taxes which in all other business enterprises are such might in assignments be considered an actual and necessary expense.
    Our opponents rely upon the case of McNeill v. Hagerty, 51 Ohio St., 255. The cases are not analogous. In the McNeill case the securities were not held by the assignee as an investment for the sake of interest, but were in that form for temporary purposes only, being held subject to the order of the probate court, and might be required to be converted into money and that money distributed at any time. Here, in the case at bar, the entire investment in the hands of the assignee is being used for the purpose of making money, and under the skillful management of those having the estate in charge it has not only made money, but has added to the manufacturing plant and increased its value, and it will not do to say that the respective equitable interests of the creditors should be separately returned by each of them as a credit and in that way the property would be listed for taxation, because even if it Avere in practice possible or practicable for each creditor to list the value of his claim, there would then be a large residuum belonging to the assignor company which would go free from taxation, unless it were either returned by such assignor or by the assignee. Taxes paid would be a proper expense. See generally Ex. Bank v. Hines, 3 Ohio St., 1; Rheinboldt v. Raine, 52 Ohio St., 160, and Lee v. Sturges, 46 Ohio St., 153.

      The decisions in other states hold such property liable for taxes. The weight of authority is to the effect that property in the hands of a trustee, whether a receiver or assignee, or any other of the numerous classes of trustees, is liable for taxation. State Clark Pros. v. Grover, Collector, 37 N. J. L., 174; Schmidt, Treas., v. Failey, Receiver, 148 Ind., 150; N. J. & C. R. R. Co. v. Comrs., 41 N. J. L., 235; George v. St. Louis, etc., Ry. Co., 44 Fed., 117; Ex parte Chamberlain, 55 Fed., 704; Central Trust Co. v. Railway Co., 26 Fed., 11; Dunlap v. Gallatin County, 15 Ill., 7; Jack v. Weiennett, 115 Ill., 105; Spalding M. C. v. Commonwealth, 88 Ky., 135; People v. Lardner, Treas., 30 Cal., 243; Stevens v. N. Y. & O. M. R. R. R. R. Co., 13 Blatch., 104.

      Kramer & Kramer, and Latcrence ila.rwell, for defendant in error.
    Brief of Kramer & Kramer.

    The statute regulating the mode of administering assignments in Ohio contemplate and provide for two general methods of settlement. The one has reference to the property of the assignor, not engaged at the time of the assignment in a manufacturing business; the other to the property and business of a manufacturing concern, the continuation of which for a time within the discretion of the court, is essential to the preservation of the property and its ultimate sale. The one method is provided by section 6350 and the other by section 6350h. The business of the assignor in this case being that of manufacturing and selling beer, the court under the latter section ordered the business to be continued by the assignee until the further order of the court. The same section provides that the court may order the discontinuance of the business, when deemed advisable, so that the order to continue and to discontinue, are confided exclusively to the sound discretion of the court of insolvency. This wise provision of the statute is peculiarly adapted to the exigencies of a case of this character. Here was the brewery with a certain amount of unfinished material on hand, with beer in the process of manufacture, possessed of machinery out of repair which required improving for the finishing of the material. The claim made by the treasurer practically amounts to this: that the assignee who, under the order of the court, administers the property pursuant to section 63501i of the statute is required to list and pay taxes upon the personal property assigned to him. While on the other hand, property administered by the assignee under section 6350 of the same general statute, is not so required. No such distinction is made by the statute and none can be implied. Nowhere in the entire act regulating the mode of administering assignments for creditors can there be found any obligation resting upon the assignee in relation, to the payment of taxes upon personal property held by him in trust for the benefit of creditors except under section 6355. That section provides that “All taxes of every description assessed against the assignor upon any personal property held by him before his assignment, shall be paid by the assignee or trustee out of the proceeds of the property assigned, in preference to any other claims against the assignor.” This sole provision, therefore, negatives the idea that any other taxes are chargeable against the property held by the assignee under any section of the statute. It would seem that if any intention of the legislature existed to make such property chargeable in the hands of an assignee for taxes, after the assignment is made, the section which provides for the payment of taxes assessed against the assignor would also have provided for the listing and payment of taxes upon such property after the same came into the hands of the assignee. If not under that section, under some other; either under the general statutes relating to taxation, or under the act relating to assignments for the benefit of creditors. The method employed in continuing the business of the assignor, by manufacturing its product, maintaining its goodwill, and preserving its machinery, looking to, as contemplated by the statute, the final sale for the benefit of the creditors, instead of at once selling out at unnecessarily sacrificing prices, can make no difference in the principle governing the question of taxes. If an assignee for the benefit of creditors is not required by law to list the property in his hands while administering it, the fact that the assignee is using it in carrying on the business, it seems to us, cannot create any new liability for taxes which did not exist before.
    We have supposed that the law had been settled in this state by this court. In McNeill v. Hagerty, 51 Ohio St., 255, this court held: “Personal property, whether in the form of moneys, bills receivable, bonds, certificates of stock, or otherwise, held by an assignee of an insolvent debtor whose estate is being settled in the probate court, is not subject to taxation, and it is not the duty of such assignee to make return of the assets of such estate to the county auditor for taxation.” It is urged, however, that the assignee was there strictly following the statute,, which, it is claimed, provides for the entire winding up of the assigned estate. The record in this cause shows that the assignee was also strictly following the statute with the, object of winding up the estate. Can the time within which the estate is settled make any difference touching the question of taxation? Time is not the essence of the obligation. It is said that because the property is not at once converted into money and distributed it is subject to taxation. The section of the statute which authorizes the continuance of the business has in view the ultimate sale of all the property, and its conversion into money at such time as the court orders the discontinuance. The time within which the sale is to be had is within the sole discretion of the court. The assignee is but the officer of the court in the administration of the assignment whether it be in the immediate or ultimate sale of the property. This court has already held that the only section of the statute under which any pretense of claim might be made, namely, section 2734, does not apply to an assignee of an insolvent who administers the same under the orders of the court. The power of taxation, it is true, is inherent in the government. It is, however, strictly a legislative power. “The courts cannot control its exercise unless such exercise conflicts with the constitutional limitations.” Wheeling Trans. Co. v. Wheeling, 99 U. S., 273; Porter v. Rockport, 76 Ill., 561; Board of Education v. McLandsborough, 36 Ohio St., 227, 232.
    Unless, therefore, the case under consideration, can be distinguished from that of McNeill v. Hagerty, supra, it would seem useless .to consider any other question. We maintain that it cannot be. It is urged that receivers of corporations are required to list for taxation. While that is true, it is so by virtue of the statute. There can be no analogy between the relation of an assignee of an insolvent company to that of a receiver, within the meaning of the tax laws. The possession and control of the property of a company by a receiver is within the ultimate object of returning the property to the corporation itself. The possession and administration of the property of an insolvent by an assignee is for its ultimate sale and distribution of proceeds to the creditors, not to the corporation itself. In the administration by an assignee the proceedings are had under a statute which provides “that all the property shall be devoted absolutely to the payment of the debts of the corporation.” The duty of the assignee to convert assigned property into money is not affected by the authority under section 6850h, to continue the business; the business is not to be continued, under the insolvent laws, with a vieAv of turning the property back, but to sell it in the discretion of the court so that it may be wound up and in its place shall be realized money to be distributed ratably to the creditors. A receiver is appointed by a court of equity, which has the power, even upon objection of creditors, to return the property to the corporation when the purpose for which the receiver is appointed is accomplished. No power exists on the part of the court, however, to return the property to the assignor without the consent of each and every creditor, however large or small his claim may be. Equitably the title is vested in them; no title whatever is vested in creditors of a corporation for which a receiver is appointed.
    The argument also,made is that section 6357 authorized the allowance by the court of all actual and necessary expenses of the assignment, that the payment of taxes would be an actual and necessary expense. No construction, however, of that kind has been placed by this court upon that section of the statute in considering the case of McNeill v. Hagerty, supra. If such construction should be given it would be equally applicable in cases where the court did not order a continuation of the business wdth the property until ready for sale. It could not be considered as an expense unless it was legally allowable as such.
    We claim that there is not even a distinction between this case and the other on the facts so far as the subject matter against which taxes are claimed to be chargeable is concerned. After all, the question involved here is the same as was involved in the other case. As the taxes charged are against the res, the property, not for the right to carry on the business, we can see no distinction even in the facts between the two cases. Hence there can be no distinction in the law. If this property is subject to taxation it would result in double taxation, equally so as to property involved in the case cited. The courts will always avoid a construction of the statute which results in double taxation unless the legislative intent be clear. Cooley on Tax., 225.
    If the judgment of the common pleas, which the petition in error in this court seeks to affirm, is restored, the effect would be to defeat the control and administration of the estate in the court of insolvency. Thus the very object of the statute authorizing that court to order the property to be employed in running the business, would be defeated. The original and exclusive jurisdiction in the court of insolvency in determining how long the business should continue and when it should terminate will be interfered 'With and taken from the control of the court itself. The jurisdiction of that court in the administration and settlement of insolvency estates is original and exclusive. Lindeman v. Ingham, 36 Ohio St., 114; Saylor v. Simpson, 45 Ohio St., 141; Clapp v. Bank

