author: Spear, J.

text:
    Shugars, Clerk, v. Williams et al.

      Municipal Corporations—Villages and Hamlets—Creation of— Annexation of territory to.

    Chapters 2 and 5, of Division 2, of Title 12, Revised Statutes, relating to the general subject of the creation of villages and hamlets, and the annexation of territory to those already created, are to be treated, for purpose of construction, as one act. The course of procedure at the hearing before the county commissioners, directed by section 1557, is applicable to each branch of the subject. The authority there given to permit amendment to the petition applies to a petition for annexation of territory under subdivision 2 of chapter 5, and it is not necessary to the exercise of such discretion by the commissioiuers, that an ordinance should previously have been passed authorizing the agents of the corporation to apply for such amendment.
    (Decided May 9, 1893.)
    Error to the Circuit Court of Rucas county.
    On the 7th day of December, 1887, the council of the village of Maumee, Rucas county, duly passed an ordinance to provide for the annexation of certain territory to the village, and therein directed, and empowered A. W. Eckert and Albert Alius, to make proper application to the commissioners of Eucas county, and to prosecute all necessary proceedings to effect annexation of said territory. On the. 4th day of January, 1888, the agents named filed with the board of commissioners a petition in behalf of the village, setting forth the ordinance, a description of the territory sought to be annexed, with a plat, and praying an order of annexation. Notice of the time and place of hearing was ' duly given, and the meeting of the board for this purpose was adjourned from time to time. On the 8th day of May, by leave of the board,, the agents, in the name of the village, presented an amendment to the petition and map, changing some of the lines and leaving out a portion of the territory described in the original petition, but not adding any additional territory, which was taken under advisement, and the further hearing adjourned until June 5. On the last named day the hearing was again adjourned until June 12. On that day the board again met, and a resolution was passed reciting among other things, that the application, and as amended, contained a correct description of the territory sought to be annexed, granting the prayer, and ordering the annexation of the territory therein described. No ordinance had been passed by the council authorizing the amendment. A certified transcript of the journal of the board, together with the original and amended petitions, and the plat attached to the same, was thereafter filed, by order of the board, with the plaintiff in error, the clerk of the village of Maumee. Within sixty days thereafter the defendants in error, owners of property lying within the territory ordered to be annexed, filed a petition in the court of common pleas praying for an order restraining the clerk from reporting the proceedings to the village council. The common pleas refused the prayer, and dismissed the petition. This judgment was reversed by the circuit court, and the case is here on a petition in error, asking a reversal of the judgment of the last named court.

      A. W. Eckert, Albert Alius and Hamilton & Ford, for plaintiff in error.

      Substantially but two errors are complained of: (1). No ordinance was shown as having been passed by the council of said village, authorizing an amendment of the petition of the village for annexation of territory; and, (2). The boundary line proposed for said territory sought to be annexed is inaccurate.
    The consideration of the first error alleged, involves the construction of the following statutes: Title XII., division 2, chapter 2, Revised Statutes. Also subdivisions. 1 and 2, chapter 5', same title and division, Revised Statutes. The first of these, in order named, relates to the creation of villages and hamlets; the second to the enlargement of municipal corporations on the application of parties outside and non-resident of the corporation, and the third to the annexation of territory on the application of the corporation, which is the case at bar.
    A peculiarity of these various statutes is, that while they have different purposes, yet they are so coupled together by references from the third to the second, and thence back to the first, é that they can only be interpreted in many respects in their entirety, in the language thereof, “ in so far as applicable.”
    It is noted as to this amendment, that it does not include territory not before embraced in the petition, but that it only embraces territory which was included in the original petition. The letter of these statutes nowhere requires an ordinance authorizing such amendment. The reason of these statutes does not require it.
    The amendment, in legal effect, was a mere order of the commissioners dismissing parties, against whom no cause of action was found.
    Is the proposed boundary line inaccurate? We insist that this alleged error cannot be maintained, for the reason that it is accurate within the rule prescribed by these statutes. By Sec. 1554, Revised Statutes, the rule is laid down for the government of the action of the common pleas court in the premises.
    Referring to the record, and to the evidence of the'witness Uhl, it is seen that this boundary line is easily within the statutory rule.

      Osborn & Smith, for defendant in error.
    I. We claim that in a case like the one at bar, an ordinance of the council describing the same territory as that ordered to be annexed by the commissioners, is a pre-requisite to the exercise of any jurisdiction by the commissioners—and that, as the petition acted on by the commissioners did not describe the same territory as that in the ordinance, their action was void. Section 1601, Revised Statutes.
    II. It is claimed,- however, that the agents of the corporation had authority to make the amendment by leave of the commissioners. It is obvious that these agents had only such power as was conferred by the ordinance appointing them.
    But the statute (section 1599) provides that the agent should be appointed to “ prosecute the proceedings necessary to effect such annexation;” meaning, of course, the annexation of the territory described in the ordinance.
    The ordinance is an act of legislative power. It requires the exercise of judgment and discretion on the part of the council. That body must itself exercise this discretion. It cannot delegate it to another person or board. This principle is so well settled as hardly to require citation of authority. We refer, however, to Dillon, Municipal Corporations, 4th ed., Sec. 66, and cases cited; Birdsall v. Clark, 73 N. Y., 73; Maxwell v. Bay City Bridge Co., 41 Mich., 453; Jackson Co. v. Brush, 77 Ill., 59; Starr v. Bell, 34 Ohio St., 194; Mechem on Agency, Sec. 190, and cases cited.
    To amend the petition in the present instance was tantamount to amending, the ordinance itself. “It is familiar law,” says Cooley, J., (in 41 Mich.", p. 495) that no such trust can be delegated by the person or body in whom it is conferred, but this very person or body and no other must exercise it.” The agents, in making this amendment, exceeded their powers, which were—and under the statute could only be—purely ministerial in their nature.
    III. It is, however, claimed that the amendment was authorized by section 1557, Revised Statutes. To this we reply: No power is conferred upon the commissioners to amend a petition of their own motion. They are sitting as a court of limited jurisdiction. The petition may be amended, not by them, but “ by their leave.” The petitioners must do the amending.
    IV. It is argued that even if the agents and the board of commissioner exceeded their powers, this is a mere'irregularity which can be healed by a subsequent acceptance of the annexation order of the council. This argument assumes that, after the commissioners have made the order, the papers are properly sent to the clerk to be by him laid before the council for its action. This was the course adopted in the present instance; but there is grave doubt whether the papers should not be sent directly to the recorder.
   Spear, J.

The question presented by the record is as to the legality of the order of the board of commissioners giving leave to amend the petition, in the absence of an ordinance authorizing such change, and ordering the annexation of the territory as described in the amended petition. It was the judgment of the circuit court that the action of the board, in that behalf, was unauthorized.

