author: McIlvaine, C. J.

text:
    Julius A. Upson, Adm’r v. Minnie A. Noble et al.
    Under the act of March 29, 1859 (S. & C. 506), authorizing the adoption of children, construed in connection with the general statutes regulating descents and distribution of personal estates, the personal estate of an adopted child, dying intestate and leaving its natural mother, its adopting parents and. children of the adopting parents surviving it, passes to the natural mother to the -exclusion of the adopting parents and their children born in lawful wedlock.
    Appeal. Reserved iu the District Court of Medina county.
    The original action ivas brought by Julius A. Upson, as administrator of Maud Young, to determine, as between conflicting claimants, the rightful distribution of the assets in his'hands. The plaintiff’s intestate, Maud Young, was the bastard child of Minnie A. Noble, born in the year 1867. The estate to be distributed, amounting to $984.78, was derived from her putative father, under a settlement of a proceeding in bastardy, instituted by her mother, in the name of the State of Ohio.
    On the 6th of June, 1871, the intestate was adopted a3 an heir by defendants, Frank Young and Hattie, his wife, according to the statute of 1859. In 1874 the intestate died, leaving surviving her her natural mother, her adopted parents, and Sarah J. Young, an infant daughter of her adopted parents. The fond in the hands of the administrator is claimed by the natural mother of the intestate, also by her adopted parents, and also by her sister by adoption, Sarah J. Young.
    The court of common pleas found and decreed in favor of Sarah J. Young. On appeal to the district court, the cause was reserved for decision here. The facts of the case fully appear in the petition of the administrator and the several answers of Minnie A. Noble, and Erank and Hattie Young, and of Sarah J. Young, by her guardian.

      G. W. Lewis, for plaintiffs.

      J. B. Young & N. H. Bostwick, for defendants.
   McIlvaine, C. J.

The right of succession to intestate property, in this state, is regulated by statute law, and the rightful distribution of the estate of Maud Young depends on the construction of several statutes in pari materia. By the statute “regulating descents and the distribution of personal estates,” in force at the death of the intestate, the distribution of the personal estate of an intestate took the following course: “1. To the children of the intestate and their legal representatives. 2. If there be no children, or their legal representatives, the estate shall pass to and be vested in the husband or wife, relict of such intestate. 3. If such intestate leaves no husband or wife, relict of himself or herself, the estate shall pass to the brothers and sisters' of the intestate of the whole blood, and their legal representatives. 4. If there be no brothers or sisters of the intestate of the whole blood, or their legal representatives, the estate shall pass to the brothers and sisters of the half blood and their legal representatives. 5. If there be no brothers or sisters of the intestate of the half blood, or their legal representatives, the estate shall ascend to the father, if the father be dead, then to the mother.” 62 Ohio-L. 32. By the act of April 3, 1867 (64 Ohio L. 105), the-fifteenth section of the act regulating descents and distribution of personal estates, was amended so as to read as-follows: “ Bastards shall be capable of inheriting or transmitting inheritance from and to the mother, and from and to those from whom she may inherit, or to whom she may transmit inheritance, in like manner as if born in lawful wedlock.” If these provisions alone controlled the case at-bar, the right of Minnie A. Noble to the personal estate of her bastard daughter, Maud Young, would not be disputed..

The principal questions in the case, however, arise under-the act of March 29, 1859, authorizing the adoption of children (S. & C. 506-7), under which the intestate was duly-adopted by Frank and Hattie Young, as their heir, in the-probate court.

The legal effect of such adoption is declared in the third and fourth sections of said act, as follows: “ Sec. 8. That, upon compliance with the foregoing provisions, if the court-shall be satisfied of the ability of the petitioner or petitioners” (the adopting parents) to bring up and educate the child properly, having reference to the degree and condition of the child’s parents, and shall be satisfied of the fitness and propriety of such adoption, the court shall make an order setting forth the facts and declaring that, from that-date, such child, to all legal intents and purposes, is the-child of the petitioner and that the name of such child is thereby changed.

“ Sec. 4. That by such order the natural parents shall be-divested of all legal rights and obligations in respect to-such child, and the child shall be free from all legal obligations of obedience and maintainance in respect to them,, and shall be, to all inteuts and purposes, the child and legal heir of his or her adopter or adopters, entitled to all the rights and privileges and subject to all the obligations of a-child of the adopter or adopters begotten in lawful wedlock, provided, that on the decease of parents who have adopted a child or children under this act, and the subsequent decease of such child or children without issue, the property of such adopting parents shall descend to their next of kin,, .and not to the next of kin of such adopted child or -children.”

This- statute, in so far as it changes the general course of descents and distribution of intestate property, and ignores .all merit on account of blood, should be strictly construed. And while we find in it a clear declaration that the adopted 'child shall be the “legal heir” of its adopting parents, thei’e is no express provision that it shall be capable of inheriting from any other person, or of transmitting an inheritance to any one. It is true that it is declared to be the “ child,” to all legal intents and purposes, of the adopters, as if begotten ih lawful wedlock; but if the relation thereby created was intended to bring the parties to it within the operation of the general statute regulating descents and distribution of estates, the additional words, “ and legal heir of his or her adopter or adopters,” would have been ■entirely superfluous. Now, as we can not assume that these additional words were not intended to have an operation, which the statute without them would not have, their use suggests that the word “child” was not used in the sense •of “heir” within the meaning of the general statute relating to descents and distribution. And when we consider the -context the truth of the suggestion is made quite palpable. It is declared that by such order the natural parents shall be divested of all legal rights and obligations in respect to such child, and the child shall be free from all legal obligations of obedience and .malntainance in respect to them, and shall be, to all intents and purposes, the child „ . . . of his or her adopter, thus showing that the legislature w’as dealing with personal rights and duties growing out of the relation of parent and child, by transferring them from the natural to the adopted relation. It is quite sure that the legislative intent was not to take away from the child the capacity to inherit from the natural parent, nor, on the other hand, the capacity to transmit an Inheritance to the natural parent; but,by the other words, “ legal heir of his or her adopter,” a new capacity was given to the child, to wit: a capacity on the part of the child to take, by way of inheritance, from the adopted parent. ‘That this was the extent, and the whole extent of the innovation intended upon the general course of descents and distribution of intestate estates, by the purview of the statute, is clearly manifested by tbe proviso, which is in these words : “ Provided, that on the decease of parents who have .adopted a child or children under this act, and the subse•quent decease of such child or children without issue, the property of such adopting parents shall descend to their next of kin, and not to the next of kin of such adopted -child or children.” If by the body of the act it was intended to create in an adopted child a capacity to take and transmit inheritances as a natural child born in lawful wedlock, both lineally and collaterally, there surely was no necessity for this proviso, for if such were the legal effect of the act of adoption, the result, in the case put in the proviso, would be precisely as stated in it, although the proviso had not been enacted. Hence, it follows, with great reason, that instead of holding that the proviso was inserted without intent to qualify or limit the effect of the purview of the statute, we must infer that the legislative mind was, that but for the proviso, the inheritance would be transmitted from an adopted child to his or her own kin•dred by blood, and not to the next of kin of the adopting parents, and, therefore, the proviso was enacted for the purpose, under the circumstances stated, to preserve an inAeritance from the adopting parents, to pass through or from the adopted child, to the next of kin of the adopting parents.

Decree for Minnie A. Noble.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    George G. Kennard v. George W. Kennard.
    Proceedings in error can not be instituted in tbe name of a deceased party;if tbe heirs or legal representatives of such party seek to institute such proceedings, they must do so in their own names.
    Error to the District Court of Butler county.
    -' The petition in ei’ror in this case was filed on the 22d day of September, 1879, to reverse a judgment rendered by the District Court of Butler county, April 21,1877, in favor of' George "W. Kennard against George G. Kennard. At the time of the filing of the petition in error, the alleged plaintiff in error, George G. Kennard, was deceased, he having-died on the 8th day of April, 1878. Mary Ann Bartlow aud others, his heirs at law, now move the court to revive-the proceedings in error in their names.

      Hall & Walters, for the motion.

      E. M. Stuart, contra.
   By the Court :

George G. Kennard, the alleged plaintiff in error, having died before the filing of the petition in error, the attempt to institute a proceeding .in error in his name was ineffectual. To constitute a proceeding in error, there must be a plaintiff in error. If there is no plaintiff in error, the court acquires no jurisdiction of the cause. If the heirs or legal representatives of a deceased party seek to institute proceedings in error they must do so in their own names, and not in the name of the deceased.

Motion overruled and cause stricken from the docket.


author: Johnson, J.