      ing Co., 50 Ohio St., 528. The principle of law for which we contend, applicable to the case under consideration, is sustained by the authorities. Lancaster School Directors v. Rathbone, 30 P. St., 533; Brooks v. Hartford, 61 Conn., 112; State v. Irons, Collector, 35 N. J., 464; State v. Staats, 39 N. J., 653.
   Spear, J.

The question arising upon the record is this: Is the personal property in the possession of an assignee for the benefit of creditors of a manufacturing corporation, which estate is not being reduced to money for distribution among the creditors of the corporation, but is being held and operated under the orders of the insolvency court at the joint request of the creditors and the assignee, as a going business, such business being conducted as it had been theretofore by the corporation itself, subject to taxation, and is it the duty of the assignee to list such property for taxation?

From a consideration of section 2 of article 12 of the constitution, respecting taxation, and of sections 2731, 2732 and 2734, Revised Statutes, relating to the same subjects it is manifest that property thus in possession of the assignee is subject to taxation, and that it is his duty to list it for taxation, unless the same is exempt by direct provisions of law or by fair inference from all the legislation bearing on the subject. It was the opinion of the insolvency court and of the circuit court, and is urged in argument by counsel for defendant in error, that it should be held to be exempt, and that the case is ruled in favor of the assignee by the case of McNeill, Assignee, v. Hagerty, Auditor, 51 Ohio St., 255. We are of opinion that the property is not exempt and that the case, at bar is so clearly distinguishable from the ease cited, that its decision is not controlled by that case. That action was an application for an injunction to prevent the auditor from enforcing against the assignee' a claim for taxes based upon a return made by the assignee under threat to take legal steps against him for failing to make return, and looking to an attempt at distraint in case the taxes were not paid. It appeared that the entire assets in the hands of the assignee were collectible notes for property sold by him and cash on hand, amounting in all to $25,910.90; that the debts of the assignor aggregated $65,000; that there could be paid creditors a dividend of between thirty and thirty-five per cent, only, and that the assets awaited an order of distribution to creditors. The assignee’s claim was that the assets were in his hands as an officer of the probate court, subject to an order of distribution so soon as the same could be made, and that the beneficial interest in the property thus held was in the creditors, and that to the extent of the value of- the claims of the creditors against the assignor such claims were, under the law, required to be returned for taxation by the creditors, and not by the assignee, and hence an injunction should be allowed against the auditor. This claim was sustained by the trial court and by this court. That the condition in the present case is an essentially different one, recurrence to the facts heretofore recited will abundantly show. There the indebtedness largely exceeded the value of the assets, and the assignee was proceeding strictly under section 6346, Revised Statutes, and following, to. reduce the assigned property to money and close out the estate by a distribution of the proceds among the creditors. He had sold all the property and held only its avails; he was neither holding the property of the assignor, or any of it, nor operating the business. Here the appraised value of the property exceeds the indebtedness. The assignee is not selling, and has not attempted to sell, any oíf the assigned property, but is proceeding under section 6350h, to operate the plant. That section gives authority to the court, upon the written application of three-fourths in number and amount of the creditors and upon being satisfied that it Avill be for the advantage of the creditors, to order the assignee to continue to carry on the business of the assignor, and, with the approval of all concerned, he has been, under the court’s order, thus conducting a beer manufacturing plant for six years and over. It has been a sort of partnership affair. The corporation having ceased to do business because insolvent, and the property thus being held in trust for the benefit of creditors, they — the cestuis que trustent — have, in effect, invested the property in a scheme to continue the business, and the assignee has advanced his own personal funds in the venture. Large and valuable additions have been made to the plant, its productive capacity greatly increased, its volume of yearly business more than doubled, much of the original indebtedness discharged, and the business transformed from a losing affair to a prosperous one, with a fair promise of finally discharging all debts and leaving to the corporation a surplus. Thus the business has been conducted like any other business of similar character and has proved a source of profit apparently to all concerned, and yet has yielded to the state no taxes during all these years. A controlling distinction between the case cited and the present case at bar is that in the former the assigned property had been sold and the estate was, in substance as well as form, being settled in the probate court, while in this case the assigned property is being held and operated in the management of a manufacturing business, and the estate is thus being continued as before, but is not being settled. Hence, the rule of law applied to the McNeill case has not application to the present case.

In substance, and in all essential particulars, the position of the assignee in this case is much like that of a receiver. He is clothed with the legal title to the property of which he has possession (which cannot be said as to a receiver), but in no other particular is there any real difference. He has held, and is holding, the property, not for the purpose of sale and distribution, but for the purpose of operating the same for profit. Indeed the very order which directs him to operate in effect forbids him to. sell. It may be conceded that in form, and from the strict legal standpoint, the estate is in the court of insolvency for settlement, but in reality it is not being settled, but, on the other hand, the arrangement amounts to an investment of the creditors’ money in the management of a going concern. There is no present effort nor purpose to sell, but simply a purpose to hold and operate. As a receiver, if directed by the court, manages the property in the interest of creditors, so this assignee manages under the Order of the court for the benefit of creditors; and as a receiver, where all debts and expenses have been paid, may be ordered by the court to turn over the remaining property to the original debtor, so may the assignee in case all of the debts of this corporation, including the expenses of the trust, are satisfied, be required to reconvey the remaining property to the assignor. Each is equally an officer of the court and bound to carry out its behests. As a general rule.it may be stated that there is no sound principle upon which the property of a person or corporation in the hands of a receiver to be managed for the interests of those concerned, can be regarded as exempt from the burden of taxation; and this principle is distinctly recognized in our statute, by the requirement of section 2734, defining by whom property shall be listed for taxation: “Of corporations whose assets are in the hands of receivers, by such receivers.” In spirit this requirement applies to the case at bar.

Our conclusion is that the property in the hands of the defendant in error, as assignee, is subject to taxation, and that it is the duty of such assignee to list it for that purpose.

The judgment of the circuit court will be reversed and that of the common pleas affirmed.

Reversed.

Minshall, C. J., and Williams, Burket, Davis, and Shauck,'JJ., concur.


source: Caselaw Access Project

author: Bueicet, J.

license: Public Domain

text:
    Swisher v. McWhinney et al.

      Guardian gave general and special bonds — Sections 6259 and 6285, Rev. Stat. — He also gave realty mortgage to indemnify sureties on both bonds — Dies insolvent and defaulter — Sureties on general bond insolvent — On special bond solvent-proceeds of mortgage security to be credited on both bonds in proportion of liability of several sureties to amount realised from sale — Rule of calculation^ of interest upon amount realised by guardian in sale of realty — Distributive share, to wards from realty sale — Pleadings—Two or more actions pending — Parties agree that law as held in one case shall control in ail — Except as to matters of fact — Does not preclude either party, after one case tried, to raise other issues of fact.

