author: MoIlvakte, J.

text:
    James Anderson v. Thomas C. Cary et al.
    Lands were devised as follows: I give and bequeath the farm on which I now live, of two hundred and eighty-five acres, to my two sons, Thomas and Lincoln, upon the following conditions : 1. I direct that they, the said sons, shall not be allowed to sell and dispose of said farm until the expiration of ten years from the time my son, Charles Lincoln, arrives at full age, except to one another, nor shall either of my said sons have authority to mortgage or incumber said farm in any manner whatsoever, except in the sale to one another as aforesaid. Held,

    1. The devisees took a vested estate in fee simple.
    2. A violation of the so-called conditions did not work a forfeiture of the estate devised.
    3. The restraint attempted to be imposed on the power of the devisees to alien or incumber the estate was void, as repugnant to the devise and contrary to public policy.
    4 The estate of the devisees was not converted into a trust, by reason of a gift, in the same will, to the widow of the testator, of the one-third of the rents and profits of same lands.
    Appeal. Reserved in the District Court of Ashland. County.
    This action was commenced on December 26, 1874, by the plaintiff, in the court of common pleas of Ashland county, to subject certain real estate, as the property of Thomas C. Cary, to the satisfaction of certain alleged liens, by mortgage and levy of execution, which the plaintiff claimed to have secured for certain indebtedness of said Thomas to him. The liens claimed by plaintiff are upon the undivided half of a certain tract of land devised to said Thomas and his brother, Charles L. Cary, by the eighth item of the will of their father, George "W. Cary, executed in the year 1867, at which time both Thomas and Charles were minors, Charles, the younger, being about fourteen years of age.
    The defendants are said Thomas and Charles, Mary Elizabeth Cary, their mother, and widow of said George W. Cary, and divers others, claiming liens on said undivided half of said lands. The principal defense, however, is made by Charles L. Cary, who claims to be the owner of the entire tract free from all incumbrances, as will hereafter appear.
    The claim of the plaintiff, James Anderson, may be stated thus: On January 1,1872, Thomas 0. Cary, being then of full age, in consideration of money loaned, executed to the plaintiff his promissory note for $1,500, payable in one year, with interest at the rate of eight per cent.; and to secure the jxayment thereof executed (with his wife) a mortgage upon the undivided half of said tract of land, which was duly recorded in Ashland county, where said lands were situate. Afterwards, in December, 1874, the plaintiff obtained judgment on said note by confession, under a cognovit, against said Thomas, in the court of common pleas of Richland county, and caused execution thereon to be levied on said undivided half.
    Thereupon, the mortgages having been executed by said Thomas upon his interest in said lands, and other executions against him having been levied thereon, this suit was brought to marshal liens and sell the property to satisfy the same.'
    After the commencement of this action, and after service of summons, to wit: on March 22, 1875, by contract in writing, Thomas C. agreed to sell and convey his undivided half of said lands to Charles L., in consideration whereof Charles L. agreed to pay to Thomas the sum of $7,125, to be applied chiefly to the satisfaction of the debts of said Thomas, which he had secured by mortgage or judgment liens on said premises. In this contract, however, the lien of the plaintiff (if lien he had) was postponed to junior liens, so that the purchase-money was exhausted before the claim of plaintiff was satisfied.
    By this contract of purchase Charles claims that, under the will of his father, by which alone the estate of Thomas in said lands was created, his right to the undivided half devised to Thomas is indefeasible and unincumbered by any lien or claim in favor of the plaintiff.
    In the court of common pleas judgment was rendered against the plaintiff, whose petition was dismissed. From this judgment the plaintiff appealed to the district court, where the case, with an agreed and certified statement of facts, was reserved for decision in this court.

      Dirlam & Ley mam,, for plaintiff:
    Thomas C. and Charles L. Carey each took a vested estate in fee simple, and the attempted restraint of alienation was void. Mendlebaum v. McDonnell, 29 Mich. 78; De Peyster v. Michael, 2 Seld. 461; 1 Denio, 448 ; 2 Caines, 345; 2 Cruise Dig. 6; 2 Serg. & R. 513 ; 7 Harris, 41, 369; 10 Md. 186; 4 Kent (8 ed.) 136.
    What is the true construction of the will of George Carey, and what estate was devised thereby to Thomas and Charles? The language of the devise is: “ I give and bequeath the farm, on which I now live, of two hundred and eighty-five acres, to my two sons, Thomas and Lincoln, upon the following conditions.” Under our statute this devise certainly carried a fee simple, Section 56 of our statute of wills-is as follows: “ Every devise of lands, tenements, or hereditaments in any will hereafter made shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to convey a less estate.”
    Before this statute like words would have conveyed a fee simple. See 8 Ohio, 365; see also 6 Ohio St. 481; 19 Ohio, 51. As to the construction of a like statute in Massachusetts, see 4 Gray, 348.
    No case can be found at common law where such broad language was used where the devise was to an heir, and no residuary clause that the whole interest of the devisor did not pass. See 1 Salk. 236; Cowp. 299; 2 Peere Wms. 524; 3 Peere Wms. 56; 2 D. & E. 656.

      Harrison, Olds dk Marnsh:
    The devise, we submit, was either (1) a devise upon trust, with a temporary prohibition against the sale or incumbrance of the farm, or any interest therein, in order that the trusts created could and should be executed; or (2) it was a devise upon condition proper.
    Whether the so-called “ conditions ” constitute a limitation in trust, or a strict common law condition, must be determined by ascertaining, from all the provisions of the will, the object and intent of the testator in creating them. For, although the word “ conditions ” is an appropriate one to constitute a condition proper in a deed or a will, jet this is not the fixed and invariable meaning attached to, it by the law in these instruments. On the contrary, it gives Way to the intent of the parties, and has been frequently applied as expressing simply a limitation in trust, or, in a deed, a covenant. Stanley v. Colt, 5 Wall, 119, 166; 2 Best & Smith, 232; 14 Beav. 357; 117 Mass. 326; 109 Mass. 1, 19.
    Taking all the facts of a will together, in determining whether in any instance the will creates a trust, that construction will be regarded as the true one which will best subserve and carry into effect the obvious and legal intentions of the testator. Now, if we look through the whole of this will, and apply the familiar rule, regarded as almost a sure guide in the interpretation of such an instrument, and as that is found, to carry the will into execution in conformity with such intent, it must, we think, be held that the testator did not intend to convey his homo farm to his sons outright, but upon trust for the benefit of his widow and daughter, and of each other, until 3iis son Charles should attain tire age of thirty-one years; and that his sons Thomas and Charles should not have or take an absolute estate in fee therein, in their own rights respectively, till that time.
    The soundness of this view will appear, we think, from the provisions of the will, the situation of the testator’s family, the nature of the property, and the attending circumstances. The “conditions,” so-called, were annexed to the estates for the purpose of perpetuating them for the objects for which they were granted, instead of defeating them. Though the language may, at the first blush, seem to raise a technical condition, still, inasmuch as it is apparent from the whole will that the object of the condition was to preserve and perpetuate the gift to the several uses and purposes to which the testator consecrated it, a court of chancery will not permit a forfeiture to override his intent, but will construe the “conditions” so-called to be a trust. 2 Washb. R. P. 445, and cases there cited; Perry on Trusts, § 59.
    The question for determination is, whether or not an interdiction in a will against any disposition or incumbrance of a gift is valid, where it is for a certain and reasonable time, and when taken in connection with all the provisions of the will, is in its nature and effect merely a temporary limitation on the use or the mode of enjoyment of the gift, and where the will creates equitable rights and interests in the same gift in favor of other devisees than those in whom the legal title to the gift, with a beneficial estate therein, is vested, and the interdiction is necessary, or will tend to protect such rights and interests? Such a prohibition is clearly valid, upon several grounds.
    1. Wherever the interest of a beneficiary is so connected with the interests of other beneficiaries in the same gift or trust that a sale of it would impair those other interests or estates, a restriction against any form of alienation will be sustained. Scott v. Gibbons, 5 Munf. 86 ; Johnson v. Zane, 11 Gratt. 552; Markham v. Garrant, 4 Leigh, 274; Perkins v. Dickinson, 3 Gratt. 335; Hill v. McRae, 27 Ala. 175.
    The distinction is marked and obvious between the limitation of the estate in trust in this case, which was of limited duration, and for the maintenance and support of the widow and daughter of the testator, as well as for the benefit of his sons, severally and inter sese, and one in which a donor imposes restraint on the alienation of a vested interest, co-extensive with its duration, and for the sole benefit of the person in whom such interest is so vested. In the latter case a right of property, apart from its incidents, is created, and the donee is authorized to hold the gift for the purpose of enjoyment, freed from the application of it in discharge of his obligations. Nut in the former case no such effects and consequences are produced. On the contrary, here the prohibition against any form of alienation was created, and is necessary in order to protect and preserve the interests of other beneficiaries in the same trust, and is of limited and reasonable duration. It is-not repugnant to the estates devised, nor is it an unreasonable abridgment of the right of alienation, either voluntary or invoiuxxtary.
    It has, however’, been held in many cases in this country that an estate may be limited in trust for a donee, so that it shall be free from involuntary alienation at the suit of his creditors, whether the instrument do or do not contain a limitation over, upon such an event. Hill v. McRae, 27 Ala. 175 ; Fisher v. Taylor, 2 Rawle, 33; Ashurst v. Given, 5 W. & S. 323; Vaux v. Parke, 7 Id. 19 ; Norris v. Johnson, 5 Barr, 289; Eyrick v. Hetrick, 1 Harris, 491; Barnett's Appeal, 10 Wright, 399-402; Shankland's Appeal, 11 Wright, 113; Leavitt v. Beirne, 21 Conn. 8; Markham v. Guerrant, 4 Leigh, 279; Johnson v. Zane's Trustees, 11 Gratt. 552; Pope v. Elliott, 8 B. Monroe, 56; Rowan v. Rowan, 2 Duval, 412.
    2. The farm was devised partly for the support and maintenance of the testator’s widow and daughter. Alienation or incumbrance of it in any form was prohibited, for the purpose, among others, of securing such support and maintenance. The prohibition is, therefore, not simply a restraint or condition at law; but, in connection with the provisions in favor of the widow and daughter, it constituted in equity a trust, and will be construed and enforced by a court of chancery as such; so that any attempted alienation or incumbrance of the farm, on the part of the sons or either of them, or on that of their creditors or the creditors of either of. them, is in equity void. Markham v. Watkins, 4 Leigh, 279; Perkins v. Dickerson, 3 Gratt. 335; Hill v. McRae, 27 Ala. 175; Beaman v. States, 2 Pick. 463; Eyrick v. Hetrick, 1 Harris, 488; Pope v. Elliott, 8 B. Monroe, 56; White v. White, 30 Vt. 338, and cases there cited.
    3. Such a temporary limitation in trust as this will creates on the use was not inconsistent with the estate devised to the sons. They took the land in trust, for a limited time, for the purposes declared by the testator, and for the benefit of his widow and daughter, as well as themselves respectively. They did not take an unqualified fee simple. Tne testator could not have given them such an estate without defeating or impairing several of the bequests to his widow and daughter respectively. He evidently did not intend to devise such an estate to the sons, and his intention is the law of his will. To apply the technical .rule, avoiding a condition inconsistent with the gift of a fee simple, would defeat his purposes and frustrate his will, not only so far as the same concern his sons and the gifts made to them, but also concerning his wife and daughter, and the gifts made to them. Such an application of the technical rule would, wo submit, be a misapplication of the rule. Red-field on Wills, 680.
    The following authorities support the validity of a condition in partial restraint of alienation. 15 Ohio, 559 ; 5 Ohio, 387; 19 Ohio St. 546; 5 Pick. 528; 8 Pick. 284; Littleton, § 361; 1 Preston on Estates, 478 ; 1 Washburn, 80 (4 ed.); Jarman on Wills, 811; 21 Pick. 42 ; 28 Ind. 360 ; 2 Serg. & R. 507; 3 Met. (Mass.) 562; 3 Mo. 10; 5 Id. 273 ; 6 Id. 170 ; 36 N. H. 345.
   MoIlvakte, J.