The proceeding is purely statutory, and the question is, therefore, to be determined by a consideration of all the statutes bearing upon the subject. In arriving at a conclusion the test to be observed is the intent of the lawmakers as expressed by the .law.

Chapter 2,. of division 2, of title 12, Revised Statutes, relates to the creation of villages and hamlets. Chapter 5, of the same division, relates to the annexation of territory to any city or village. Subdivision 1 treats of annexation on application of inhabitants residing on adjacent territory, and subdivision 2 treats of annexation on application of the corporation itself. The general subject matter of all is the formation of municipalities and changes in territory.

Looking to subdivision 2, we find that when the inhabitants generalfy desire to enlarge the corporate limits by annexation, the first step is for the council to pass a proper ordinance, and constitute one or more persons to act for the municipality in prosecuting the proceedings necessary to effect the annexation. This is done by the filing with the board of county commissioners of a petition setting forth the ordinance, and giving a description and a map. That done, “like proceedings shall be had, in all respects, so far as applicable, as are required under the provisions of subdivision 1,” (section 1602). No other method of procedure is pointed out in subdivision 2; so that, we necessarily turn, to subdivision 1. There we find, (section 1590), that when the petition is presented “ the same proceedings shall be had, in all respects, so far as applicable, and the same duties in respect thereto shall be performed by the commissioners and other officers, as are required in the case of an application to be organized into a village under the provisions of this division.” So that, for further method of procedure before the board, we recur to chapter 2, prescribing the duties of the commissioners in case of an application for the organization of a village, and provision is there made for the hearing, as follows:

“Sec. 1557. The hearing shall be public, and may be adjourned from time to time, and from place to place, according to the discretion of the commissioners, and any person interested may appear, in person or by attorney, and contest the granting of the prayer of the petition, and any affidavits presented in support of or against the prayer of the petition shall be considered by the commissioners, and the petition may be amended by their leave; but if any amendment is permitted, whereby territory not before embraced is added, the commissioners shall appoint another time for the hearing, of which notice shall be given, as specified in the last preceding section.”

This section clearly gives the commissioners, in a proper case, authority to grant leave to amend. And, as stated before, it is the only provision directing procedure before the commissioners in either chapter 2, or chapter 5. If it cannot be held to apply to a case like the present then the legislation seems like a jumble, and the apparent purpose of the legislature is defeated. If such result can be reasonably avoided, it is the duty of the court to give such construction to the whole statute as will avoid it.

This court is of opinion that this may be done, and that the provisions of section 1557 should be held to apply. If they do apply, in substance and spirit, then the commissioners had authority to allow an amendment to the petition without the formality of action by the village council directing such amendment, for the statute nowhere requires such an ordinance. The purpose of such ordinance would be only to show that the action of the agents was directed by the principal. But may not subsequent ratification be as effectual as previous authority? If so, and if the statute furnishes a method by which this result may be reached, is not the end accomplished?

Apparently such provision is made, in substance. Recurring again to section 1590, we find that “the final transcript of the commissioners, and the accompanying map or plat and petition, shall be deposited with the clerk of the city or village to which such annexation is proposed to be made, who shall file the same in his office.” By sections following provision is made requiring the clerk, after the expiration of sixty days from the date of the filing, to lay the transcript, with map, plat and petition, before the council, and thereupon the council, by resolution or ordinance, shall accept or reject the application for annexation. If the application is rejected the proceedings stop. If accepted, the clerk must make two certified copies, containing the petition, maps, transcript of the proceedings of the commissioners, and of resolutions or ordinances, one of which he must forthwith deliver to the recorder of the county, who must make a record of the same in a proper book, and the other forward to the secretary of state. When the resolution or ordinance accepting the annexation has been adopted, the territory is to be deemed a part of the village, and the inhabitants residing therein are to have all the rights and privileges of the inhabitants within the original limits.

Provision is also made for delay, in case injunction proceedings are commenced within the sixty days mentioned, and for proper action by the officers in the event that the injunction is either finally sustained, or is dissolved.

It is manifest that one of the purposes of this legislation is to provide for the addition of territory by the joint action of the village council and the county commissioners. And it would seem that, giving effect to all these sections, a scheme has been mapped out which, though not altogether coherent in its parts, will, nevertheless, practically reach the end intended.

Objection is made that the commissioners did not, after the amendment, act respecting the same territory as that which the ordinance described, and hence-their action was void for want of jurisdiction. But is not this rather technical? The amended petition does describe territory described in the ordinance, though not all of it, and does not include any not described in the ordinance. In other words, the effect of the action of the commissioners was to grant to the petitioners a part of their prayer, not all of it. In the'practical administration of justice mere technical objections have to give way to substance.

It is further objected that the agents could not have had authority to make the amendment to the petition because the council could not, as to a matter of this kind, delegate its authority. If by this is meant that i't could not delegate authority to make a change which would bind the municipality as a finality, the claim may be conceded. But we have already seen that the scheme contemplated further action by the council, and, it is submitted, this fact destroys, the force of the objection,

It is the judgment of this court that, giving a reasonable construction to the statute, the action of the commissioners was authorized, and that, in holding otherwise, the circuit, court erred.

Judgment reversed.


source: Caselaw Access Project

author: Burket, J.

license: Public Domain

text:
    Heckman v. Adams.

      Probate Courts—Jurisdiction of in lunacy proceedings—Guardian of insane wife's estate, may be appointed without notice to husband— When such appointment cannot be impeached.