text:
    Augustus A. Seibert v. Jonathan Switzer et al.
    1. An attachment, under the civil code, is an auxiliary proceeding in an. action, which may be sued out by the plaintiff, at or after the commencement of such action, by filing a petition and causing a summons to issue thereon.
    "2. About 11 o’clock, a. m., an order of attachment was issued upon the filing of an affidavit and giving bond. It was served and returned about 3 o’clock, p. m., but no petition was filed until about 6 o’clock, p. m., of the same day. Held, that, the attachment was issued without authority of law, and as against other attaching creditors and lienholders gave no priority.
    :3. In an action by one of several attaching creditors against the others, after judgment, to determine the priority of the several liens acquired by seizure under the respective orders of attachment, the lien of any attaching creditor may be defeated by showing that his attachment was issued without the authority of law.
    Error to the District Court of Preble county.
    The following agreed statement of facts, filed in this •court, presents tbe question in controversy :
    “ On the 15th day of October, 1874, the plaintiff in error procured an attachment to issue against the property of Christian Brown, an absconding debtor, and the same was levied by the sheriff on a stock of boots and shoes.
    “ On the 16th day of October, 1874, Jonathan Switzer ac•quired a lien upon the same property by taking possession under a chattel mortgage.
    “ On October 20,1874, G. Ii. Eidson and Jonathan Switzer jointly acquired a lien by attachment upon-said property, ;and on the same day Curme, Dunn & Oo. also acquired a lien thereon by execution.
    “ These several cases were heard and judgments rendered in favor of the parties respectively (Brown being in default for answer) for the amount of their respective claims, but .all questions as to priority of liens were left undisposed of. In the meantime a receiver had been appointed, and by consent of parties he sold the goods and chattels, and held the fund subject to the order of the court.
    “ On January 15, 1875, Jonathan Switzer and Gr. H.. Eidson jointly filed an original petition in the Court of Common Pleas of Preble county, in the nature of a credit- or’s bill, setting out the facts in relation to their lien; making all parties claiming liens on the fund defendants, and asking the court to determine the question of priority among the lienholders. To this petition all the lienholdersfiled answers and cross-petitions, and among the others the plaintiff, A. A. Seibert, filed his answer and cross-petition,, to which Switzer and Eidson jointly filed a reply, in which they denied the validity of said Seibert’s attachment, and stated the following facts in substance :
    “ That, on the 15th day of October, 1874, about eleven o’clock, a. m., the said Seibert filed in the clerk’s office of the-court of common pleas his affidavit for an attachment against Christian Brown, together with the required bond, and thereupon an attachment was issued by the clerk of said court, and placed in the hands of the sheriff, and was by him levied upon the goods, from the sale of which the fund mentioned was derived, and returned by him at three o’clock, p. m., of said day. That at the time said attachment was issued, levied, and returned, there was no suit commenced by said Seibert against said Brown, nor was any petition filed by Seibert against said Brown until six or seven hours-after said attachment was issued.”
    “ To this reply the plaintiff in error, A. A. Seibert, filed a general demurrer, which was argued, and the demurrer was sustained. And thereupon the court proceeded to settle-the priorities of lien as follows:
    “ First lien, E. B. Eshelman, about which no question is raised; second lien, Augustus A. Seibert; third lien, Jonathan Switzer; fourth lien, Switzer and Eidson; fifth lien, Curme, Dunn & Co.
    “ To the sustaining of the demurrer to their reply Switzer and Eidson excepted, and on March 29,1876, they filed their petition in error in the District Court of Preble county, assigning tbe sustaining of said demurrer to said reply as error, and asked tbe reversal of said judgment. Curme Dunn & Co. filed a cross-petition in error, assigning tbe same error, and praying for the same relief. All persons interested were made parties.
    “At the May term, 1876, of the district court, the ease was argued by counsel, and the district court reversed the court of common pleas, to which the said A. A. Seibert, plaintiff in error, excepted ; and said Seibert now seeks to have the finding of the district court, that the common pleas erred in sustaining said demurrer, reversed.
    “ The amount of .the different liens is not-stated, but it is deemed sufficient to say that Eshelman’s claim (which is no longer controverted) and Seibert’s claim, if allowed, will exhaust the fund in the receiver’s hands, and the claims of Switzer, Switzer and Eidson, and Curme, Dunn & Co. will exhaust the fund if Seibert’s lien is set aside.”

      Stiver & Freeman for plaintiff in error :
    Failing to give the statutory bond does not avoid the attachment. It is only an irregularity, which the defendant can waive. 19 Ohio St. 296.
    Subsequent attaching creditors can not rely on irregularities to set aside the attachment of a prior attaching criditor. 12 Ohio St. 158. See, also, 12 Ohio St. 168, the last paragraph of the opinion. To the same effect, see Drake on Attachment, § 276.
    It is only where the claims of prior attaching creditors are fraudulent that subsequent attaching creditors may come in after judgment and contest the validity of such fraudulent claim. Drake, § 274.

      Campbell & Glimore for defendants in error:
    An attachment issued six or seven hours before the petition is filed is not a valid attachment. Section 191 of the Code of 1853, in connection with section 55 of same Code ; 16 Ohio, 111; 24 Ohio St. 481.
   Johnson, J.

Do the facts stated in the reply show, as matter of law, that Seibert acquired a priority by seizure of the property on the 15th of October ?

The attachment was issued and served some six or seven hours before a petition was filed. There was an affidavit and bond filed about 11 o’clock, a. m., and writ then issued. It was served by the seizure of a stock of goods, and the writ returned by 3 o’clock, p. m. The petition was filed about 6 o’clock, p. m., of the same day.

“ The plaintiff in a cioil action, for the recovery of money, may, at or after the commencement thereof, have an attachment against the property of the defendant, and upon the grounds herein stated.” Civil Code, § 191; Rev. Stat. •§ 5521.

“ An order of attachment shall be made by the clerk of the court in which the action is brought, in any case mentioned in the preceding section, when there is filed an affidavit of the plaintiff, his agent or attorney, showing,” etc. Civil Code, § 192; Rev. Stat., § 5522.

Section 193 requires a bond by the plaintiff to the defendant, except in case the defendant is a non-resident or a foreign corporation.

By section 196, the return day of the order of attachment, when issued at the commencement of the action, shall be the same as the summons; when issued afterward it shall be returned twenty days after it issued.

“ A civil action must be commenced by filing in the office of the clerk of the proper coui’t a petition, and causing a summons to be issued thereon.” Civil Code, § 55; Rev. 'Stat., § 5035.

The plaintiff must also file with the clerk a precipe, •stating the names of the parties to the action, and demanding a summons.

From these provisions and others found in the chapter on attachment, we are to determine whether Seibert obtained a priority by his attachment, or whether, as against the other liens, it is null and void.

Unlike the attachment laws formerly in force, the code ■rewards the diligent creditor by giving priority to the order first delivered to the officer. This being in derogation of the equitable principle, that the assets of an insolvent debtor should be equally distributed among his creditors, it is but just that the party asserting such priority should clearly show that he has established the right given by the statute.

The record shows this to have been a race between creditors of an absconding debtor who did not have property sufficient to satisfy all the claims upon it. The plaintiffs were lienholders by attachment and by a chattel mortgage. After judgments in the several actions in which attachments had been sued out, the action was commenced to determine priorities among the several lienholders. These plaintiffs can not take advantage of any mere irregularity or informality in Seibert’s attachment, for the purpose of defeating his priority; but they may show that his attachment was issued without authority of law, and thereby defeat it. Ward v. Howard, 12 Ohio St. 158.

No action was, in fact, commenced by the filing of a petition, until some three or four hours after the order of attachment was served and returned.

The statute does not authorize an attachment except in an action, and the clerk of the court has' no authority to issue the order of attachment until an action is brought, and the relation of plaintiff and defendant is established in the case.

An action is commenced or brought, within the meaning of sections 192 and 193, by the filing of a petition and causing a summons to issue thereon. Code, § 55. Until then there is no action in which an attachment can issue. It is a remedy auxiliary to an action for a money judgment. It is a writ in aid of the plaintiff, granted in certain cases before he could have execution. Without an action there is no foundation for this auxiliary proceeding. Nor do we think that the subsequent commencement of an action, though on the same day, cures this defect. The order of .attachment being issued by the clerk of the court before .action brought, was unauthorized arid void, and the subsejquent commencement of an action, although on the same day, could not vitalize it so as to give it priority over other valid liens.

This conclusion is supported by the following cases in point. Pope v. Hibernia Ins. Co., 24 Ohio St. 481; Endel v. Leibrock, 33 Ohio St. 254; Kerr v. Mount, 28 N. Y. 659; Waffer v. Goble, 53 Barb. 517; Kelley v. Strayer, 15 Hun. 97.

Judgment of the district court affirmed.


text:
    The Central Ohio Salt Company v. Stephen H. Guthrie.
    voluntary association of salt manufacturers was formed for the purpose of' selling and transporting that commodity. By the articles of association, all salt manufactured or owned hy the members, when packed in barrels, became the property of the company, whose committee was authorized and required to regulate the price and grade thereof, and also to control the manner and time of receiving salt from the members; and each member-was prohibited from selling any salt during the continuance of the association, except by retail at the factory, and at prices fixed by the company: Held,, that such agreement was in restraint of trade, and void as against public policy.
    Error to the District Court of Muskingum county.
    The original action was brought in the Court of Common Pleas of Muskingum county by the plaintiff in error against defendant in error, to recover the possession of a thousand barrels of salt. An order of delivery was issued to the sheriff of said county. The defendant, by answer, denied the right of the plaintiff to the possession of the property, and by cross-petition alleged, among other things, that the contract under which the plaintiff claimed was illegal and void, and prayed for an injunction, restraining the plaintiff from interfering in any manner with the property in dispute. The salt in question was manufactured by defendant at bis salt furnace, known as the Harrison furnace, In the Muskingum valley. The plaintiff is an unincorporated, association of salt manufacturers, doing business in the Muskingum and Hocking valleys, formed for the purpose of controlling the manufacture and sale of salt in those valleys, and is composed of thirty or more parties, engaged separately and independently in the manufacture of salt. The articles of association are in writing, of which the following is a copy :
    “ "We, the undersigned, owners of and lessees of the salt furnaces of the Muskingum and Hocking valleys, for the purpose of regulating the prices and sustaining the quality of salt made by and for us, do hereby agree, and do bind ourselves, each with and to the others, jointly and severally, and our heirs, executors, administrators, and a.ssigns, to the terms and conditions of the following contract, to wit: We agree that from this fifteenth day (15th) of September, 1871, and for a period of five years from the above date, we do hereby form ourselves into an association for the Sale and transportation of salt.
    “ The association shall be called and known by the name-of the Central Ohio Salt Company.”
    “ The officers of the company shall consist of a president and five directors ; two of the said directors shall be chosen from the Hocking valley and two more from .the Muskingum valley, and one from Guernsey county, Ohio.
    “ The aunual meeting of the company shall be holden at the company’s office, on the second Tuesday of May of each year, for the election of directors and the transaction of such other business as may come before the meeting,, except that the first election shall be held immediately after the organization of the association, at such time and place as may be agreed upon by the members of the association.
    “ The representation of the stockholders shall be one vote to each furnace.