    1. Where there are two or more actions pending, and pleadings are made up as to certain issues, and the parties stipulate that the law as finally held in the one case tried, shall control in the other cases, and be conclusive as to all matters in the cases not yet tried, “except as to matters of fact upon which issue may be joined therein,” such stipulation does not preclude either party, after the one case has been finally disposed of, from raising other issues of fact by proper pleadings, on leave of the court. 1 >
    2. A guardian upon his appointment gave a general bond with three sureties under section 6259, Revised Statutes, and afterward gave a special bond with two sureties for the sale of real estate under section 6285, and later died insolvent and a defaulter to his wards in a large sum received on the sale of real estate and from other sources, having commingled the funds and used them as his own; before his death he gave a mortgage on his real estate to his sureties on both bonds for their indemnity; after his death his administrator sold the real estate upon petition in the probate court to pay debts, and by order of that court paid the net proceeds to the wards, and they applied the whole of it upon the liability of the general bond, the sureties on that bond being insolvent, and the sureties on the special bond being good. In an action by each ward upon the special bond for his share thereof, the bond being largely in excess of the amount received on the sale of the real estate, the courts below held that the sureties on both bonds were co-sureties for the amount of the guardian’s default, and that each surety was entitled to have one-fifth of the amount real ized under the mortgage, applied as a credit on his liability on the bond signed by him, and that sum being greater than the liability of the two sureties on the special bond, rendered judgment in favor of the two sureties and dismissed the petition — held: that this was error; that the sureties on both bonds were co-sureties only to the extent of the proceeds of the sale of the real estate; that the two sureties on the special bond were entitled to have the sum realized from the indemnity mortgage, credited upon their liability in proportion of the liability under the special bond fer funds received on sale of real estate to the liability under the general bond for funds not so received.
    3. Interest should be calculated upon the amount realized by the guardian on the sale of the real estate with annual rests to the date of his death, and thereafter at simple interest without such rests to the rendition of the judgment.
    4. Where the wards own the real estate in equal shares, the money realized from the special bond given on the sale of such real estate, should be equally divided among them, even though the amount due to the several wards by reason of other funds received by the guardian, may be unequal.
    (Decided March 26, 1901.)
    Error to the Circuit Court of Darke county.
    On February 14, 1884, one J. N. Lowry was appointed guardian, by the probate court of Darke county, of Viola Swisher, Olive Swisher and Warren C. Swisher, minor children of Robert Swisher, deceased, and gave a guardian’s bond under section 6259, Revised Statutes, in the sum of twelve thousand dollars, with D. T. Shepherd, N. M. Wilson and Jacob Warner, as his sureties.
    Afterward the guardian filed a petition' in the probate court to sell the lands of his wards, and in that proceeding he was required to give a bond under section 6285, Revised Statutes, to secure the proceeds of such sale, and he gave such bond on the 16th day of February, 1885, with said Frank McWhinney and Daniel Ryan, defendants in error, as his sureties, which bond was in the sum of twenty-three hundred dollars, was in due form, and was conditioned as follows:
    “That if the said J. N. Lowry as guardian of said wards as aforesaid shall well ajad faithfully discharge his duties as such guardian and well and faithfully pay over to the proper person or persons, and account for all the money arising from the sale of said real estate, .according to law, then these presents to be void, otherwise to be and remain in full force and virtue in law.”
    The lands were duly sold in said proceeding, and the net proceeds amounted to the sum of $876.75, one-third part of which belonged to each ward.
    The guardian received large sums of money for his wards from other sources, but kept no separate account between the money received from the sale of the land, and the money received from other sources, but commingled all the funds together indiscriminately, and used them as his own, and died insolvent on the 9th day of November, 1891. The last settlement filed by him was in May, 1890, and he then owed his wards $7,179.56.
    After his death, his administrator filed accounts of said guardianship, and the probate court found from said accounting, that there was due to said wards from their said guardian at the time of his death, the following sums: Viola Swisher, $2,252.35; Olive Swisher, $2,061.71, and Warren C. Swisher, $2,607.73; total $6,921.79.
    Said wards having become of the age of majority, demanded of said defendants in error the payment of the full amount of the bond so signed by them for $2,300.00, and upon refusal each one began a separate action against said defendants in error on said bond for the apportionate share of each in the same, with interest thereon from the ninth day of November, 1891, being the date of the death of their said guardian.
    An answer was filed by said Frank McWhinney and Daniel Eyan to the petition of Olive Swisher, in which they claimed that they could be held in any event for only the amount for which the land sold, $876.75, and that as the guardian’s accounts showed that he had paid out more than that sum for the wards, they were entitled to have sufficient of his payments credited on their liability on the bond to discharge the same in full. The courts held that they were not entitled to such crédit, but that their liability did not extend beyond the amount for which the land sold with interest.
    Olive recovered her one-third of the proceeds of the sale of the land, $292.25, with interest from the date of the death of her guardian. That case came to this court and is reported in (McWhinney v. Swisher) 58 Ohio St., 378.
    Instead of filing answers to the petitions of Viola and Warren C., counsel caused to be entered upon the journal in each case the following:
    “By agreement of the parties to the above entitled action, the final disposition of the several motions and demurrers filed in said case, or hereafter filed to any of the pleadings in said case, are to be controlled by the final holding and disposition of the courts upon similar motions and demurrers in the case of Olive Swisher v. Frank McWhinney et al., now pending as Case No. 15,047 in the court of common pleas of Darke county, Ohio.

      “In other wofids, the law as finally held in that case in the court in which said case is finally submitted, is to control in the above entitled case, and to be conclusive as to all matters in said above entitled case, except as to matters of fact upon which issue may be joined therein.”
    After the judgment in favor of Olive had been affirmed by this court, and the mandate sent to the clerk of the court of common pleas, counsellor Viola, and Warren C., moved for a like judgment in their cases. This was resisted by counsel ior the sureties, and they asked leave to file answers, which was granted by the court. Thereupon they answered in substance that after the guardian found that he could not pay the money owing to his wards, and for the purpose of indemnifying his sureties on said two bonds, one for $12,000.00, and the other for $2,300.00. he made and delivered to his said sureties, on the 18th day of July. .1891, a mortgage on his real estate, which was duly accepted and recorded, and was conditioned as follows:
    “Provided, nevertheless, that whereas said Frank McWhinney and Daniel Ryan on the 16th day of February, 1885, became sureties for said J. N. Lowry, on a certain guardian’s bond, as guardian of Olive, Viola and Warren O. Swisher, minors, in the sum of $2,300.00, which bond was on said 16th day of Feb: ruary, 1885, approved and accepted by said probate court and recorded in volume 1, guardian’s bond record, page 62 of probate record.
    “And, whereas, said D. T. Shepherd, Jacob Warner and N. M. Wilson, on the 31st day of January, 1884, became sureties for said J. N. Lowry, on a certain guardian’s bond as guardian of Olive, Viola and Warren C. Swisher, minors, in the sum of $12,000, which bond was on said 13th day of February, 1884, approved and accepted by said probate court, and recorded in Volume ‘F,’ page 434, guardian’s bond record, in probate record.
    “Now, if said J. N. Lowry, his heirs and assigns,' shall well and truly pay his said wards, as they become of age, or to his successors, the amounts found due said wards, and shall well and truly account for all moneys, credits, etc., received by him or hereafter to be received, and fully perform the conditions of said bonds and save these mortgagees harmless, then these presents shall be void. Otherwise, to be and remain in full force and virtue.”
    That the administrator of the deceased guardian filed a petition in the probate court to sell said land to pay debts, and made the sureties on said two bonds defendants; that said administrator sold said laud for the net sum of $3,820.00, and the probate court ordered him to pay that sum upon the amounts found due said wards, and that he did so pay the same as follows: to Viola $1,232.25; to Olive $1,098.25, and to Warren C. $1,489.50. That said payments wrere applied to the liability of the sureties on the bond for $12,000.00, they being totally insolvent, and no part was applied to the liability of the sureties on the bond for $2,300.00; that the defendants in error had no knowledge of such application, and did not consent thereto, and averred that they were entitled to have an equitable share of the $3,820.00 applied to the discharge of their liability on the bond signed by them, and that when so applied it would discharge their entire liability on the bond.
    There wTas a reply filed setting up the agreement as to abiding the result of Olive’s case, and also other matters, but as it conceded the controlling facts in the answer, a demurrer was sustained thereto, and exceptions taken. Thereupon, judgment was rendered in favor of the bondsmen upon the petition and answer, and exceptions again noted. The circuit court affirmed the judgment. Thereupon the plaintiffs below, Viola and Warren C., filed their petitions in error in this court, and the two cases were heard together.

      Meeker & GasJeill and All-read & Teegarden, for plaintiff in error.