The decision of this case depends on the construction and effect to be given to the last will and testament of George W. Cary. The question to be decided is, did the plaintiff, by his mortgage from Thomas C. Cary, or by his levy upon the same premises, acquire a lien thereon ? The plaintiff claims that the interest or estate of Thomas C., devised to him in the eighth item of his father’s will, as to the farm on which the testator resided, was subject to a lien under both the mortgage and execution ; and that the subsequent sale of this interest or estate, by Thomas to Charles, did not displace the lien either of the mortgage or the levy. These claims of the plaintiff are contested by Charles. What, then, was the true intent of the testator % And, what, the force and effect of this devise ?

The provisions of the will which at all affect the question before us are as follows:

“Item Fourth. — I give and bequeath to my beloved wife, Mary Elizabeth, the sum of six hundred dollars, to be paid out of my personal estate, one hundred dollars of the same to be paid over to her out of the first moneys collected by my exeoutor.

. “ Item Fifth. — I give and bequeath to my two sons, Thomas C. Cary and Charles Lincoln Cary, the residue of moneys and the proceeds of my obligations after giving the legacies aforesaid, the same to be divided equally between them, share and share alike.

“ Item Sixth. — The balance of my personal estate, consisting of personal property, farming implements, stock, cattle, sheep and all other property, personal, except one top buggy and such surplus of grain on hand as shall not be needful for the purposes of the farm, which are to be sold by my executor, I give and bequeath to my wife aforesaid, and to my children before named for the purposes of carrying on my farm, until my oldest son, Thomas C. Cary, arrives at full age, they, the said family, to use the said property in common for the purposes of carrying on said farm and enjoying the proceeds of-the same, and when my oldest son-arrives at the age of majority, then I desire that my said daughter, Mary Elizabeth, shall sell her interest in the said property so held in common to my said wife and sons, before named. Then the said Mary to have for her said interest in said last named property the appraised value of such property as has been appraised and such property as has been accumulated from said farm during said period, prior to the said majority of said Thomas, to be equally divided, and the said Mary Elizabeth to be paid such amount for her interest as shall be agreed upon between them, she to sell to them, the said sons and my said wife, her interests in said property as aforesaid.

“ Item Seventh. — I give and bequeath to my said wife all my household and kitchen furniture, beds, bedding of every kind whatever, and when my said son Thomas shall have arrived at the age of majority as aforesaid, from and after that time I give and bequeath and so direct that my said wife shall have in lieu of dower one-third of the rents and profits of the farm on which I now reside in Green township aforesaid, as long as my said wife shall remain my widow, and in the event of her marriage then I order and direct that she shall forfeit her said dower as aforesaid, and in lieu thereof I direct that my two sons, Thomas and Lincoln, shall pay to her the sum of twenty-five hundred dollars, one thousand of which shall be paid within sixty days after such marriage and the balance in three equal annual payments without interest. This last item and the six-hundred-dollar item and the former provisions made in the foregoing specifications are to be in lieu of all her dower in all my real estate, including three hundred and twenty acres of land I own in the state of Iowa.

“ Item Eighth. — I give and bequeath the farm on which I now live, of two hundred and eighty-five acres, to my two sons, Thomas and Lincoln, upon the following conditions :' 3. I direct that they, the said sons, shall not be allowed to sell and dispose of said farm until the expiration of ten years from the time my son, Charles Lincoln, arrives at full age, except to one another, nor shall either of my said sons have authority to mortgage or incumber said farm in any manner whatsoever, except in the sale to one another as aforesaid. I also give and bequeath to my two sons aforesaid, two hundred and forty .acres of land lying in the south-east corner of .Fayette county, Iowa, which I received by deed from Richard Probert, and the .same is now on record in said county; also eighty acres of land in Chickasaw county, Iowa, which I received by deed from A. H. Crawford.”

What estate in the home farm*did the testator intend, by the •.eighth item, to give to his sons ? By section 55 of the wills .act of 1852, in force when this will was made, it was provided, “ every devise of lands, tenements and hereditaments, in any will hereafter .made, shall be construed to convey all the. estate •of the devisor therein, which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to ■convey a less estate.” The estate of the devisor in these lands was an absolute fee simple. By other jmovisions in this will, •it is clear that the testator intended that, from the majority of Thomas, his widow, so long as she remained a widow, shoxild have >one-third of the rents and profits of said farm. Whether the right thus given to the widow was an interest in the land, ■or an interest in the rents and profits as such, it is quite clear to our minds that the fee simple absolute, subject to the right •of the widow, passed to the sons, as. fully and amply as the testator “ could lawfully devise ” it. It is true, the testator coupled with the devise the words: “ Upon the following conditions: I direct that they, the said sons, shall not be allowed to sell and dispose of said farm until the expiration of ten years from the time my son, Charles Lincoln, arrives at full age, except to one another, nor shall either of my said sons have authority to mortgage or incumber said farm in any manner whatsoever, except in the sale to one another as aforesaid.” But by these conditions (so nominated) we do not understand that the testator intended a forfeiture upon breach ; there is no limitation over in favor of any one; and if a forfeiture for the benefit of his heirs was intended, the devisees, being two of his three heirs, would each have inherited a third part; so that, as heir of the testator, Thomas C. had full power to charge one-third of the land by mortgage to the plaintiff. But there is no indication in the will, or in the circumstances of the testator, that he intended, in any event, to die intestate as to this property; while, on the other hand, it seems clear to us that the testator intended, in all events, that his sons should take this farm, subject to the rights given to their mother, to have and to hold the same to them and their heirs forever. Instead of giving to his sons an estate in the land less than a fee .simple, his intent and purpose was to give them the fee simple, but to eliminate therefrom its inherent element of alienability, for a limited period, or to incapacitate his devisees, although sui juris, from disposing of their property for the same limited period, to wit: until the younger should arrive at thirty-one years of age — each and both of which purposes are repugnant to the nature of the estate devised.

By the policy of our laws, it is of the very essence of an estate in fee simple absolute, that the owner, who is not under any personal disability imposed by law, may alien it or subject it to the payment of his debts at any and all times ; and any attempt to evade or eliminate this element from a fee simple estate, either by deed or by will, must be declared void and of no force. Hobbs v. Smith, 15 Ohio St. 419.

Of course, we do not deny that the owner of an absolute estate in fee simple may by deed or by will transfer an estate therein less than the whole, or may transfer the whole upon conditions, the breach of which will terminate the estate granted, or that he may create a trust whereby the beneficiary may not control the corpus of the trust, or even anticipate its profits. But as we construe this will, nothing of the kind has been here attempted. The attempt here was to fasten upon the estate devised a limitation repugnant to the estate, which limitation, and not the devise, must be for that reason declared void.

It is contended on behalf of defendant, Charles L. Cary, that by this devise an estate in trust, until the younger son should arrive at the age of thirty-one, was created for the benefit of the widow and children of the testator. That such was the effect of the so-called “ conditions,” when construed in connection with other clauses of the will. We do not so understand the- will.

When the elder son, Thomas, arrived at age, the daughter ceased to have any right whatever in the devised premises.

