author: Dickman, J.

text:
    Farmers’ and Merchants’ National Bank v. Wallace.

      Real property — Partition—Husband and wife — Conveyance to — Mortgage by husband — Possession—Notice—Tenants in common — National bank — Power to take mortgage. *
    1. W. and his wife were in possession of lands owned by her father at the time of the father’s death. After the father’s decease, the heirs at law of the decedent agreed to divide his lands among themselves, and for that purpose, in the year 1854, executed deeds of quit-claim to each other. Certain of the heirs, in their deeds to W.’s wife of their interest in the land of which she was in possession, inserted without her knowledge or consent, the name of W. as a joint grantee with his wife, and vested in him the legal title to one undivided half of the granted premises, which deeds were duly recorded. W. had not until the year 1803, and his wife had not until the year 1883, any knowledge that his name was inserted in the deeds. In 1883, W. being- indebted to a bank on notes past due, in consideration of an extension of time for the payment of his indebtedness, and of a reduction of the rate of interest, gave the bank new notes in place of the old ones surrendered and cancelled, and . to secure the payment of the same,- executed to the bank a mortgage on .- the lands conveyed to him and his wrife jointly. The bank had no knowledge or notice of any claim or interest of the wife in the lands mortgaged, adverse to the title of W. as shown by the deeds to himself and wdfe; nor of any fraud or mistake in the insertion of his name in the deeds; nor of the manner of the acquisition of' the lands by W. and his wife, other than w'as shown by the records of the deeds. Held, 1. That the bank was entitled to be protected as a bona fide purchaser, for a valuable consideration, without notice. 2. That the bank acquired a lien upon the one undivided half part of the lands embraced in the mortgage.
    2. Under the laws of Ohio, when lands are conveyed to husband and wdfe jointly, they take by moieties as tenants in common.
    3. A mortgage of real e.state executed to a national bank, to secure an in- . debtedness previously contracted for which new notes are given by the debtor, is not in violation of the national banking law.
    (Decided May 10, 1887.)
    Error to tbe District Court of Tuscarawas County.
    Nancy Wallace, defendant in error, filed her petition in the court of common pleas of Tuscarawas county, against Josejih Wallace and The Farmers’ and Merchants’ National Bank of Uhrieksville, O., setting forth among other things, that she was a daughter and one of the heirs at law of Jacob Uhrich, deceased, and was then the wife of Joseph Wallace, one of the defendants. That Jacob Uhrich died seized of large estates in lands, among which were certain lands — described in the petition — situated in the county of Tuscarawas, and being parts of sections 33 and 34 of township 13, range 7, in the Steubenville land district. That all the heirs at law of Jacob Uhrich agreed to amamicable partition of the lands of which he died seized, and all the co-heirs agreed to convey to the plaintiff by quit-claim deeds their interest in the several tracts of land described in the petition, so that she might hold the same in severalty, as her share of the real estate of which Jacob Uhrich died seized, upon condition that she should quit-claim to them, in severalty, her interest in the remainder of the real estate. That, in pursuance of such agreement, she did execute to the other heirs ’quit-claim deeds, conveying to them in severalty her interest in all the lands-and tenements of which Jacob Uhrich died seized, except the lands described in the petition. That certain of the heirs at law of Jacob Uhrich fraudulently, and others of such heirs through mistake, instead of executing quit-claim deeds of their interest in the lands described in the petition, to the plaintiff in severalty, inserted in the deeds which they did execute, the name of ■Joseph Wallace as a grantee jointly with the name of Nancy Wallace, the plaintiff for the purpose of vesting in him jointly with his wife the legal title to a portion of such lands. That on or about the 22d day of March, 1883, Joseph Wallace executed to The Fanners’ and Merchants’ National Bank of Uliriclisville, a mortgage of the real estate of which he had thus become seized, to secure his indebtedness to th'e bank. The plaintiff in her petition, asked that the mortgage be held void as to the lands described in the petition, and thait the bank be enjoined from foreclosing the same. The answer of the bank denied all the material allegations of the petition, and alleged new matter in defense, which was denied in the plaintiff’s reply, and in the reply filed by Joseph Wallace. The court of common pleas rendered judgment in favor of the plaintiff. An appeal was taken by the bank to the district court, and the bank having requested the district court to state its findings of fact and its conclusions of law separately, with the view of excepting to its decision upon the questions of law involved, the court stated its findings of fact as follows:
    “In 1849 Jacob Uhrich died, intestate, leaving children then living, Benjamin Uhrich, Jacob Uhrich, Joseph Uhrich and Nancy ’Wallace, the plaintiff, wife of the defendant, Joseph Wallace; and leaving grand-children then living, Benjamin Ross, Adam Ross and Mary Ross, children of his deceased daughter, Rosanna Ross; Albert Blickensderfer, son of his deceased daughter, Susanna Blickensderfer, and Jacob Welch, John Welch and Sarah Welch; children of his deceased daughter, Mary Welch.
    “ Said Jacob Uhrich died seized of about 1100 acres of land, including that described in the petition.
    “ In 1847, said Jacob Uhrich put plaintiff and her husband in possession of the land described in the petition, and the family has continuously resided thereon ever since.
    . “ In 1854 the said heirs at law of said Jacob Uhrich agreed to divide the lands of said decedent among themselves, and to execute deeds of quit-claim to each other. For the purpose of said agreement they valued the entire estate to be divided, at $21,000, the share of each child living, and of the representatives of each deceased child, at $3,000. At the time of this agreement said Benjamin, Jacob and Joseph Uhrich owned each the 1-7 of said estate, by descent from their said father, and they together owned by purchase and conveyance from Jacob and Sarah Welch 2-21, making in all 11-21.
    “ In pursuance of said agreement, plaintiff and her husband conveyed by quitclaim to the other heirs. And in pursuance of said agreement the said Benjamin, Jacob and Joseph Uhrich, in March, 1854, anda few days after said agreement was made, conveyed by qxxit-claim their interest in said land described in the petition to said Nancy Wallace and Joseph Wallace. The consideration named in said deed is $3,000. Said deed was by the grantors delivered to said Nancy, and by her delivered to her said husband, who procured it to be transferred and recorded in Dec. 1854. Ever since its record,- the said deed has been kept in a stand-drawer at tke home of said Joseph and Nancy Wallace, on the said land. And in pursuance of said agreement, said Benjamin and Adam Ross, on the 28th of August, 1854, conveyed by quit-claim their interest in said land described in the petition to said Nancy Wallace and Joseph Wallace, which deed was transferred, recorded, and has been kept in the manner aforesaid.-
    “ Said Benjamin Uhrich procured an attorney-at-law to prepare the said deed from him and his two brothers to said Nancy’and Joseph Wallace, and by the direction of said Benjamin the name of said Joseph Wallace was, by the said attorney, inserted as a grantee therein. The name of said Joseph Wallace was so inserted, without the knowledge or consent of said Nancy Wallace, and no consideration, other than the execution of said quit-claims to said grantors, was paid to them, or either of them, by any one. The purpose of said Benjamin in having the name of said Joseph so inserted as a grantee, was to give the said Joseph credit in bank, in order that he, the said Benjamin, might use him, the said Joseph, as surety in bank.

      “ Said Nancy had no knowledge that her said husband’s name was so inserted in either of said deeds as a grantee therein until 1883, and after her said husband and her son failed in business, and being after or about the time when the mortgage was given, and she had no knowledge of the giving of the mortgage until one or two weeks after it was given. No consideration other than the execution of quit-claim as aforesaid, was paid to said Benjamin or Adam Ross, or either of them, by any one. Plaintiff is not now and never had been able to read, and neither of said deeds to plaintiff and her husband was ever read to plaintiff.

      “ On the 22d day of March, 1883, the defendant, Joseph Wallace, being indebted to the defendant, The Farmers’ & Merchants’ National Bank of Uhrichsville, Ohio, upon certain promissory notes then past due, and in consideration of an extension of time for the payment of his said indebtedness, and of a reduction of the rate of interest thereon from 8 per cent, to 6 per cent., executed and delivered to the said bank his notes and mortgage as alleged in the amended answer of the said bank, and the said bank then delivered up to said Joseph Wallace his former notes then and theretofore held by it, and received the said mortgage and the notes secured thereby, in full settlement of all balances of indebtedness so due from said Joseph Wallace to the said bank. At no time prior to the commencement of this acton did the said bank have any knowledge or notice of any claim or interest of plaintiff in any of said lands adverse to the title of said Joseph Wallace, as shown by the said deeds to him and plaintiff; and the said bank had prior to the commencement of this action no notice or knowledge whatever of any fraud or mistake in the insertion of the name of said Joseph in said deeds or either of them, and had no knowledge whatever of the manner of the acquisition of said lands by said Nancy and Joseph Wallace, other than what was shown by the records of said deeds. On the 22nd day of March, 1883, the said bank duly filed the said mortgage with the recorder of said Tuscarawas county, Ohio, for record, and the same was thereafter duly recorded.
    “All the heirs at law of said Jacob Uhrich, not herein before named as grantors, have by quit-claim conveyed their interest in said lands to the plaintiff. Said Jacob Uhrich had no knowledge, at the time he and his brothers executed said quit-claim to said Nancy and Joseph Wallace, that the name of Joseph was inserted therein as grantee, and did not learn thereof until 1883.
    “Said Joseph Wallace was not present when said deeds of quit-claim from the Uhrich brothers and from the Rows brothers, or either of them, were executed, and he had no knowledge that his name was inserted in them, or in cither of them, as a grantee, until 1863.
    “And as conclusions of law upon the facts as found as aforesaid, the court finds as follows:
    “The court being of opinion upon the facts so found that the said deeds from the Uhrich brothers and from the Ross brothers to the said Nancy Wallace and Joseph Wallace, conveyed no estate or interest in the said lands to the said Joseph Wallace, do find the law and the equity of this case to be with tbe said Nancy Wallace, plaintiff, and that the said The Farmers’ and Merchants’ National Bank of Uhrichsville, Ohio, acquired no lien upon or interest in the said lands described in the petition.”
    In the district court judgment was rendered in favor of Nancy Wallace, plaintiff, in accordance with the aforegoing findings of fact and conclusions of law, and the bank now seeks to reverse the judgment of the district court.