      “ It shall be the duty of the directors to regulate the-price and grades of salt, and settle all disputes and- questions in regard to the same; also to employ an agent or agents, who shall be governed by them in all matters per-tabling to the business of the company. The directory «hall require a satisfactory bond from the agents for the faithful discharge of his or their duties, and safe-keeping •of the funds of the company while in his possession.
    “ A majority of the board of directors shall constitute a quorum to do business.
    “ The manner and time of receiving and distributing salt shall be under the control of the directory.
    “ All salt made or owned by the members of this association shall be branded as the directors may require, and becomes the property of the company when packed out in barrels.
    “ Each member of the association binds himself to sell «alt only at retail, and then only to actual consumers at the place of manufacture, and at such prices .as may be fixed by the directors from time to time.
    “ And it is further agreed by the members of this association, that in case of any sale, lease, or other disposition •of any furnace or furnaces now owned, operated, or controlled by them, such sale, lease, or transfer, shall be subject to each and all of the conditions of this agreement, and the vendee or lessee shall at once become a member of this association.
    “ Eor the faithful performance of the covenants and stipulations herein named, we do severally bind ourselves, executors, heirs, administrators, and assigns, to the association in the sum of two thousand dollars ($2,000), which sum shall be taken as liquidated damages, to be paid by any party who may fail in such faithful performance.
    “ This contract may be amended by a two-thirds vote of the members of- this association.
    “In case of any removal, resignation, or death of any member of the directory, it shall be the duty of the assoeiation to elect some one to fill the vacancy without delay.
    “ In testimony whereof, we have hereunto subscribed our names and affixed our seals, this 31st day of August, 1871.
    “ Salina Salt and Coal Co. [seal.] by G. T. Gould.
    Hocking Valley Coal and Salt Co., by John McCracken,. Acting Director.
    Ben. G. Converse. E. M. Scott, [seal.]
    Abraham Morrison. Henry Krigbaum.
    S. A. Guthrie. J. R. Patterson.
    George McClure. John T. Havener.
    C. Kinsel. Jesse S. Baker.
    H. Blandy. James Moore.
    Hiram Cowell. John Stevens.
    Caleb Wilson, Sen. S. H. Guthrie.
    0. Ballou.
    “ I, James Morrison, for myself and Charles Stone, do-hereby agree to pay to the directors of the Central Ohio-Salt Company ten cents per barrel for all the salt that we-shall manufacture and sell, so long as the said company shall keep the price at not less than one dollar and seventy-five cents per barrel, at Zanesville, Ohio, for the term of five years from this date, and we do .bind ourselves to be-governed by the Central Ohio Salt Company’s rates, and not to undersell them at any time during said term of five-years.
    James Morrison. September 27,1871.
    William Sherwood. “ W. 0. Sherwood.
    Havener & Benjamin. E. M. Stanberry.
    J. W. Kinzel. C. Wilson, Jr.
    Henry Stainbrook. E. Sherwood.
    B. Kinzel. B. Wilson.
    S. H. Guthrie, Agent Harrison Furnace, and for his wife.”'
    “Amended September 7, 1871 :
    “ It is understood and agreed, that the penalty in the-foregoing article of association (of $2,000) shall only apply to each individual who may violate the same.
    “ These articles of association shall not be binding upon any until all the salt-makers and lessees in Hocking and Muskingum valleys have signed the same.

      “Joseph Kelly, Jonathan Barnes, Joseph Herrald, to have privilege of retailing salt at my mill.”
    The ease made by the cross-petition of defendant was "tried in the court of common pleas, where a decree was rendered in his favor. On appeal to the district court a like decree was rendered.
    On the trial, testimony was offered showing that salt manufactured in other localities was placed in the same markets with the salt under the control of the plaintiff, and .also, that the association does not include all the manufacturers of salt within the valleys of the Muskingum and Hocking rivers. It also appears that defendant, for some "time after the organization of the plaintiff, complied with the terms of the articles, but afterward refusing to deliver to "the company, salt manufacture by him, the original action was brought to enforce the agreement.

      Harrison, Olds & Marsh, for plaintiff in error:
    This contract is not subject to any objection on the ¡ground that the public are, by it, exposed to any of the evils of a monopoly,; or that the parties to it are injuriously affected by it. Hence, Alger v. Thacker, 19 Pick. 54; Mitchell v. Reynolds, 1 P. Wms. 181; Morris Run Coal Co. v. Barclay Coal Co., 68 Penn. St. 173; Hilton v. Eckersly, 6 Ellis & B. 47, are not applicable to this case.
    If it appears, from the pleadings and proof, that the restraint is partial; that the contract is founded on a valuable consideration, and is reasonable and not oppressive, it will be enforced. Lange v. West, 2 Ohio St. 519. See also Grasselli v. Lowden, 11 Ohio St. 349.
    Contracts in restraint of trade, which, considered with reference to the situation, business, and object of the parties, and in the light of all the surrounding circumstances, .appear to have been made for a just and honest purpose and for the protection of legitimate interests, and are rea.sonable as between the parties, and not specially injurious to the public, will be upheld; and the weight or effect to ■•be given to the surrounding circumstances is not affected by any presumption for or against the validity of the restriction. Such a restriction is valid, even if it extends over a large district. Hubbard v. Miller, 27 Mich. 15; Moore Twist Drill and, Machine Co. v. Moore, 103 Mass. 73; Beal v. Chase, 31 Mich. 490; Jones v. North, L. R., 19 Eq. Cas. 426; s. c., 12 Moak’s Eng. Rep. 826; Hedge et al. v. Lowe, The Reporter, vol. 7, p. 368; Dunlap v. Gregory, 10 N. Y. 241; Avery v. Langford, Nay’s Rep. 663 (appended to this case is a short summary of the decisions on this question since 1711, arranged in chronological order); Pierce v. Woodward, 6 Pick. 206; Ewing v. Johnson, 34 How. Pr. 202. Eor a list of cases, see 10 Moak’s Eng. Rep. 837, note.
    The attention of the court is specially called to Jones v. North, L. R., 19 Eq. Cas. 426, s. c. 12 Eng. Rep. 826; Palmer v. Stebbins, 3 Pick. 188; Addison on Contracts, 892.

      Stephen H. Guthrie, for defendant in error,
    on the question of contracts in restraint of trade, cited: Crawford v. Wick, 19 Ohio St. 190; Stanton v. Allen, 5 Denio, 434; 4 Denio, 349; 68 N. Y. 558; 68 Penn. St. 173; 53 Penn. St. 467; 29 Conn. 538; 79 Ill. 346; 14 La. Ann. 168; 6 Am. Rep. 621; 36 Cal. 358 ; 1 Minn. 230; 6 E. & B. 17; 13 Allen, 375; 6 Sheldon, 241.
   McIlvaine, C. J.

The only questions made in the argument of this ease relate to the validity of the contract of association. No objection has been made, in this court, or the courts below, as to the nature of the relief sought by the cross-petition of defendant, and that question has not been considered. That all contracts in partial restraint of trade are not void as against public policy, is too well settled to be gainsaid ; while, on the other hand, it is as fully established, as a general rule, that contracts in general restraint of trade are against public policy, and, therefore, absolutely void. Upon the authorities, however, the line, between such as are void and those that are binding, is not very clearly defined.

Public policy, unquestionably, favors competition in trade, to the end that its commodities may be afforded to the consumer as cheaply as possible, and is opposed to monopolies, which tend to advance market prices, to the injury of the general public.

We think the contract before us should not be enforced. Hy it all the salt manufacturers (with one or two exceptions) in a large salt-producing territory, and whose aggregate annual product is about 140,000 barrels, have combined for the expressed purpose of regulating the “ price and grade of salt.” A board of directors is chosen. All salt made or owned by the membe'rs, as soon as packed into barrels, is placed under the control of the directors. “ The manner and time of receiving and distributing salt shall be under the control of the directory.” “ Each member of the association binds himself to sell salt only at retail, and then only to actual consumers, at the place of manufacture, and at such prices as may be fixed by the directors from time to time.” The directors make monthly reports of sales, and pay over the proceeds to the members, in proportion to the amount of salt received from each.

The clear tendency of such an agreement is to establish a monopoly, and to destroy competition in trade, and for that reason, on grounds of public policy, courts will not aid in its enforcement. It is no answer to say that competition in the salt trade was not in fact destroyed, or that the price of the commodity was not unreasonably advanced. Courts 'will not stop to inquire as to the degree of injury inflicted upon the public; it is enough to kuow that the inevitable tendency of such contracts is injurious to the public.

Nor is this agreement within the principle which permits a person to bind himself not to engage in trade at a particular place. Here the restraint was general. A member of this association, under this agreement, could not engage in the traffic at any place during the life of the association, except only to retail to actual consumers, at the place of ■manufacture, and then only from salt in bulk, and at the-price named by the company.

It is also claimed, on behalf of the plaintiff, that this-agreement does not affect the right of the members to continue the industry in which they are engaged without restraint; that the company can not control or limit the-quantity of salt to be manufactured, and, therefore, the-contract does not injuriously affect the interests of labor. We think that the provision that “ the manner and time of receiving and distributing salt shall be under the control of the directory,” confers upon the company ample power to embarrass the freedom of the members as to the quantity of salt which they might wish to manufacture. There is no agreement that the company will receive all the salt manufactured, and at the time when it may be ready for sale.

On the whole case, we are clearly of opinion that this agreement is void as against public policy.