    1. The jurisdiction acquired by the probate court in an inquisition of lunacy, under our statutes, continues until the discharge of the patient.
    2. Before the amendment of section 6302, of Revised Statutes, March 1,1889, a guardian of the estate of an insane wife might be appointed by the probate court, at any time after the inquisition of lunacy, and before her discharge, without notice to her husband.
    3. Such guardianship cannot be impeached by the husband, in a collateral proceeding.
    4. Sections 6255, 6302 and 6304, of Revised Statutes, authorize the appointment of a guardian for the estate of a lunatic, without appointing a guardian of the person.
    (Decided May 9,1893.)
    Error, to the Circuit Court of Wayne county.
    On the 30th day of September, 1886, George A. Adams was married to Amelia Heckman, he daughter of Andrew G. Heckman, and they resided together as man and wife in Medina county until March 29, 1887, when she was adjudged insane by the probate court of that county, and on April 4 of the same year she was committed to the asylum for the insane at Cleveland, by her husband, on the warrant of said court, where she remained until about the first day of November, 1887, when she was brought back by her husband to her father’s residence in the village of Seville, where he left her, while he moved the household goods and other property and her clothing to a house which he had rented, but his wife refused to go there with him. Shortly afterward he moved all the property to a house of Peter Rich in Wayne county and advertised it for sale.
    On November 7, 1887, Andrew G. Heckman, father of Amelia, was, on his own application and without notice to her husband, appointed guardian of the estate of Amelia Adams, by the probate court of Medina county.
    On November 9, 1877, Andrew G. Heckman as such guardian, by action before a justice of the peace, replevined .all of said property from said Peter Rich, in whose house the same had been placed by said Adams, and gave bond and the property was delivered to him.
    Peter Rich disclaimed any and all interest in the property, and on the trial before the justice of the peace the property was adjudged to Mr. Heckman at his costs.
    On March 28, 1888, said guardian resigned, and the probate court found that Amelia Adams was restored to reason, and was capable of managing her own business affairs. She and her father claimed the property so replevined by her father, as her guardian, to be her separate property, purchased in part with her money, and partly given to her by her parents at and after her marriage.
    George A. Adams claimed to own most, if not all, of the property under some arrangement with Mr. Heckman. The property consisted of the wife’s clothing and household goods.
    About the last of November, 1887, said George A. Adams brought an action against said Andrew G. Heckman before a justice of the peace, charging him with having converted said property to his own use, to the damage of said Adams in the sum of $800.00. The action was taken by appeal to the court of common pleas of Wayne county, and in his amended petition, Mr. Adams gives an itemized list of the property consisting of household goods and women’s clothing, and avers that said Andrew G. Heckman, on or about the 9th or 10th days of November, 1887, unlawfully, wantonly, recklessly and maliciously seized, took and carried •away from plaintiff’s possession said goods and chattels, the property of said Adams, of the value of $300.00, and that said Heckman converted the same to his own use.
    Defendant below, for his first ground of defense, denied each and every allegation of the amended petition. For his second ground of defense, said defendant below, averred that he was the guardian of Amelia, that the property belonged to her as her separate property, and further averred that as such guardian he had recovered said property from said Peter Rich in said replevin proceedings, which are fully and properly pleaded, and avers that, as such guardian, he is entitled to the right of property and possession of said goods and chattels.
    Plaintiff below for his reply admits that said replevin suit was brought as averred, and denies each and every other allegation in said second ground of defense.
    A trial was had in the common pleas court to a jury, and verdict for the defendant below.
    A motion was made for a new trial, which was overruled,, and judgment rendered on the verdict, to all of which plaintiff below excepted. A bill of exceptions was allowed and filed, containing all the evidence.
    ■ A petition in error was filed by Mr. Adams in the Circuit Court of Wayne county, and upon the hearing of the same the judgment of the court of common pleas was reversed, and the case remanded to the court of common pleas for a new trial. Thereupon Mr. Heckmen filed his petition in error in this court, to reverse the judgment of reversal of the circuit court, and to affirm the judgment of the court of common pleas.

      Lee Elliott, and Yocum & Taggart, for plaintiff in error.
    First—Can a married woman or her representative, recover the possession of her separate personal property against her husband?
    Second—Was the appointment of A. G. Heckman, the plaintiff in error, as guardian of the estate of Amelia Adams, valid?
    If these be answered in the affirmative, the judgment of the circuit court should be reversed, and that of the common pleas affirmed. If the contrary be held, then:
    Thirdly—Piad the defendant in error, George Adams, who was plaintiff in the common pleas, such title, general, special, possessory or otherwise, to the goods in controversy, as would enable him to recover in this action ?

      I. The jury having found for the defendant, under the instructions given by the court, must have found that the goods in controversy belonged to Amelia Adams, and the property being in her, if she was entitled to the possession of it, against her husband, then her guardian, as her representative, would also be entitled to its possession against him.
    Section 3111, Revised Statutes of Ohio, as amended (84 O. E- 132), provides that, “neither husband nor wife has any interest in the property of the other, except as mentioned in sections 3110 and 4188,” relating to the right of the wife to maintenance and the right of dower, respectively.
    Under an act securing to the wife, “The full use and enjoyment of her property of everjr description, whether real, personal or mixed, as fully after marriage as before,” the Supreme Court of Pennsylvania held that she could maintain ejectment against her husband for the possession of her separate real estate. McKendry v. McKendry, 24 Bull., 305; Southard v. Piper, 36 Me., 84, 85.
    And the instruction of the court was correct, provided Heckman was the guardian of his daughter, and the second cause of defense discloses a good defense to the plaintiff’s claim.
    II. Was Heckman the duly appointed and qualified guardian of Amelia Adams?
    1. A certified copy of the letters of guardianship was admitted in evidence on part of the defendant.
    2. As section 6304, Revised Statutes of Ohio, stood at the time of making this appointment (1887), no notice was required, nor has it been the practice in the probate courts in this state to require such notice. 18 Bulletin, 37; Jordan v. Dickson, 20 Bull., 360. Nor is the presence of the ward necessary in court. Shroyer v. Richmond et al., 16 Ohio St., 455.
    3. The order of a probate court, appointing a guardian, cannot be collaterally impeached, their records importing absolute verity, and they being competent to decide on their own jurisdiction, and exercise it to final judgment, without setting forth the facts and evidence on which it is rendered.
      Warner v. Wilson, 4 Cal., 310; Burrows v. Bailey, 34 Mich., 64; Shroyer v. Richmond et al., 16 Ohio St., 455; Thornton v. Baker, R. I., 553, (2 Am. State, 925); Erwin v. Lowry, 7 How., 172; Broughton v. Bradley, 73 Am. Dec., 474; Wyatt’s Adm’r v. Steele, 26 Ala., 639; Kimball v. Fisk 75 Am. Dec., 213; Withers v. Patterson, 86 Am. Dec., 643; note 654; Johnson v. Beazley, 27 Am. Rep., 276; Townsend v. Townsend, 94 Am. Dec., 185; note 194.
    4. The appointment of a guardian of the estate only of an insane married woman is proper. Section 6255, Revised Statutes; Sections 6302 and 6304, Revised Statutes; Shroyer v. Richmond & Staley, 16 Ohio St., 455; Pain v. Moreland, 15 Ohio, 455; People v. Sturtevant, 9 N. Y., 267; 1 Peters, 340; 10 Peters, 450; 12 Peters, 718; 13 Peters, 499.

      Alfred J. Thomas, and John C. McClar'ran, for defendant in error.
    The appointment of a guardian of the estate of a married woman is unauthorized by the laws of Ohio. Section 6302, Revised Statutes.
    This section provides only for the appointment of a general guardian of the person and estate of an idiot, imbecile or lunatic, and not of the estate alone, because it provides that the guardian so appointed, “shall by virtue of such appointment be the guardian of the minor children of such ward;” which he could not be were he not' the guardian of the person as well as the estate. Construing the whole section together, it is clear that it only authorizes the appointment of a guardian of a person and estate, and not either separately. The appointment of a guardian of a married woman is not authorized by this section. If it were so it would deprive the husband of the natural guardianship of the person, as well as property, of his own minor children.
    And section 6304, Revised Statutes, does not enlarge or modify section 6302 as to the power of appointment, but provides that “the duties, rights and liabilities of guardians for minors, and their sureties, shall be applicable for idiots, imbeciles and lunatics.”