      T. D. Healea and J. T. O’Donnell, for plaintiff in error.
    1. The deeds vested in Joseph Wallace the legal title to the undivided one-half of thirteen twenty-first parts of the land described in the petition. “The mode universal in use by which one individual conveys his land to another is by deed.” 2 Black. Com. 293, 294; Williams Real Prop. 79, 94, 148, 186, 187, 250; 3 Wash. Real Prop. 233; Rev. Stats., Secs. 4106 et seq.

    2. The bank was a bona fide purchaser, for value, without “ any knowledge or notice ” of any equitable interest of Nancy Wallace, and is, therefore, protected in its rights as mortgagee. Anketel v. Converse, 17 Ohio St. 11; Lewis v. Anderson, 20 Ohio St. 281; Shorten v. Drake, 38 Ohio St. 76; 2 Pom. Eq. Jur., sec. 767.
    3. The delivering up and cancellation of the old notes, the extension of the time of payment, and the reduction of the rate of interest, were sufficient consideration for the new notes, to secure which the mortgage was given, to entitle the bank to protection as mortgagee. Carlisle v. Wishart, 11 Ohio, 172; Roxborough v. Messick, 6 Ohio St. 448; Pitts v. Foglesong, 37 Ohio St. 676; Shorten Drake, supra; Gilchrist v. Gough, 63 Ind. 576; s. c. 30 Am. Rep. 250.
    4. The occupation and possession of the land by Nancy Wallace with her husband, before and at the time of the making and delivery of the mortgage, was entirely consistent with her possessory title of record, viz: the conveyance to her and her husband jointly. The bank had a right to infer that she had such possession by virtue of the title created by such conveyance; and such possession was not referable to his marital rights when he held the legal title to an interest in the lands by virtue of the deeds which were of record. 3 Wash. Real Prop. 317; Williams v. Sprigg, 6 Ohio St. 585; 2 Pom. Eq. Jur., sec. 620.
    5. The proposition that partition deeds create no new title, is true only in a qualified sense. The law might be more accurately stated as follows: Deeds made for partition purposes only,- create no new title as between the parties to such partition. No reported case has gone further, unless the deed showed, upon its face, that it was made for the purposes of partition. In Dawson v. Lawrence, 13 Ohio, 543, the deed upon its face showed that it was made for the purpose of partition, and certainly was notice to the whole world. The rule asserted in Tabler v. Wiseman, 2 Ohio St. 207, and McBain v. McBain, 15 Ohio St. 337, that conveyances for partition purposes create no new title, has, in the late case of Hershizer v. Florence, 39 Ohio St. 516, been held not to be applicable in a case like the one at bar. Doyle, J., in announcing the opinion of the court, said: “ The rule asserted in Tabler v. Wiseman and McBain v. McBain, applicable to partition proceedings under the statute, that no new title is created thereby, does not apply to the deliberate conveyances of the parties, especially where there is an independent consideration for such conveyances.”
    6. The proposition that Nancy Wallace has title independent of the deeds, by virtue of the parol agreement to partition, is untenable. Such agreement was within the statute of frauds, and void; and there was nothing to take that agreement out of the statute because Nancy and Joseph Wallace took possession before the death of her father, and have ever since retained it. Freem. on Partition, sec. 397-401; 1 Wash. Real Prop. 430; Brown Stat. Frauds, sec. 71.
    7. Before Nancy Wallace can be entitled to relief, even though the bank had acquired no rights under its mortgage, she must show in herself some interest, legal or equitable, in the thirteen forty-second parts of land upon which the bank claims, its mortgage lien. Rev. Stats., sec. 4993.

      8. The conveyances to Joseph ’Wallace, even if there was no consideration moving from him, raised a constructive trust. 2 Wash. Real Prop. 470; and a bona fide purchaser from the trustee, for a valuable consideration, without notice of the trust, will hold the laud -discharged of the trust, as will also a mortgagee. 2 Story Eq. Jur., sec. 1195 et seq.; 2 Wash. Real Prop. 484, 485, 575; Newton v. McLean, 41 Barb. 285; Lewin on Trusts, 725, 726; Pom. Eq. Jur., sec. 770, 771.
    9. “Where a record title to property is in the mortgagor, and there is no evidence which brings home to the mortgagee the knowledge or notice that the mortgagor is not owner in fact, the mortgage cannot be assailed by reason of such undisclosed character of the title.” Alexander v. Rice, 52 Mich. 451; 2 Pom’s Eq. Jur., sec. 658.
    10. Nancy Wallace is estopped from claiming any interest in the thirteen forty-second parts of the land. 2 Pom. Eq. Jur. sec. 814; Cord’s Leg. and Eq. Rights Mar. Wom., sec. 246; Rosenthal v. Mayhugh,33 Ohio St. 155.

      F. Louthitt, for defendant in error.
    1. Nancy - Wallace, at the time of the execution of the mortgage, was, and for thirty years had been, in possession of the premises as owner.
    A purchaser of land in the possession of a third person, is chargeable with notice of the rights and equities, whatever they may prove to be, of the party so in possession. House v. Beatty, 7 Ohio, 2 pt. 84-90; Kelley v. Stanbery, 13 Ohio, 408; Harvey v. Jones, 1 Dis. 65-69; McKinzie v. Perrill, 15 Ohio St. 162.
    But it is claimed that this principle has no application in this case, because Joseph Wallace, the husband of defendant, was also in possession of the premises.
    There is- nothing in the records to show that the possession of Joseph Wallace was adverse to his wife; but, on the other hand, it was consistent with the claim and title of his wife; and, in the absence of fraud on her part, was referable to his marital rights in the property. No one will claim that she was guilty of any fraud. In support -of this proposition, see
      Shorten v. Drake, 38 Ohio St. 76; Fassett v. Smith, 23 N. Y. 252.
    2. The legal title to the lands descended to Nancy Wallace from her father, and the deeds were executed to partition the premises, and not for any new consideration, or for the purpose of creating any new title.
    The tenants in common liad the right of partition of the premises between them, 01” the same thing might be elfected by mutual releases. No new title would be acquired in either case, and the estate of each in the land would remain the same as before. The tenancy in common only would be dissolved, and the estate of each thereby become separate. Freeman v. Allen, 17 Ohio St. 530; Dawson v. Lawrence, 13 Ohio, 543; White v. Brocaw, 14 Ohio St. 339; Tabler v. Wiseman, 2 Ohio St. 207; McBain v. McBain, 15 Ohio St. 337; Youngs v. Heffner, 36 Ohio St. 237; Crosthwaite v. Dixon, 5 Adol. & Ellis, 834.
    In Hershizer v. Florence, 39 Ohio St. 516, there were other considerations, and it was not a simple case of partition by mutual releases.
    3. Even a parol partition of the land would, in equity, be held valid and binding, if long acquiesced in by occupation in severalty. The deeds were only intended to sever the unity of possession, and created no new title, and could create none. Mrs. Wallace already had the legal title by descent from her father; it was agreed between her and.the other heirs that she should hold these premises in severalty, as her share of her father’s real estate; she did so hold them under that arrangement for about thirtjr years, and if there had been no writing whatever, the parol partition would be good in equity. Piatt v. Hubbel, 5 Ohio, 243; Wood v. Fleet, 36 N. Y. 499; Jackson v. Harder, 4 Am. Dec. 262, and note 266.
    4. The bank cannot be held to occupy the position of a bona fide purchaser, because the deeds under which it claims are only quit-claim deeds or releases made by grantors having no title of record.
    5. Nancy Wallace already had the legal title to the land by operation of law before the execution of the quit-claim releases, and the plea of bona fide purchaser is no defense against a legal title. Larrowe v. Beam, 10 Ohio, 498; McArthur v. Phoebus, 2 Ohio, 415.
    A plea of innocent purchaser cannot protect a title originally defective against a better adverse title. McArthur v. Phoebus, supra.

    Joseph Wallace had no real title to the land, although his name was mentioned in some of the partition deeds, as one of the grantees. Nancy Wallace had already the legal title, a,nd had performed, no act on her part to convey it, or any part thereof, to Joseph; her partition deed to the other heirs conveyed no title, nor was it intended to convey title; she alienated no part of this tract, by any act of hers; she acquired the legal title by descent, and has never in any way or manner alienated or conveyed the same to any person. This bank is therefore attempting to make the plea of bona fide purchaser against a valid outstanding legal title. Under the above authorities, such plea is certainly not good.
    6. But it is claimed by counsel for plaintiff, that Mrs. Wallace is estopped from claiming any interest in thirteen-forty-second parts of the land.
    A married woman cannot be estopped, except by her active fraud. Todd v. P. Ft. W. & C. Ry. Co., 19 Ohio St. 514; Jackson v. Cary, 16 John. 302; Kelly Married Women, 122-123.
    Merc delay in attacking the deed is not material, and does not estop. Meley v. Collins, 41 Cal. 663; s. c. 10 Am. Rep. 279; Todd v. The Railway, 19 Ohio St. 514.
    7. The doctrine of bona fide purchaser applies only to conveyances from fraudulent and voluntary grantors, and not to such a case as this. 4 Kent, 560.
    It requires some affirmative act of the owner to divest him of property, either real or personal, in favor of an innocent, purchaser. Nancy Wallace must have done some act by which she intended to, or did, convey the title to her busband.
    If Joseph Wallace did not receive his apparent title to a portion of these premises from Nancy, then she is not estopped front demanding all Iter rights and equities in the premises against ihc world, although another party, be he equally innocent, may have to suffer Dean v. Yates, 22 Ohio St. 388-396; Bernard v. Campbell, 58 N. Y. 73-76; Williams v. Merle, 25 Am. Dec. 611-612-613; Williamson v. Williamson, 41 Am. Dec. 636; Barnes v. Meeds, 49 Am. Dec. 390; Ogden v. Ogden, 4 Ohio St. 182,
    8. The National bank has no power to take a mortgage on real estate except to secure a pre-existing debt. U. S. Statutes, sec. 5137.
    Its money must be loaned and secured by personal security only. U. S. Statutes, sec. 5136, subdivision 7.
    A right, or lien, obtained merely in security of a pre-existing debt, without any other consideration, does not draw to it the equitable protection afforded to bona fide purchasers. Copeband v. Manton, 22 Ohio St. 398-402; Roxborough v. Messick, 6 Ohio St. 448; Lewis v. Anderson, 20 Ohio St. 281.
    9. There can be no trust in such a- case as this. Nancy Wallace had the legal title to the land. No trust of any kind cóuld be created except she, by her own act, created such trust. Her brothers could not create a trust for her property.
   Dickman, J.