Judgment affirmed.


author: White, J.

text:
    Dangler v. Baker.
    Four persons, including the defendant, agreed to execute a bond to the-plaintiff. One of the persons who was to execute the bond, procured by-fraud, a bond to be executed and delivered by the defendant, in which the names of two of the persons who were to join in the execution were-omitted: Meld, 1. That the fraud constitutes no defense to a suit on the bond, where the plaintiff had no notice of the fraud at the time he accepted the same and parted with the property in consideration of which the bond was given. 2. That the plaintiff might have required the bond to be executed by all the parties, but he was not bound to do so. He-might waive his right to require the bond to be thus executed by all the parties; and the fact that the bond presented to the plaintiff and accepted by him, was the bond of two of the parties only, is no evidence to charge him with notice of the fraud practiced in its procurement.
    Error to the District Court of Cuyahoga county.
    Tbis cause was commenced in the Superior Court of Cleveland by Q-eo. A. Baker against Calvin Carr and .David A. Dangler, upon a bond conditioned in the penal •sum of $20,000, alleged to have been executed and delivered by said defendants to said plaintiff on tire 20th of August, 1867.
    The plaintiff avers in his petition that the conditions uf the bond had been broken, whereby Carr and Dangler had bécome indebted to him in the sum of $2,440.25.
    The defendants file separate answers. Dangler sets up two distinct defenses; in his. first defense he admits that he signed the bond, but denies that he delivered it or authorized its delivery; alleges that he signed the 'bond with the express agreement and understanding with the plaintiff that it should also be signed by Leverett Tarbell and 8. U. Tarbell, and avers “ that the plaintiff— Baker — has no right to the possession of said instrument of writing, the same not having been executed by said Tarbells before delivery, as it was expressly agreed, and .understood, as before specified, it should have been exe■cuted.”
    In the second defense it is alleged that the bond was obtained through fraudulent representations of Baker, as to the financial condition of a corporation by the name of the Bedford Iron Company.
    A reply was filed to this answer, denying every allegation therein impeaching the validity of the bond.
    The following is a copy of the bond :
    “ Know all men by these presents, that we, Calvin Carr ■and David A. Dangler, of Cleveland, Cuyahoga county, •Ohio, are held and firmly bound unto George A. Baker, of Bedford, in said county and state, in the penal sum of twenty thousand dollars, to the payment of which, well .and truly to be made, we hereby bind ourselves, our heirs, ■executors, and administrators, firmly by these presents, ¡signed with our hands, and sealed with our seals, and dated this-day of August, 1867.
    “The conditions of this obligation are such, that whereas the said George A. Baker, is the owner of one hundred and ninetj^-oue shares of the capital stock of the Bedford Iron •Company, of one hundred dollars each, and as such stockholder is liable for the debts of said company; and whereas the said George A. Baker is also personally liable as surety for said Bedford Iron Company, upon a note for four thousand dollars, payable to the Second National Bank in the city of Cleveland, and with interest due August 6, 1867; and whereas the said George A. Baker, by reason of his connection with said Bedford Iron Company, as president, director, committeeman, or otherwise, may have incurred other and further liabilities, than those hereinbefore ■specified; and whereas the said George A. Baker, has this day sold and assigned unto the said Calvin Carr, the aforesaid one hundred and ninety-one shares of the capital ■stock of said Bedford Iron Company, and four five hundred •dollar bonds of the first mortgage bonds of said Bedford Iron Company; and whereas the said Calvin Carr and David A. Dangler, in consideration of the premises, have .agreed to assume and pay the foregoing liabilities, and all ■other liabilities which have been incurred by the said -George A. Baker, by reason of bis connection with said Bedford Iron Company, as stockholder, surety, president, director, or committeeman thereof, or which may result from his connection with said iron company, in either or all of the aforesaid capacities, to indemnify and save harmless the said George A. Baker therefrom. Now, if the said Calvin Carr and David A. Dangler, shall well and truly pay the aforesaid liabilities and indebtedness of the said George A. Baker, and shall indemnify and save harmless the said George A. Baker, from liability of every description whatsoever incurred by him, as a stockholder in said company, or as a committeeman or officer thereof, and from all liability that may result from said Baker’s connection with said company, and his actions in either and all of the capacities aforesaid, then the above obligation shall be void, otherwise it shall be and remain in full force and virtue.
    “ Calvin Carr, [seal.]
    “ D. A. Dangler, [seal.]
    “ as surety ”

      The bond was accepted by the plaintiff in performance of the following agreement:

      “To George A. Baker, JSsq. :

    Sir : — If the proposition of Messrs. Otis & Co. shall, upon consideration, be rejected by the Bedford Iron Company, we will then take an assignment of your stock in said company, together with four five hundred dollar bonds of the first mortgage bonds of said company, and will give you bond in the penal sum of twenty thousand dollars, conditioned to indemnify and save you harmless from all liability of every description whatsoever incurred by you as president, director,"stockholder, committeeman, or surety for said Bedford Iron Company.
    Calvin Carr,
    S. U. Tarbell,
    L. Tarbell,
    I). A. Dangler.
    I accept the above proposition.
    •Cleveland, July 27, 1867.
    George A. Baker.”
    On the trial, the jury returned a verdict for the plaintiff.. There was a motion for a new trial on the ground that the verdict was against the evidence; also, on the ground of error in the charge, and in the refusal to charge. The motion was overruled and a bill of exceptions taken embodying all the evidence and the charge of the court.
    Judgment was rendered on the verdict, which, on error,, was affirmed by the district court.
    The present petition in error is prosecuted by David A. Dangler, one of the original defendants, to reverse these judgments.
    The several propositions, arising on the record, which control the case, are laid down by the court.

      J. W. Tyler, for plaintiff in error.
    As to Dangler’s liability, see Boult v. Brown, 13 Ohio St. 370 ; 32 N. Y. 445 ; Pepper v. State, 22 Ind. 399 ; 111 N. J. 155 ; 15 N. J. 163 ; 53 Mo. 576; 63 Mo. 212 ; 16 Wallace, 1; 8 Wend. 360; and see Ferry v. Patterson, 5 Humph. 133.

      Marvin $ Hart, for defendant in error.
    [This case was decided before Johnson, J., came on the bench. — Rep.
   White, J.

In this case, four persons, including the defendant, agree to execute a bond to the plaintiff. One of the persons who was to execute the bond, procured, by fraud, a bond to be executed and delivered by the defendant, in which the names of two of the persons who were to join in the execution were omitted. Held: 1. That the fraud constitutes

no defense to a suit on the bond, where the plaintiff had no notice of the fraud at the time he accepted the same, and parted with the property in consideration of which the bond was given. 2. That the plaintiff might have required the bond to have been executed by all the parties, but he was not bound to do so. He might waive his right to require the bond to be thus executed by all the parties ; and the fact that the bond presented to the plaintiff and accepted by him, was the bond of two of the parties only, is no evidence to charge him with notice of the fraud practiced in its procurement.

Judgment affirmed.


author: Okey, J. White, J.

text:
    Lindemann v. Ingham.
    Where a mortgagor in possession of goods mortgaged, makes an assignment thereof for the benefit of his creditors, and the assignee proceeds in the probate court to administer the trust, in accordance with the statutes regulating such assignments, the mortgagee cannot maintain an action against the assignee for converting the property to his own use. In such case, his interest in the property under the mortgage, where the assignee is clothed with authority to sell the goods, is transferred to the. fund arising from the sale by the assignee. ' And it will make ng difference that the condition in the mortgage was broken at the time of the assignment.
    Error to the Court of Common Pleas of Hamilton county. Reserved from the District Court.
    On August 19,1874, Iugbam & Brothers brought suit in the court of common pleas of Hamilton county, against Greorge Lindemann, to recover damages for an alleged conversion of personal property to bis own nse. The petition is substantially as follows: The plaintiffs say, that on April 2, 1874, Jacobi & Schoeule conveyed to them, by chattel mortgage, the following chattels, then situate in said county, to wit: one double-cylinder Taylor newspaper press, one job press, all other presses, imposing stones, type, cuts, cases, safes, desks, and all other chattel property comprising the Courier (German) newspaper office in Cincinnati, said chattels being valued at $4,000. That the mortgage was given to secure the payment of four promissory notes made by the mortgagors to the order of the plaintiffs, each for $1,019.89, with interest at eight per cent., dated April 2, 1874, and payable respectively in two, four, six, and eight months after date. That the mortgagors covenanted in the mortgage that on default of payment of any of the notes, or any attempt to sell, or any sale of the goods and chattels, or any part of them, or to remove them or any part of them from the county or from their location, or upon any seizure of them or any part of them by any process of law, or upon failure to insure the same for $5,000, then the mortgagees or their assigns may take them into their possession, or foreclose the mortgage, as if all the notes were due and unpaid. That at the time the mortgage was executed, an affidavit showing the amount due thereon was written upon said mortgage, and sworn to by one of the plaintiffs, and said mortgage was on the same day deposited in the office of the recorder of said co-unty. That the defendant, knowing of the existence of the mortgage, received and - accepted, April 29, 1874, from Jacobi & Schoeule, a deed of assignment, conveying to him the chattels hereinbefore mentioned, being the same covered by said mortgage, in trust, and for the purpose of being distributed pro rata on *the amount due, among the creditors of Jacobi & Schoeule as a firm and •as individuals. That the plaintiffs have given due notice to the defendant that they hold such mortgage on said chattels; that the conditions of the mortgage have been broken by the mortgagors ; that they are entitled to the possession of said property, and they demanded possession of him, but he has refused to deliver to them said property or any part thereof, or $4,000, its value, or any sum whatever, but has sold and converted the same to his own use, under said deed of assignment, for the purposes therein mentioned. That the- conditions and covenants of the mortgage were broken by the mortgagors — -first, by failing to pay the note which became due in two months after April 2, 1874, and all of said notes remain unpaid; secondly, by the removal of said goods; thirdly, by the sale of said goods; fourthly, by the deed of assignment for the purposes therein mentioned; fifthly, by neglecting to insure the goods. That the plaintiffs were entitled to the possession of the goods, the defendant not having received any title thereto by the deed of assignment or in any other way; and that the plaintiffs, on account of the conversion by the defendant of said property, and the refusal to pay to them $4,000, the value thereof, were damaged by the defendant in the sum of $4,000. Wherefore the plaintiffs pray judgment against the defendant for the sum of §4,000, their damages aforesaid.
    The property was left in possession of the mortgagors, under the statute (1 S. & G. 475; 66 Ohio L. 345; Rev. Stats. §§ 4150, 4157). It appears that the demand, above mentioned, was made June 9, 1874, and also that the assignment embraced property in addition to that covered by the mortgage.
    An answer and a reply were filed. Defense .number six in the answer is in substance as follows: The assignment to him, Lindemann, was made by Jacobi & Schoeule, under and in pursuance of the laws of this State; said deed of assignment •was filed by him, as assignee, in the probate court of said county, which court has exclusive jurisdiction in such cases; he took possession of the property assigned to him, as the assignee of said Jacobi & Schoeule, under the assignment laws aforesaid, and the appointment of said probate court; and that in all thiiigs he acted under the orders of said court and the laws aforesaid. He therefore denies that he is answerable to the plaintiffs in this cause.
    To tiffs defense the plaintiffs demurred, the court sustained the demurrer, and the defendant excepted.
    On May 1, 1874, the notice of appointment of the assignee was published as required by law, in which notice the creditors were requested to present tlieir claims against Jacobi & Schoeule to the assignee.
    The probate court, on May 1, 1874, made the following order: “ Upon application of the assignee, and it appearing to the court that Ingham & Brothers, mortgage creditors of said assignors, are satisfied that the Courier newspaper be issued for one day (Saturday, May 2, 1874), and it further appearing to the court that it will be for the benefit of all the creditors of said assignors that the said Courier newspaper business be kept intact, it is therefore ordered that said assignee have said paper issued Saturday, May 2, 1874.”
    The property was appraised, advertised, and, on June 18, 1874, sold by the assignee at public outcry, the whole amount realized being $1,707:94. This was-done under orders of the probate court. That court also confirmed the sale, and subsequently made an order directing the assignee to distribute the proceed.; of the sale pro rata among the creditors who had proved their claims. It does not appear what claims were proved, nor to whom the fund was distributed.
    The issues were tried in the court of common pleas, at the November term, 1875, and a verdict for $3,724.04 was found for the plaintiffs, and judgment was rendered thereon, a motion for a new trial having been overruled.
    Lindemann having filed a petition, in error, in the district court, to reverse the judgment of the court of common pleas, the cause was reserved to this court for decision.