      Section 6306, Revised Statutes, as in force at the time of the conversion of the property (November 10, 1887), providing for the sale of real estate by the guardian of an idiot, imbecile or lunatic, provides “that if the ward have a wife she shall be made a defendant to the petition to sell the land of the ward.” And it makes no provision that if the ward have a husband he shall be made a party thereto; thereby recognizing that the statutes do not authorize the appointment of a guardian of a wife.
    By the common law a guardian could not be appointed for a wife. And statutes in derrogation thereof should be strictly construed.- Shouler’s Domestic Relations (3d ed.),. page 294.
    It would be against public policy, and against the spirit of the laws controlling the relations of husband and wife,, to maintain that a guardian of an insane wife, if by law one-can be appointed, which we deny, could legally take from the husband, during his wife’s insanity, the wearing apparel of the wife and the household goods used by the husband and wife in common in maintaining the household during the wife’s sanity, and used by the husband after she had become insane, in caring for and supporting her and the family.
   Burket, J.

The whole case turns upon the single question, whether or not the appointment of Mr. Heckman as guardian of the estate of Mrs. Adams, was void or valid.

Mr. Adams and his wife were married, and the property in controversy acquired, while section 3108, of the Revised Statutes, as amended April 16, 1885, and section 3109, as amended April 14, 1884, were in force.

Section 3108, provides as follows:

Any estate or interest, legal or equitable, in real or personal property, including rights in action, belonging to a woman at her marriage, or which may come to her during coverture, by conveyance, gift, devise or inheritance, or by purchase with her separate money or means, or due as the wages of her personal labor, or growing out of any violation of her personal rights, shall, together with the rents, incomes, issues and profits thereof, be and remain her separate property.” There is a further provision in this section as to his curtesy in her real estate, and as to her leasing the same, but nothing further as to personal estate.

Section 3109, is as follows:

■ “The separate property of the wife shall be under her-sole control, and shall not be taken by any process of law for the debts of the husband, or be in any manner conveyed or incumbered by him, and she may, in her own name, during coverture, contract to the same extent and in the same manner as if she were unmarried.”

Under and by virtue of these two sections, the separate property of the wife belongs to her in her own right, and is under her sole control, and the husband as such, has no interest in or control over the same.

As to the wife’s separate property, the husband stands as a stranger to her. While the case of Levi v. Earl, 30 Ohio St. 147, has been overruled as to another point, it has never been doubted as to the point here in question. In that case this court held that the separate property of the wife, as fixed by the married woman’s act of 1861, as amended in 1866, became by virtue of that statute her separate property and under her sole control, “free from the marital rights of the husband at common law over the same.” And' this court further held in the same case that, “ By these statutes the marital rights of the husband were divested as to the wife’s general estate, and the wife was invested with the control of the same,” In the case of Patten v. Patten, 75 Ill., 446, the court says: “The effect of the married woman’s act is such that the rights of the husband at common law, in respect to the wife’s property, are swept away and gone. As to her separate estate, and her relations thereto, she has no husband, and he is as to such estate, even during coverture, a stranger.”

Of course, these statutes as to the rights of married women, do not affect or change the common law rule, that in the absence of the husband, the wife is his agent for the care and protection of his property. And as a necessary result of these statutes the husband is now held, in the absence of the wife, to be her agent for the care and protection of her property. While thus acting fpr her in her absence, his rights and relations to her property are the same as hers were to his property, at common law, under the same circumstances.

The legal effect of the statutes as to the property rights of married women is to place husband and wife upon an exact equality as to the property of each, that is, “ Neither husband nor wife has any interest in the property of the other,” except as to dower, distribution and support. It therefore follows that Mr. Adams had no interest in or control over the property of his wife as against her or her representative. Mr. Pleckman claimed to be her representative, her guardian, and Mr. Adams claimed that the appointment of Mr. Heckman as guardian of Mrs. Adams was void, for the reason that Mr. Adams had no notice of the application for the appointment of a guardian for his wife; and he offered on the trial to prove that he had nO' such notice. The court refused to admit the testimony on that point, and exceptions were duly taken. The court also charged the jury that if Mr. Heckman was appointed and qualified as guardian of Mrs. Adams, that he was entitled as such guardian to the property in controversy; and had the right to take the property from the possession of any person who refused to deliver the same to him on demand; to which charge exceptions were taken by Mr. Adams.

The appointment of Mr. Heckman as guardian of Mrs. Adams, was for her estate only, and not for her person and estate; and it is claimed that under section 6302 there is no authority for the appointment of a guardian of the estate only of a lunatic.

. Section 6304 provides that: “All laws relating to guardians for minors and their wards, * * in force for the time being, shall be applicable to guardians for * * lunatics * * except as otherwise specially provided.”

Section 6255 was in force for the time being at the time of this appointment, and that section provides that: “ A guardian may be appointed to take charge only of the estate of a minor.”

The appointment of a guardian for the estate only of a lunatic, it will thus be seen, is authorized by the letter of these two sections of the statute.

Section 6302 is made up in the revision of 1880, out of sections 41, 43 and 44 of the act of April 7, 1856. Section 41 provides that the probate judge upon satisfactory proof that any person resident of the county, is an idiot or lunatic, and that it is necessary in order to preserve the property of such idiot or lunatic, shall appoint a guardian.

Section 43 was in the same words except that the words, “ and that it is necessary in order to preserve the property” were omitted.

The guardian to be appointed under section 41 was for the preservation of the property, that is of the estate only, while the appointment under section 43 was general, for both person and estate.

As these two sections are now combined into one (6302) the new section must be construed to be as broad as both of the old ones taken together. The new section is more general in its terms, but not more narrow in its provisions.

In the case of King v. Bell, 36 Ohio St. 460, this court held, that all laws relating to guardians for minors and their wards are made applicable to guardians for lunatics.

True, the question as to appointing a guardian for the estate only of a lunatic, did not arise in that case; but the question as to whether the appointment of the guardian for the lunatic, who was also a minor in that case, was, or was not, authorized by said section 6304, was directly in question, and said section was held to be applicable, and to give such authority.

In the case of Martin L. Leffel v. Henry C. Knoop, decided at the present term of this court, and not reported, this court held, that sections 6304 and 6255 applied to the appointment of guardians for lunatics, and that such guardians might be appointed for the estate only. We still regard that decision correct, and therefore hold that the statute authorizes the appointment of a guardian for the estate only of’ a lunatic or insane person.