The right of the widow to one-tliird the rents and profits of the farm was not affected by the arrival of Charles at thirty-one years of age, and did not affect the absolute character of the devise to the sons. If she took during widowhood one-third of the lands, the sons took a vested remainder in that portion, and a present vested estate in the other two-thirds. If her right was to rents and profits as such, and the same was made a charge upon the lands, the estate of the sons nevertheless vested in them and for their own benefit, subject to the incumbrance. The relation of ■trustee and cestui que trust existed between them in no proper sense. The grantees of the sons would have stood in the same relation to the widow. No relation of personal confidence or trust was created, but one growing out of property rights alone —strictly legal rights. Whatever may have been the desire of the testator as to his widow remaining on this farm after the majority of the elder son, it is quite clear that the rights of the devisees were not made to depend on that event. The personal relations of the members of his family were not provided for after the arrival of Thomas at ago, but their property rights, respectively, were defined; and the rights of neither were subjected to the control or supervision of the other. There was no trust created.

If we could find in this devise a trust in favor of the widow, •until Charles should arrive at thirty-one years of age (and certainly there was none before, if not after), so that no absolute estate vested in the sons previous to the termination of such trust estate, or if we could find a condition which prevented the vesting of the fee for such limited period, or a condition subsequent upon the happening of which the estate devised could be defeated, a different conclusion, no doubt, would be reached.

But the case before us, is the devise of an absolute fee, with a clause restraining the alienation and incumbering of the estate for a limited period, intended, no doubt, for the protection of the devisees, who alone are interested in the estate devised. In holding that such restraint is repugnant to the nature of the estate devised, and is void as against public policy, which in this state, in the interest of trade and commerce, gives to every absolute owner of property, who is suijuris, the power to control and dispose of such property, and subjects the same to the payment of his debts, we are fully aware of the fact that many authorities may and have been cited to the contrary. Others, however, support the view we have taken, but I shall not attempt either to review or reconcile the cases, being content to rest the decision upon what we conceive to be sound principle and sound policy. The owner of property cannot transfer it absolutely to another, and at the same time keep it himself. We fully admit that he may restrain or limit its enjoyment by trusts, conditions or covenants, but we deny that he can take from a fee simple estate its inherent alienable quality, and still transfer it as a fee simple.

Decree for plaintiff.


source: Caselaw Access Project

author: Boynton, O. J.

license: Public Domain

text:
    Morgan v. Perhamus.
    M., a married, woman, engaged in carrying on the business of millinery and dress-making with her separate property, and on her own account, in the town of ft, sold her stock of goods, together with the good-will of the business, and engaged not to carry on the business at any time in the future at the town of F., or at any place within such distance of said town as would interfere with such business, whether the same was carried on by the purchasers, or their successors.

      ■Held, That such agreement in equity is binding, and that, in an action brought by the successors of the purchasers, M. will be enjoined from carrying on such business in violation of the agreement.
    Error to the District Court of Clermont County.
    The original action was brought by Emma J. Perhamus, the defendant in error, against the plaintiff in ' error, Maggie Morgan, to enjoin the latter from carrying on the millinery or dress-making business in the town of Felicity, Ohio, or at any place so near thereto as to interfere with like business being carried on by the defendant in error.
    The petition alleged that the plaintiff below was a married woman, the wife of J ohn Perhamus, and the owner of a separate estate, which was under her sole control; and that the defendant, Maggie Morgan, a married woman, on April 9, '1874, was the owner of a stock of millinery goods, as her separate property, and was then engaged in carrying on the millinery and dress-making business in the town of Felicity, Clermont county, Ohio. That on that day she entered into a contract with May K. Parrott, Sallie Kennedy, and Lyde Kennedy, of which the following is a copy :
    “ This memorandum, made this 9th day of April, 1874, witnesses ; that Mrs. Maggie Morgan has this day sold to Sallie Kennedy, Lyde Kennedy and May K. Parrott all of her stock of goods now in her store-room at No. 4 Walnut street, Felicity, Ohio, and all other articles contained in an invoice made by Mrs. Sallie Iddings and A. J. Barr, a copy of which is hereby made a part of this agreement. The said Maggie Morgan, in addition to the foregoing, hereby sells her good-will, and agrees that she will not at any time in the future carry on, either directly or indirectly, the millinery or dress-making business in the town of Felicity, Clermont county, Ohio, or at any place within such distance of said town as will interfere with said business, whether carried on by said Lyde Kennedy, Sallie Kennedy and May K. Parrott or their successors.

      “In consideration of the above recited promises, tlie said Sallie Kennedy, Lyde Kennedy and May K. Parrott agree to1 pay the said Maggie Morgan the sum of $659; said sum of $659 is to be paid as follows, to wit: Three hundred dollars on the 15th day of April, 1874, and for the balance of said sum of three hundred and fifty-nine dollars the said Sallie Kennedy, Lyde Kennedy and May K. Parrott agree to give their firm note with approved security, bearing the date of day of delivery of the goods aforesaid; said note to draw eight per cent, interest per annum. In witness whereof we have hereunto set our hands and subscribed our names this 9th day of April, 1874.
    “Mat K. Parrott,
    Sallie Kennedy,
    Lyde Kennedy,
    Maggie Morgan.”
    Under tbU contract the purchasers of said stock of goods and business took possession, and continued to carry on said business until August .31, 1875, when they sold the stock of goods and business to the plaintiff, and assigned to her all rights acquired under said contract. The plaintiff at once assumed control of said business of millinery and dress-making, and was conducting the same in said town of Felicity when this action was commenced. The concluding allegation of the petition was as follows:
    “ The plaintiff says that the said Maggie Morgan, who is still a married woman, had established a good and profitable millinery business in said town of Felicity at the time she sold out to the said Sallie Kennedy, Lyde Kennedy, and May K. Parrott; that same has been ever since a lucrative and profitable business in said town.
    “ The plaintiff says that the said defendant, on the 1st day of October, 1876, commenced and is still carrying on the millinery and dress-making business in said town of Felicity in violation of the terms of her said written agreement, and the plaintiff says she has sustained damages, by reason of the premises, in the sum of $1,200; and the plaintiff says that said Maggie Morgan lias and does threaten still to carry on said millinery and dress-making business in said town of Felicity.’ ’
    Prayer for a perpetual injunction and damages.
    The court of common pleas sustained a demurrer to the petition for want of facts sufficient to constitute a cause of action, and dismissed the petition. The district court reversed the judgment and remanded the cause. To reverse the judgment of reversal is the object of the present petition in error.

      Nichols c& Lewis, for plaintiff in error:
    The contract was void for: 1st. It interferes with, and is in derogation of the marital rights of the husband of said Maggie Morgan. Railroad v. Keary, 3 Ohio St. 201; Linsey v. Coat, 1 Ohio, 245; Bloom v. Richards, 2 Ohio St. 387; Benjamin on Sales, 33, 36, §§ 31, 37 ; Tyler on Inf. & Cov. 316, and cases cited; Quigley v. Graham, 18 Ohio St. 42; Miller v. Hine, 13 Ohio St. 368.
    2d. There is no such separate property of a married woman known in law, or in equity, as “ good-will.” The very words “ separate property” would imply something tangible, a reality, that which on execution,-or under order of a court of equity, may be reached, and in some way or manner subjected to the payment of charges or debts contracted upon the faith and credit of the separate property. Act of March, 1871 (68 Ohio L. 48); Swasey v. Antram, 24 Ohio St. 87. To entitle one to the benefit of section 28 of the code as amended (71 Ohio L. 47), we apprehend, would require that the ¡aetition show affirmatively that the action concerns her separate property, as recognized by the statute, or is brought upon a written obligation, contract or agreement signed by her, &c., such as in equity would constitute a charge upon her separate property; because made and entered into, or the goods sold, upon the faith and credit of such separate estate ; and this separate estate, to charge and against which the judgment rendered maybe enforced by ordinary process of law, must be shown to exist before section 28, as amended, can have any force. That is, this amendment was and is intended to do away with the necessity of asking a court of equity to enforce the charge against the separate estate of a married woman, in the manner pointed out in the case of Phillips v. Graves & wife (20 Ohio St. 390). The petition is to disclose the existence of a married woman’s separate estate, then judgment and execution follow as in other cases. See Tyler on Inf. & Cov. 664, § 477. This section (28) gave a form of remedy not existing before, but did not vary or enlarge the liabilities of a married woman, Jenz v. Gugel, 26 Ohio St. 527; Allison v. Porter, 26 Ohio St. 136.
    3d. As the statutes governing a married woman’s separate estate cannot bo held to support such a contract as is set out in the petition, can “ good-will ” be in equity considered “ separate property,” and the aid of equity invoked to enforce this contract? t Equity will not enforce a void contract, and unless Maggie Morgan had the power to make this contract, the aid of equity cannot be invoked to enforce it. Phillips v. Graves, 20 Ohio St. 371; 30 Ohio St. 147. Contracts in restraint of trade are not favored. Callahan v. Donolly, 45 Call, 152; 2 Ohio St. 520.
    Frazier, Griffith da Griffith, for defendant in error.
   Boynton, O. J.

The principal question arising in the case is, whether the good-will of the business in which the plaintiff ■in error was engaged at the date of the contract sued on, constituted a part of her separate estate. That she, in terms, and for an entire consideration, sold her business and the good-will thereof, including her stock in trade, and of which business and stock she was sole owner, and engaged not to carry on the millinery and dress-making business in or near the town of Felicity, are both distinctly averred.