      R. 8. Frizel'l and Anderson é Bowman, for defendant in error.
   Bueicet, J.

In McWhinney and Ryan v. Swisher, 58 Ohio St., 378, this court held that, “The liability of the sureties of a guardian upon his additional bond given pursuant to section 6285, Revised Statutes, to account for the proceeds of the sale of real estate of his ward, can not be extended beyond the terms of their undertaking, although the guardian commingles such proceeds with money of his Avard derived from other sources for which he fails to account.”

This court also held in that case that “Although the proceeds of the real estate are exceeded by general payments made by the guardian from such commingled fund, his sureties are liable in an action by the ward after majority, for all such proceeds, they being within the amount of the general balance found in the hands of the guardian.”

The matters so determined in Olive Swisher’s case were not attempted to be again litigated in the answers to the petitions of Viola Swisher and Warren 0. Swisher, but were conceded to be settled by that case. The matter as to the proper division and credit of the fund of $3,820.00 realized on the mortgage taken by the sureties on the two bonds, was not brought into the case of Olive Swisher and was not covered by the agreement, but was within the exception, “as to matters of fact upon which issue may be joined therein.” There was therefore no error in sustaining the demurrer to that part of the reply. And there was no error in sustaining the demurrer to the whole reply, because it did -not controvert the controlling facts of the answer.

The most difficult question is, as to the rights of the wards and the sureties on the bonds, as to the $3,820.00 realized on the sale of the land covered by the indemnifying mortgage to both sets of sureties. As the three sureties on the general bond taken when the guardian was appointed are insolvent, the wards claim that they have the right to apply the $3,820.00 on the liability of those three sureties, and it was so applied, leaving the sureties on the bond given on the sale of the land by the guardian, without any benefit from the $3,820.00.

It is well settled that when a creditor receives money from his debtor without any direction as to which debt the money shall be applied upon, the creditor may make the application to his best advantage. Gaston v. Barney, 11 Ohio St., 506. Tuttle v. Northrop, 44 Ohio St., 183.

But the rule applies only when all the debts are owed by the debtor paying the money, and can not apply where the money comes from‘two persons, and both owe one debt, and one owes another debt. In such case the creditor can not apply the whole fund to the payment of the debt owed by the one, because that would be applying the money of two persons to pay the debt of one of them. In short, it would be applying the money of one person to pay the debt of another. In such cases the money must be applied upon the debt.owed by both. But if the money is not owned by the persojns paying the same in their own right, but was obtained for the purpose of indemnifying themselves as sureties, on different debts or liabilities, as in the case at bar, the creditor need not apply the fund to the payment in full of the debt owed by both, but may apportion the fund between the two debts in proportion to the amount of each, especially may this be done when one of the debtors is insolvent. But the creditor can not in such case apply the whole fund to the debt owed by the insolvent debtor, and thereby deprive the solvent one from receiving any benefit from the fund which he was instrumental in securing for the purpose of saving himself from loss on the debt owed by both.

In the case at bar the three wards had no right to apply the whole fund of $3,820.00, realized from the mortgage taken by the two sets of sureties for their indemnity, upon the liability of the three sureties on the general bond, and thereby deprive the two sureties on the special bond from realizing any benefit from the said fund which they were instrumental in securing to indemnify themselves. The most that the wards could do was to divide and apportion the fund between the sureties of the two bonds in proportion to the liability of the sureties to the wards on each bond, and give each set of sureties credit accordingly.

The total liability of the guardian at his death on November 9, 1891, was $6,921.79. The liability for the proceeds of the land sold for $876.75 net, was on the same date, counting interest with annual rests, $1,297.37. Therefore the two sureties on the special bond were then liable to the wards for this sum of $1,297.37, and the three sureties on the general bond were also liable to the wards for that sum, and as to that sum the sureties on both bonds were co-sureties, because they were sureties to secure the payment of the same debt, liability, or obligation. But as to the balance of the liability of the guardian to the wards $5,624.42, the three sureties on the general bond alone were liable, and the two sureties on the special bond were not liable therefor; and as to that sum they were not co-sureties with the three sureties on the general bond.

The sureties on both bonds, by their efforts, obtained the mortgage from the guardian from which the fund of $3,820.00 was realized, for their indemnity, and but for their efforts that fund would also have been lost to the wards. That fund can therefore not be treated as a mere payment made by the guardian, thus reducing his liability to $3,101.79, and leaving the sureties on the two bonds liable ás if that had been the whole of the amount for which the guardian defaulted. True the $3,820.00 was realized out of the property of the guardian, but it was not paid by him to the wards, but was wrung from him by the sureties for their own indemnity, and they are entitled to be rewarded for their diligence by having it so credited as to benefit both sets of sureties, in proportion to the liability of the sureties on each bond, considering the full sum of $6,921.79 as the amount of the defalcation. When the fund of $3,820.00.is so divided and credited, there should be credited upon the liability of the special bond, the sum of $716.00, which taken from the whole liability of that bond $1,297.37, will leave the sum of $581.37, due to the three wards from the two sureties on the special bond, at the death of the guardian. As the death of the guardian terminated the guardianship, that sum became a debt at that date due from the two sureties, and would bear simple interest without annual rests until paid, and to this date would amount to the sum of $908.70.

As the amount is less than the amount due on the proceeds of the sale of the real estate, and as each ward owned one-third of the real estate, it follows that this sum must be equally divided among the three wards, $302.90 to each. Olive has already been paid in her case, but a judgment will be entered upon the conceded and controlling facts, in favor of Viola Swisher for $302.90, and costs, and a like judgment .in favor of Warren C. Swisher in his case. ■ The court of common pleas erred in rendering judgment upon the petition and answer in favor of the defendants in error, and the circuit court erred in affirming the judgment. Both judgments will therefore be reversed, and judgment rendered as above indicated.

Judgment reversed, and judgment for plaintiff in error.

Minshall, C. J., Williams, Spear, Davis and Shauck, JJ., concurred.


author: Williams, J.

text:
    Sticken v. Schmidt.

      Wife and husband execute written instrument to lender — Insurance policy on life of husband payable to wife — At death of husband wife received and invested amount in house— Payee of note seeks remedy in wife’s home property — But at time of execution of note wife’s liability only on separate estate — Property subsequently acquired not liable — Contingent. interest of wife in policy not chargeable with payment of note.

    In 1876, a married woman, with her husband, executed a written instrument acknowledging the loan of a sum of money to them which they promised to repay to the lender, at any time, with interest. Prior thereto a policy of insurance on the life of the husband had been obtained on the joint application of himself and wife, which, upon performance of the usual conditions contained in such policies, was payable on . proper proof of loss, to the wife, or in the event of her death prior to that of the husband, to his children share and share alike, or in the event of no children, to his legal representatives. He paid the premiums until within a year of his death, and those which accrued during that year were paid by her from her personal earnings. He died in 1880, when the insurance was paid to her, and she invested the money in a home. She was at no time the owner of any other property. Several years afterward the holder of the written instrument brought suit against her thereon, in which a personal judgment was the only relief prayed for, though the petition alleged that she was the owner of separate property which she intended to, and did, charge with the payment of the obligation. Held:
    1. That the instrument, under the law in force when it was executed, created no legal liability on which a personal judgment could be rendered against the defendant. The extent of her contractual capacity was io charge any separate estate which she might have, and the remedy wqs to pursue such property, in equity.
    2. The ownership of separate property when the contract was entered into, was essential to the establishment of an intention to create a charge thereon. Property thereafter acquired did not become bopnd for the previous engagement, nor did such after acquisition give validity to the promise made when the defendant was not the owner of separate property.
    3. The contingent interest of the defendant in the insurance policy on the life of her husband, at the time the instrument was executed, did not constitute her separate property, chargeable in equity with the payment of that instrument; nor did the money thereafter collected on the policy, by relation, become so chargeable.
    (Decided March 26, 1901.)
    Error to the Superior Court of Cincinnati.
    The original action was brought in the superior court, by Louisa Schmidt against Louisa Sticken, to recover a judgment on a money obligation executed by the defendant and her husband, and to charge Avith its payment, the proceeds of a policy of insurance on the life of her husband, which, it is claimed, was her separate property. Judgment was recovered by the plaintiff, from the affirmance of which in general term, error is prosecuted here. A statement of the facts necessary to an understanding of the question presented, is contained in the opinion.