What now forms section 6302, of the Revised Statutes, was, before the revision of 1880, a part of the chapter on lunatic asylums, and said section must still be read and construed in pari materia with the. sections providing for the admission of persons to the lunatic asylum.

By sections 702 and 703, of the Revised Statutes, it is provided, that upon an affidavit being filed by some resident citizen with the probate judge, to the effect that he believes the person charged with insanity to be insane, the probate judge shall issue his warrant for such person, and have such person brought before him, on a day to be named in the warrant, and witnesses shall be subpoenaed, and an inquest of lunacy held upon the person, and if the person cannot be present before the court, the judge shall personally visit the patient, and certify that he has ascertained the condition of the person by actual inspection, and thereupon the inquest of lunacy may proceed in the absence of such person.

By section 704, it is provided, that if upon the hearing the probate judge is satisfied that the person so charged is insane, he shall cause the proper certificate to be made out.

By section 705, the judge is required to issue his warrant to the sheriff, commanding him to take charge of, and convey such insane person to the asylum. Upon being received at the asylum the superintendent is required to receipt for the patient on the back of the warrant, and the sheriff is required to return the warrant so receipted to the probate judge.

In case the patient can not be admitted to the asylum he may be confined in the infirmary or county jail, and all things needful, if not otherwise provided, shall be paid for out of the county treasury on the warrant of the probate judge. Should such insane person be restored to reason, the probate judge may upon the proper certificate of the attending physician release such person.

By section. 709, the superintendent of the asylum is authorized, when he deems it proper, to discharge such patient from the asylum; and if the superintendent deems it proper to allow such patient to leave the asylum unattended, he may do so; but otherwise the superintendent notifies the probate judge, and the patient is conveyed to his or her home upon the warrant of the probate judge. Such insane person may also be allowed to make a trial visit to his or her home for a period not exceeding ninety days, but such visit and return to the asylum is under the supervision of the probate judge.

By section 710 it is provided that upon the return of an escaped patient, or the discharge of a patient from the asylum, the superintendent shall at once notify the probate judge.

By section 714 the probate judge is required in all cases to file and preserve all papers left with him, and make such entries upon'his docket, as will, together with the papers so filed, preserve a perfect record of each case.

From these, and other provisions of the statute, it is clear that the probate judge upon an inquest of lunacy obtains jurisdiction of the person of the patient, and that such jurisdiction continues until the patient is finally discharged. The status of the patient, as being insane and a fit person for guardianship, is fixed by the finding of the probate judge upon the inquest of lunacy, and such status continues until it is changed by the discharge of the patient; and any time before such discharge, the probate judge is authorized by section 6302 to appoint a guardian for such insane person. The statute seems to contemplate the appointment of a guardian immediately upon the status of insanity being fixed, but delay in the appointment could not have the effect to take away the jurisdiction of the probate court, so long as the delay is not extended beyond the discharge of the patient. The time of making such appointment of guardian, or whether there is any necessity for an appointment at all, or not, is largely in the discretion and sound judgment of the probate judge.

Was the appointment of Mr. Heckman as guardian for Mrs. Adams void, for the reason that it was made without notice to her husband? Mr. Adams had notice of the inquest of lunacy, and conveyed his wife to the asylum, under the warrant of the probate judge; and also brought her back not discharged, and left her at her father’s house. He therefore had notice of the status of insanity of his wife, and that she was a fit subject for guardianship. The statute, as it stood when this appointment was made, did not re■quire any notice to any person of the application for guardianship of a person adjudged insane by the probate court. And this court held in Leffel v. Knoop, supra, that no notice to the patient was necessary in such case.

As the patient is the owner of her own property, and as this property can be placed in the hands of a guardian without notice to her, we see no good reason why the husband, who has no interest in, or control over her property, should have notice. If it be said that the guardian of the wife might invade the household of the husband, and despoil it of the furniture and household goods, the answer is, that at common law, the guardian of the insane husband appointed without notice to the wife, might do the same thing as against the wife; and what then had to be endured by her, should not now be complained of by him. Husband and wife are put upon an exact equality as to their property rights, even to the extent that neither can be excluded from the other’s dwelling;' and while he is to support himself and his wife, if he is unable to do so, she must assist him so far as she is able. Sections 3110 and 3111, Rev. Stat.

Suppose a judgment should be rendered against the wife without notice to the husband, could it be claimed that the sheriff holding an execution against her, would be required to notify the husband before seizing the wife’s property to satisfy the execution? We think not.

Many cases, of which Eslava v. Lepretre, 21 Ala., 504, is a fair sample, hold that an inquisition of lunacy followed by the appointment of a guardian, all without notice to the alleged lunatic, is void. But in all such cases the decision is put upon the ground that the status of the person cannot be changed from sound mind to lunacy without notice to such person. But the status of lunacy being once fixed by a proper inquisition, the right to appoint a guardian without further notice seems to be conceded. McCurry v. Hooper, 12 Ala., 823; Wait v. Maxwell, 5 Pick., 217.

The case of Shroyer v. Richmond, 16 Ohio St. 455, is a very important case upon the point in question, and being in our own state, and under a statute the same in effect as the one now in force, it should have great weight, and be practically conclusive of this case. The proceeding in that case was to. appoint a guardian for a mute under section 17 of the act of March 9, 1838 (S. & C. 679), which was a part of the act regulating lunatic asylums, and which act then contained the same provisions for appointing guardians for lunatics, as is now contained in section 6302 of Revised Statutes. Said section 17 of the act of 1838 provides that the court “shall have power to appoint guardians to all such deaf and dumb persons of'full age, who may prove to be incapable of taking charge of their affairs.” On December 6, 1860, the probate court of Montgomery county appointed David Shroyer guardian of Harry Eong under said act of 1838, describing said Dong as a “mute;” and the only entry on the journal of the probate court as to the facts constituting jurisdiction are as follows: “This day came David Shroyer and made application to be appointed guardian of Harry Dong (a mute), and the court being satisfied that said Harry Long is a mute, and that said mute is a resident of this county.” Then follows a statement on the journal to the effect, that having filed the proper statement as to the value of the estate, said Shroyer gave bond and was appointed guardian, and took the oath of office. Afterward, in a litigation, the validity of this appointment as guardian was called in question; and it was claimed that the appointment was void, for the reason that the court did not acquire jurisdiction, and did not find that said Harry Eong at the time of the appointment, belonged to a class of persons over whose estate the court had jurisdiction to appoint a guardian, and averred that said Harry Eong at the time of the appointment did not belong to any class of persons over whom the court had jurisdiction to appoint a guardian, and further averred that the appointment was made without authority of law. A demurrer to this answer was overruled, and on the trial parol evidence was received to prove the facts set forth in the answer, and the verdict was against the guardian; to all of which he excepted. The case was reserved to this court, and the following are the 5, 6 and 7 syllabi of the case:

“5. Such proceedings are not inter partes, or adversary in their character. They are, properly, proceedings in rem; and the order of appointment, made in the exercise of jurisdiction, binds all the world. The actual presence of the ward is not essental to the jurisdiction; unless, by reason of his right to choose a guardian, or for other cause, the statute so require.”
“6. The probate courts of this state are, in the fullest sense, courts of record; they belong to the class whose records import absolute verity, that are competent to decide on their own jurisdiction, and to exercise it to final judgment, without setting forth the facts and evidence on which it is rendered.”
“7. Hence, an order appointing a guardian, made by a probate court, in the exercise of jurisdiction, cannot be, collaterally, impeached. The record showing nothing to the contrary, it will be conclusively presumed, in all collateral proceedings, that such order was made upon full proof of all the facts necessary to authorize it.”

This case is cited and approved in Wheeler v. State, 34 Ohio St. 394, in which the court say: “Inquests of this character (lunacy) are analagous to proceedings in rem, affecting the general and public interest, and no one can strictly be regarded as a stranger to them.” This case is also cited in Knapp v. Thomas, 39 Ohio St. 387, where Judge Okey says: “The record of the probate court appointing a guardian is, in all collateral proceedings, conclusively presumed to be correct.” This case of Shroyer v. Richmond, is cited and approved in Slagle v. Entrekin, 44 Ohio St. 637, and in Railroad v. Belle Centre, 48 Ohio St. 273, and in several other cases. In the case in 48 Ohio St., the same question was made as to want of notice, that is made in the case at bar, and an effort was made to impeach the judgment of the probate court, collaterally, by showing by parol, that no notice was served on the railroad company in the appropriation case in the probate court. This court held that such evidence could not be received, and that the judgment of the probate court must be held, in a- collateral proceeding, to be conclusive.

In view of these authorities, it is clear that as between Mr. Heckman and Mr. Adams, in a collateral proceeding, the guardianship was valid, and could not be impeached; and that the court of common pleas properly excluded the evidence offered by Mr. Adams to show ■ that the appointment of the guardian was without notice to him. The record of the probate court bound all the world, including Mr. Adams.

It is also clear that the charge of the court of common pleas was correct, or at least that Mr. Adams could not complain of the same, as it was,- perhaps, more in his favor than the evidence would warrant.- The identity of the parties being admitted, the record of the guardianship was conclusive, and the court should have so instructed the jury, without submitting that question to them for their determination.

The probate court is always open, and under section 6316, of the Reviséd Statutes, a motion can be made at any time for the removal of a guardian improperly appointed, or for other cause; and Mr. Adams should have availed himself of the provisions of this statute, instead of treating the action of the probate court as void.

With the question of the guardianship thus determined, there is no other error in the record of the common pleas court, and it follows that the judgment of the circuit court should be reversed, and that of the common pleas affirmed.

Judgme7it accordingly.


author: Williams, J.

text:
    King, Gilbert & Warner v. Ship Building Company.

      Mehanics' liens—How perfected—Do not attach for labor gratuitously performed.

    1. It is essential to the validity of a lien for machinery furnished for , a manufactory or other building, as provided in section 3184, of the Revised Statutes, that the affidavit required by section 3185, be filed within the time therein prescribed.
    2. Under a contract, by the terms of which, one of the parties agrees to make certain machinery for the other, and furnish it “F. O. B. cars,” at a designated place, for a stipulated price, the machinery is furnished, -within the meaning of the statute, when it is delivered in accordance with the contract, on board the cars at the place named, withorrt expense to the purchaser; and to obtain a lien therefor, the necessary affidavit must be filed within four months from that time.
    3. The time for so perfecting the lien cannot be extended by the performance of labor under another contract, or gratuitously, in placing the machinery in position in the manufactory or building.
    4. Separate contracts cannot be tacked together so as to enlarge the time for taking the lien under either; nor can a lien be obtained under the statute, for labor gratuitously performed.
    (Decided May 9, 1893.)
    Error to the Circuit Court of Meigs county.
    The original action was brought' in the Court of Common Pleas of Meigs county, by Simon Curtis, against The Standard Nail & Iron Company, and others. In the action, The Cleveland Ship Building Company sought, by cross-petition, to enforce a mechanics’ lien against the property involved, which was formerly owned by the Nail & Iron Company, for a balance of $4,450, and interest from April 14, 1887, of the purchase-price of an engine, alleged to have been furnished by the former, to the latter company, in the construction of its steel plant and nail mill at Middleport, Ohio. The Ship Building Company alleges in its cross-petition, “that the work of furnishing and setting up the engine was completed on the 14th of April, 1887, and that within four months thereafter, to-wit, on the 13th of August, 1887, it filed with the recorder of said county of Meigs an affidavit containing an itemized statement of the amount and value of said materials' and work and machinery with all credits and offsets thereon, and a description of •said land on which the said steel plant and nail mill stands, •according to the requirements of the statute in such case made and provided; and which was recorded in volume No. 2 and on page 259 of the records of liens of said Meigs county, Ohio, whereby this defendant’s said claim became a lien on said steel plant and nail mill, and the said lots of land on which they stand, from the said 14th day of April, 1887.”
    The plaintiffs in error, King, Gilbert & Warner, who were parties defendant in the action below, answering the ■cross-petition above referred to, say that on the 2nd day of August, 1887, they became the owners of the steel plant and mail mill, and the several lots and parcels of land on which they stand, and of all the estate and title that the Nail & Iron Company theretofore had therein. Their answer also denies that the engine was furnished at the time alleged in. the cross-petition, or that the Ship Building Company within four months after it was furnished filed its affidavit for a lien as alleged; and it avers, that the engine was furnished tmder a written contract made between the Nail & Iron Company and The Cuyahoga Steam Furnace Company, December 17, 1886, which was assigned to the Ship Building Company, by the Furnace Company, March 9, 1887, and that it was furnished more than four months before the Ship Building Company filed its affidavit for the lien, and was so furnished partly by it, and partly by the Furnace Company. It is further alleged, in an amendment to the answer, that the Ship Building Company took the negotiable promissory motes of the Nail & Iron Company in payment of the balance due on the engine, and afterward negotiated them; whereby, it is claimed, its right of lien was waived. The allegations of the amendment, but not of the original answer, were controverted by reply. The cause was tried on appeal in the circuit court, which found for the Ship Building Company, and rendered judgment in its favor. A motion for a new trial by King, Gilbert & Warner was overruled, and a bill of exceptions,- embodying all the evidence, and the proceedings of the court, was duly allowed and filed, and they now prosecute error here to reverse the judgment of the circuit court. Such further statement of the facts appearing upon the record, as is necessary to a correct understanding of the question upon which the case is reported, will be found in the opinion.