The controlling questions to be determined in the case under- consideration are, whether Joseph Wallace acquired any estate or interest in the lands described in the original petition, by the deeds to himself and his wife Nancy Wallace,, from Renjamin, Jacob and Joseph Uhrich, and Benjamin and Adam Ross; and whether the Farmers’ and Merchants’ National Bank, by virtue of the mortgage executed to it by Joseph Wallace, acquired a lien upon or interest in any portion of such lands. Nancy Wallace, defendant in error, at the death of her father Jacob Uhrich, sr. intestate, became entitled as one of his heirs at law, to an undivided seventh part in fee of all the lands of which he died seized, and of which the lands described in the petition constituted a part. As tenant in common, clothed with full power of alienation, she was competent to vest by deed in the other heirs, or in strangers, an absolute title to all her undivided interest in the lands of the intestate. And the same power of alienation which she possessed, was vested in those heirs who had by quit-claim deeds conveyed to her and Joseph Wallace all their interest in the lands described in the original petition. White v. Sayre, 2 Ohio, 110; Treon v. Emerick, 6 Ohio, 391; Prentiss’ case, 7 Ohio, 2 pt. 129; Dennison v. Foster, 9 Ohio 126.

There was an agreement that the heirs at law of the intestate should make an amicable partition among themselves, of all the lands of which he died seized. The quit-claim deeds by the defendant in error to her brothers and other heirs at law, doubtless, were designed as the consideration for the deeds from them to herself and husband jointly. As between him and herself, apart from any rights inuring to him jure uxoris, he would hold in trust for her the legal title to an undivided moiety of the interest conveyed to them jointly, equivalent to thirteen forty-second parts of the land in the original petition described. As between himself, however, and a bona fide purchaser for a valuable consideration, without notice, the record of the deeds would show him the unqualified owner of a* legal estate in an undivided moiety, with all the rights incident to such ownership. But the record would not-bring home to .any one, notice of any latent equity of the wife independent of her rights as a joint grantee with her husband in the deeds executed to them.

The bank, at no time prior to the commencement of the original action, had any knowledge or notice of any claim or interest of Nancy Wallace in the lands in controversy, adverse to the title of Joseph Wallace as shown by the deeds to him and his wife; nor had the bank at that time, any notice or knowledge whatever, of any fraud or mistake in the insertion of the name of Joseph Wallace in the déeds or either of them; and had no knowledge whatever, of the manner of the acquisition of such lands by Nancy and Joseph Wallace, other than what was shown by the records of those deeds. Under such circumstances, the bank in dealing with Joseph Wallace and taking from him the mortgage, was justified in relying upon the evidence furnished by the records. The object of the registry acts, as observed by a leading text writer, is to furnish the best and most easily accessible evidence of the titles to real estate, so that purchasers may be informed of prior deeds and incumbrances; and having availed themselves of this source of information, may purchase in safety, provided they do so without knowledge, information or suggestions from other facts, of some antecedent conveyance or equitable claim.

It is contended that the defendant in error was in'possession of the land with her husband before and at the time of executing the mortgage to the bank, and that such possession was notice to the mortgagee of her actual rights and interests. But her possession under the quit-claim deeds to herself and husband was not exclusive, or of a character to give information that she was an occupant asserting dominion over the property under claim of right or authority exclusive of property-rights in her husband, and therefore did not operate as notice to the mortgagee. Ranney v. Hardy, 43 Ohio St. 157. An essential feature of the possession which is set up as notice to a subsequent purchaser is, that it must be exclusive, at least so far as such subsequent purchaser’s grantor is concerned. This principle is illustrated in Buckmaster v. Needham, 22 Vt. 617. In that case, a father conveyed to his son, upon certain conditions, an undivided one-third of a farm, which was at the time occupied by them as tenants in common. .The grantee, after residing upon the farm with the grantor for several years, removed and left the grantor in possession of the whole farm, and afterward, and while the grantor Avas thus in possession, executed a mortgage deed of one-third of the farm, and the reason and purpose of the removal did not appear. It Avas held, that the court Avould not presume that the grantor was so in possession claiming title to the Avhole farm adversely to the grantee, as to avoid the mortgage thus executed; and that, although the possession may have been intended to be adverse to the grantee, yet, that this Avould not affect the validity of the mortgage, unless the mortgagees, at the time of the conveyance to them, had notice of such adverse possession. The decision rests upon the familiar principle that even a sole possession by one tenant in common, is not presumed to be adverse to the co-tenant; and that the ordinary presumption is that such a possession is held in right of both tenants. To render the occupancy of the tenant in common adverse to those who have an undivided interest in the premises, there must be positive and overt acts connected with his exercise of ownership, such as will manifest an unmistakable intention on his part to exclude his co-tenants from the enjoyment of the property; otherwise his possession will be regarded not only as a declaration of his own proprietary rights, but those of his co-tenants as well.” Wade on Nonce, § 290, and cases cited.

Jnder the laws of Ohio, estates in joint tenancy do not exist, and the decisions have always been averse to estates by entireties. When land, therefore, is granted to husband and wife, they take by moities as tenants in common. The jus aaaresaendi,” say the court in Sergeant v. Steinberger, 2 Ohio, 305, is not founded in principles of natural justice, nor in any reasons of policy applicable to our society or institutions. But, on the contrary, it is adverse to the understandings, habits, and feelings of the people.” See also Wilson v. Fleming, 13 Ohio, 68. By the deeds, therefore, to Nancy and Joseph Wallace, she took as tenant in common with her husband, the legal title to one undivided moiety of the land or interest in land thereby conveyed. And as against the bank, whose only knowdedge of her right of possession was derived from the records, her possession of the granted premises, instead of being adverse to her husband, might be consistently referred to her possessory title of record acquired under the quit-claim deeds executed to her and her husband jointly.

Joseph Wallace, before and at the time of executing the mortgage, was in the actual possession of the premises therein described.. But it is claimed in behalf of Nancy Wallace, that the lands upon which she and 'her husband had resided continuously for several years at the time of the partition in 1854, came to her by title of descent from her father, and that therefore the possession of her husband should be referred to his marital rights, and not to the legal title acquired by him through the deeds to himself and wife. Granting that his marital rights had not been abridged by statute, and that he was in full possession and in the enjoyment of the rents and profits by virtue of those rights, the bank could not then have been chargeable with notice by reason of possession by the wife. The rule, however, seems to be settled, that when a proprietor occupies premises under a title which rests in parol or is unrecorded, and the record shows a title under which he would be entitled to possession, his possession will be referred to his record title in preference to any other. The possession of land is notice of the' possessor’s title; but the registry by him of a particular title would restrict the generality of notice from possession. Woods v. Farmere, 7 Watts, 382. If the occupant relies on title by possession alone, it is open to a j)articular examination of the foundation of it. But when he makes the register the evidence of his title, and directs the attention of the public to a particular conveyance on record, he is presumed to have preferred the register as the best index of his title. In Plumer v. Robertson, 6 Serg. & Rawle, 179, the registered title was a mortgage, the other a covenant for a purchase which was susceptible of registration; it wras held, in accordance with the principle indicated, that as the possession was consistent with the registry, the subsequent purchaser was not bound to inquire further.

But although the bank may have received the mortgage from Joseph Wallace without notice or knowledge of any equities of his wife, the question arises, whether the bank is to be treated as a bona fide purchaser for a valuable consideration. It appears from the findings of fact, that on the 22nd of March, 1883, Joseph Wallace was indebted to the bank upon certain promissory notes then past due, and in consideration of an extension of time for the payment of his indebtedness and of a reduction of the rate of interest thereon from eight per cent, to six per cent., he made and delivered to the bank his new notes — the old notes having been delivered up and can-celled — and executed a mortgage on the premises conveyed to himself and wife jointly. We are of the opinion that the surrender and cancellation of the old notes, the extension of the time of payment of the debt, and the reduction of the rate of interest, were a sufficient consideration for the new notes, to secure which the mortgage was given, to entitle the bank to protection as a purchaser for value. After the stipulation for further time of payment, and the reduction of the rate of interest, the mortgagee did not remain in the same situation as before, in respect to the pre-existing debt. In Lewis v. Anderson, 20 Ohio St. 281, the question how far a mortgagee, when the only consideration of the mortgage is a pre-existing debt of the mortgagor, must be regarded as a purchaser for value and entitled to the protection against prior liens afforded in equity to bona fide purchasers, was made to depend on whether the mortgagee was induced by virtue of the mortgage to change his condition in any manner. Day, J., says: “There was no consideration for the mortgage other than the pre-existing debt of the mortgagor; nor was the mortgagee induced thereby to change her condition in any manner.” In the well known case of Roxborough v. Messick, 6 Ohio St. 448, it was held that when the note of a third person is transferred, bona fide, before due, as collateral security, and for value, such as in consideration of a loan, or advancement, or a stipulation, express or implied, of further time to pay a preexisting debt, or the like, the holder of such collateral will be protected from infirmities affecting the instrument before it was thus transferred. In Gilchrist v. Gough, 63 Ind. 576, there was a question of priority of mortgages as between Gough and Hoffman. Howk, C. J., in delivering the opinion of the court observed: “ The appellee, Hoffman, must be regarded as a purchaser or mortgagee, for a valuable consideration, as to each' of his mortgages. For it appeared that, in each of the mortgages, the time of payment of the pre-existing indebtedness, to secure which the mortgage was given, had been extended for the term of one year, and this extension of time was sufficient to make him a purchaser or mortagee for a valuable consideration, as to each of the mortgages.”