      Folleit (& Coehrcwi and F. Lmnpe, for plaintiff in error,
    cited 9 Ohio, 93; Long on Sales, 1; 8 Howard, 495-544; Burrill on Assignments, 29-31, 67, 68, 84, 85, 325 ; 5 Watts, 36 ; 8 Comst. 238 ; 2 Disney, 295 ; Hilliard on Trustees, 219 ; 4 Johns. Oh. 136 ; 24 Wend. 280; 17 Yt. 310 ; 6 Iredell, 462 ; 11 Ala. 1067; 3 Scammon, .578; 4 Johns. Oh. 460; 3 Ohio, 489 ; 14 Ohio St. 462.
    Yaple, Moos <& Fattison, for defendants in error:
    What is a chattel mortgage, and what are the rights under it?

      1. Title of, as to mortgaged property.':’ 26 Oliio St. 663 ; 29 Ohio St. 230 ; 28 Ohio St; 503. ■
    2. When mortgagee may maintain trover. 5 Dutch. 250 ; 1 Beas. 93, 100, 431; 2 C. E. Green, 44; 1 Hall Ch. 334.
    3. More than mere security. Hill v. Beebe, 13 N. Y. 565 ; Butler v. Miller, 1 N. Y. 496 ; Bank v. Jones, 4 N. Y. 497 ; Heyland v. Badger, 35 Cal. 414; Wright v. Ross, 36 Cal. 414.
    4. Distinction between a pledge and a chattel mortgage. Conner v. Carpenter, 28 Vt. 237; Sims v. Canfield, 2 Ala. 455 ; Eastman v. Avery, 23 Me. 248; Day v. Swift, 48 Me. 368; Cortelyon v. Lansing, 2 Caines Cas. 200 ; Gleason v. Drew, 9 Me. 82; Ward v. Sumner, 5 Pick. 60; Haven v. Low, 2 N. H. 13; Ash v. Savage, 5 N. H. 545; Barrow v. Paxton, 5 Johns. 258; Brown v. Bement, 8 Johns. 97; Lewis v. Stevenson, 2 Hall, 63; McLean v. Walker, 10 Johns. 471; Portland Bank v. Stubbs, 6 Mass. 425; Tucker v. Buffington, 15 Mass. 480 ; Bonsee v. Amee, 8 Pick. 236 ; Holmes v. Crane, 2 Pick. 610; Fletcher v. Howard, 2 Aik. 15 ; Conrad v. Atlantic Insurance Co., 1 Pet. 449 ; Story on Bailments, § 287, p. 246; Parks v. Hall, 2 Pick. 206; Gordon v. Massachusetts &c. Ins. Co., 2 Pick. 249 ; Ackley v. Finch, 7 Cow. 290; Hart v. Ten Eyck, 2 Johns. Ch. 100; Lectors v. Ballistier, 3 Pick. 495; Langdon v. Buel, 9 Wend. 80; Patchin v. Pierce, 12 Wend. 61; Gifford v. Ford, 5 Vt. 532 ; Flanders v. Barstow, 18 Me. 357; McLean v. Walker, 10 Johns. 141; Jones v. Smith, 2 Ves. 378; Havens v. Low, 2 N. H. 13 ; Barrow v. Paxton, 5 Johns. 258; Garlick v. James, 12 Johns. 146 ; DeLisle v. Priestman, 1 Browne, 176.
    5. Mortgagor is entitled to the' possession until when. Babcock v. McFarland, 43 Ill. 381; Leland v. The Medora, 2 W. & M. 92; Hall v. Sampson, 35 N. Y. 274; Curd v. Wunder, 5 Ohio, 92; Fairbanks v. Bloomfield, 5 Duer, 434.
    6. Retaining possession until the happening of a certain event. Ballune v. Wallace, 2 Rich. 80.
    7. When a mortgagee is entitled to the immediate possession of tlie property. Hall v. Sampson, 35 N. Y. 274; Hickman v. Perrina, 6 Coldw. 135 ; Broadhead v. McKay, 46 Ind. 595 ; Stewart v. Hanson, 35 Me. 506; Ferguson v. Thomas, 26 Me. 499; Brackett v. Bullard, 12 Met. 308; Foster v. Perkins, 42 Me. 168; Wolfley v. Rising, 12 Ks. 535 ; Kannaday v. McCarron, 18 Ark. 160; Miller v. Pancoast, 5 Dutch. 250; Martin v. Bayley, 1 Allen, 381; Harmon v. Short, 16 Miss. 433 ; Whistler v. Roberts, 19 Ill. 274.
    8. "When sale is a conversion of the mortgagee’s property, and gives him a complete cause of action. Edson v. Newell, 14 Minn. 228; Case v. Jewett, 13 Wisc. 498; Newman v. Tymeson, 12 Wisc. 448.
    9. A chattel mortgage being a conveyance which vests the title in the mortgagee for tlie purpose of subjecting the property to the satisfaction of his debt, the mortgagee is considered the true owner for that purpose, and has a right to the actual possession and control of the property in the event of any forfeiture or of the non-payment of the debt due him from the mortgagor. An agreement between the parties in reference to the temporary possession of the goods does not alter the rights of the mortgagee. Hall v. Snowhill, 2 Green, N. J. 8 ; Pratt v. Skolfield, 45 Me. 386; Lacey v. Giboney, 36 Mo. 320; Green v. Dingley, 24 Me. 131; Burton v. Tannehill, 6 Black. 470. And for this purpose he may enter upon the premises of the mortgagor in the night and seize the mortgaged property, if he can do so without violating the criminal law. Sutterwhite v. Kenney, 3 Strobh. 457; London Co. v. Drake, 6 C. B. N. S. 768 ; McNeal v. Emerson, 15 Gray, 384.
    10. May bring action for conversion or replevin. Ashley v. Wright, 19 Ohio St. 291; Welsh v. Whittemore, 25 Me. 86 ; Prior v. White, 2 Ill. 261; Conkey v. Hart, 14 N. Y. 22; Russell v. Butterfield, 21 Wend. 300 ; Russell v. Butterfield, 21 Wend. 400; Whitney v. Lowell, 33 Me. 318; Coles v. Clark, 3 Cush. 399; Bailey v. Godfrey, 54 Ill. 507; Braley v. Brynes, 21 Minn. 483; Welch v. Sackett, 12 Wisc. 243; Frisbie v. Langworthy, 11 Wisc. 375; Spriggs v. Camp, 2 Spears, 181; Fox v. Kitton, 19 Ill. 519; Coty v. Barnes, 20 Vt. 78; Huggans v. Fryer, 1 Lans. 276; Frost v. Mott, 34 N. Y. 253; Muller v. Way, 103 Mass. 481; Shaw v. Bond, 12 Mass. 447; Reddick v. Gressmam, 49 Mo. 389 ; Howland v. Willett, 3 Sandf. 607; Alden v. Lincoln, 18 Metc. 204; Goodrich v. Willard, 2 Gray, 203 Pickard v. Low, 15 Me. 48; Brackett v. Bullard, 12 Met. 308 ; Coty v. Barnes, 20 Vt. 78; Case v. Winship, 4 Blackf. 435 ; Melody v. Chandler, 12 Me. 282; Miller v. Pancoasi, 5 Dutch. 250; Dean v. Davis, 12 Mo. 112; Spriggs v. Camp, 2 Speers, 181; Holmes v. Sproul, 31 Me. 73; Hughes v. Graves, 1 Litt. 317; Duke v. Strickland, 43 Inch 494; Alden v. Lincoln, 13 Met. 204; Parsons v. Merrill, 5 Met. 356; Smith v. Smith, 24 Me. 555. There are the largest number of authorities, which, where they are the supreme law of the State, establish the doctrine that, after default, a mortgagor has no leviable interest in the property.