      Galvin <& Bauer and Robertson & Buekwaiter, for
    plaintiff in error,
    cited the following authorities:

      Ankeney v. Hannon, 147 U. S., 118; Fallis v. Keys, 35 Ohio St., 265; Whitney v. Ott, 1 W. L. B., 335, 7 Dec. (Re.), 231; Newark v. Funk, 15 Ohio St., 462; Alarm Co. v. Heisley, 4 Circ. Dec., 691, 7 C. C. R., 483; Ryan v. Rothweiler, 50 Ohio St., 595; 3 Sayler’s Statutes, p. 2445; McClelland v. Bishop, 42 Ohio St., 113.

      F. H. Oehlmann and- 8. T. Crawford, for defendant in error,
    cited the following authorities:

      Ham v. Kunzi, 56 Ohio St., 531; Yocum, Admr., v. Allen, 58 Ohio St., 280; Levi v. Earl, 30 Ohio St., 147;
      Rice v. Railroad Co., 32 Ohio St., 380; Williams v. Urmston, 35 Ohio St., 296; Phillips v. Graves, 20 Ohio St., 371; Jenz v. Gugel, 26 Ohio St., 527; Avery v. Vansickle, 35 Ohio St., 270; Piatt v. Sinton, 37 Ohio St., 353; Niles v. Gray, 12 Ohio St., 320; Taylor v. Foster, 17 Ohio St., 166; Manhattan L. Ins. Co. v. Smith, 44 Ohio St., 156; Weber et al. v. Paxton, 48 Ohio St., 266; Cross v. Armstrong, 44 Ohio St., 613.
   Williams, J.

On the 14th day of March, 1876, F. H. Kock, and Louisa, his wife, executed and delivered, at Cincinnati, Ohio, to Louisa and Heinrich Schmidt, then also husband and wife, a written instrument acknowledging the loan of four hundred dollars to the makers, which they promised to repay to the Schmidts at any time, with eight per cent, interest.

On the 16th day of December, 1872, on the joint application of F. H. Kock and his wife Louisa, a policy of insurance was issued by the Home Insurance Company of Brooklyn, on the life of the husband, in the sujn of three thousand dollars, payable upon the usual conditions contained in such policies, within sixty days after’ satisfactory proof of loss, to said Louisa Kock, or in the event of her death prior to that of the assured, to his surviving children share and share alike, or in the event of no children surviving, then to the legal representatives of the insured.

It appears that the premiums on the policy, which amounted of $23.01, quarterly, payable in December, March, June and September of each year, subject to reduction by participation in certain expected profits, were paid by the husband regularly up to within a year of his death, and those accruing in that year were paid by the wife out of her own earnings. The premiums paid when the instrument hereinbefore mentioned was executed by Kock and his wife, amounted, in the aggregate, after deduction of profits, to about three hundred dollars; and the policy contained a provision that on its surrender after the full amount of two or more annual premiums were paid, the company would issue a paid up policy for the amount of the premiums paid, less the amount retained as dividends. No surrender was made, nor paid up policy issued; and,,in January, 1880, her husband having died, Louisa Kock received the full amount of the insurance money. She was afterward married to a Mr. Sticken, whom she survives, and the action below was brought against her by that name. The petition alleges that Heinrich Schmidt died in 1894, and the plaintiff became and is the sole owner of the obligation sued on; and that, when it Avas executed the defendant was the owner of a separate estate which she intended to, and did charge with the payment of the debt so contracted. Issue was taken on these allegations, and the question in the case is, whether the defendant’s interest in the insurance policy or its proceeds, constituted, when the instrument in suit was executed, her separate property which she thereby could, and did, charge with the payment of that obligation; it not being claimed that she possessed any other property.

Since the execution of the instrument the powers of married women to enter into contracts, and the remedies thereon against them, have been materially enlarged. Under the law then in force, with a few exceptions not important here, they were incapacitated by coverture to create a personal legal liability by contract, or bind their general estate. The extent of their contractual capacity Avas to charge their separate estate, in equity, for their obligations; and the remedy was to pursue and subject such property to their satisfaction; personal judgment on which execution could issue Avas not authorized. 63 O. L.,. 47.

Phillips v. Graves, 20 Ohio St., 371; Williams v. Urmston, 35 Ohio St., 296; Avery v. Vansickle, Ib., 270.

The personal property which then constituted a separate estate that the married woman could charge Avith her debts, consisted of such property of that kind as belonged to her at her marriage, or came to her during coverture by gift, bequest, or inheritance, or by purchase with her separate means, or became due as Avages of her separate labor, or grew out of a violation of her personal rights. 68 O. L., 48.

To give rise to an intention to charge her separate estate by her contract, and create such a charge upon it, it was essential that such property should belong to her at the time the contract Avas entered into. And it was the settled law that her engagement entered into when she had no separate property would not bind property thereafter acquired, nor would such after acquisition give validity to a previous engagement entered into when she Avas not the owner of a separate property. Avery v. Vansickle, supra; Jenz v. Gugel, 26 Ohio St., 527; Fallis v. Keys, 35 Ohio St., 265, 266. Little, if any aid, in arriving at the nature of the defendant’s interest in the policy in question, is afforded by the statute in force when it was issued, relating to insurance by the wife on the life of her husband. That statute provided that a married woman might, in her own name, cause her husband’s life to be insured for her sole use; and in ease she survived, the insurance should be paid to her, for her sole use, free from any claims of his representatives or creditors. 69 O. L., 159. It did not contain the provision now found in section 3629, of the Revised Statutes, that, if the policy, by its terms, is payable to a married woman solely for her use, she may sell, assign or surrender the same, the husband uniting therein. Even if the latter provision had been in force when the policy was issued to the defendant, it is not apparent how her interest in it would be enlarged or affected thereby, or how such a result follows from the former provision which was then in force. Both provisions, it will be noticed, are applicable only to policies in which the wife is the sole beneficiary named, and which are issued for her sole use. The defendant’s policy was not of that nature, and not within the purview of the statute. By its terms the children and personal representatives of the insured were made beneficiaries, and had an interest of the same general nature as that of the defendant, though more remote. The interest of each depended on the contingency of survivorship; and, it seems evident that she could not, by a sale of the policy without the consent of the other beneficiaries, any more than could they by sale without her consent, confer any title on the purchaser, nor could either, without the concurrence of all, surrender the policy, or accept a paid up one in its stead. A judicial sale of the policy in an action against the defendant alone, could have no different effect. An interest so unascertainable, separate from that of the other beneficiaries, and of such unappreciable value, can scarcely be regarded as a separate property which the defendant intended to charge, or could charge with the burden of the contract in suit. An attempt to pursue it by action would be barren of any practical result. For this reason, presumably, the claim of the plaintiff in that direction is not pressed with much earnestness. The principal reliance of the plaintiff is placed on the proposition that the insurance money, when paid to the defendant, took the place of the policy, and by relation became her separate property as of the time of the contract. This position, we think, cannot be maintained. The augmented value of the policy arising from the payment of the premiums and performance of its conditions subsequent to the contract, resulting in the final collection of the insurance money, was after acquired property, which after acquisition, as has already been seen could not relate back so as to give validity to a contract invalid when made, or become chargeable for its satisfaction.

Judgment reversed, and judgment for plaintiff m error.

Minshall, C. J., Btjrket, Speab, Davis and Shauck, JJ., concur.


author: Minshall, C. J.

text:
    The Knox Rock Blasting Co. v. The Grafton Stone Co.

      Contract for use of patent right — For given time at annual rate —Use by licensee after expiration of term — Licensee to pay double former rate — Liquidated damages — Validity of contract.

    1. Where the parties to a contract for the use of a patent right for a certain time at a given annual rate as a license fee, agree th&t, if the licensee, continues to use it after the expiration of the term without obtaining a license therefor, the licensee shall pay double the former rate for each year in which it is used, the agreement is not unlawful or against public policy, but in the nature of liquidated damages; and may be recovered as such on a breach of the agreement.

      2. Whether it should not be treated simply as an agreement for the payment of a stipulated license fee after the lapse of a certain period, depending upon the option of the licensee to continue the use. Quere?

    (Decided March 26, 1901.)
    Error to the Circuit Court of Lorain county.