      Harrison, Olds & Marsh, for plaintiffs in error.
    The affidavit, etc., for- the lien was not filed within four months from the date when the engine was furnished.
    The affidavit for the lien, as recorded, states “that said labor was done and materials and machinery were furnished under and by virtue of a written contract, a-copy of which said written contract, with all transfers and assignments thereon, is hereto attached, marked Exhibit B.”
    The contract attached, which was also separately offered in evidence, reads: “ This company will build and furnish
    you one blowing engine, E. O. B. cars, in Cleveland, for the sum of $8,900—$2000 cash, $2,450 on shipment of engine, and $4,450 four months from shipment.”
    The account attached to the lien, as well as the petition, states that the $2,000 cash wTas paid at the execution of the contract, and that the $2,450 payable on shipment of the engine was paid March 5th, 1887.
    When this engine was furnished E. O. B. cars in Cleveland, this contract was fulfilled and completely performed by the vendors, and this was more than four months before any lien was filed.
    If there was any labor to be performed, or any material was furnished beyond the terms of this written contract, it was extra labor or material, and under another contract. Work or material extra a written contract, is under a different contract, and even in pleading must be sued for as a separate cause of action.’

      This ■written contract was one entire contract, and was to be performed in Cleveland, where, by its express terms, the blowing engine was to be furnished. The language of this contract is plain and explicit, leaving no room for construction. It was an unconditional sale and delivery of the engine at Cleveland, more than four months before the lien was filed.
    There was no contract requiring the vendor to superintend the putting together of the parts of the engine and testing it. This was done for the benefit of the vendor.
    The work of erecting the engine was to be done and paid for by the vendee, if he chose to do it at all.
    The seller was permitted to have an inspector and advisor present during the erection of the engine, for the reason that his credit and reputation as an engine builder might not be impaired by unskillful application of the parts of the engine which he had already built and furnished in Cleveland, and for the further reason that if the purchaser should improperly join the parts together, so that the engine would not work well, he would not thereby be induced to believe and claim that the engine was not built according to contract, and for the still further reason that the builder might have a witness to show that the engine, if it did not work properly, was nevertheless properly constructed, and that the fault arose solely from the improper union and handling by the vendee.
    To obtain these several advantages unto himself the vendor could well afford to volunteer an inspector at his own expense, which might also benefit the vendee, but the vendor under this written contract cannot charge the vendee for the services of such inspector, and in fact the vendor made no such charge and no price for the same was ever agreed upon by the parties.
    As we have said, the only lien claimed is for the machinery furnished at Cleveland under the written contract, more than four months before the lien was filed. If the work of superintending the erection of the eugine was performed by the vendor under any contract between him and the vendee, it was performed under a separate and different contract from the 'written contract, and a separate lien should ■have been taken for such extra work. It cannot be tacked on to the written contract, and thereby bring the work done under the written contract, within the four months’ limitation.

      W. H. Lasley, for defendant in error.
    The plaintiffs in error argue that the machinery furnished was delivered in Cleveland on the 5th of March, 1887. And that this was more than four months before the lien was filed. And further, if this be not true, the work of erecting the engine in Middleport was fully completed more than four months prior to the filing of the lien.
    The evidence in the plaintiffs bill of exceptions shows, that the contract to furnish the machinery was not completed until the engine was set up and put in running order upon foundations built according to the order of The Cleveland Ship Building Company.
    Again, this written contract, so ardently relied on, cannot mean what gentlemen claim for it, to wit: That the engine contracted for was to be, and was, delivered “F. O. B. cars in Cleveland,” March 5,1887. The proposition which was accepted, was, “This company will build and furnish you one vertical direct acting blowing engine * * * on heavy bed-plate, and columns being of the general style of the engine built by us for the Roane Iron Co., F. O. B. cars, Cleveland.”
    Now an engine built on heavy bed-plate, is one of which the parts are made, put together and set up, ready for operation. It is now an engine ready for delivery, and not before. At any stage of the work prior to this it is not, an engine built. All the separate parts of the engine not put together is not an engine built on a heavy bed-plate.
    The engine in question weighed ninety tons, had a 38-in. cylinder; stood on a bed-plate ten feet square, twenty-seven feet high, and its flywheels were sixteen feet in diameter. The idea of building such a monster and delivering it F. O. B. cars at Cleveland, to be transferred to Middleport by rail, is simple absurd.

      Then the construction of this contract contended for by the plaintiff in error cannot be given to it. But the court must give it a reasonable construction.
    The parts of the engine were afterwards made and shipped to Middleport, and set up and put in running order by The Cleveland Ship Building Company, and accepted by The Standard Nail and Iron Company. It was not accepted until it was set up. Now we submit that it would be fair to construe this contract as the parties to it seemed to understand it, and as they carried it out. It seems to us it would be unfair to give it another and entirely different construction.
    Taking this view of the contract, it remains to be seen whether the lien was filed in time. It seems to us clearly so. Revised Statutes, Sec. 4951, provides that, “ Unless otherwise specially provided, the time -within which an act is required by law to be done shall be computed by excluding the first day and including the last, and if the last day be Sunday, it shall be excluded.” This being the law, if the work on the engine was completed on the 12th of April, 1887, the lien having been filed on the 13th of August was in time. But if this were not the law there is sufficient evidence to sustain the finding of the conrt below, that the work was completed on the 13th of April. Besides the pressure guage, which was agreed by both parties to be a part of the engine, was not shipped from Cleveland until the 14th of April. These things, we think, taken together, bring us clearly within the time limited for filing our lien.
   Williams, J.