That she has engaged in said business in violation of said agreement is admitted. And it is not doubted that, had she been sole and unmarried when the contract was entered into, the stipulation not to re-engage in the business in the town of Felicity, or so near thereto as to interfere with the business, would have been perfectly valid. Lange v. Werk, 2 Ohio St. 519. But it is contended, that while she was the separate owner of the goods and business sold, that the good-will of such business constituted no part of lier separate estate. The statute provides that, any personal property, including rights in action, belonging to any woman at her marriage, or which may have came to her during coverture, by gift, bequest or inheritance, or by purchase with her separate money or means, or be due as the wages of her separate labor, or have grown out of any violation of her personal rights, shall, together with all income, increase and profits thereof, be and remain her separate property, and under her sole control.” 68 Ohio L. 48. This provision is very comprehensive. Its object was to cut ofE the common law rights of the husband to the personal estate of the wife, whether dioses in action or choses in possession, unless reduced to his possession with the express assent of t^e wife. 'That the good-will of a business is a species of personal property is well settled. In Wedderburn v. Wedderburn, 22 Beav. 84, it was said by the master of rolls, that “ The good-will of a trade, although inseparable from business, is an appreciable part of the assets of a concern, both in fact and in the estimation of a. court of equity.” Judge Story defines it as “ an advantage or benefit which is acquired by an establishment, beyond the mere value of the capital, stock, funds or property employed therein, in consequence of the general public patronage and encouragement which it receives from constant or habitual customers, on account of its local position, or common celebrity, or reputation for skill or affluence, or punctuality, or from other accidental circumstances or necessities, or even from ancient partialities or prejudices.” Story on Part. § 99. In Bindley on Partnership, 842, the author, commenting on the meaning of the term good-will, says, that “ it is generally used to denote the benefit arising from connection and reputation, and its value is what can be got for the chance of being able to keep that connection and improve it. Upon the sale of an established business its good-will has a marketable value, whether the business is that of a professional man or of any other person.” In Smith v. Everett, 27 Beav. 446, Sir John Romilly says, I entertain no doubt that if persons carry on business and one of them dies, a share in the good-will, where it is of any value at all, forms part of the estate of the deceased partnei\” These citations are sufficient to show that the good-will of a trade or business, when connected with it, is property. As was said in Wedderburn v. Wedderburn, supra, “ it is a portion of the subject-matter which produces profits.” It follows, therefore, that the good-will of the business sold by the plaintiff in error was as fully owned by her as a part of her separate ¡property, and as much the subject of sale, as was the stock of goods. This being so, the law gives the same remedy against her for the enforcement of the agreement as if she were unmarried. Section 28 of the code, as amended March 30, 1874, provides, that if a married woman be engaged as owner or partner in any mercantile or other business, and the cause of action grows out of, or concerns such business, she may sue and be sued alone ; and that in all cases where she may sue or be sued alone, the like proceedings shall be had, and the like judgment rendered and enforced, in all respects, as if she were an unmarried woman. Here the plaintiff in error was engaged in business as owner, and business of a mercantile character, and the cause of action grew out of such business. The rule of the statute therefore applies, that requires the same judgment to be given as if she were sole and unmarried. Patrick v. Littell, ante. That an injunction is the proper remedy in such case is settled by a uniform current of authority. Millington v. Foy, 3 Myl. & Cr. 338 ; Catt v. Tourle, L. R. 4 Ch. App. Cas. 654; Whittaker v. Howe, 3 Beav. 383 ; Hall v. Barrows, 33 L. J. Ch. 204; Harrison v. Gardner, 2 Mad. 198; Patridge v. Menck, 2 Barb. Ch. 101; Leake’s Digest of Law of Contracts, 1133. The consideration paid for the stock of goods and the good-will of the business was entire and indivisible, and the difficulty of ascertaining the extent of the injury, or the value of the goodwill of the business, has led courts of equity to interfere by injunction for the protection of this description of property, from a very early day. As was said in Leather Cloth Company, Limited, v. American Leather Cloth Company, Limited, 4 De G., J. & S. 136, “the court interferes by injunction, because that is the only mode by which property of this description can be effectually protected.” The right to relief in equity rests upon the inadequacy of the law to afford the remedy necessary to protect the party in the enjoyment of the right about to be violated. The defendant in error having succeeded to the rights of the purchasers under the contract in suit, is, by the express terms of the contract, entitled to the benefit of the plaintiffs promise not to engage in the business, and is consequently entitled to the same relief that a court of equity would have afforded to those from whom her rights were acquired.

Judgment affirmed. t


author: Okey, J.

text:
    First National Bank v. Fowler.
    1. A promissory note containing the words, “ I promise to pay to the order oí myself,” having been signed by two persons and placed by one of them in the hands of the other to be by him put in circulation for his own benefit, the latter may, bef ore the note is due, by indorsing his name thereon, invest a bona fide holder with a complete title thereto, although the name of the other maker is not so indorsed.
    2, In violation of an agreement between principal and surety in a promissory note, the principal transferred the note, before due, as collateral security for an extension of ten days in the time of payment of a protested draft for a less amount, the person receiving the collateral acting in good faith, and having no knowledge of such agreement: Hold, that the title of such holder, to the extent of the draft, is valid.
    Error to the Court of Common Pleas of Trumbull County. Reserved in the District Court.
    On September 23,1874, the First National Bank of Warren, plaintiff in error, brought suit in the court of common pleas of Trumbull county, against Henry Fowler and James H. Ilumiston, defendants in error, on a promissory note executed to the plaintiff by the defendants for $1,067.25, dated April 15,1874, and payable four months after date.
    An answer and a reply were filed, and the cause was submitted to a jury, which jury rendered a verdict for the defendants, on which verdict judgment was rendered. The plaintiff having prosecuted error in the district court, that court reserved, the case to this court for decision.

      The facts, so far as it is material to state them, are as follows: On May 24, 1873, Nathan B. Tyler, at Warren, in Trumbull county, filled the blanks in a printed note and signed it. The instrument was then in the following form:
    “Warren, O., May 24, 1873.
    “ $1,000. Four months after date, I promise to pay to the order of myself one thousand dollars, at Trumbull National Bank, Warren, O., value received. N. B. Tyler.”
    On the same day he took the note to Henry Fowler, residing in a village in the same county, and the evidence tended to show that he represented to him that he needed money and wished to get the note discounted at the bank named therein, which representation Fowler believed to be true, and at the request of Tyler then signed his name on the note below that of Tyler, and handed the paper to him. There was also evidence tending to show that both Tyler and Fowler believed that Fowler had then done everything necessary to be done in order to clothe Tyler with full authority to dispose of the note and transfer a complete legal title to any person, for his (Tyler’s) own benefit.
    Tyler was then indebted to the plaintiff in error in the sum of $469.55, money paid by it to Tyler for his draft for that amount on G-. Eicher, known as the Canton draft, and also in the sum of $500 on a promissory note falling due that day, indorsed by John Koehler.
    On the day of the execution of the note by Tyler and Fowler, Tyler presented it to the plaintiff in error for discount, but discount was refused. The plaintiff in error was willing to take it as collateral security. Tyler said he could take up the draft in ten days, and the plaintiff in error desired the collateral security that he would perform his obligation. Nothing was said with express reference to collateral security for the Koehler note. Tyler agreed to transfer the note of Fowler and himself as collateral security, and thereupon wrote his name across the back of it and delivered it to the plaintiff in error. The name of Fowler was never indorsed on the note. Evidence was given that the plaintiff in error had no knowledge of any understanding between Tyler and Fowler as to the manner in which the note executed by them should be disposed of by Tyler.
    On April 15, 1874, Tyler being in failing circumstances, Fowler as principal, and James H. Humiston as surety, executed to the plaintiff in error the note upon which this suit was prosecuted, and took up the note executed by Tyler and Fowler. Subsequently, Fowler obtained judgment against Tyler on the latter note, but during the trial of this case, tendered to the plaintiff in error an assignment of that judgment.
    A bill of exceptions was taken during the term, setting forth certain requests by the plaintiff in error for instructions to the jury, the charge given, and exceptions to the refusal of the court to charge as requested, as well as to the charge given. Among other things which the plaintiff in error requested, was that the jury be charged as follows: “ That the defendant Fowler was bound by whatever disposition Tyler made of the., note, in the ordinary course of business, unless the transferee had notice of some special arrangement between said Tyler and Fowler, limiting Tyler’s authority in the use of the note.” The court refused so to charge, and on the contrary charged, among other things, as follows : “ If the defendant Fowler did not authorize the use made of the old note, and in no manner assented thereto, being a mere surety upon the note, he was not liable upon it when received by the plaintiff as a security or pledge for the payment of the Canton draft within ten days.” And again : “ In order to transfer the legal title of the note, as commercial paper, the note should have been indorsed by both Tyler and Fowler.”
    The case was decided in this court during the term of Gilmore, C. J.

      E. B. Taylor, for plaintiff in error.

      G. M. Tuttle, for defendants in error.
   Okey, J.

On the trial of this case the testimony was quite conflicting. "We do not find it necessary to express any opinion as to the preponderance of the evidence. Of course the plaintiff in error was entitled to recover, if Eowler and Iiumiston, at the time they executed the note sued on in this case, knew the terms upon which the note of Tyler and Eowler was held. Equally clear it certainly is, that the plaintiff in error was not entitled to recover if it concealed from the defendants in error the terms upon which it held that note, and thereby induced the execution of the note here in suit. The question is as to the liability of the defendants in error upon the assumption that without their fault, or the fault of the plaintiff in error, they were ignorant of those terms. In that case their liability should be measured by the liability of Eowler on the note executed by himself and Tyler. The requests for instructions to the jury, the refusal to charge as requested, and the charge given, in connection with the tendency of certain testimony set forth in the statement of the case, fairly present the question as to the liability of Fowler on the Tyler-Eowler note in the latter view, and require us to say whether the action of the court in that respect was or was not erroneous.