      Hoyt, Dustin & Kelley and A. R. Webber, for plaintiff in error,
    cited the following authorities:
    Story on Agency, Sec. 452; Railroad Co. v. Derby, 55 U. S. (14 How.), 468; Cosgrove v. Ogden, 49 N. Y., 255; Garretzen v. Duenckel, 50 Mo., 104; Betts v. DeVitre, L. R. 3 Ch., 441; Lange v. Werk, 2 Ohio St., 519; Sedgwick on Damages, 422; Dwinel v. Brown, 54 Me., 468; Morse v. Rathburn, 42 Mo., 594; Story on Contracts, Sec. 1021; Williams v. Green, 14 Ark., 315; Crisdee v. Bolton, 3 C. & P., 240; Cotheal v. Talmage, 9 N. Y., 551 (Court of Appeals); Slosson v. Beadle, 7 Johns., 72; Mundy v. Culver, 18 Barb., 336; Hosmer v. True, 19 Barb., 106; Edmund y. Van Benschoten, 12 Barb., 366; Williams v. Dakin, 22 Wend., 201; Tode v. Gross, 127 N. Y., 480; Texas & St. L. Ry. Co. v. Rust, 19 Fed. Rep., 239; Lynde v. Thompson, 2 Allen, 456; Williams v. Vance, 30 Am. Rep., 26; Astley v. Weldon, 2 B. & P., 346; Dakin v. Williams, 17 Wend., 447; Bearden v. Smith, 11 Rich., 550; Galsworthy v. Strutt, 1 Exch., 659; Hurst v. Hurst, 4 Exch., 571; Hasbrook v. Tappen, 15 Johns., 200; Knapp v. Maltby, 13 Wend., 587; Price v. Green, 16 M. & W., 346; Sainter v. Ferguson, 7 Mann., Gran. & Scott, C. B. Rep., 716; Pearson v. Williams, 26 Wend., 360; Story Eq. Jurp., 13 Ed., Sec. 1314; Dermott v. Wallach, 68 U. S. (1 Wall.), 61.

      F. G. Johnson, for defendant in error,
    cited the following authorities:
    9 Am. & Eng. Ency. Law, 913; 17 Am. & Eng. Ency. Law, 126; Taylor on Corps., Sec. 753; Lange v. Werk, 2 Ohio St., 519; Berry v. Wisdom, 3 Ohio St., 241.
   Minshall, C. J.

The case below was brought by the Knox Rock Blasting Company against the Grafton Stone Company on a contract by the terms of which the latter company was to pay to the former certain license fees for the use of certain tools and methods in blasting rock, covered by certain letters-patent owned by the plaintiff. The contract bore date May 22, 1888, and was to continue in force for the term of one year from that date, the Stone Company paying to the Blasting Company the sum of $250 for the use of the tools and method. It also provided that the Stone Company should have the privilege of an extension of the term of the license for the period of five years from May 21, 1889, at the same rate per annum. At the termination of the first year of the contract the defendant availed itself of the privilege and the agreement was extended and continued for the period of five years beginning with May 22, 1889, and ending May 21, 1894, the defendant regularly paying the stipulated sum of $250 annually for the use of the tools and method. The contract contained the further provision, which is as follows

“It is further mutually understood and agreed that, in case the party of the second part shall, at any time after the termination of this license, as set forth in any previous paragraph hereof, use or apply any of the tools or methods protected by the letters-patent referred to above, without having first obtained a new license from the party of the first part, then and in that case the license fees shall be double the sum specified in this license for at least the term of one year, and thereafter from year to year at the increased rate so long as any use shall be made of said tools or methods, not exceeding, however, the life of the patents ”

The principal issue of fact made in the case by the answer of the defendant was whether the tools and method covered by the license were used in its quarries after May 21, 1894. On this the jury rendered a special verdict in answer to certain questions propounded to them by the court. It found that they were used in the year from the 22nd day of May, 1894, to the 21st day of May, 1895; that they were not used in the next year, but were used in the year between the 22nd day of May, 1895, and May 21, 1896. There was also an issue of fact as to whether this was authorized by the company. The evidence is not incorporated in the printed record, nor does the defendant prosecute error, and these questions must, therefore, be taken as settled by the verdict; that is, that a use was made of the patent in the years as found by the jury, and that this was authorized by the defendant. The court charged the jury to the effect that the stipulation for he payment of a license fee of $500, should the defendant use the patent after May 21, 1894, without license, was in the nature of a penalty; and that if it was so used, their verdict must be limited to damages actually proven by plaintiff for such use. To this the plaintiff excepted ; and asked for a charge that if it was so used, then their verdict should be for the sum of $500 for each year during which the jury found any use to have been made of the tools and method covered by the patent; which the court refused and the plaintiff excepted. The jury rendered a verdict for $129.02. The plaintiff filed a motion for a new trial, also, a motion for a judgment of $1,000 on the special findings of the jury. Both of these motions were overruled and exceptions taken. On a bill of exceptions the case was taken to the circuit court which affirmed the judgment of the common pleas, and the case is brought here for a reversal of both courts, and a judgment on the special findings for the plaintiff in the sum of $1,000.

• The only question then of law presented by the record, except one as to the validity of the contract which we shall consider later, is whether what was to be paid in case the defendant should use the method and tools after May 21, 1894, without license, was in the nature of a penalty, or, of liquidated damages. We think it was of the latter character, or, more properly, an agreement by which the defendant might continue the use of the patent after that time without license by annually paying $500.

When the agreement was made' in 1888 both parties may have been and probably were, uncertain as to what the value of the use of the patent might be at the end of six years thereafter. It might be more or less than $250, the value agreed on for the term. As it might be more», the defendant might be willing from and after that time to pay $500 annually for it, and under the contract it could do this, without further permission from the plaintiff, by paying that sum as long as it used it. On the other hand, whilst the plaintiff in 1888 might not have been willing to let the patent indefinitely at the rate of $250 annually to be paid, was willing to agree that after 1894 the defendant might continue to use it for an indefinite time by paying at the rate of $500 annually, as long as it was used. Certainly the parties had the right to make such a contract. It violated no principle of law or public policy, and we can see no reason why it should not be enforced. The probable value of the patent being uncertain when the contract was made, the plaintiff protected itself from an obligation for an indefinite time to receive for its use less than it was worth, and the defendant secured the right to continue its use after the end of the term fixed at the rate of $500, though the use might be worth more; and if the use of it was worth less than that sum, it was- at liberty to discontinue the use without further liability. In this case the contractual relation of the parties would be at an end, and they would be at liberty to make a new contract upon such terms as they saw fit, or to abandon the relation entirely.

In the view we take of this case there is room for doubt whether it presents the question, whether the stipulation is in the nature of a penalty, or, of liquidated damages. It seems, as we have indicated, to have been what the parties agreed on as the license fee that should be paid in case the defendant saw fit to continue to use the tools and method after the expiration of the term agreed on. It was quite as competent for the parties to agree about this as to agree on the rate for its use in the first instance. But should we be wrong in this, it is still clear, that the stipulation must be regarded as liquidated damages. As the parties could not know in 1888 what the value of the use of the patent might be after 1894, it was certainly a proper subject for agreement between them as to what should be paid as damages, should the defendant continue to use the patent without license after the expiration of the term, and this they did by agreeing on the sum of $500. It could hardly have been the intention of the parties, that the right of the plaintiff, in case use should be made of the patent after the expiration of five years, should be limited in each year, to the actual damages he might be able to show that he sustained, from the use made. It would be difficult to lay down a principle by which such damages could be estimated by a jury; and. would have imposed on him a vigilance as to the use made, that it is not likely that he would have assumed. Hence they agreed what he should receive, in case any-use was made of the patent contrary to the agreement. Many analogous instances are to be found in which the agreement was held to be liquidated damages. See 2 Greenleaf on Evidence, section 259. Ordinarily where the sum fixed is to secure the payment of a less sum, or a sum capable of ascertainment by calculation, the sum fixed will be regarded as discharged by the payment of the less sum; but if the sum to be paid is uncertain at the time and may vary with circumstances, the parties may fix the same by agreement and it will be regarded as liquidated damages. In Price v. Green, 16 M. & W., 346, it is said by Best, C. J.:

“The law relative to liquidated damages has always been in a state of great uncertainty. This has been occasioned by judges endeavoring to make better contracts for parties than they have made for themselves. I think that the parties to contracts from knowing exactly their own situations and objects can better appreciate the consequence of their failing to obtain these objects than either judges or juries. Whether a contract be under seal or not, if it clearly states whai; shall be paid by the party who breaks it, to the party to whose prejudice it is broken, the verdict in an action for breach of it should be for the stipulated sum. A court of justice has no more authority to put a different construction on the part of an instrument ascertaining the amount of damages, than it has to decide contrary to any of its other clauses. Our office is to ascertain the intent of the parties, and if not contrary to law, to carry their intent into execution.”