The point is made that the object of the several quit-claim deeds executed interchangeably by the heirs at law to each other, being for the purpose of partition of the lands among themselves, no new title was created, and hence the deeds from the Uhrich brothers and the Ross brothers, while they vested an estate or interest in Nancy ’Wallace, conveyed none to Joseph Wallace. It is true, as declared in Tabler v. Wiseman, 2 Ohio St. 207, that a proceeding in partition does not decide title or create any new title, and that it merely dissolves the tenancy in common, and leaves the title as it was, except to locate such rights as the parties may have in distinct portions of the premises, and to extinguish it in others. But it is only necessary to say, that while the heirs at law took by descent from Jacob Uhrich sr. the lands which they partitioned among themselves as tenants in common, Joseph Wallace took by purchase from Benjamin, Jacob and Joseph Uhrich, and Benjamin and Adam Ross.

Nancy Wallace acquired no title, independent of the quitclaim deeds of the heirs to each other, by virtue of any parol agreement to partition. She and her husband were first placed in possession' of the land described in the original petition by her father, and in 1854 the heirs at law agreed to divide the lands of their inheritance, and that agreement was followed at once by partition deeds. There was no parol partition, consummated by possession taken and held in accordance therewith and so long acquiesced in, as to call for the protection of a court of equity. And such possession as might be referable to the deeds of partition in which Joseph Wallace was made a grantee, could not take away the rights of the bank as a bona fide purchaser, for a valuable consideration, and without notice.

The mortgage was given to the bank by way of security for an indebtedness previously contracted and evidenced by now notes of the mortgagor. In taking such security, the bank did not violate the provisions of the national banking law in reference to holding real estate. Revised Statutes of the United States, section 5137; Shinkle v. First National Bank of Ripley, 22 Ohio St. 516; Allen v. First National Bank of Xenia, 23 Ohio St. 97; Upton v. National Bank of South Reading, 120 Mass. 153; Ornn v. Merchants’ National Bank, 16 Kan. 341; Morse on Banking, 2 Ed. 566.

Entertaining these views, the judgment of the district court, we think, •should be reversed.

Judgment reversed.


source: Caselaw Access Project

author: Speak, J.

license: Public Domain

text:
    Becker v. Walworth.

      Executors and administrators — Personal liability for rent of leasehold — Election of remedy.

    1. A lease for years, being a chattel interest, passes, at the death of the lessee, to the personal representative, who becomes, by virtue of his office, assignee of the term; and the law specifically appropriates the profits of such leased premises, to an amount equal to the rents reserved in the lease, to the benefit of the lessor. Hence, if such representative enters into possession of the leased promises and receives such profits, he becomes personally liable to the lessor for accruing rents to the extent of the profits of tiro premises during such occupancy.
    2. In such case the lessor has an election either to look to the estate of the deceased alone for such rents, or to hold the representative personally liable therefor.
    3. The giving by the lessor of receipts for a portion of the rents accruing during such occupancy to the representative as such, and the commencement by the lessor of a suit against him in his representativo capacity to recover a balance due, which is discontinued, do not constitute such au election as will bar the prosecution of a claim by the lessor to recover such balance of the representative in his individual capacity.
    (Decided May 10, 1887.)
    Error to the District Court of Cuyahoga County.
    One Adam Rafenstein was the lessee of Annie Walworth, defendant in error. He died during the term, leaving a will by which the plaintiff in error was appointed executor. He entered into possession of the premises, collected rents from sub-lessees, and paid from that source some of the debts of the estate, and to the lessor a part of the rent accruing while so in possession, but did not pay the same in full. The estate proved to be insolvent. After the possession terminated, an action was commenced in the court of common pleas by the lessor to recover of the executor personally. The defense sought to be made by pleading and proof was that the defendant took possession for the benefit of the estate and in his capacity as executor, and that plaintiff had elected to hold defendant liable for rent in his capacity as executor only, and not in his personal capacity. It was admitted that the rents received by the defendant, accruing while he was in possession, were largely in excess of the rent owing to the lessor. Trial resulted in judgment for the plaintiff, which, on error, was affirmed by the district court. The alleged errors arise upon the charge of the court to the jury.

      Eolio M. Heisley, for plaintiff in error.
    The defendant in error had the right to elect whether she would hold Becker, personally, or in his representative capacity. Bolton v. Canham, 1 Freem. 337; Jevens v. Harridge, 1 Saunders, 1, n.; 3 Williams Ex. 1854.
    • She elected to hold the estate, (1) by the manner in which she and her agents did business with him, and, (2) by suing him in the first instance as “ executor.” Having so elected she cannot now hold the executor personally. Rawson v. Turner, 4 John. 469; M’Elroy v. Mancius, 13 John. 121; Weeks v. Patten, 18 Me. 46; Remnant v. Bremridge, 8 Taunt. 196; Goss v. Mather, 2 Lansing, 283; Rodermund v. Clark, 46 N. Y. 354; Littlefield v. Brown, 1 Wend. 398; Scarf v. Jardine, 22 Am. L. Reg. (N. S.), 364; Burton v. Guyse, 1 Saunders, 112; Bilborough v. Holmes, 5 Chan. Div. 255; 2 Williams Ex., book 2, ch. 1; 3 Williams Ex., book 1. ch. 1.

      T. E. Burton, for defendant in error.'
    1. A lessor, in case of an assignment of the lease by his lessee, has an election either to sue his lessee or his lessee’s assignee, provided such assignee is in possession, and the fact of having brought suit against one and even obtaining judgment against him will not preclude him from bringing suit against the other, if his claim has not been satisfied. The remedies are concurrent, and the fact of having chosen one by no means prevents the lessor from resorting to the other. Sutliff v. Atwood, 15 Ohio St. 186.
    2. The executor of a deceased lessee, who enters, is liable personally as assignee, and he is subject to all the liabilities of an assignee, except that he is not liable for a larger amount than the value of the land leased, or in other words the amount of rent which he receives from the leasehold, and the value of the land is presumed to be as much as the rent. Taylor Land. & Ten., secs. 427, 434, 461; Tremeere v. Morison, 1 Bing. (N. C.) 89; Wollaston v. Hakewill, 42 E. C. L. 174; Howard v. Heinerschit, 16 Hun. 177; 1 Chitty Pl. 383; Rathbone v. Hooney, 58 N. Y. 467.
    3. The objection that the right to charge the executor personally has been waived by the conduct of the lessor and her agents is not tenable. An agent cannot change the nature of a tenancy by the form of a receipt given. Damb v. Hoffman, 3 E. D. Smith, 361, 365. Besides they were drawn in a particular form at the request of the executor. There was no agreement as to whether he should be held as executor or personally.
    It is not conceded that the petition as first‘filed claimed judgment against Becker in his representative capacity. See Wigley v. Ashton, 3 B. & Ald. 101; Waldsmith v. Waldsmith, 2 Ohio, 156; Bouv. Law Dict., Tit. “ Debet ” and “ Detinet;”
    But even conceding the petition as first filed to have set up a claim against Becker in his representative capacity, defendant in error was not barred of the right to discontinue or change the suit and charge him in his personal capacity, because :

      (a.) She might hold Becker either in his representative capacity or personally, he having entered on the leased premises. 3 Williams Ex. 1854; Jevens v. Harridge, 1 Saunders, 1; Dicey on Parties, 342; Conger v. Alwood, 28 Ohio St. 434.

      (b.) A plaintiff having the right of election between two actions or remedies, does not, by bringing an action, lose the right to discontinue the same and bring the other action, unless judgment (in some cases, satisfaction) has been obtained in the first action. 1 Chitty Pl. 234; Clinton Bank v. Hart, 5 Ohio St. 33; Nason v. Cockroft, 3 Duer, 369; Beymer v. Bonsall, 79 Pa. St. 300; Bank of Beloit v. Beale, 7 Bosw. 626; Mattlage v. Poole, 15 Hun, 556.
   Speak, J.

That a leasehold interest in a term for years passes, upon the death of the lessee, to the personal representative and not to the heir, and that such representative thereby becomes an assignee of tbe lease by operation of law, is elementary. He may dispose of the unexpired term by sale, as of other assets, and by assignment, and thus avoid personal liability for rents coming due, though the estate would remain liable to the lessor upon the covenants in the lease. But if the representative enters into possession of the leased premises, he thereby incurs liability, in his personal character, to the extent of profits actually received. If the rent be of less value than the profits of the land, as the law prima fade supposes, so much of the profits as suffice to make up the rent belongs equitably to the lessor, and cannot lawfully be otherwise applied ; hence the personal liability to the extent stated. It may be charged against the representative who refuses to so pay over that he owes and unlawfully detains. So that, while his personal liability does not exceed what the property yields, nevertheless the rents received by him, being treated not so much as assets as profits of the land, the law specifically appropriates them to the benefit of the landlord to an amount equal to the rents reserved in the lease. The representativé takes the lease as assignee by virtue of his office, as he takes other chattel interests of the deceased. The term is assets in his hands, and he is none the less an assignee because the liability incurred is not in all respects as onerous as that of an assignee in fact. The rule is not a hard one. It but enjoins good faith, and a proper discharge of duty. Taylor’s Landlord and Tenant, sections 434, 461; 3 Williams on Executors, 1854; Sutliff v. Atwood, 15 Ohio St. 186; Jevens v. Harridge, 1 Saunders, 1; Tremeere v. Morison, 1 Bingham, 89; 1 Chitty on Pleadings, 383; Howard v. Heinerschit, 16 Hun. 177.