The validity of the lien asserted by the Ship Building Company is contested upon various grounds, one of which is, that it was not perfected in time. That is the only one we deem it necessary to consider, in disposing of the case. By the provisions of our statute in force when the engine was furnished and the affidavit for the lien was filed, a person who performs labor, or furnishes machinery or material, for constructing a mill or manufactory, by virtue of a contract with the owner, is entitled to have a lien to secure payment for the same, upon the building, and the material or machinery so furnished, and upon the interest of the owner in the lot or land on which the building then stands, or to which it may be removed. In order to obtain such lien, the person performing the labor, or furnishing the machinery or material, is required, within.'four months from the time it is performed, or furnished, to file with the recorder of the county where it is performed, or furnished, an affidavit, containing an itemized statement of the amount and value of such labor, machinery or material, a copy of the contract, if it is in writing, a statement of the amount to be paid thereunder, and the times when the payments are to be made, and a description of the land on which the building stands. Revised Statutes, Sections 3184, 3185. As the lien has no existence except by force of the statute, it is essential to its validity that it be taken and perfected within the time allowed by the statute; that is, that the affidavit required, be filed within four months from the time the labor is performed, or the machinery or material is furnished. The affidavit of the defendant in error, for the lien it claims, was filed with the recorder of the county where the property is situated, on the 13th day of August, 1887. It contains a statement of the account of the defendant in error against The Standard Nail & Iron Company, which consists of a single item, bearing the date of April 14, 1887, for “building and setting up one vertical direct blowing engine, as per contract, made December 17, 1886, with Cuyahoga Steam Furnace Company, $8,900.00.” There is a credit of $2,000, of the date of December 27, 1886, and one of $2,460, dated March 5, 1887, leaving a balance due of $4,450. The affidavit also states that the labor was performed and machinery furnished “under and by virtue of a written contract between the said The Cuyahoga Steam Furnace Company and the said The Standard Nail & Iron Company, dated December 17, 1886, and afterward, on the 9th day of March, 1887, assigned and transferred to the said The Cleveland Ship Building Company.” A copy of the contract, and of the assignment, are attached to the affidavit. The contract, which consists of a proposition in writing, made by the Furnace Company to The Nail & Iron Company, and its acceptance by the latter company, is as follows:

“Cleveland, Ohio, Dec. 17, 1886.
“Standard Nail & Iron Co., Middleport, Ohio:
“ Gentlemen : This company will build and furnish you one vertical direct-acting blowing engine, having steam cylinder 38 inches bore, 54 inches stroke, on heavy bed plate and columns being of the general style of the engine built by us for the Roane Iron Co., F. O. B. cars in Cleveland, for the sum of eighty-nine hundred dollars ($8,900.-00), payments to be made as follows: Two thousand dollars ($2,000.00) cash, twenty-four hundred and fifty dollars ($2,450.00) on shipment of engine and forty-four hundred and fifty dollars ($4,450.00) four months from shipment, with interest at six per cent. Engine to be delivered on or before February 15, 1887.
“Cuyahoga Steam Furnace Co.,
“By J. F. Halloway, Prest.
“Accepted: Standard Nail & Iron Co.
“By Chas. H. Greene, Prestí
The assignment of the contract to the defendant in error is endorsed upon it, and is in the following language:
“In pursuance of the terms of written contract this day executed between this company and The Cleveland Ship Building Company, the within contract is hereby assigned to said company, it assuming all our obligations therein.
“Cuyahoga Steam Furnace Co.,
March 9,1887. By J. F. Holloway, Prestí

The engine was delivered on board the cars at Cleveland, ready for shipment, and actually shipped to the purchaser, according to its directions, as early as March 5th, 1887; and, it was received by the purchaser at Middleport, not later than March 14, 1887. The evidence shows that the defendant in error sent one of its employes to Middleport, to superintend the work of setting up the engine; and, that work was not finally completed, and the engine tested, until the 13th day of April, 1887.

The question of law which is here presented for decision is, when, under the contract, was the engine furnished, within the meaning of the statute which makes it necessary to the perfecting of the lien that the affidavit therefor shall be filed within four months from the time the machinery or material is furnished? Was it when the engine was delivered on the cars ready for shipment? Or, not until it was set up in the mill of the purchaser? If at the last mentioned time, the affidavit for the lien, which was filed on the 13th day of August, 1887, was within the period allowed by the statute, and the lien is a valid one; but, if at the time first mentioned, the affidavit was filed too late, and no lien was obtained.

In contracts-for the sale and delivery of personal property, the abbreviation “E. O. B.” is frequently employed, and means that the property is to be delivered on board the designated vessel or vehicle of transportation, without expense to the buyer; so that, the obligation of the Furnace Company, and of its assignee, the defendant in error, under the written contract with the Nail & Iron Company, was to construct and deliver free of expense to the latter company, on board the cars at Cleveland, an engine of the kind therein described, and it imposed no other obligation upon either. When that was done, the contract was fully performed on the part of the furnace company, and the defendant in error; the title to the engine at once vested in the purchasing company, which then became bound for the payment of the whole purchase price, as stipulated in the contract. As the only obligation of the defendant in error, or of the company from which it took the contract by assignment, was to “furnish” on board the cars, an engine of the description called for by the contract, when the delivery on the cars was complete, the engine was furnished in compliance with the contract, and within the meaning of the statute. It is contended, however, that there was a verbal understanding, between the selling and purchasing companies, that the former should put the engine in good working order in the latter’s mill, before the latter company was bound to accept or pay for it; and evidence tending to prove such an understanding was given, over - the objection of the plaintiffs in error, on the trial. Such understanding is at variance with the terms of the written contract; and, as all negotiations between the parties prior to, or contemporaneously with the execution of the contract were merged in it, the evidence was inadmissible, unless it tended to prove a subsequent and separate agreement; and, though the plaintiffs in error were not parties to the written contract, they acquired, as the record shows, by purchase at judicial sale, the property against which the lien was being asserted, and we see no reason why they might not, for the protection of their rights, insist upon the proper application of the rules of evidence, and, that the operation of the contract should be in accordance with its terms and legal effect. If the verbal agreement was subsequent to, and independent of the written contract, labor performed under it could not enlarge the time for taking a lien for the engine. We entertain no doubt that when, by the same contract, a person binds himself to furnish machinery for a building, and also to place it in position, he may have a lien both for the machinery furnished and the labor performed, and perfect it by filing the necessary affidavit containing the required statement of the amount and value of both, within four months after the completion of his contract. In such case the furnishing of the machinery is not complete until it is placed in position according to the contract. But, where the contract is only for furnishing machinery, as in this case, and labor is performed in placing it in position, or otherwise in the construction of the building, under a separate agreement, or gratuitously, the lien for the machinery must be taken within the time limited by the statute, after the contract under which it was furnished has been performed. Separate contracts cannot be tacked together so as to extend the time for taking the lien under either. To create a valid lien for what is done under each contract, the necessary affidavit must be filed within the period limited by the statute, after performance of that contract. Nor, can a lien be obtained for labor gratuitously performed; it must, in the language of the statute, be performed “by virtue of a contract with the owner” of the building.

The lien claimed by the defendant in error does not include any item for labor in setting the engine up; and, it .appears, no charge was made for superintending that work. The lien is claimed only for the balance due on the purchase price of the engine, and is based, as appears from the affidavit, solely upon the written contract. That, we think, was fully performed, and the engine furnished under it, when it was delivered on board the cars at Cleveland ready for shipment, which was more than four months before the affidavit for the lien was filed.

The defendant in error, by its own delay, has failed to secure the benefit of the statute authorizing it to acquire the lien, and the court is without authority to enlarge its provisions.

Judgment reversed.