In the well considered case of Dwinel v. Brown, 54 Me., 468, which was a suit to recover the stipulated damages for the breach of an agreement to put teams on the plaintiff’s land and carry on a lumbering operation and pay an agreed amount for stumpage, the court said:

“The parties themselves best know what their expectations are in regard to the advantages of their undertaking and the damages attendant on its failure, and when they have mutually agreed on the amount of such damages in good faith and without illegality, it is as much the duty of the court to enforce that agreement as it is the other provisions of the contract. In construing the other parts of the contract, so in giving construction to the stipulation concerning the damages, the intention of the parties governs.”

The court added the following sensible comment:

“It is the province of the court to uphold' existing contracts, not to make new ones. It is not for the court to sit in judgment upon the wisdom or folly of the parties in making the contract, when their intention is clearly expressed and there is no fraud or' illegality. No judges, however eminent, can place themselves in the place or position of the parties when the contract was made, scan the motives and weigh the considerations which influenced them in the transaction, so as to determine what would have been best for them to do, who was least sagacious or who drove the best bargain. * * * The interests of the public are quite as likely to be subserved in maintaining the inviolability of contracts as they are in contriving ways and means to make a contract mean what is not apparent on the face of it to save a party from some conjectural inequity growing out of the supposed inadvertence or improvidence.”

So that if we treat the case before us as one in which the parties stipulated what the damages should be for a breach of the contract, rather than as an agreement as to the license fee to be paid should the defendant continue the use of the patent after a certain term, the result must be the same; the actual damages were uncertain and incapable of calculation, so that the sum agreed on must be regarded as liquidated damages.

Judgment vacated, and judgment for the plaintiff in error in the sum of $1,000.

Williams, Bueket, Speae, Davis . and Shauck, JJ., concur.


author: Bx the Court :

text:
    Law v. Law.

      Divorce to wife for aggression of husband — Alimony adjudged wife by agreement of parties — Terms of alimony agreement not subject to modification upon petition filed by husband-, when.

    A divorce being decreed for the aggression of the husband, and alimony being adjudged to the wife in accordance with an agreement of the parties, the terms of the decree as to alimony are not, if unaffected by fraud or mistake, subject to modification upon a petition filed by the former husband after the term at which the original decree was made.
    (Decided March 26, 1901.)
    Error to the Circuit Court of Hamilton county.
    On the 1st clay of August, 1889, Carrie B. Law was, by the judgment of the court of common pleas of Hamilton county, divorced from George W. Law for his aggression. After adjudging that the parties be divorced and that the custody of their child, Edith B. Law, should be given to Mrs. Law, the judgment entered made the following provisions as to alimony:
    . “It is further ordered and decreed that the said defendant pay as alimony to said plaintiff, annually, the sum of three thousand dollars (#3,000), payable in monthly installments of two hundred and fifty dollars (#250) each, the first installment to be paid on the first day of August, 1889, and out of which said sum the said plaintiff is to support said Edith, maintain and educate her.
    “It is further ordered and decreed that in case the said plaintiff shall marry, the alimony herein provided and ordered to be paid to her, shall cease from and after said marriage, but the said defendant shall continue to pay to said plaintiff, for the maintenance, support and education of said child, Edith B. Law, the sum of fifteen hundred dollars ($1,500) annually, payable in monthly installments of one hundred and twenty-five dollars ($125) each, and the same shall continue so long as the said Edith B. Law shall remain unmarried.
    “It is further ordered and decreed that said alimony shall cease and wholly determine upon the death of the defendant, George W. LaAv, and that said plaintiff shall have no right, claim or demand to any part of the estate or property which he may leave, on condition, however, that the said George W. Law shall, of the insurance that he now holds upon his life, or which he may hereafter procure, and which he agrees to do, set apart the sum of fifteen thousand dollars ($15,000) for the benefit of said plaintiff, Carrie B. Law, which policies of insurance, in the event of the death of the said George W. Law, shall be payable to and paid to said Carrie B. LaAv, and in case of the death of the said Carrie B. Law before the maturity of the said policies by the death of said George W. Law, the same shall be payable to said child, Edith B. Law, and this insurance in the sum of $15,000, the court, by consent of said defendant, orders and adjudges that he faithfully maintain and keep up for said purpose.
    “It is further, and with the consent of said defendant, ordered and decreed that the said defendant, George W. Law, forthwith secure to the said plaintiff and the said child, Edith B. Law, the payment of the said sum of three thousand dollars ($3,000) annually, in the manner and at the times herein provided, and the procuring, setting apart, keeping and maintaining at all times the policies of insurance upon his life in reliable and responsible companies in the sum of fifteen thousand dollars ($15,000) for the benefit of said plaintiff and the said child, Edith B. Law, as herein provided.
    “It is further, and by and with the consent of said defendant, ordered that the security for the payment of the sums herein provided, and the procuring, setting apart, keeping and maintaining the policies of insurance for the purposes herein declared, shall be subject to the approval and satisfaction of the said plaintiff.
    “It is further ordered, adjudged and decreed, that the provisions herein made for and on behalf of the said Carrie B. Law as to alimony, shall be in lieu of, and in full satisfaction of all claims, rights, interests or demands that said plaintiff has or may have acquired in the property and estate of the said defendant by reason of her marriage to him, and the said plaintiff shall relinquish any and all such interests by instrument in writing duly executed upon the demand of said defendant.”
    On the day preceding the entry of this decree George W. Law, with surety, gave bond to Mrs. Law for the payment of alimony according to the terms which were carried into the decree. On the 11th day of April, 1894, George W. Law filed his petition in the court of common pleas seeking a reduction of the alimony to fifteen hundred dollars a year, and of said insurance to seventy-five hundred dollars on account of reasons occurring after the entry of the decree of August, 1889. Mrs. Law answered denying that any change had occurred to justify a reduction of said amounts, and she alleged in her answer that in so far as the decree of 1889 related to the subject of alimony and insurance they were entered by agreement of the parties. These allegations of the answer were denied in the reply. On a hearing the court of common pleas entered a judgment reducing the alimony from three thousand dollars per annum to eighteen hundred dollars per annum. Mrs. Law took an appeal to the circuit court where, upon a hearing, the alimony was fixed at twenty-two hundred dollars per annum in lieu of the three thousand dollars per annum awarded by the original decree. Afterward she received and accepted the amount adjudged to her by the circuit court. She now seeks a reversal of the judgment by which the amount awarded to her by the terms of the original decree was reduced.

      Thomas McDougal; Alfred G. Cassatt and Harmon, Colston, Goldsmith & Hoadley, for plaintiff in error,
    cited the following authorities:

      Olney v. Watts, 43 Ohio St., 499; Pretzinger v. Pretzinger, 45 Ohio St., 452; Storey v. Storey, 125 Ill., 608; Collier v. Collier, 66 Ill. App., 484; Buck v. Buck, 60 Ill., 241; Parkhurst v. Parkhurst, 118 Cal., 18; Galusha v. Galusha, 116 N. Y., 635; Petersine v. Thomas, 28 Ohio St., 596; Fischli v. Fischli, 66 U. S. (1 Black.), 360; Semrow v. Semrow, 23 Minn., 214; Julier v. Julier, 62 Ohio St., 90; Stratton v. Stratton, 77 Me., 373; Crews v. Mooney, 74 Mo., 26; 2 Bishop on Mar. & Div. (6 Ed.), Sec. 435; 2 Nelson, Div. & Sep’n, Sec. 915; Kremelsberg v. Kremelsberg, 52 Md., 553; Plaster v. Plaster, 47 Ill., 290; Dow v. Dow, 38 N. H., 188; 2 Nelson on Div. & Sep’n, Sec. 905a, p. 849; 2 Am. & Eng. Ency. (2d ed.), 117; Fuller v. Fuller, 33 Kan., 582; Wilhite v. Wilhite, 41 Kan., 154; Stewart v. Vandervoort, 34 W. Va., 524; Callame v. Callame, 24 N. J. Eq., 444 (cited with approval, Gallagher v. Fleury, 36 Ohio St., 590); Chenault v. Chenault, 5 Sneed, at p. 251; Boggers v.
      Boggers, 6 Baxter, 300; Bird v. Bird, 1 Lee’s Rep., 621 (A. D. 1754); Aughtie v. Aughtie, 1 Phil. 201 (A. D. 1810); Scrimshire v. Scrimshire, 2 Haggard’s Consistory Rep., 395; Gallagher v. Fleury, 36 Ohio St., 590; Fisher v. Fisher, 32 Iowa, 20; McGee v. McGee, 10 Ga., 477; Wheeler v. Wheeler, 18 Ill., 39; Rogers v. Vines, 6 Ired., 293; Lockridge v. Lockridge, 2 B. Mon., 258; De Blaquiere v. De Blaquiere, 3 Hagg. Rep., 329; Foulkes v. Foulkes (Poynter on Mar. & Div., *p. 256, note “q”); Cox v. Cox. 3 Add., 276; Sammis v. Medbury, 14 R. I., 216; Sampson v. Sampson, 16 Id., 456; Kamp v. Kamp, 59 N. Y., 215; Mitchell v. Mitchell, 20 Kan., 666; Howell v. Howell, 104 Cal., 47; Smith v. Smith, 45 Ala., 267; Fries v. Fries, 1 McArthur (D. C.), 294; King v. King, 38 Ohio St., 370; Woods v. Waddle, 44 Ohio St., 449, Beals v. Lewis, 43 Ohio St., 220; Embry v. Palmer, 107 U. S., 3; Merrian v. Hass, 3 Wall., 687; United States v. Dashiel, 70 U. S. (3 Wall.), 688; Morriss v. Garland, 78 Va., 234; Philips v. Towles, 73 Ala., 411; State v. Railway Co., 21 Nev., 172; Fiedler v. Howard, 99 Wis., 395; Clowes v. Dickenson, 8 Cowen, 327; Higbie v. Westlake, 14 N. Y., 288; Matthews v. Davis, 39 Ohio St., 54; Tabler v. Wiseman, 2 Ohio St., 207; Merritt v. Horne, 5 Ohio St., 307; Elliott on Appellate Procedure, Sec. 151.

      William Worthington and Pogue & Pogue, for defendant in error,
    cited the following authorities:

      Price v. Price, 10 Ohio St., 316; Reed v. Reed, 17 Ohio St., 563; Taylor v. Taylor, 25 Ohio St., 71; Hixson v. Ogg, 53 Ohio St., 361; Cox v. Cox, 19 Ohio St., 502; Olney v. Watts, 43 Ohio St., 499; Pretzinger v. Pretzinger, 45 Ohio St., 452; Hoffman v. Hoffman, 15 Ohio St., 427; Neil v. Neil, 38 Ohio St., 558; Rogers
      v. Rogers, 51 Ohio St., 1; Petersine v. Thomas, 28 Ohio St., 596; Stevenson v. Morris, 37 Ohio St., 10; Burckhardt v. Burckhardt, 42 Ohio St., 474; Cincinnati v. Railway Co., 56 Ohio St., 675; In re Potts, 166 U. S., 263; Weidman v. Weidman, 57 Ohio St., 101; Meissner v. Meissner, 5 Circ. Dec., 305 (11 R., 1); Conrad v. Everich, 50 Ohio St., 476; Taylor v. Fitch, 12 Ohio St., 169; Reeves v. Skenett, 13 Ohio St., 574; McRoberts v. Lockwood, 49 Ohio St., 374; Hocking Coal Co. v. Rosser, 53 Ohio St., 12; Beals v. Lewis, 43 Ohio St., 220; Waddington v. Waddington, 27 Mo. App., 596; Alexander v. Alexander, 104 N. Y., 643; Bolen v. Cumby; 53 Ark., 514; Holt v. Rees, 46 Ill., 181; Elliott on Appellate Procedure, Secs. 150-152; 2 Ehcy. Pl. and Prac., pp. 174-177; Cogswall v. Colley, 22 Wis., 399; Webster v. St. Croix, 71 Wis., 317; Shingler v. Martin, 54 Ala., 354; Tyler v. Shea, 4 No. Dak., 377; Railway Co. v. Johnson, 84 Ind., 420; Anglo-American L. M. & A. Co. v. Bush, 84 Iowa, 272; Harte v. Castetter, 38 Neb., 571; Gibson’s Appeal, 108 Pa. St., 245; Brewer v. Connecticut, 9 Ohio, 189; Rosebrough v. Ansley, 35 Ohio St., 107; Pacific Railroad v. Ketchum, 101 U. S., 289; United States v. Babbitt, 104 U. S., 767; Cooch v. Cooch, 18 Ohio, 146; Jackson v. Jackson, 16 Ohio St., 163; Zanesville v. Gas-light Co., 47 Ohio St., 1; Mosier v. Perry, 60 Ohio St., 388; Fulton v. Fulton, 52 Ohio St., 229; Bank v. Owensboro, 173 U. S., 636; Doyle v. Doyle, 50 Ohio St., 330; Grever & Sons v. Taylor, 53 Ohio St., 621; Kerr v. Kerr, 59 How. Prac., 255; King v. King, 38 Ohio St., 370; 2 Bishop’s M. & D., Sec. 553; State v. Hueston, 44 Ohio St., 1; Mays v. Cincinnati, 1 Ohio St., 268; Fitch v. Carroll, 1 Sawyer, 156; South v. Dennison, 2 Watts, 474; Commonwealth v. Murray, 4 Binney, 487; Bartley v. Richtmyer, 4 N. Y., 38; Spoors v. Coen, 44 Ohio St., 497; Bellefontaine v. Vassaux, 55 Ohio St., 323 (36 B., 322); Jack v. Hudnail, 25 Ohio St., 255; Phillips v. Herron, 55 Ohio St., 478; Kamp v. Kamp, 59 N. Y., 212; Erkenbrich v. Erkenbrich, 96 N. Y., 456.
   Bx the Court :

1. The view presented by counsel for the plaintiff in error is that the terms of the original decree, not being affected by fraud or mistake, were conclusive upon the subject of alimony and not subject to modification for any reason. Since no question was reserved by the decree for future consideration, that view receives strong support from Petersine v. Thomas, 28 Ohio St., 596, and from the general course of decisions upon the subject. Authority* for the subsequent modification of the decree is, however, said to be found in the later case of Olney v. Watts, 43 Ohio St., 499. In that case there had been a divorce because of the wife’s aggression, and the holding was that the decree as to alimony, so-called, might be modified upon the petition subsequently filed by the husband for that purpose. If it be assumed that the case was correctly decided, it affords no warrant for the present judgment, for it concedes that where the terms of a decree as to alimony are fixed by the court pursuant to an agreement of the parties they are not subject to modification.

That the terms of the decree of August, 1889, as to alimony, were fixed by agreement of the parties is the proper inference from the testimony of counsel who were concerned in the case. It is rendered certain by the bond executed prior to the decree, whereby the husband bound himself to pay alimony according to the terms of the decree subsequently entered. It is made conclusive by the terms of the decree. The divorce in the present case was on account of the aggression of the husband, and it was therefore a case for alimony properly so called. The wife had not forfeited any of the rights which marriáge gave her in the property of her husband. The concluding terms of the decree against the wife, assented to by her, and precluding the further assertion by her of any interest in the husband’s estate are in law, as they purport to be, in consideration of the antecedent provision as to alimony. The provisions in her favor, being consideration for those which were adverse to her, must be final according to their terms.

2. There is no merit in the contention that Mrs. Law’s acceptance of the amount awarded to her by the circuit court in lieu of the amount fixed by the decree of 1889, estops her from prosecuting this proceeding in error. She has taken nothing by the judgment of the circuit court. • By the terms of the decree of 1889 she became conclusively entitled to all she has received, and more. It can not be said that by accepting a portion of the sum due her by the terms of the original decree she has waived her right to insist upon, payment of the remainder.

Judgment reversed and original petition dismissed.

Minshall, C. J., Williams, Davis and Shauck, JJ., concur.