The note executed by Tyler and Eowler was what is known as an irregular instrument.- Byles on Bills (6th Am. ed.) *90 ; 1 Daniel on Neg. Inst. §§ 128,148. Although signed by both of them, its terms are, “ I promise to pay to the order of myself one thousand dollars.” Where a note signed by two or more persons is payable to the order of one of them, it becomes effectual when he writes his name upon the instrument and puts it in circulation. If it is payable, in terms, to the order of two of the makers, the same thing must be done by both of them in order to vest in the holder a legal title. A note payable to the maker’s own order is wholly void until indorsed by him and put in circulation, but it becomes by such transfer a valid promissory note in the hands of a Iona fide holder, and is, in effect, payable to bearer.

The only indorsement made upon the note of Tyler and Eowler, was that made by Tyler by writing his name on the back of the instrument. Was the court warranted in saying to the jury that, in order to transfer the legal title of the note, as commercial paper, the note should have been indorsed by both Tyler and Fowler ? ” In our opinion this question must be answered in the negative upon three grounds.

First. Where a note the terms of which are, “ I promise to pay,” is signed by more than one person, it may be read, “We or either of us promise to pay.” Wallace v. Jewell, 21 Ohio St. 163. Here the instrument is signed by two persons, and its language is, “ I promise to pay to the order of myself one thousand dollars.” No greater violence is done to language by reading it, “ We or either of us promise to pay to the order of ourselves or either of us,” than was done in Wallace v. Jewell; and we think where such interpretation is in harmony with what seems to have been the intention of the parties, the instrument may be so read. Conner v. Routh, 7 How. (Miss.) 176 ; Boyd v. Brotherson, 10 Wend. 93; Pearson v. Stoddard, 9 Gray, 199 ; Higley v. Newell, 28 Iowa, 516.

Second. Parol evidence is inadmissible to vary the terms of a promissory note ; but where the instrument is of the class we are now considering, parol evidence may be admitted to explain it. McCrary v. Caskey, 27 Geo. 54; Taylor v. Strickland, 37 Ala. 642; Kelsey v. Hibbs, 13 Ohio St. 340. “ If you can construe an instrument by parol evidence, where that instrument is ambiguous, in such manner as not to contradict it, you are at liberty to do so.” Parke, B., in Goldshede v. Swan, 1 Welsby, H. & G. 154, 158. And Prof. Parsons says: “ Where the language of a note is capable of two meanings, parol evidence may direct the proper choice to be made between them. ” 2 Bills & N. 517.

Third. The evidence shows that when Tyler received the note from the hands of Fowler, the latter intended to invest him with power to negotiate it, and to do whatever was necessary to be done in order to transfer a legal title to the instrument. Tyler, under the circumstances, was empowered, on his own behalf and as agent for Fowler, to invest another with a legal title to the note. One may be orally authorized to indorse for another a promissory note, and where the instrument is in the form of the one under consideration, the indorsement may be made as this note was indorsed, if that was the manner of indorsement contemplated by the makers. 1 Daniel on Neg. j Inst. §§ 272-308.

But the defendants in error claim that Tyler diverted the' note from the object for which it was executed, and hence Eowler, who executed the note for the accommodation of Tyler,; was discharged. The note, as we have seen, is an irregular instrument, and is payable at another bank than the plaintiff in error ; but having been indorsed in the manner stated, if there was an understanding between Eowler and Tyler that the latter had general authority to transfer the note, the instrument differs, in no legal sense, from the most formal instrument, although the plaintiff in error knew Fowler was surety. Stone v. Vance, 6 Ohio, 246; Riley v. Johnson, 8 Ohio, 526 Williams v. Bosson, 11 Ohio, 62; Clinton Bank v. Ayres, 16 Ohio, 282; Portage Co. Bank v. Lane, 8 Ohio St. 405; Erwin v. Shaffer, 9 Ohio St. 43 ; Knox Co. Bank v. Lloyd, 18 Ohio St. 353; Kingsland v. Pryor, 33 Ohio St. 19. Indeed, according to the syllabus, the transfer of such a note, even in violation of an agreement between the principal and surety, will not discharge the latter, if the indorsee had no knowledge of the agreement.

Finally, it is urged, in support of the instruction to the jury, that Tyler had no power, however fair the transaction may have been on the part of the plaintiff in error, to pledge the note as collateral security for the payment, within ten days, of a protested draft for §469.55. But the position is untenable, for there was an agreement to delay collection of the draft for the specified time. Erwin v. Shaffer, supra ; Roxborough v. Messick, 6 Ohio St. 448; 1 Daniel on Neg. Inst. §§ 829-832.

For error in refusing to charge as requested, and for error in the charge as given, in the particulars indicated in this opinion, the judgment will be reversed, and the cause remanded for a new trial.

Judgment reversed.

Boynton, J., dissented.


author: McIlvaine, J.

text:
    Simon Perkins v. H. C. White.
    11. An. indorser oí a negotiable promissory note is liable to his indorsee, without demand oí payment from the maker and notice of non-payment, in cases where the maker is not liable to a bona fide indorsee before maturity, and for value.

      % And, to exonerate the maker from liability to such indorsee, on a note which he signed and delivered, believing at the time that the paper signed and delivered was another instrument, it is necessary to show that the maker was without fault or negligence in the premises.
    3. But in a special finding of facts by the court, a finding that such maker was unable to read or write, is not equivalent to a finding that he was free from fault or negligence.
    4. Where a bona fide indorsee of a negotiable note, after becoming such indorsee, acquires knowledge of a fraud practiced by the payee upon the maker in obtaining the note, which fraud, however, could not be made a defense by the maker against such indorsee, the subsequent indorsement of the note by him without communicating such knowledge to his indorsee, does not excuse demand and notice in order to charge the indorser.
    ■5. Under the statute prescribing the jurisdiction and procedure of justices of the peace, passed March 14, 1853 (S. & 0. 769), and sections ill and 133 thereof, as amended March 30, 1875 (73 Ohio L. 159), an appeal did not lie from a judgment of a justice of the peace (where the case was • not tried by a jury) for a less sum than one hundred dollars exclusive of costs, either under said amended sections, or original section 90 of .said act.
    Error to the District Court of Portage County. .
    ■On October 25, 1875, the plaintiff in-error brought an action ¡against Jacob Hively, W. H. Robinson and II. C. White, before a justice of the peace of Portage county, on a negotiable ^promissory note for $100.00, payable three months after date, made by Hively to Robinson and indorsed, in blank, by Robinson to White, and by White to plaintiff, before maturity, for .a valuable consideration. Service of process was made upon Hively and White, but not upon Robinson. During the pen•dency of the action before the justice, the action, as to Hively, was dismissed. White filed a bill of particulars of set-off ¡amounting .to .$115.50. On the trial, judgment was rendered in favor of the defendant for the sum of $60.00, on November 6, 1875. From this judgment plaintiff appealed to the court of common pleas. The defendant moved to dismiss the appeal for want of jurisdiction in the court of common pleas. This motion was overruled. Whereupon plaintiff filed his petition on said note against White as indorser, alleging, among other things, that said note, as to Hively, “ was a forgery and void, and for that reason demand and notice of non-payment were unnecessary,” and also alleging that demand of payment from Hively had been duly made and 'notice of non-payment duly given to White. To this petition defendant answered, admitting that he had indorsed the note to plaintiff before maturity for a valuable consideration, but denying each and ' every other allegation in the petition, save only that the note was unpaid. The defendant also pleaded the same set-off as before the justice, which, however, before trial was withdrawn without prejudice.
    On the trial in the court of common pleas, the court made the following finding of facts, to wit:
    “ And now come the said parties in person and by their attorneys, and neither party requiring a jury, submit the facts as well as the law to the court upon the pleadings, exhibits, testimony in open court and was argued by counsel; on consideration whereof the court find that said Jacob Hively, the maker of the note, could neither read or write; that in the highway near his residence on the day the note in suit was dated he entered into a contract with one W. H. Robinson, the payee of the note, by which said Hively was to act as agent for said Robinson in the sale of 50 pairs of pruning shears, and to pay said Robinson one-half the proceeds thereof, to wit: $100 after the same were sold. That one pair of shears which said Robinson had then as a sample was delivered to said Hively, and the said Robinson agreed to furnish said shears immedh ately, and the said Hively and the said Robinson then and there 'agreed that said Hively would act as such agent and then and there order said shears, and undertake to sell the same and pay for the same when sold the sum of $2 each. But in case no sale could be made by said Hively of said shears, that the same should be returned to said Robinson and none paid for except those which he could sell.
    “ The said Robinson then and there had some blanks partly printed which he then and there filled up with pen and ink which said Robinson had with him, and then and there read the same to said Hively, which contract as read embraced the terms as above set forth, and an order to ship said shears, and said Robinson asked said Hively to sign said contract, and the said Hively then and.there agreed and undertook to sign said contract and to order said shears and no other, and did sign a paper by making his mark, which he understood to be said contract, which he supposed was said contract and order for shears.
    “ The court further find that said Hively did in fact then and there sign the promissory note in question, and not any contract appointing him as agent as aforesaid. And the court further finds that said Hively did not intend to sign said-note, nor did he suppose that he was signing said note at the time he made his mark to the paper presented by said Robinson.
    “ But the court finds that said Jacob Hively did intend to obligate himself to pay to said Robinson $100 in accordance with the terms of the contract hereinafter set out, a copy of which is given in the finding of fact. The court further find that said Robinson and said Hively immediately went to the home of said Hively, where they found W. B. Hively,' a son of said Hively, and in the presence of said son said Robinson stated the contract as above set forth, and also read over the contract as given above, and asked the son to witness the signature of his father to said contract, and thereupon said son did sign as witness some paper which he understood was a contract appointing his father to sell shears as above set out, and which he supposed was said contract. But the court find that he did in fact sign his name as a witness to the note in question, but that he did not intend to witness a note. The court further find that at said time Robinson did sign and deliver to said Jacob Hively and left with him a contract of which the following is a copy:

      Whereas, I, W. Robinson, of Batavia, Ohio, am the owner and manufacturer of a certain pruning shear, and whereas, Jacob Hively, after having examined said shear, is desirous of obtaining an agency for the sale thereof in the township of Suffield, Portage county, Ohio: Now, therefore this indenture witnessed that for and in consideration of one-half of the proceeds of the sale of fifty pair of shears sold on trial, being the sum of one hundred dollars to me in hand secured by order, I have this day delivered to Jacob Hively one pair of said shears and appointed him my true and lawful agent to sell the above named shears in the above named territory, and in no other place or places, upon the following conditions, viz. : I, W. H. Robinson, do hereby agree with Jacob Hively that if, after using due diligence he shall fail to sell fifty pair of the above named machinery for $200 dollars within three months from date, I will take the same back at the same price or give him a longer time to sell by his giving me one-half the proceeds on what he has sold, or two dollars per pair — all shears warranted and sent to the agent when ordered by him.
    “ ‘ Dated May 14, 1874. W. H. Robinson.’
    “The court further finds that the said Robinson was a stranger traveling through the country; that no shears was ever delivered or sent by him to said Hively except said sample pair, and that Robinson' was never heard of afterward. And the court further finds that by some trick or manipulation of said Robinson unknown to the court, the said Hively did sign said note, and his son did witness the same, but they both did it without intending to sign or witness a promissory note, nor did either of them intend to deliver to said Robinson a promissory note. But the court finds that under the circumstances given above the said Hivelys did sign and deliver a paper which turned out to be a promissory note.
    “ The court further finds that the said H. C. White became the bona fide owner and holder of said note for a valuable consideration before due in the usual course of trade and without any notice of any defense thereto. After the purchase of said note by said White, and before the said White transferred tlie same to Perkins, the said White was notified by W. B. Hively that said Jacob Hively did not sign a note but had only signed a contract as above set forth.
    “ The court further finds that this conversation occurred at a time when said White called on said Jacob Hively to inform him that he had purchased his note. The court further finds that said White was then and there notified of the fact that said Hively never intended to sign a note and if one was ever given it was obtained without his knowledge or consent, and also farther notified that the note would not be paid unless the maker was compelled to pay it by law. But before the parties separated the said Hively informed said White that if the shears should come according to contract his father would pay the note.
    “ The court further finds that said Jacob Hively immediately after said supposed contract was entered into, sold a number of shears to his neighbors to be delivered by him and paid for when they should be received from Robinson.
    “ The court further finds that before the maturity of said note the said White transferred and indorsed said note to the plaintiff. That said plaintiff took the same as a bona fide purchaser from said White for a valuable consideration in the usual course of trade before due and without any knowledge of the .defense which the maker thereof had to the note.
    “ The court further finds that there was no demand of payment of said note from the maker thereof by said plaintiff on the day it fell due, nor any notice of non-payment given to said White until many weeks after the note fell due.

      “ The court further finds that a few days before said note fell due the said plaintiff by his agent, David Perkins, called upon said Jacob Hively to see if said note would be paid, and the said Hively then and there informed the said plaintiff’s agent that lie never gave the note, but that the same was a forgery, and further -informed the said plaintiff’s agent that said note would not be paid, and thereupon the same day the said plaintiff’s agent communicated to said White that said Hively declared that said note was a forgery and would not be paid. The court does not find that said White at any time waived demand of payment or notice of non-payment. The court further finds that said White had for a long time been acquainted with the handwriting of said W. B. ilively. They had been schoolmates together and he believed the handwriting of said W. B. Ilively to be genuine upon said note.
    “ By consent of parties and of the court the said White has leave to withdraw his counter-claim without prejudice and said counter-claim is not adjudicated upon. Whereupon it is the opinion of the court that the said plaintiff ought to recover, and it is considered by the court that the said plaintiff recover of the said defendant White the sum of $112.75 and his costs taxed at $47.55. To all of which said White excepts. Defendant White filed his motion for a new trial for the causes specified in said motion, on consideration whereof the. court overrule the motion. Defendant White excepts.”
    On proceedings in error prosecuted by the .defendant below the district court reversed the judgment- of the common pleas and remanded the cause for further proceedings. This proceeding is now prosecuted by the plaintiff to reverse the judgment of reversal.

      Upson <& Baird, and J. B. Ilorton, for plaintiff in error :
    I. Was the cause, under the justice act of March 14, 1853, as amended March 30, 1875, appealable ? We think it was. The trial before the justice was by the court, both parties by their bill of particulars claiming more than $100. Section 90 of the act of 1853 was not repealed by the act of 1875. Is the section applicable to this case ? The limitations upon the right of appeal created by the act of 1875 are in sections 111-123 and do not affect this action, section 111 being limited in its operation to “ cases not otherwise specially provided,” whereas this case is otherwise specially provided for by section 90. Section 123 as amended no doubt has the effect to modify section 90, but the modification only applies to cases tried by a jury. Vogel v. Haffy, 29 Ohio St. 439, would seem to be decisive upon this question.
    II. Was demand and notice necessary ? The only additional fact not expressly found by the court, necessary to bring this case as against ITively fully within the rule of De Camp v.
      Hanna, 29 Ohio St. 467, is upon the question of negligence, and upon this point, although the court does not expressly negative negligence on the part of Hively, still it states facts which do; the maker of the note could neither read nor write, but relying entirely upon the representations of the payee, he signed what he understood to be a simple agreement to act as an agent, and if any case can arise where negligence cannot be imputed to a man this would seem to be one.
    We think in fact this note should be held as a forgery. 1 Bouv. Law Dict. 54, § 5 ; Caulkins v. Whisler, 4 Am. R. 236; 29 Iowa, 465 ; State v. Woodard, 20 Iowa, 542 ; 1 Parsons on Bills, 275. Or at least absolutely void as to the maker. Chapman v. Rose, 56 N. Y. 137; Gibbs v. Linabury, 7 Am. R. 675 (22 Mich. 469); Taylor v. Atchinson, 58 Am. R. 118 (54 Ill. 196). It was at all events not a genuine note, and of no validity against its maker.
    The only object of notice is to enable the indorser (White) to protect .himself by obtaining payment or secmity from the parties liable to him. Demand and notice is excused if the instrument is void for want of consideration, fraud or forgery. 1 Parsons on Bills, 444; Bailey on Bills, 273; 9 Mass. 1; 5 Cush. 80; 6 Gray, 90. 'If, as we claim, Jacob Hively is not liable on this note to a bona fide holder, demand and notice would be of no benefit to defendant as to any claim against the maker. Robinson, however, was no doubt liable upon his indorsement, — a liability' which, by reason of his fraudulent conduct, would hold without demand and notice. Defendant, however, being an indorser, would be entitled to notice to enable him to proceed at once against Robinson if he were in good faith and not guilty of any fraud.
    The record, however, shows that the defendant, when he transferred the note to plaintiff, had actual notice of'the fraud and want of consideration in obtaining the same, and had been “ notified that the note would not be paid unless the maker was compelled to pay it by law.” He knew the note was without consideration, that it was obtained by fraud, and would 'not be paid, and his indorsement thereof was a deliberate act of fraud; by it he made himself a party to the original fraud, and was not entitled to notice. This proposition we submit is a vital one and decisive of the case. Daniels on Neg. Instruments, 730, 1033; Edwards on Bills, § 452; Farmers’ Bank v. Van Meter, 4 Rand. 553; 2 Pars, on Notes and Bills, 554, 555, note J, 560, 648 ; Sisson v. Tomlinson, 1 Sel. N. P. 256; 2 Smith Lead. Cas. 29.
    The plaintiff took this note in good faith and for valuable consideration, from the defendant, who had full knowledge of its fraudulent character, who by its transfer deliberately perpetrated an act of fraud, and who now seeks by this defense to escape immunity from the results of that fraud. Instead of being discharged we submit that, waiving the question of indorsement, he is held and should be held responsible to plaintiff upon his fraud for the amount of the note.
    Again, the defendant, having negotiated the note, impliedly warranted its genuine character, and is liable upon this warranty to return the money received upon it even though not liable as an indorser. Ellis v. Ohio Life Ins. & Trust Co., 4 Ohio St. 651; Dumont v. Williamson, 18 Ohio St.. 515, and eases cited; 2 Pars, on Notes and Bills, 37, 39, 588, 590; Story on Prom. Notes, § 118 ; Daniels on Neg. Inst. 545.

      W. B. Thomas, for defendant in error :
    I. The law does not apply for an appeal of this cause.
    See sections 90, 111 and 123 of justice act, March 14, 1853, and amended sections 111 and 123, Laws of 1875, page 161.
    II. "Was the note a forgery?
    The record shows that Jacob Hively did sign this identical note at the time and as a part of his contract with Robinson; that the note when signed was filled out in every respect. It was the same as when produced upon trial. The court finds that the signature was genuine. The paper signed was the same. The contents exactly the same, and was voluntarily delivered. No counterfeit making. No alteration. No subsequent act changed the terms, or its legal effect. But they say that Hively’s signature was obtained by falsely representing the instrument signed to be one of a different nature. That is not forgery. It is procuring a genuine signature to a genuine note. 1 Daniel Neg. Inst. (2d Ed.) 327; Commonwealth v. Saw
      key, 22 Pa. St. 390 ; 6 Mich. 496; 2 Parson N. & B. 586 ; Bishop Crim. Law, 549.
    III. "Without regard to the pleadings, or who the parties are, or what the respective findings are, does the finding show a good defense for the maker of the note, as against a Iona fide holder ? The supreme court of Ohio have examined the various decisions of different States on this question in the two cases in 29 Ohio St. 467, 473.
    Can the maker be said to be guilty of no negligence under the finding of the court ? It is conceded and determined that the intention of the maker in signing is no defense; that if fraud be practiced in obtaining the signature by falsely representing the instrument to be signed to be one of different import, will not prevent recovery, unless the maker' of the note Gim further show that he was guilty of no negligence. The bur-then is upon him to show that he was guilty of no negligence. It is his defense. 56 N. Y. 137; Winchell v. Crider, 29 Ohio St. 480.
    There is no exception to the old and just rule, that “ where one of two innocent persons must suffer by the fraud of a third person, he who trusted such third person, and placed in his hands the means which enabled him to commit the wrong, must bear the loss.” Selser v. Brock, 3 Ohio St. 302.
    This defendant was the Iona, fide owner and holder of • a promissory note of Jacob Ilively, who was competent to make a contract. The consideration was legal, and defendant’s title good. He sold it to plaintiff before due, and received no notice of dishonor of the note, and is therefore not liable in any way to anybody. See, also, 15 Ohio St. 299, and 27 Ohio St. 374.
   McIlvaine, J.