It is manifest that the defendant in this case could avoid personal liability for rents coming due between the entry and the time of yielding possession only by showing an express contract to look to him as executor only, or such conduct on the part of the lessor as in effect precluded her from enforcing ' personal liability. No such express contract is shown; indeed, it appears affirmatively that none was made. But the claim is, that by the giving of certain receipts for rent to him as exeecutor, and by the commencing of an action against him in his representative capacity, the plaintiff elected to hold him liable in that capacity only. Some twenty-eight receipts for rent, embracing divers sums, were given by the lessor’s agent while the defendant remained in possession, eight of which acknowledge ‘receipt of money from " M. Becker, executor.” These were given in this form at the request of the defendant for the purpose of filing them as vouchers with his account in the probate court. The insolvency of the estate was not known at the time of the giving of these receipts, or any of them.

It may be said, as a deduction from the authorities on the subject, that an election is the making of a choice between two or more benefits or rights which estops the party from afterward denying that an election has been made, and from demanding some benefit or right other than the one chosen. Except in cases where his conduct has been such as to mislead another party to his prejudice, the party having a right to elect must have proceeded upon the idea that he was bound to elect; he must have had knowledge of his obligation to elect as matter of law; there must have been a purpose to elect, and an actual election. And where the election is as to one of two or more remedies, in order to make a selection of one a bar to a pursuit of the other, it must appear that they are inconsistent, and that the one last sought is not merely cumulative. As applied to a claimed election under a will, Wood, J., in Melick v. Darling, 11 Ohio, 343, gives this definition : "To create a case of election, there must be a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both, that one should be a substitute for the other.” Having these rules in mind, it is difficult to see that the doctrine of election can be held to apply to the giving of the receipts in question. The defendant’s position was that of one having in his possession moneys, profits received out of the land, which could not lawfully be applied to any purpose until the rent due the lessor had been paid; so that, in paying over to the lessor of such money upon the rent due her he was but doing what the law made it his duty to do, and an assent to that performance of duty by the lessor could not be treated as any abandonment of a right to resort to other remedies which tbe law gave ber in case of failure to perform tbat duty by tbe executor in tbe future. She bad the right in such event, to look to the estate, or to the executor personally, and these remedies were not inconsistent. There would be no taking of one thing and rejecting another. The former remedy was primary, and the latter, in a sense, cumulative. The executor stood in two relations, but that did not make the plaintiff’s claim inconsistent. Moreover, there was no obligation to elect, nor does it appear that either party at the time understood that an election was being made, and there certainly is not shown to have been a purpose on the part of the lessor to make an election. She might, indeed, recognize the possession of the defendant as the possession of the estate, and even treat him as her debtor as the representative of the estate without impairing her right to hold him as personally liable, because such possession in such representative capacity is the ground of his personal liability, and the estate was liable to her as the primary debtor. It was not essential to personal liability that he should have entered for his personal benefit, nor as a wrongdoer. Nor does it appear that the doctrine of estoppel applies. The conduct of tbe plaintiff in no way induced the defendant to change his position to his prejudice. Her position, as to the profits of the leased premises, was not, in principle, different from tbat of a creditor of a solvent estate whose claim has been duly allowed, but which, after lapse of full statutory time, the executor, though possessed of abundant means, refuses to pay. In such case the executor has received moneys which it is his duty to pay over to the creditor, and the latter has the right to proceed against him personally. This right does not interfere with his equal right to compel payment from the assets of the estate.

The filing of the first petition in the case is claimed to constitute an election. In the caption to that pleading the defendant was described as “Michael Becker, executor of the estate of Abram Rafenstein, deceased,” and in the body the allegations purported to charge him as executor. Before answer, on leave, the petition was amended so as to charge him personally. This leave was granted without prejudice to defendant’s right to insist that plaintiff had elected to make her claim against him as executor, and not personally.

Our practice encourages great liberality in pleading, and the code enjoins the duty of allowing amendments at all stages of a case in furtherance of justice. The commencement of the action by the filing of an original petition against defendant as executor worked no prejudice to him, and it is not easy to see why such commencement of the action should preclude amendment on the part of the plaintiff in order to charge him personally. It was no more than the discontinuing of one action and the commencement of another, and this may have been induced by the discovery that the one would prove wholly fruitless. The authorities cited by counsel for plaintiff in error in his brief hardly meet the case before us. Had this case proceeded to trial and judgment upon the original petition, a different question would have been presented, and'the cases cited which involve a like question would have been in point. There is a class of cases which hold that the selection and prosecution by a party of one of two or more remedies which are wholly repugnant, the choosing of one being necessarily an abandonment of the other, estops the party to deny that he is bound by his selection. Of these, the case of M'Elroy v. Mancius, 13 Johns. 121, is an instance. One Hubble, a prisoner in execution, escaped. Action was brought by the creditor against the sheriff. At the trial the sheriff sought to prove that the prisoner afterward gave himself up, and, after due notice, applied for his discharge pursuant to the act for the relief of debtors, and that the plaintiff appeared in opposition, but the prisoner was discharged. The court ruled out the testimony. This was sustained by the reviewing court, which held that where a plaintiff brings an °action „against a sheriff for the escape of a prisoner in execution,"the plaintiff’s election to consider him as oat of custody is thereby determined, and he could not resort to a remedy which would be an acknowledgment of the debtor being in custody. Brown v. Littlefield, 11 Wend. 467, is of like import. Another class of cases is to be found where the character of the dealings between the parties has been held to constitute a binding election. Of this class Bilborough v. Holmes, 5 Ch. Div., L. R. 255, is one. A member of a banking firm died and new parties came in. The 'depositors, having full' knowledge of the death, continued to deal with the new firm as they had before dealt with the old, making no claim against the estate of the deceased, but taking interest on deposits from the new firm until it failed, when they sought to hold the estate. Held, a novation, and that there could be no recovery. Still another class of cases is cited where the conduct of the party as to the subject-matter which is the basis of the suit has been such as to work an estoppel. Rodermund v. Clark, 46 N. Y. 354, is of that character. Ward and Clark owned a vessel. Clark undertook to sell the whole of it to Malcolm. Ward disputed the right to sell, forbade the sale, and afterward took actual possession. Malcolm began suit for possession in a state court, but Ward, by giving bond, retained the vessel. Malcolm afterward began proceedings by a libel in a federal court to recover possession as against Ward, and the marshal seized the vessel. Ward was served, but did not defend, and the vessel was delivered to Malcolm, who retained it. It was held that Ward, having elected to assert his right by retaining possession and refusing to recognize the sale, he and his assigns were precluded from maintaining air action against Clark for the conversion. Weeks v. Patten, 18 Me. 42, is of still another class. In this case it was held that one who had taken a beneficial interest under a will could not afterward set up a claim which would defeat the will. It seems plain that cases of the character hero given can have no material bearing upon the case under consideration.

It is not necessary to undertake to lay down any general rule, as to election, by which all cases should be governed. Indeed it is apparent that no general rule can bo given, but that every case must be left to be decided upon its own. particular circumstances. But in a case like this there need be no hesitancy in declaring, upon authority as well as reason, that until prosecuted to final judgment, the claim made against .the executor as such would not stand in the Avay of a claim against him personally. There are reputable authorities Avhich would warrant the holding that nothing short of satisfaction would work that result. We are not called upon, however, to go to that length. 1 Chitty on Pleading, 234; Clinton Bank v. Hart, 5 Ohio St. 34; Bank of Beloit v. Beale, 7 Bosworth, 626; Nason v. Cockroft, 3 Duer. 369; Rathbone v. Hooney, 58 N. Y. 463; Marsh v. Chamberlain, 2 Lansing, 283; Tayloe v. Thomson, 5 Peters, 357.

The charge given to the jury by the learned judge who presided at the trial was in consonance with the views here expressed, and was a lucid and correct exposition of the law upon the subject.

Complaint is also made that there was error in the direction given by the court as to the right of defendant to have deduction by reason of the payment by him, out of moneys so received, of certain notes given to plaintiff by the deceased for back rents. We think not. The record shows that the executor made the application of the money on the notes, and that, deducting from the profits received by the executor, the amount of the notes paid, there was yet abundant means to pay accruing rents to the lessor. The principle of law given was correct, and no injustice was done by the verdict.

Judgment affirmed.


author: Minshall, J.

text:
    Barholt v. Wright.

      Assault and battery — Action for damages — Agreement to fight.

    In a suit to recover damages for an assault and battery, the fact that the parties fought by agreement, may be shown in mitigation of damages but is no bar to the action.
    (Decided May 10, 1887.)
    Error to the Circuit Court of Portage County.
    The plaintiff below brought suit against the defendant to recover damages for an assault and battery committed upon his person. The answer was a general denial. Upon the trial of the issue, the jury, under the charge of the court, rendered a verdict for the defendant. A motion for a new trial, assigning error in the charge, was overruled by the court, and a bill of exceptions taken. Upon error the judgment was reversed in the circuit court, and the cause remanded for a, new trial; and the defendant below now prosecutes error in this court to reverse the judgment of the circuit court.
    The evidence is not set out in the bill of exceptions; but it appears from the bill, that, upon the trial, the plaintiff offered evidence tending to show, that he and the defendant went out to fight by agreement and did fight, and was severely injured by the defendant; among other injuries inflicted upon him, one of his fingers was so bitten by the defendant that it had to be amputated. By reason of the injuries so received, he became ill, was disabled for work for a long time, and was put to considerable expense in being cured. The court, however, charged the jury that if the parties went out to fight by agreement, and the plaintiff received the injuries complained of from the defendant while the fight was going on and in the course of it, he could not recover. The accuracy of this charge is the question presented by the record.
    P. JB. Qonant and J. N. Nichols, for plaintiff in error.
    TF. B. Thomas, George F. Robinson and Gole & Wright, for defendant in error.
   Minshall, J.