      *Eggleston v. Mundy, 4 Mich. 295 ; Baltes v. Reipp, 1 Abb. N. Y. App. Dec. 78; Hamill v. Gillespie, 48 N. Y. 556 ; Hall v. Sampson, 35 N. Y. 274. In Massachusetts it can not be seized under and by virtue of an execution, and such is the common law doctrine. Lyon v. Coburn, 1 Cush. 278 ; Brackett v. Ballard, 12 Met. 308. In addition to the above, we find the following cases sustaining the doctrine that a mortgage vests the title in the mortgagee, and that after breach of condition it becomes absolute; others absolutely vested in the mortgagee; and that tho mortgagor has no interest then subject to be levied on under execution against him; and he may not only reduce tho property to actual possession, but some of the courts go still further and establish tho principle that this absolute title of the mortgagee which vests in him can not be divested even by payment or tender of the money. Dean v. Davis, 12 Mo. 112; Haskins v. Patterson, 1 Edm. Sel. Cas. 122; Langdon v, Buel, 9 Wend. 80; Burdick v. McVanner, 2 Den. 170; Woodworth v. Morris, 56 Barb. 103; Patchin v. Pierce, 12 Wend. 61; Brown v. Bement, 8 Johns. 75; Winchester v. Ball, 54 Me. 558 ; Kannady v. McCarron, 18 Ark. 166; Wood v. Dudley, 8 Vt. 434; Holmes v. Bell, 3 Cush. 322; Heyland v. Badger, 35 Cal. 404; Dungan v. Mut., &c. Co., 38 Md. 242; Peters v. Ballistier, 3 Pick. 495; Homes v.. Crane, 2 Pick. 610 ; Moore v. Murdock, 26 Cal. 514 ; Brack

      ett v. Bullard, 12 Met. 308; Talbot v. Deforest, 3 Ia. 586; Bryant v. Carson, &c., 3 Nev. 313; Hall v. Sampson, 35 N. Y. 274; Flanders v. Barstow, 18 Me. 357; Montgomery v. Kerr, 1 Hill (S. C.) 291; Ferguson v. Clifford, 36 N. H. 86; Jewett v. Preston, 27 Me. 400; Robinson v. Lewis, 2 Jones Eq. 25 ; Kea v. Council, 2 Jones Eq. 345 ; Bragleman v. Dane, 15 Alb. Law J. 289 ; Phillips v. Hawkins, 1 Branch, 262; Lull v. Matthews, 19 Vt. 322; Frische v. Kramer, 16 O. 125 ; Constant v. Matteson, 22 Ill. 546 ; Duppee v. Grinnell, 69 Ill. 371; Pledger v. Mandeville, 1 Brev. 296; Robinson v. Campbell, 8 Mo. 365 ; Thornhill v. Gilmer, 12 Miss. 153 ; Fuller v. Acker, 1 Hill, 475 ; Smith v. Acker, 23 Wend. 667 ; Case v. Boughton, 12 Wend. 62; Gates v. Smith, 2 Minn. 31; Eddy v. Caldwell, 7 Minn. 225 ; Judson v. Easton, 58 N. Y. 664; Parshall v. Eggart, 52 Barb. 367; Wright v. Ross, 36 Cal. 414; Freeman v. Freeman, 2 Green (N. J.) 44; Brown v. Phillips, 3 Bush, 656 ; Johnson v. Houston, 47 Mo. 227; Porter v. Parmly, 43 How. Pr. 445 ; Nichols v. Webster, 1 Chand. (Wis.) 203; Hill v. Robinson, 24 Miss. 368 ; Dane v. Mallory, 16 Barb. 46 ; Bell v. Shrieve, 14 Ill. 462; Mattison v. Bancus, 1 N. Y. 295; Butler v. Miller, 1 N. Y. 496 ; Stewart v. Taylor, 7 How. Pr. 251; Ackley v. Finch, 7 Cow. 290 ; Green v. Dingley, 24 Me. 131; Burton v. Tannehill, 6 Blackf. 470; Boone v. Rains, 7 Mon. 384; Brown v. Lipscomb, 9 Port. 472.
   Okey, J.

The petition does not show that Lindemann filed the deed of assignment in the probate court, pursuant to the acts relating to assignments by debtors to assignees for the benefit of creditors, nor that he acted under the orders of that court in doing the things of which Ingham & Brothers complain ; and hence, the questions sought to be made by the plaintiff in error may not arise on the petition. But these facts are alleged in the sixth defense ; and Ingham & Brothers demurred to -that defense, and the court sustained the demurrer. It seems, therefore, pertinent to inquire whether, if the petition had embraced the additional matter set forth in that defense, it would have contained facts sufficient to constitute a cause of- action. If a petition in tbat form would have been sufficient, it is clear tbat the court properly sustained the demurrer to that defense; but if the facts alleged in the petition and in the sixth defense, when taken together, would constitute no cause of action, the court erred in sustaining the demurrer.

Counsel for defendants in error have, with great industry, collected more than three hundred cases, which are claimed to bear on the question involved in this- case. ¥e deem it unnecessary, in this report, to do more than state the result of our examination of them. We entertain no doubt that the general rules of law with respect to chattel mortgages are as claimed by counsel for defendants in error in their able argument. These rules have been recognized in a number of our cases. Thus, in Robinson v. Fitch, 26 Ohio St. 659, 663, it was said: “A chattel mortgage in the usual form conveys to the mortgagee the property mortgaged, and he thereby becomes the general owner of it, and in the absence of a reservation of the right of possession in the mortgagor, he is entitled to the immediate possession of it. If there is such a reservation in favor of the mortgagor, such reservation only affects the possession according to the terms of the reservation, the title to the property remaining, in the meantime, in the mortgagee, who becomes entitled to the immediate possession on breach of the condition.” Gilmore, J.

But this is not inconsistent with the existence of an equity in the mortgagor, notwithstanding a breach in the condition of the mortgage. This is well illustrated in the instructive case of Carty v. Fenstemaker, 14 Ohio St. 457. It appeared in that case that Oarty caused personal property in possession of Alspach to be seized on an attachment as the goods of Alspach. There was, at the time, a chattel mortgage upon the property in favor of Fenstemaker,. executed by Alspach, and the condition therein was then broken, so that the mortgage had become absolute. Eenstemaker obtained possession of the property from the officer by replevin, and thereupon took from Alspach an assignment of all his interest in the property that might remain after satisfying the mortgage debt. Carty having subsequently obtained judgment against Alspach, in the action wherein, the attachment was issued, brought suit against Fenstemaker to reach that portion of the proceeds of a sale of the property which might remain after satisfying the mortgage debt. The court held, that while the officer was not entitled, under the provisions of the statute relating to attachments, to retain possession of the property as against such mortgagee, yet that, notwithstanding the condition of the mortgage was then broken, a lien was secured by the levy of the attachment, in favor of Carty, upon any balance that might remain after satisfying the mortgage debt; that this lien was superior to the rights of Fenstemaker under his assignment from Alspach subsequently made ; and, further, that the lien thus 'secured by the attachment might be enforced by Carty in an action against Fenstemaker. See, also, Morgan v. Spangler, 20 Ohio St. 38.

Nor is the general rule of law, as to the rights of the mortgagee, inconsistent with, but it is subordinate to, another wrell settled rule which is thus expressed in Smith v. Parsons, 1 Ohio, 233, 242: “ Contracts must be expounded according to the laws in force at the time they were made; and the parties are as much bound by a provision contained in a law, as if that provision had been inserted in, and formed part of, the contract.” Burnet, J. And see Jewett v. Railway, 34 Ohio St. 601, 607; Brine v. Insurance Co., 96 U. S. 627.

If the statute in force at the time of the execution of the mortgage under consideration in Carty v. F&mtemaker, had provided that an officer levying an attachment, as in that case, should sell the property on the attachment, holding possession in the meantime, and after satisfying the mortgage debt out of the proceeds of the sale, apply the balance, so far as needed for the purpose, in satisfaction of the attachment, no serious doubt can be entertained that the act would have been valid. It would have been a perfectly lawful mode of reaching any possible interest the mortgagor might have in the property, without resorting to a suit against the mortgagee.

The mortgage in this case was executed on April 2, 1874, and according to the principle stated, the mortgagees were liable to be affected, as to their remedies on the mortgage, by the provisions of our statutes then in force relating to assignments. This clearly appears from Hanes v. Tiffany, 25 Ohio St. 549. There the affidavit on the mortgage was wholly defective, so that the mortgage was void as against the creditors of the mortgagor. The court held that it was also void as against an assignee for the benefit of creditors. That case was not decided in ignorance of the general rule on the subject. As to the claim that the assignee could stand in no better condition than the assignor, "White, J., distinctly stated that “the correctness of this position at common law is admitted.” And the supreme court of the United States has repeatedly held that the common law rule is applicable under the bankrupt law. Gibson v. Warden, 14 Wall. 244; Stewart v. Platt, 101 U. S. 731. But the decision in Hanes v. Tiffany, approved in Kilbourne v. Fay, 29 Ohio St. 264, 278, is a clear and distinct recognition of the principle that a mortgagee of personal property takes his mortgage subject to the provisions of our assignment laws in force at the time, and that under those laws the assignee stands in a better position than the assignor.

We come now to consider the condition of the law relating to assignments at the time the chattel mortgage in question was executed. The act of 1859, regulating the mode of administering assignments in trust for the benefit of creditors ” (56 Ohio L. 231, 4 Curwen, 3352), was amended in various particulars (57 Ohio L. 39, 117; 58 lb. 3, 105 ; 60 lb. 8 ; 69 lb. 172; 71 lb. 28, 73; 73 lb. 146), re-enacted with its amendments in 1878 (75 Ohio L. 936), and finally incorporated into the Revised Statutes, §§ 6335-6358. As it existed in 1874 (1 Swan & Or. 709, Swan & Sayler, 395), at the time the mortgage in question was executed, it provided a comprehensive, though by no means perfect mode of administering assignments in the probate courts for the benefit of creditors. It extended to assignments of property of every sort, and plainly included the right of a mortgagor of chattels, as well' before as after condition broken. The assignee was required to file the deed of assignment or a copy thereof with the probate judge, and to give bond for the faithful performance of his duty, on which bond any person injured by the misconduct or neglect of duty of the assignee might bring suit, to cause an inventory and appraisement of the property to be made under oath, and returned to the probate court; to file in the probate court, at the same time, a schedule, under oath, setting forth all the debts and liabilities of the assignor within the knowledge of the assignee ; to cause notice to bo given in some newspaper of general circulation in the county of his appointment as assignee., in which notice he shall require creditors to present their claims; and, under the orders of the probate court, to convert all the assets into money, sell the real and personal property, either for cash or upon such other terms as the probate court may order, and make return of such sales to the probate court.