Having first considered this case upon the merits, the court is of opinion, that the judgment of reversal by the district court was right. - While it is clear, from the finding of facts by the court of common pleas, that the instrument sued on was fraudulently obtained from Ilively by Robinson, and that Hively, when he signed the same, believed, from the representations of Robinson, that he was signing an instrument other than a promissory note, and that he did not intend to sign or deliver a promissory note, it was not found, in express terms, that he was free from negligence in the premises. In order to exoúerate Iiively from liability to an innocent jrolder for value, to whom the note was indorsed before maturity, as was held in the case of De Camp v. Hamma, 29 Ohio St. 467, it was necessary to show that he was without negligence, and the burden of this showing rests upon the defense. True, the circumstances set out in the finding tend to prove that Iiively was free from carelessness, but the essential fact, to wit: freedom from negligence, was .not found, and a reviewing court is not authorized, upon such findings, to weigh the testimony for the purpose of determining probabilities. The finding that Hively could not read and write was not equivalent to a finding that he was free from carelessness in signing and delivering the instrument. And aside from his inability to read, the circumstances detailed in the findings of fact, tend, at least, to show that the exercise of ordinary prudence, on his pail,would have prevented the consummation of the fraud.

In view of the circumstances disclosed, we think, the indorsee was not excused from his duty to his indorsor to make demand of payment from Hively and give due-notice of non-payment, as he would have been, if the signature of Hively had been a forgery, or if he had not been liable to an innocent indorsee.

Nor is the contention of plaintiff in error, that White fraudulently concealed, at the time of the transfer, his knowledge of the fraud committed by Robinson upon Hively, of any avail in excuse for failing to make demand and to give notice of non-payment. It was found by the court, that White was an innocent indorsee of the note from Robinson, before maturity, and for a valuable consideration. Subsequent notice to him of Robinson’s fraud upon Hively did not affect his title or right as innocent holder, and, therefore, his indorsee, Perkins, with or without notice of such fraud, succeeded to the rights of an innocent holder, and could have enforced payment from Hively free from the defense of fraud on the part of Robinson. Perkins was not prejudiced by such concealment on the part of White. If Hively was liable on the note to an innocent holder, Perkins obtained all he bargained for, and if Hively was not so liable, White was not entitled to notice of non-payment upon duo demand, whether ho had knowledge of Robinson’s fraud at the time of the transfer by him, or not; and whether he communicated such knowledg'e to Perkins or not. The note, being free from the defense of fraud on the part of the payee, in the hands of White as innocent indorsee, could not be made subject to such defense in the hands of a subsequent holder, although such subsequent holder had knowledge of the fraud at the time he received it. The mere fact, therefore, that White had acquired knowledge of Robinson’s fraud upon Hively, after he had become an innocent owner of the note, and the further fact that he did not communicate such knowledge to Perkins when he indorsed the note to him, did not relieve Perkins from the duty of making demand and giving notice to White, if he intended to look to White for payment of the note as indorser.

Upon this view of the case, the judgment of reversal should be affirmed; but inasmuch as the district court remanded the cause to the common pleas for a new trial, it becomes necessary to inquire, whether or not the appeal from the judgment of the justice of the peace was authorized by law; and, if not, .an additional reason exists for affirming the judgment of reversal, and it also affords ground for reversing the order remanding the cause for a new trial.

The law regulating appeals from justices of the peace, at the time this was attempted, was found in act of March 30, 1875 (73 Ohio L. 159), amending sections 111 and 123 of the act of March 14, 1853, and section 90 of the last named act (S. & 0. 785). The state of the law, under these sections, has given rise to much perplexity in the minds of the profession. It has heretofore been held by this court, that under these provisions an appeal would not lie in an action for the recovery of specific personal property which proceeded to trial for damages (where the property was not delivered) before a jury whose verdict was for less than $100.00 — there being no claim in the bill of particulars for damages exceeding $100.00. Ohio & Toledo R. R. v. Bates (26 Ohio St. 32). And it has also been held in Vogel v. Haffy (29 Ohio St. 439), that an .appeal will lie in a case tried by a jury where the damages claimed exceeded §100.00, although the judgment was for less than §100.00.

In the case now before us, the trial was by the justice, and not by a jury. Section 111, as amended, provides : “ That in all cases not otherwise specially provided by law, either party' may appeal from the final judgment of any justice of the peace to the court of common pleas of the county whore the judgment was rendered, when such judgment, exclusive of costs, amounts tonot less than one hundred dollars.” And section 123, as amended, reads: “Appeals in the following cases shall not be allowed: ... 2. In jury trials, where neither party in their bill of particulars claim a sum exceeding one hundred dollars, and the judgment, exclusive of costs, is less than ono hundred dollars.” It being conceded, as it is and must be, that appeals are only allowed in cases wherein the right is given by statute, it is quite clear, that under the provisions above quoted, the appeal in the case before us was not authorized, although the amount claimed in the bill of particulars was greater than one hundred dollars; because the judgment was for less than one hundred dollars, and the case was not'tried by a jury.

It remains, therefore, only to inquire whether such appeal was authorized by section 90 of the original act, March 14, 1853.

In Vogel v. Haffy, supra, it was held that section 90 was so modified by section 123, as amended March 30, 1875, as to substitute “ one hundred dollars ” for “ twenty dollars,” so that section 90 should be read: “ If either the plaintiff or defendant in their bill of particulars claim more than one hundred dollars, the case may be appealed to the court of common pleas,• but if (neither) party demand a greater sum than one hundred dollars, and the case is tried by a jury, there shall be no appeal.”

In Vogel v. Haffy, a cause tried by a jury and the claim being more than §100.00, although the judgment less, the light of appeal was found in this section so modified.

The correctness of that decision is a matter of some doubt; but without undertaking to overrule it, we are satisfied that section 90, unrepealed by the act of 1875, but modified as above stated, did not confer the right of appeal from a judgment in a case not tried by a jury. This is quite apparent from the history of legislation on the subject of appeals from justices’ judgments.

The act of March 14,1831, defining the power and duties of justices of the peace, and constables, in civil cases, by section 40, regulated the whole subject of appeals, in these words: “Appeals shall be allowed to the court of common pleas from the final judgment of any justice of the peace, rendered under the provisions of this act, except from judgments rendered on confession.”

On February 14, 1840, the right of trial by a jury of six good and lawful men was introduced in the courts of justices of the peace. The right of appeal in cases tried by a jury was then limited by section 7 of the act of that date (38 Ohio L. 27) as follows: “ That when the amount found by the jury shall not exceed the sum of twenty dollars, exclusive of costs, there shall be no appeal from the judgment of the justice thereon, any fofmer law to the contrary notwithstanding.” By this statute no right of appeal was given, — the only provision on the subject being a limitation upon the right as given by section 40 of the act of 1831.

By the act of March 4, 1845 (43 Ohio L. 57) to amend the act of 1840, “to allow juries before justices of the peace,” it was provided : “and when in case of appeal from the judgment of any justice of the peace under the before recited act, it shall appear that the plaintiff by his bill of particulars before such justice claims more than twenty dollars, and the verdict of the jury was either in favor of the defendant, or in favor of the plaintiff for a less sum than twenty dollars, said cause shall be entered in the court of common pleas and shall be proceeded upon in all respects as other cases of appeal.” Evidently this amendment was intended to modify the limitation ‘upon the right of appeal in jury cases as declared by the act of 1840, leaving the right of appeal in cases tried by a jury, as before, to rest upon section 40 of the act of 1831 — which section alone continued to be the sole rule regulating appeals in cases not tried by a jury.

By the act of March 14, 1853 (S. & C. 769), which repealed the acts of 1831, 1840 and 1845, the entire practice before justices of the peace was revised, and the general right of appeal was re-enacted in section 111, as follows : “ In all cases not otherwise provided for by law, either party may appeal from the final judgment of any justice of the peace to the court of common pleas of the county where the judgment was rendered.” And by section 123, it was “ otherwise specially, provided -for by law ” that “ appeals in the following cases shall not be allowed: 1. On judgments rendered on confession. 2. In jury trials where neither party claim in their bill of particulars a sum exceeding twenty dollars.' 3. In the action for forcible entry and detention, or the forcible detention of real property. 4. In trials of the right of property, under the statutes, either levied upon by execution or attached.”

It would thus appear that the whole subject was provided for by sections 111 and 123 of this act. Nevertheless, in arranging and compiling this statute from former laws, among the provisions relating to trial by jury, the subject of appeal as limited by the act of 1840 as amended in 1845, was re-enacted and formed section 90, as above quoted. If, therefore, it be true that section 90 of this act can not give to the statute any operation, on the subject of appeals, that it would not have under sections 111 and 123, and if it be true, as held in Vogel v. Haffy, that the right of appeal in cases tried by a jury, where the claim was more, hut the judgment less, than one hundred dollars, was found in section 90, as modified in 1875, still, we are unable to find in it (section 90) any authority for an appeal in a like case tried by the justice and not by. a jury — and such is the case before us.