It would seem at first blush contrary to certain general principals of remedial justice to allow a plaintiff to recover damages for an injury inflicted on him by a defendant in a combat of his own seeking; or where, as in this case, the fight occurred by an agreement between the parties to fight. Thus in cases for damages resulting from the clearest negligence on the part of the defendant, a recovery is denied the plaintiff, if it appear that his own fault in any way contributed to the injury of which he complains. And a maxim, as old as the law, volenti non fit injuria, forbids a recovery by a plaintiff where it appears that the ground of his complaint had been induced by that to which he had assented; for, in judgment of law, that to which, a party assents is not deemed an injury. Broom’s Leg. Max. 268.

But as often as the question has been presented, it has been decided that a recovery may be had by a plaintiff for injuries inflicted by the defend&nt in a mutual combat, as well as in a combat where the plaintiff was the first assailant, and the injuries resulted from the use of excessive and unnecessary force by the defendant in repelling the assault. These apparent anomalies rest upon the importance which the law attaches to the public peace as well as to the life and person of the citizen. From considerations of this kind it no more regards an agreement by which one man may have assented to be beaten, than it docs an agreement to part with his liberty and become the slave r.f ¡mother. But the fact that the injuries were received in a combat in which the parties had engaged by mutual agreement, may be shown in mitigation, of damages. 2 Greenleaf Evi., § 85; Logan v. Austin, 1 Stewart, 476. This, however, is the fnll extent to which the cases have gone. We will notice a few of them. In Boulter v. Clark, an early case, an offer was made, under the general' issue, to show that the plaintiff and the defendant fought by consent. The offer was denied , the Chief Baron saying, “ the fighting being unlawful, the consent of the plaintiff to fight, if proved, would be no bar to his action.” Buller’s Nisi Prius, 16. A number of earlier cases were cited, and among them that of Mathew v. Ollerton, Comb. 218, where it is said “that if a man license another to beat him, such license is void, because it is against the peace.” It will be found upon examination that this case was not for an assault and battery; it was on an award that had been made by the plaintiff on a submission to himself. The remark, however, made in the reasoning of the court, is evidence of the common understanding of the law at that early day. In 1 Stephen’s Nisi Prius, 211, it is said: “If two men engage in a boxing match, an action can be sustained by either of them against the other, if an assault be made; because the act of boxing is unlawful, and the consent of the parties to fight' cannot excuse the injury.” So in Bell v. Hansley, 3 Jones, N. C. 131, it was held that “one may recover in an action for assault and battery, although he agreed to fight with his adversary; for such agreement to break the peace being void, the maxim volenti non fit injuria does not apply.” The following cases are to the same effect: Stout v. Wren, 1 Hawks, 420; Adams v. Waggoner, 33 Ind. 531; Shay v. Thompson, 59 Wis. 540; Logan v. Austin, 1 Stewart, 476. And so it was held in Commonwealth v. Collberg, 119 Mass. 350, that where two persons go out to fight with their fists, by consent, and do fight with each other, each is guilty of an assault, although there is no anger or mutual ill-will. Champer v. State, 14 Ohio St. 437, is not in conflict with this, as will be explained hereafter.

No case has been cited that can be said to be to the contrary. What is said by Peck, J., in Smith v. State, 12 Ohio St. 466, that “an assault upon a consenting party would seem to be a legal absurdity,” must be applied to the facts of that case. The judge was discussing the sufficiency of a count in an indictment for an assault with intent to commit a rape, without an averment that it was made forcibly and against the will of the female. The absence of consent is essential to the crime of rape, or of an assault with intent to commit a rape, where the female lias arrived at the age at which consent may be given. Intercourse, because illicit, does not amount to an assault where the female consents, however wrong it may be in morals. This is all that was meant by the learned judge in using the language quoted from his opinion.

In all such cases the consent of the female would, without doubt, be a bar to any right she would otherwise have to maintain an action for an assault and battery. It is said by Judge Cooley in his work on Torts, p. 163, that, “consent is generally a full and perfect shield when that is complained of as a civil injury which was consented to. * * * A man may not even complain of the adultery of his wife, which he connived at or assented to. If he concurs in the dishonor of his bed, the law will not give him redress, because he is not wronged. These cases are plain enough, because they are cases in which the questions arise between the parties alone.” “ But,” he adds, “ in case of a breach of the peace it is different. The state is wronged by this and forbids it on public grounds. * * * The rule of law is therefore clear and unquestionable, that consent to an assault is no justification. The exception, to this general rule embraces only those cases in which that to which assent is given is matter of indifference to public order.” See also, to like effect, Pollock on Torts, 139.

Neither is the case of Champer v. State, 14 Ohio St. 437, at variance with the principle upon which the plaintiff below seeks a recovery. The case seems to have been somewhat misapprehended by the courts of some of the states, as well as by some text-writers. By the statutes of this state a distinct offense is made of an affray or agreement to fight; and the effect of the holding is that where such an offense is committed, the indictment must be for an affray, and not for an assault and battery. The civil right of either party to recover of the other for injuries received in an affray, is not affected by tbe statute nor by the decision just referred to. Such seems to have been the view taken by Boynton, J., in the subsequent case of Darling v. Williams, 35 Ohio St. 63.

The ease of Fitzgerald v. Cavin, 110 Mass. 153, is to the effect that consent is no bar to that which occasions bodily harm if the act was intentionally done.

It is upon the same principle of public policy that one, who is the first assailant in a fight, may recover of his antagonist for injuries inflicted by the latter, where he oversteps what is reasonably necessary to his defense, and unnecessarily injures the plaintiff; or that, with apparent want of consistency, permits each to bring an action in such case, the assaulted party for the assault first committed upon him, and the assailant, for the excess of force used beyond what was necessary for self-defense. Dole v. Erskine. 35 N. H. 503, criticising Elliott v. Brown, 2 Wend. 499; Cooley on Torts, 165; Darling v. Williams, 35 Ohio St. 63; Gizler v. Witzel, 82 Ill. 322. And see also Commonwealth v. Collberg, supra.

It would seem that under the code the right of each combatant to damages might be determined and measured in the same action. Swan’s Plead. Prec. 259, n. a.

And upon like principle it has been ruled that the doctrine of contributory negligence has no application to an action to recover damages for an assault and battery. Ruter v. Foy, 46 Iowa, 132; Steinmetz v. Kelly, 72 Ind. 442; Whitehead v. Mathaway, 85 Ind. 85. Negligence of the plaintiff contributing to the injury of which he complains, is taken into consideration only in those cases, where the liability of the defendant arises from want of care on his part, occasioning injury to the plaintiff; it does not apply to the commission of an intentional wrong.

A question was made as to the admissibility of the evidence of an agreement to fight, under the issue made by the pleadings — the answer being a general denial. If the evidence had been competent for any purpose, other than in mitigation of damages, it would have been under the issue as made. It was insisted on in denial of the right of action, and not as an avoidance of it; so that it was not necessary to be pleaded as new matter. If it had been so pleaded it would have been subject to a demurrer. We think the court erred in- its charge to the jury. The injury inflicted, the loss of a finger, was a severe one; it amonnted in fact to a mayhem. “Where the injury” (a mayhem), says the author of a recent and quite valuable work on criminal pi'oeedure, “ takes place during a conflict, it is not necessary to a conviction that the accused should have formed the intent before engaging in the conflict. It is sufficient if he does the act voluntarily, unlawfully, and on purpose.” Maxwell’s Crim. Proc. 260. It was permissible to the defendant to show the agreement to fight in mitigation of damages, but not as a bar to the action.

Judgment affirmed.


author: Owen, C. J.

text:
    Ohio College of Dental Surgery v. Rosenthal.

      Corporations — Shares of stock — Interest.
    The plaintiff in error is a corporation organized under a special act passed in 1845. It was not organized for profit and has made none. Its object was the maintenance of a college for instruction in dental surgery. Its capital consists of §12,000 in real estate, derived from the proceeds of one hundred and twenty certificates of shares which certify that the holder of each share “ is entitled to one share of the real estate property of the college, drawing an interest of 6 per cent.” On the margin of-each certificate, and a part of it, is : “ Shares, §100 each.” At this sum each certificate was valued and sold. All the shareholders are dentists and members of the corporation. Its capital — the real estate above mentioned — has always constituted its entire property. During its existence (a period of about forty years) no interest ‘has been collected or paid on any share. It is still a going corporation, and its capital — the real estate — is indispensable to its existence. The plaintiff below, a shareholder, brought his action, in 1882, to recover a money judgment for interest on his share. Held: The action is not maintainable.
    (Decided May 10, 1887.)
    Ekrok. to tbe Superior Court of Cincinnati.
    Plaintiff in error was incorporated under a special charter set forth in the Local Laws of Ohio, vol. 43, p. 32. Its charter constitutes nine persons named, and their successors, a board of trustees, with power to establish a college of dental surgery; makes the trustees a body corporate; gives it power to acquire, hold, and convey property for the endowment of the college; to contract and be contracted with; and provides that the revenues from the property it may hold shall not exceed $5,000 per annum. That the officers, a president, vice president, registrar, and treasurer, shall be elected by the board. That the board shall appoint the professors, and may dismiss them at any time; and may make by-laws for the government and well being of the college; and shall, by election, fill vacancies occurring in the board.
    The plaintiff below, C. H. Rosenthal, brought his action in the superior court of Cincinnati, July 18, 1882, upon a certificate of the following tenor, with its assignment:

      “(Shares, $100 each.) No. 30.
    Ohio College op Dental Surgery.
    This is to certify that J. B. Smith, M. D., is entitled to one share of the real estate property of the college, drawing an interest of 6 per cent., and transferable only in accordance with the constitution of the college association.
    Cincinnati, Feb’y. 16th, 1858.
    Chas. Bonsell,
    James Taylor,
    John Allen,
    Thos. Wood,
    H. E. Peebles,
    By his attorney, Jas. Taylor.
    Trustees.
    I do transfer within share of stock to C. H. Rosenthal, with all my rights and interests.
    Mary E. Smith, Administratrix

    The object of the action was to recover interest claimed to be duo the plaintiff, and the prayer of the petition was for a judgment against the corporation for $146, and for all other relief to which he was entitled.
    The case was reserved to the general term, where it was heard upon the following agreed statement of facts:
    “It is agreed, that the paper writing,-a copy of which is incorporated into and made part of the petition in this cause, a copy of which is hereto attached, marked Exhibit “ A,” and made part hereof, was executed by the trustees of defendant corporation, having authority so to do, and delivered to J. B. Smith, M. D., at the time at which the instrument bears date, and that at that time J. B. Smith, M. D., paid to defendant corporation the sum of one hundred dollars therefor. It is further agreed that J. B. Smith having deceased, Mary E. Smith was duly appointed administratrix of his estate, and being duly authorized, did, prior to the bringing of this action, for value, endorse said instrument to plaintiff in the following words: ‘ I do transfer wifhin share of stock to C. H. Rosenthal with all my rights and interests, Mary E. Smith, administratrix ; ’ and deliver the same to him. It is further agreed that plaintiff now has possession of said paper, with such title if any, as such assignment conveyed to him, and no other. It is further agreed that defendant corporation owns no property or assets of any kind, except the real estate described in plaintiff's petition. That said real estate was purchased at or about the date of the organization of the corporation. That at the date of the organization of defendant corporation, the money to purchase said realty was obtained by the corporation issuing paper writings, all being alike in tenor and effect, of which Exhibit “ A," is one. No one could be a member of the corporation, unless he subscribed for and paid up in full one or more shares. That the corporation originally issued one hundred shares, and subsequently twenty additional shares, making in the aggregate one hundred and twenty shares, of which Exhibit “A,” hereto attached, is one. The certificates were subscribed for and paid for at different dates. That any one otherwise qualified, who subscribed for and paid for one or more shares, became, by virtue of the ownership thereof, a member of the corporation, and any one by purchase of one or more shares became a member of the corporation. That defendant corporation has not and never had any capital stock other than said shares, so issued, and no property other than the real estate described in the petition of plaintiff, purchased, as aforesaid, with the funds realized from the subscription to such shares. That the corporation has made no profits. That there are no funds now in the hands of the trustees of the corporation belonging to it. That no interest has ever been paid by defendant corporation to any of the holders of certificates of shares, and no demand has ever been made for interest by plaintiff' or any of the holders or owners of certificates upon the certificate in the possession of the plaintiff hereto annexed as Exhibit “ A,'' or upon any other certificates, excepting only the demand of plaintiff made at or about the time of bringing this suit, and the demand made by J. L. Cilley about the same time upon a certificate claimed by him and for which suit is now pending, and a demand made by one E. C. Bryant about the-day of-, 1870, and for which suit was then brought in the superior court of Cincinnati, by E. C. Bryant against defendant corporation, and which, was finally settled by a compromise then made between said E. C. Bryant and defendant corporation. That defendant corporation has ever since its organization occupied and used, and is continuing to occupy and use the real estate in plaintiff’s petition described for the purpose for which the corporation was organized, tor-wit, maintaining or causing to be maintained therein a college for instruction in the science of dental surgery, by renting the property to another association, known as the Dental College Association, at a nominal rent. The faculty of the association are chosen by trustees of defendant corporation, and all the members of the association are shareholders in defendant corporation. That all the members of the corporation are dentists by profession; that plaintiff is a dentist. That defendant corporation annually holds an election for the selection of trustees thereof, at which election the holders and owners of certificates of shares, and they only, are permitted to vote. The property described in the petition, and the affairs of said corporation, are managed and conducted by the trustees so chosen, by a majority vote at election, and is now being controlled by a board of trustees so elected. That the fair value of said real estate is about $12,000. Defendant was incorporated under a special act of the legislature passed January 21, 1845, found in Local Laws of Ohio, Yol. 43, p. 32, which act is made part of this agreed statement of facts by reference. The transfer to plaintiff in form, if otherwise valid, is proper.”
    The court rendered judgment against the college.for $99.00, being the interest on $100, computed from a period of fifteen years prior to the commencement of the action to the time of the judgment. To reverse this judgment the present proceeding is prosecuted.

      J. J. Gliclden, for plaintiff in error.
    1. The certificate creates no legal obligation to pay money. It contains no promise to pay interest. There is no principal debt to which the interest could attach as an incident.
    2. The paper recites that it evidences an equitable interest in real estate which would descend to Smith’s heirs, and an assignmont by Smith’s administrator to defendant in error, gave him no title, because: a. The interest cannot be conveyed by assignment of the paper, and the parties cannot make it assignable by their agreement, b. The interest descending to the heir could only be sold by the administrator in the manner and for the purposes provided by- statute.
    3. If the plaintiff obtained title he thereby became a member of the corporation, and cannot maintain this action for the reason that a member of a corporation cannot be permitted to enforce a remedy the necessary result of which is to defeat the purpose of the corporation.
    4. Under the facts the paper can only be treated as a certificate of stock. A corporation cannot make a valid agreement to pay interest upon its stock except from its profits. There being no profits, the obligation is not enforceable. Lockhart v. Van Alstyne, 31 Mich. 76; Troy & Boston R. Co. v. Tibbits, 18 Barb. 297; Pittsburg & C. R. Co. v. Allegheny, 63 Pa. St. 136; Macdougall v. Jersey Imp. Hotel Co., 2 Hemming & Miller, 528; Painesville & H. R. Co. v. King, 17 Ohio St. 534.
    5. If the corporation had no power to issue certificates of stock, and for that reason the paper is void as a certificate of stock, then it was void at its inception, and there immediately arose a cause of action in Smith to recover back the money. But that cause is long since barred by the statute of limitations. Or if a right to equitable relief arose, that has long since been lost by the lapse of time.
    6. The paper is ambiguous. The construction claimed by the defendant in error is one that would necessarily, by its enforcement, defeat the very purposes for which the corporation was organized, and is in • conflict with the construction which the parties have, for more than thirty years, given these instruments. The conclusive presumption of the law, and a presumption that must control in giving construction to these paper writings, is that the parties issued them to aid in the accomplishment of the purpose for which the corporation was organized, and a construction which would necessarily involve the defeat of the purposes for which the corporation was organized, must be rejected, as one the parties certainly did not intend. These contracts were not with strangers, but between themselves, to further their common enterprise — the maintenance of the college — the dominant purpose in the light of which all their acts are to be regarded and all their contracts construed.
    7. The remedy, if any ever existed, is barred by the statute of limitations if an action at law, and by the lapse of time if an equitable remedy.

      Wilby & Wald, for defendant in error.
    The agreed statement of facts must be “ read and understood in connection with and in the light of the other admitted facts of the case.; ” particularly the charter of the plaintiff in error. Wisby v. Bonte, 19 Ohio St. 238, 247.
    The corporation is an eleemosynary one; not one organized for profit. There is no capital stock, nor are there any shares of stock. There being no shares of stock, there can arise no question of dividends upon stock. Huntington v. Savings Bank, 96 U. S. 388, 394.
    The corporation having powers “ to acquire property for the endowment of the college,” could, on familiar principles, boi’row money with which to acquire such property, promise to repay the money, and pledge the property to secure such repayment; a fortiori could it accept the money upon an agreement merely to pay interest thereon and pledge the property acquired to secure the same. And that was what was done in this case. ■
    The transaction here was a borrowing and loaning of money, although it was not intended that the principal sum should be repaid, but only six per cent, interest thereon. In the Appeal of the Philadelphia & Reading Railroad Co., 13 Reporter, 475, 477, the supreme court of Pennsylvania said, “ It is urged, however, that the meaning of the word 1 borrow/ as applied to moneyed transactions, involves an obligation to return the sum or thing borrowed. It. is true we often use this word in the sense of returning the thing borrowed in specie, as to borrow a horse. But it is not limited to this sense. Among the definitions given by "Webster are — first, ‘to take or to receive from another on trust, with the intention of returning or giving an equivalent therefor ;’ and second, ‘ to take from another for one’s own use; to adopt from a foreign source; to appropriate, to assume.’ While the borrowing of money is usually accompanied with a contract, for the return of the principal at a stated time, it is not necessarily so. The object of loaning money is to obtain a return in the shape of interest. If I agree to pay $60 for the use of $1,000 for one yeai’, it is a borrowing of money. It is equally so if I contract at the same rate for the use of it for ten years. Is it any the less so when the contract is perpetual and the loan irredeemable? The equivalent is paid annually in the shape of interest.”
    This was the ground of the decision against this corporation, in a suit similar to this, made by the superior court, in general term, in 1871. Bryant v. Ohio College of Dental Surgery, 1 Cin. Sup. Ct. Rep. 307. That decision was rendered fourteen years ago, construing the charter of this defendant and the meaning of the certificates issued under that charter. The Ohio College of Dental Surgery has, during all that time, acquiesced in that decision; since it was pronounced, certificates have been bought and sold upon the faith of it. This defendant in error, for value, bought the certificate now in suit, after and upon the faith of that decision; and even if it had been erroneous (which we clearly submit it was not), on the principle of stare decisis, this court would not, we think, after the lapse of time, overrule it. Robb v. Irwin, 15 Ohio, 689, 703; Kearney v. Buttles, 1 Ohio St. 362; Gelpcke v. Dubuque, 1 Wall. 175.
    It is objected that the certificate contains no promise to pay the interest; but it says, “drawing an interest of six per cent.,” which in law is equivalent to a promise to pay six per cent, interest.
    As to the argument as to staleness of the claim, we understand this to be an action legal and not equitable in its origin, and that a claim at law is not stale until it is barred by the statute of limitations. Further it is said, that no promise in writing was made within fifteen years, which might be in point if the statute of limitations did (as it does not) begin running from the time a promise is made, instead of from the time it is broken.
   Owen, C. J.