The laws then in force further provided that the creditors should present their drams to the assignee for allowance within six months after publication of notice of his appointment; that the probate court shall order the payment of all incumbrances and liens upon any of the property sold, or rights and credits collected, out of the proceeds thereof, according to priority ;” and that at the expiration of eight months from the appointment, “a dividend shall be declared, payable out of the assets of the assignor applicable to the payment of non-preferred claims.”

These provisions show very clearly that the legislature intended to vest in the probate court full and complete jurisdiction over the whole subject of assignments of this character. True, the court is so organized as to render it impracticable that it should exercise jurisdiction in actions for money against the debtors of the assignor. It is also. true, that where the real estate assigned is incumbered with liens, the assignee may file a petition to sell the same in the court of common pleas. This provision was made because of the complex questions which are sometimes presented in regard to liens on real estate, embracing, as they do, questions as to liens by mortgage and judgment, liens by execution foreign and domestic, vendor's liens, mechanics’ liens, liens of occupying claimants, and others. But even questions of this character may be determined in the probate court.

The express exception that the petition, in the case just mentioned, may be filed in tbe court <of common pleas, affords additional evidence that the legislature intended that in all other respects the jurisdiction of the probate court, in the administration of the trust, should be exclusive, though not final, for there is the right to appeal or prosecute error. TIence, as the equitable interest of the mortgagor passed with possession of the property to the assignee, complete jurisdiction as to that interest was vested in the probate court, when the assignee took the proper steps and obtained the proper orders in that court. The only way in which that court could deal with that interest was to order a sale of the property free of all claims, the interest of the mortgagees being transferred to the fund arising from the sale by the assignee ; and upon full consideration we are satisfied that is the proper construction of the statute, and that an assignee is not placed, by the law in the dangerous position of being compelled to determine, at his peril, whether or not he should obey the order of the court. What the rights of the parties may be where the assignment is made to prevent the mortgagee from taking possession of the property, and for the mere purpose of placing it in the hands of an assignee selected by the mortgagor himself, we need not determine.

It is said, however, that a mortgagee, after condition broken, has no lien upon the property, as he is the owner, and hence that the statutory provision to which reference has been made does not apply. That the mortgagee is the owner in the sense that there is no interest in the mortgagor remaining after condition broken, which the mortgagor, his creditor, or assignee, can assert, is a proposition which finds little support elsewhere, and, as we have seen, none in Ohio. Where the mortgage debt equals the value of the property, the remaining equity of the mortgagor may be of no real value; but where the debt is small and the value of the property great, the interest of the mortgagor may be many times as large as the interest of the mortgagee, though the latter is called the legal title ; and finding that the assignee has authority to sell, in every such _ case,, when authorized by the probate court to do so, even in opposition to the will of the mortgagee, the rights of the latter can only be protected by holding that they are embraced by the phrase in our assignment law, “ incumbrances and liensand such we are clear is the proper construction of the statute.

I am awai’e that it is expressly provided that a purchaser of real estate, under the assignment laws, shall take “ the title free from all liens on the same for all debts due by the assignor.” From the absence of any such provision as to personal property, it is supposed the same rule does not apply in the case of a sale of chattels. But this is clearly an erroneous view. The provision follows that clause of the statute which requires that “ deeds shall be made to the purchasers,” a form which is not required where the assignee sells chattels. It would be unreasonable to say, looking at the various provisions of our statutes on the subject, that the legislature intended that the rule, cmeat emptor, should apply in its largest sense to purchasers at a sale by an assignee, where the property was personal, but that they should take the property, if real estate, discharged of all liens. A fair construction of the statutes require us to say there is not one rule as to lands and another as to chattels; and that in Ohio, under the circumstances here disclosed, “the maxim, cmeat emjptor, does not apply to the case of a sale by assignees for the benefit of creditors ” (Burrill on Assignments, 3d ed. § 416 ; 2 Hovenden on Frauds, 35 ; Adams v. Humes, 9 Watts, 305), whatever the character of the property may be.

Dwyer v. Garlough, 31 Ohio St. 158, is not inconsistent with the conclusion at which we have arrived. There a mortgage of real estate had been executed by husband and wife, but there was no provision in the statute authorizing the wife to be made a party in the probate court in any proceeding on the part of- the assignee to sell the premises. As complete relief could not be granted to the mortgagee in the probate court, it was held that he might bring suit on the mortgage in the court of common pleas, notwithstanding the assignment.

The statute contains no express provision for notice to the mortgagee of the proceedings to sell. Notice in some form was essential. Ray v. Norseworthy, 23 Wall. 128. Whether this requirement is satisfied by the public notice given, we heed not determine. The facts set forth in the statement of tlae case tend to show not only notice to the defendants in error, but consent, on their part that Lindemann should dispose of the property as assignee. The proceedings of the probate court .are not set forth at large in the record. Moreover, the jurisdiction of that court having been properly invoked, its orders, however irregular, cannot be questioned in this collateral way. Shroyer v. Richmond, 16 Ohio St. 455.

Of course, the act regulating assignments does not undertake to invest the assignee with property which did not belong to the assignor; nor is the interest of a mortgagee any less now than it was before the assignment law was passed. But the interest of an insolvent debtor as mortgagor of chattels, in possession, is as .large now as it was before the passage of that act; and it is clear that whatever that interest may be, it passes, as we have said, by the assignment. We place this case distinctly on the ground, that under provisions of our statutes in relation to assignments, in force when the mortgage to Ingham & Brothers was given, and°which statutes remained in force during the pendency of the proceedings in the probate court, Jacobi & Sehoeule, the mortgagors in possession, though the condition of the mortgage was broken, could make an assignment of the chattels mortgaged to an assignee for the benefit of creditors; and that when the assignment was filed in the probate court, and the proper orders were obtained from that court, it was the duty of the'assignee to sell the property, notwithstanding any objections of the mortgagees, their interest therein being transferred to the fund arising from the sale, and the rights of the mortgagees and the creditors must be worked out in the proceeding in the probate court. Whether, in a case like this, where the fund is insufiieent to satisfy the mortgage debt, any of the costs and expenses of administering the'trust can be taken from such fund, and what the rights of the mortgagees may be with respect to the moneys realized from the sale and ordered to be distributed, are- questions which we are not called upon to determine. Nor have we considered what the rights of the parties may be where the mortgagee is in possession at -the time of the assignment.

Judgment reversed.

This case was decided while Gilmore, O. J., was a member of the court.

White, J.

I dissent from the judgment in this case. In my opinion the mortgagees were entitled, on demand, to the possession of the mortgaged property.

The act regulating the mode of administering assignments does not undertake to invest the assignee with property which did not belong to the assignor. The act does not enlarge the power of the assignor over property beyond what it was before the act was passed, but merely prescribes the mode in which the property assigned is to be administered for the benefit of creditors. That the assignee only has the right of possession to the “ property, money, rights or credits belonging to the assignor at the time of the assignment ” is apparent from section 2 of the act. True, it was held in Hanes v. Tiffany, 25 Ohio St. 549, that a mortgage void as to creditors is also void as against the assignee for the benefit of creditors. This was on the ground that as between a mortgagee claiming under a mortgage void as to creditors, and an assignee for the benefit of creditors, the property was to be regarded as belonging to the assignor at the time of the assignment. It is said in that case that the rights of creditors may be as effectually asserted through the assignee as they could be by judgment and execution in case there had been no assignment. Rut it is plain that as against the levy of a creditor, a mortgagee claiming under a valid prior mortgage, is entitled to the possession of the mortgaged property. The effect of the present ruling is, that the assignee for the benefit of creditors acquires greater rights as against the mortgagee than were possessed by the assignor or could be acquired by the creditors. The statute, in my judgment, warrants no such conclusion.

The mortgagee is, of course, liable to account to the assignor for the surplus, if any, after the payment of the debt secured by the mortgage; but that liability does not affect his right to recover the property under his mortgage. This is the rule in assignments in bankruptcy, and, also, where administration is granted1 on tbe estate of tbe mortgagor, and I can see no reason for giving to our assignment act a broader operation.

Tbe assignee stands in no better position, as against tbe mortgagee wbo lias tbe right to tbe possession of the mortgaged property, than be does as against a mortgagee who has possession in fact. Tbe effect of tbe decision, therefore, would seem to be to declare, that an assignee of tbe mortgagor may recover tbe possession of tbe mortgaged property from a mortgagee in possession, without tbe payment of tbe debt tbe mortgage was given to secure.