Judgment of district court reversing judgment of common pleas affirmed, and order of the district court remanding the case reversed, and said cause dismissed for want of jurisdiction in the common pleas.


author: By the Court.

text:
    Union Central Life Ins. Co. v. Pyers.
    Section 48 of (he Code, as amended April 16, 1867 (S. & S. 641), authorized an action upon a policy of life insurance, issued by a company organized under the laws of this state, to be brought in the county where the death of the person insured occurred.
    Error to the District Court of Delaware County.
    The plaintiff in error, a life insurance company, having its principal office and place of business in Hamilton county, was sued in the court of common pleas of Delaware county, upon a policy of life insurance issued to the defendant in error, Rebecca Pyers, on June 17, 1874, on the life of her husband, Martin Pyers. The policy was issued in Delaware county, where the defendant and her husband resided, and where he died in January, 1875. In May following, the action was brought to recover the amount of the policy. The company moved the court to dismiss the action for want of jurisdiction. The court overruled the motion, and the company excepted. Trial was had, resulting in a verdict and judgment for the defendant in error, which judgment the district court, on error, affirmed.
    This is a petition in error to reverse both judgments below, and the assignment now determined is, that the court of common pleas erred in denying the motion to dismiss for want of jurisdiction.

      Matthews, Ramsey <& Matthews, for the plaintiff in error.

      Powell dk Gill, for the defendant in error.
   By the Court.

Section 48 of the code, as amended April 16,1867 (S. & S. 541), was as follows:

An action other than one of those mentioned in the first three sections of this chapter, against a corporation created by the laws of this state, may be brought in the county in which it is situated or has its principal office or place of business ; but if such corporation be an insurance company the action may be brought in the county where the loss or some part thereof occurred.” ¥e see no reason why the last clause of this section does not embrace life as well as fire companies. The word “ loss ” is not a word exclusively used to represent damage resulting from fire. On the same day that this section, as amended, was enacted, the legislature passed an act “ Eor the incorporation and regulation of lifeinsurance companies,” which made it the duty of the officers of the company to report annually to the auditor of the state, among other things, the amount of £‘ losses ” paid during the year, and the amount of losses ” unpaid. These losses are those resulting from, death, and are ordinarily denominated death losses. The language of the above section is, if such corporation be an insurance company the action may be brought in the county where the loss or some part thereof occurred. ” If the words or some part thereof” had been omitted from the statute there would be no doubt that the language giving the right to bring the action in the county where the loss occurred would cover loss by death as well as loss by fire. We, however, think the phrase or some part thereof, ” was not intended to restrict the meaning of the previous language, but rather to so enlarge it as to authorize an action to be brought in either county, where a part of the loss as by fire occurred in one county and a part in another.

Order accordmglry.


author: MoIlvaine, J.

text:
    Samuel M. Chilcote v. James Conley.
    1. In an action by a plaintiff in attachment against a garnishee, to recover money flue from him to the defendant in attachment, the latter, who claims to have selected and to hold the same exempt from being applied to the payment of plaintiff’s claim, is a proper party to the action, and should'be permitted to show his selection and assert his right to the exemption.
    8. Section 8 of the homestead act, as amended March 23, 1858 (S. & 0. 1146), provided, “ That it shall be lawful for any resident of Ohio, being the head of a family and not the owner of a homestead, to hold exempt from execution or sale as aforesaid, personal properly, tobe selected by such person, not exceeding three hundred dollars in value, in addition to the amount oí chattel property now by law exempted.’’ J3eld, 1. “Personal property,” construed in connection with other statutes in pari materia, includes credits and moneys selected by the debtor. 2. Credits and moneys selected by the debtor cannot be taken and hold under an order of attachment or by garnishee process.
    Error to the District Court of Seneca County. ■
    On April 13, 1869, James Conley, defendant ■ in error, commenced an action on a promissory note, before a justice of the peace, against Elisha McRill and another, and at the same time instituted proceedings in attachment and caused notice of garnishment to be served upon Samuel M. Cbilcote, plaintiff in error, to subject certain money in his hands to the satisfaction of plaintiff’s claim against McRill. Service upon the garnishee was duly made by copies “left at his usual place of residence ” during his absence. Previous to this date, Cbilcote had purchased of McRill his homestead, and having paid certain liens thereon, there remained in his hands the sum of $200 of the purchase-money subject to the call of McRill. On his departure from home a few days before the service of garnishee notice, Cbilcote placed in the hands of his wife the sum of $200 to be paid, if called for in his absence, to McRill, in full of said purchase-money. On the day following the service, to wit: on April 14, McRill called for the money, and Mrs. Cbilcote, who had knowledge of the garnishment, paid the same to him, in the absence of her husband, and before he had acquired actual notice of the proceeding in attachment.
    Afterward, judgment having been rendered by the justice in favor of Conley against McRill, Chilcote, who had disclosed the foregoing state of facts upon his examination as garnishee, was ordered by the justice to pay said sum into court, but failing to comply with the order, the original action was commenced by Conley against Chilcote, under the statute, to recover the amount aforesaid. (The case is further stated in the opinion.)

      Nolle & Adams, for plaintiff in error.

      George E. Seney, for defendant in error.
   MoIlvaine, J.

• This cause was before this court, at a former term, upon a petition in error by Conley, to reverse a judgment that had been rendered against him in the action, and is reported in Conley v. Chilcote, 25 Ohio St. 320. It was there held, that a garnishee, under the statute, is bound from the time of service of notice of garnishment at his usual place of residence, and the subsequent payment to the defendant in attachment of money due him, by an agent who had knowledge of the attachment, in pursuance of previous authority, did not release the garnishee, although such payment was made before actual notice to him of the pendency of the attachment. It was also decided in that case, that, in such action, it was not an available defense for the garnishee to show that the defendant in attachment was entitled to and might have selected and held the money in his hands, under the exemption laws of the state, from seizure by process of attachment. The ground upon which this last point was resolved, was, that the right to select and hold property exempt from seizure was a personal privilege granted to the defendant in attachment, and hence the garnishee had no right to interpose such claim of right as matter of defense in an action against him.

These rulings being decisive of the case as it then appeared ,on the record, the judgment below was reversed, and the cause remanded to the court of common pleas for further proceedings.

Afterward, in the court of common pleas, it being shown that MeRill was a resident of Ohio, the head of a family and not the owner of a homestead, and that he had selected and claimed the money in the hands of Chilcote, at the time of the attachment, as exempt from being applied to the payment of the plaintiff’s claim, under section 8 of the homestead act, as amended March 22, 1858 (then in force in respect to such claim), the defendant Chilcote moved the court that MeRill be made a party defendant, with leave to assert his claim to such exemption. This motion was overruled. Thereupon said MeRill' asked leave of the court to appear and answer in the action by claiming such exemption, which leave was refused. To all of which exceptions were taken by defendant.

Judgment was afterwards rendered against the defendant. A bill of exceptions setting out all the testimony was taken. The judgment of the court of common pleas was afterward affirmed by the district court. This proceeding is now prosecuted to reverse the judgment of the district and common pleas courts.

Upon the facts how stated in the record, we think that McRill was entitled to select the “ money ” in the hands of Chilcote, as “ personal property,” and hold the same exempt from seizure by attachment. This results from the reasonable and proper construction of the statutory provisions upon the subject. By section 30 of the justices’ act (S. & C. 776) it is provided that the order of attachment shall require the officer “ to attach the goods, chattels, stocks, or interests in stocks, rights, credits, moneys and effects of the defendant in his county, not exempt by law from being applied to the payment of the plaintiff’s claim.” By section 37 of the same act, it is quite clear that the same descriptions of property, and no other, may be seized by garnishment, when the plaintiff makes oath in writing, “ that he has good reason to believe, and does believe, that any person or corporation to be named and within the county where the action is brought, has property of the defendant (describing the same) in his possession.” Thus exempting from seizure by attachment, in any way, property of the defendant (including “ moneys ”) which is “ exempt by law from being applied to the payment of plaintiff’s claim.” By section 8 of the homestead act (above referred to) it is provided, That it shall be lawful for any resident of Ohio, being the head of a family and not the owner of a homestead, to hold exempt from execution or sale as aforesaid, personal property to be selected by such person, not exceeding three hundred dollars in value, in addition to the amount of chattel property now. by law exempt.” This provision should be liberally construed and with a view of placing all debtors of the class upon a footing of equality. Hence, personal property, as in section 37 of the justices’ act, should be held to include “ moneyand the phrase, exempt from execution or sale,” should be construed to mean, in the language of section 30 of said act, “ exempt by law from being applied to the payment of the plaintiff’s claim.” So that, under his proceedings in attachment, by garnishment, the plaintiff in the original action acquired no right to have the money in the hands of Chilcote applied to the payment of his claim against McRill, if at any time before such application was in fact made, McRill, the debtor, selected the same to be held exempt from such application.

If Chilcote were compelled, in this suit, to pay this money to Conley, no doubt he would have his action against McRill for money paid for his use; but it is quite clear that the money now in McRill’s hands would be exempt from the payment of the judgment recovered in the case.

This action, however, was brought by the plaintiff to compel such application, on the theory that the money was still in the hands of the garnishee, and we think it was the right of McRill as well as of the defendant, that he should have been permitted in the court below to show his selection of the money in controversy, and assert his right to hold the same exempt from being applied to the payment of plaintiff’s claim.

Judgments below reversed and cause remanded.