The action below was prosecuted upon the supposed promise of the college to pay interest at six per cent, upon $100, the stated value of the share represented by the certificate. The discussions of the case have developed a broad diversity of opinion concerning the true construction of this certificate and the real intention of the parties to it at the time it was issued. We are not called upon to solve the proposition : What does this certificate mean ? We are simply required to say whether it was, at the time the action below was commenced, a matured promise to pay six per cent, interest on $100, and if it was not, no matter what else it is or was intended to be. The certificate certainly does not bear an express promise to pay interest. No time of payment is named. There is no principal which can mature at any time prior to a dissolution of the corporation, and then nothing short of a “ share of real estate ” can satisfy the liability it represents.

In Waterman v. Troy & Greenfield R. Co., 8 Gray, 433, an action was brought upon the following agreement, for the recovery of interest:

We, the subscribers associated in this enterprise, do hereby ■severally agree with said corporation to take the number of shares placed against our names respectively, upon the following terms and conditions, viz.: until the proposed railroad is put in operation, interest shall be allowed upon all sums assessed and paid in, and each subscriber shall have the privilege of paying in at any time the whole or any part of his subscription, and shall receive interest thereon until the road goes into operation.”

Bigelow, J., speaking for the court, said: “ This is not a case where interest is claimed as incident to a principal demand ; but it is an action on an agreement for the payment of interest alone, as an independent substantive debt. No time is expressed in the contract for its payment. The question is, whether any can be fairly inferred from the terms of the contract.”

The court held that interest did not accrue until the road went into operation, although several years elapsed between the date of the contract and the completion of the road.

In Wright v. Vermont & M. R. Co., 12 Cush. 68, the stockholders of a railroad company, at the first meeting voted: “ That all subscribers be allowed interest on all sums paid by them up to the time when the road shall be completed and put in operation.” It was held that by this vote interest was not payable until the road was completed. Shaw, C. J., says: “ Taking the legal obligation of the company to pay interest, on the ground on which the plaintiff places it, interest was not payable annually, or at any other period, because the votes did not so provide. We think there was no implied promise to pay interest annually, even if such promise might be implied from undertaking to pay money at a distant day, with interest in the mean time, because here was no debt, no principal sum, to be paid. The directors have put no practical coivstruction upon the votes, by paying annually."

In Rutland & B. R. Co. v. Thrall, 35 Vt. 543, a subscription was conditioned that: “ Interest shall be allowed and paid by the company on all sums assessed and paid, from the time of payment until the railroad shall bo put in opex’ation.” It was claimed that this condition was in substance an agreement by the coxnpany to pay back to the subscribers part of the capital required by the charter, and void. The court say: “We deem this point untenable. No time is fixed for the payment of interest. Upon a similar proviso in Waterman v. Troy & Greenfield R. Co. (cited supra), it was held that the agreement did not bind the company to pay interest before the road went into operation.”

It is well settled that our statutes relating to interest were intended to fix the rate, and not the time of payment. Monett v. Sturges, 25 Ohio St. 385; Cook v. Courtright, 40 Ohio St. 248.

“ An act to fix the rate of interest ” (29 Ohio L. 451), in fox’ce when this certificate was issued, provided: “ That all creditors shall be entitled to receive interest on all money, after the same shall become due, either on bond, bill, promissory note, or other instrument of writing, or contract for money or properly; .... at the rate of six per cent, per annum and no more.'” If parties would have their agreements bear interest before maturity, or if they would have the interest payable at an earlier day, they must so stipulate.

The tendency of this court to hold parties to the express stipulations of their agreements, so far as they concern the time of payment of interest, is well illustrated by Patterson v. McNeeley, 16 Ohio St. 348. In that case a promissory note had the following clause: “ The above to be at ten per cent, interest annually.” The court say: “The whole clause certainly contains no express reference to anything else, than the rate of interest which the note shall bear, and the words used are all pertinent and necessary in defining that rate with precision. And we see no room for the inference that anything more was meant than that the note should bear interest at the rate óf ten per cent, per annum.” It was held that the word “ annually ” was to be understood as relating to and defining the rate of interest, and was not a stipulation for the annual payment of interest.

There are no words in this certificate to suggest, in the most remote degree, when the interest was to be paid. If the parties intended it to be a “ contract for property,” (in the language of the interest act above cited), which should bear interest to be paid before the principal was due, they were unfortunate in the selection of language to express that intention.

2. There are other considerations, however, which seem conclusive against the construction - which the defendant in error claims for this certificate. While its charter gave to this corporation power to make contracts, this power, by a fundamental rule of construction, is to be limited to the-making of such contracts, as are likely to promote the general purposes of its creation.

The corporation was not organized for profit, and it made none. All its member are dentists. So is the plaintiff. The purpose of its organization was the maintenance of a college for instruction in the science of dental surgery — an -enterprise in which all its members, as well as the plaintiff, had an interest beyond the hope of mere private pecuniary gain. There were issued in all one hundred and twenty certificates of “shares of real estate property of the college,” — “shares, $100 each.” These certificates represent, without interest, $12,000. It is agreed that this sum represents the entire property of the college. We do not feel at liberty to give a construction to this certificate which must imply that the parties to it intended that its enforcement would inevitably work a dissolution of the corporation and the defeat of the purposes for which it was embarked. If the holders of these certificates may successfully press their demands for interest upon them, the utter destruction of the corporation and defeat of its purposes are inevitable. Each certificate holder was and is a member of the corporation. The certificates represent, exclusively, its capital. The money paid upon them was invested in the real estate, which constitutes its entire assets. It has made no profits. There has never been a time in its history when the demand and enforced collection of interest on its certificates would have had any other effect than its complete dissolution and the hopeless defeat of the only purposes of its organization. The suggestion that these dentists, while pretending to set on foot an enterprise for the maintenance of a college for instruction in the very important and useful science of dental surgery, were really concocting a scheme to constitute themselves pensioners or annuitants upon the college, and hence upon each other, to the extent of $6.00 a year for each certificate, involves too grave a reflection upon either their good faith or their sanity to justify us in reaching such a conclusion without a clear expression of such a purpose. The improbability, if not the absurdity of such a construction of these certificates will become apparent when we reflect that these pensions or annuities could only be paid out of the capital of the college ! An attempt to enforce their collection would inevitablv involve the entire enterprise in hopeless ruin. It not only aids us in construing this contract, but it is highly creditable to all concerned in the college, to recall the fact that although it is more than forty years old, not a dime of interest has ever been collected or paid upon any of its certificates.

We have seen that in the case of Wright v. Vermont & M. R. Co., supra, much significance was attached to the fact that the parties had construed the contract by failing to provide for the payment of interest before completion of the road.

3. We may well conclude our consideration of this case with the proposition that if this certificate is to be construed (as the defendant in error contends), to embrace a contract to-pay interest either annually or on demand, out of the capital of the college — and it must be paid out of the capital if at all — the contract is a nullity. In Painesville & H. R. Co. v. King, 17 Ohio St. 534, the directors of a railroad corporation assumed to sell shares of the capital stock, stipulating, expressly, for the payment of interest annually on such stock until the completion of the road. As in the case at bar, it appeared that the company had no means for the payment of interest except its capital stock. It was held that such payment of interest could not be enforced by action. Scott, J., said: If all the stockholders are, by similar contracts or otherwise, entitled to demand interest on stock paid in, we think it is clearly against public policy that the stock subscribed for the building of the road should be diverted from its proper purpose, and distributed among the stockholders in payment of interest.” Every consideration of public policy which affected the case last cited, applies with equal force to the case at bar. That promises by a corporation to pay its members interest on their shares out of the capital are void, is abundantly established by authority : Miller v. Pittsburgh & C. R. Co., 40 Pa. St. 237; Richardson v. Vermont & M. R. Co., 44 Vt. 613; Cunningham v. Vermont & M. R. Co„ 12 Gray, 411; Lockhart v. Van Alstyne, 31 Mich. 76; Cook’s Stock and Stockholders, § 277.

4. There is nothing in the record before us (unless it be the fact of the prosecution of the case below) to suggest that any member of this corporation desires or intends its dissolution. It is a going corporation. Its object is a worthy and benevolent one. We cannot conclude, after the construction which its members have for so many years given to their certificates, that they intended by them to provide for the summary destruction of the college, at the caprice of any member; a result which must inevitably follow the construction we are asked by the defendant in error to place upon them. Each certificate clearly evidences an equitable interest in the real estate of the college. It is idle to prosecute our inquiries concerning their meaning beyond the conclusion we have reached that they do not represent a matured promise to pay interest before the holders may, by dissolution of the corporation or otherwise, reduce to individual and separate ownership, their respective interests in such real estate.

Judgment reversed.


author: By the Court :

text:
    George J. Ferry et al. v. Joseph Gottlieb et al.

      Practice in supreme court — Judgment—Findings of fad.

    Error to the Circuit Court of Hamilton County.

      Simrall & Mach, for plaintiffs in error.

      Kramer & Kramer, for defendant in error.
   By the Court :

The cause is not presented here for review of any judgment rendered upon the merits of the original suit as brought in the superior court of Cincinnati. So far as the record discloses, no trial has been had on which such a judgment could have been entered. The object of this pro-proceeding in error is to reverse the order of the superior court dissolving a temporary injunction that had been granted in the case, and the affirmance of that order by the circuit court. The order was made upon certain affidavits set forth in the bill of exceptions. There is no finding of facts, and the testimony contained in the affidavits is conflicting; and we are unable to say, upon tbe record as presented, tbat tbe superior court erred in dissolving tbe injunction; and bence there was no error in tbe judgment of tbe circuit court affirming it.

Judgment affirmed.