Tbe foregoing being, in my opinion, the only material ques-> tion, I express no opinion upon other matters discussed.


text:
    Collier v. Grimesey et al.
    A testator by his will gave to his widow the use of certain real estate during widowhood, and provided, that when- she ceased to be his widow “ the profits and benefits ” of the land should be equally divided between his children and a grandson. He then directed that when hi& son Samuel should arrive at the age of twenty-one years, the land should be sold, provided his wife’s widowhood should have ceased before that time, and directed the proceeds of the sale to be divided, to two of his sons and his grandson two shares each, and to the rest of his children one share each. He appointed executors “to act and see the accomplishment of ” his will, according to its true intent and mean-' ing. Held :

    1. That by the terms “profits and benefits” the testator did not intend to devise the fee.
    2. That the direction to sell the land was not contingent upon the termination of the estate of the widow before Samuel became of age; but that the direction to sell was imperative, and that the time of t-he sale was to be after Samuel became of age, and after the widow’s estate ceased.
    8. That under the direction to sell, the land is to be regarded, for the purposes of distribution, as converted into money; and that the children and grandchildren took, at the death of the testator, a vested interest in the proceeds of the sale.
    4. The duty of making the sale and dividing the proceeds is imposed by the will on the executors, and as one of them declined to qualify; the-duty of executing tlie trust devolved, under the statute, upon the other.
    5. The grandson having died, his personal representative, in an action to enforce the trust, ought to be made a party.
    Appeal, reserved in the District Court of Columbiana county.
    The plaintiff, ‘Maria Collier, is the half sister, on the part of her mother, of Oris M. Painter, deceased, and as such is the solo distributee of his personal estate. The.object of the petition is to enforce a trust alleged to arise under the fourth item of the will of Samuel Painter, deceased.
    The following is a copy of the will:
    “Whereas, I, Samnel Painter, of Perry township, in the County of Columbiana, and State of Ohio, being of a sound and disposing mind and memory, do make this my will, hearty] revoking all other will or wills heartrfore by mo made, this onely to be and remain my last will and testimoney in manner, as follows: ,
    “ 1st. I direct my funeral expenses <mcl and all my just depts to be paid.
    “2d. I bequeath to my two sons and grandson, nameley, Seth Painter, Samuel Painter, and Oris M. Painter, a certain tract of land, being and lying in Vanwart County, in the State of Ohio, containing three hundred and thirty two acres and seventy six hundredths, wieh land I hold by patent from under the hand of Martin Yan Burén, president of the United States, dated twenty-first day of August, eighteen hundred and thirty seven, to them and their hairs, for ever to be equeley divided between them, one hundred and eleven acres each.
    “ 3d. T bequeath to my three daughters, namZey, Louise Thomson, wife of John Thomson, Lucinda Grimesey, wife of John Grimesey, and Lydia Ann Painter, a certain, tract of land lying in Goshen township, Mahovng County, State of Ohio, containing thirty-two acres, to be equeley derided between them according to value.
    “ 4tb. I will and bequeath to my wife Mary, the hold and ■soald use of all my reail estate not hea/rtofore hequeth, so long as she remains my widow, and at tlie time she sesetk to be my widclow, the joroffets and benefits of the above said read estate shall be equeley devided between my six Children and my grandson Oris Painter, share and share alike.

      “ I direct that when my son Samuel Painter shall arive at the age of twenty-one years, that the above mention real estate shall be soald, (provided that my wife’s widd,ow-hood shall have seeth before that time,) and to be decided between them as follows: Seth, Samuel and Oris two shares each, and the, rest of my children one share each.

      “ And lastley, I constitute, nom,amate, and apoint my son Seth Painter, and my son-in-law John Grimesey, my executors, to act and see the accomplishment of this, my last will and testimony, aeordmg to the true jmtent and onenmg thereof. In witness thcvreof.\ I Tiearunto set my hand and seail this thirty-first day of August, in tlie year one thousand eight hundred and fov/rty eight.”
    The testator at the date of his will was in the 60th year of his age, and he died July 29, 1851. His will was duly admitted to probate in the same .year, and letters testamentary were granted to John Grimesey — the other executor named, Seth Painter, declining to accept the trust. The widow elected to take under the will. At the date of the will she was fifty-five years of age; and the testator’s son, Samuel, was, at that time, in the 9th year of his age.
    . The widow’s estate determined on May 18, 1874, by her death. The testator left six children surviving him, and liis grandson, Oris M. Painter, who was a son of a deceased son of the testator. Oris died September 17, 1864, intestate, and without issue, leaving the plaintiff his half-sister, as before stated.
    The petition states that all of the legatees named in the fourth item of the will, except Oris, “ conveyed away their interests in said premises, under said will, by deeds in fee, and that the defendant, John Pow, holds said interests, and is now in the possession of the same.”
    The petition also avers, “ that said real estate was devised to be sold by said will, and the proceeds to be divided among the legatees, and thereby became personal property, and that; on the death of said Oris M. Painter, all his pérsonal estate descended to plaiíitiff as his sister of the half blood, including; his interest of one-fifth in the real estate aforesaid, and that she, the plaintiff, is the owner of all said Oris M. Painter’s interest in said lands.”
    ■ The plaintiff prays, in substance, for the sale of the premises by the executor, and for general relief.
    ■ John Grimesey, the acting executor, and John Pow, are; made defendants.
    In the court of common pleas the case was heard on petition, answer and reply, and a decree was rendered for the plaintiff.
    On appeal, the defendants on leave withdrew their answer, and each filed a demurrer to #the petition on the ground that there was a defect of parties, and also on the ground that the facts stated did not constitute a cause of action.
    On the motion of the defendants the cause was reserved for. decision by this court.

      Clarke d> Me Vieher, for plaintiff:
    By the words “profits and benefits,” the testator did not create or give a fee. 3 Washb. on Real Prop. 450, 3 ed.; Reed, v. Reed, 9 Mass. 372; Blanchard v. Brooks, 12 Pick. 63; Earle v. Grim, 1 Johns. Ch. 499 ; 6 Johns. Ch. 70.
    Land directed' in wills or other instruments to be sold and converted into money, and money directed to be invested or employed in the purchase of land, are considered as that species of property into which they are directed to be converted. 2 Story Eq. §§ 790, 791; 792, 2 ed.; Craig v. Leslie, 3 Wheat. 563; 1 Vesey Jr. 320; Ferguson v. Stewart’s Executors, 14 Ohio, 140; Collier v. Collier’s Executors, 3 Ohio St. 369 ; Richey v.Jolvnson, 30 Ohio St. 293; 2 Ves. Jr. 271; 4 Johns. Ch 136.
    There is an imperative trust in this case. Adams Eq. 121, 285-298; Paul v. Compton, 8 Ves. Jr. 378; 2 Ves. Jr. 335; 1-Yes. Jr. 475 ; Hill on Trustees, 72.

      Kennett <& Ambler, -for defendants: ■
    ■.While we admit the general doctrine of equitable conversion of land into monéy, where there is an imperative trust to’ sell, &c., we deny that there is in this case an imperative trust. ' 1 Sugden on Powers, 3 Am. ed. 199.
    The use of the words “profits and benefits” created a fee. 2 Redf. on Wills, 711; 4 Kent, 536,4 ed.; 9 Mass. 374; Blackburn v. Brooks, 12 Pick. 47; Pattersons Ellis, 11 Wend. 298; 2 Washb. on Real Prop. 752.
    The court must do more than find that the language used by the testator is capable of two different readings, one of which will warrant the belief that he intended this land to be converted into money if Samuel arrived at 21 before the widow’s estate terminated, and the other of which will not. In 1864, when Orris M. Painter died, this was land, as a matter of fact,' and its actual condition cannot be changed in equity by any inference, argument, or doubtful language; but if it is to be changed, it must be done by something equally as certain as its then condition. 1 Story Éq. § 64; 17 Ohio St. 20; 2 Story Éq. § 1214; Tiffany & Bullard on Trusts, &c. 77.
    As to construction of wills, see Jarman’s 12th Rule; 13 Ohio St. Ill; 25 Ohio St. 477.
   White, J.

The main controversy depends upon the ’ construction of the fourth item of the will. The question is whether the sale of the lands therein provided for, is directed to be made on the arrival of Samuel at the age of twenty-one years, and after the termination of the estate of the widow; or, whether the direction to sell is made contingent on the ividow’s estate terminating before Samuel’s arriving at age. The claim of the defendants is that the power of sale is thus contingent ; and, hence, that as Samuel became of age before the determination of the estate of the widow, the provision directing a sale and the division of the proceeds ceased, on his arriving at age, to be operative. They further claim that on the determination of the estate of the widow, the fee of the land passed to the children and grandson of the testator, under the devise of the “profits and benefits” of the real estate. We do not question that a devise of the rents and profits, or of the “ profits and benefits ” of lands, without qualification or limit* ation, will impliedly carry the fee. But iu order to determine whether there is such qualification or limitation, we must look into the whole will, with the view of ascertaining the sense in which the terms -were used by the testator; and when such sense is ascertained to give it the effect intended. Such terms cannot bo held to carry the fee when it appears from other parts of the will that the fee is otherwise disposed of.

Whether the fee is otherwise disposed of, in the present case, depends upon the clause in item four, already .referred to, directing the land to be sold.

The clause not only directs a sale, but it makes a disposition of the proceeds of the sale. It provides that the proceeds of the sale shall be divided between the children and the grandchild as follows: To Seth, Samuel, and Oris, two shares each, and to the rest of the children one share each. According to the claim of the defendants, the bequests of two shares each to Seth, Samuel, and Oris are made contingent upon the estate of the widow terminating before Samuel became of age. If her estate ceased a day before he became of age, the land was to be sold, and Seth, Samuel, and Oris were each to have two shares of the proceeds. But if the widow’s estate should cease a day after Samuel became of age, there was to be no sale, and these bequests were not to take effect.

That such was not the intention of the testator seems to us to be clear. The object of the testator in postponing the sale until his wdfe’s widowhood should cease, was, it seems to us, to preserve to her, during her widowhood, the use of the land; and that the following is the true reading of the clause: UI direct that when my son Samuel Painter shall arrive at the age of twenty-one years, that the above-mentioned real estate shall bo sold, provided that my wife’s widowhood shall have ceased before that time,” that is, before the making of such sale.

The provision in the preceding clause, directing the profits and benefits ” of the land to be divided equally between his children and grandson, is not without effect upon. the construction we give to the subsequent clause. That provision was intended to dispose of the use or annual rents and profits of the land for the period that might intervene between the termination of the widow’s estate and the sale, whether’ her estate ceased before or after Samuel became of age.

The direction to sell the land is imperative, and, it seems to us, the duty of making the sale is imposed on the executors. There is no discretion vested in them whether the lands shall be sold or not. The direction is that the real estate shall be sold, and the proceeds of the sale divided among the persons designated.

The bequest is of money, the proceeds of the sale of the land, and not of the land. The beneficiaries under the will take the property with the character impressed upon it by the testator. In the present case they take it as money, and in the character of pecuniary legatees; and the fact that Oris died be-, fore the time arrived for making the sale did not change the nature of the bequest. Ilis interest became vested at the taking effect of the will, and, on his death, his right passed to his |>ersonal representatives. Reading v. Blackwell, Baldw. C. Ct. 166 ; Rinehart v. Harrison's Ex’rs, Id. 177.

That the testator intended that the sale of the land and division'of the proceeds should be made by-the executors, is shown, we think, by the language used in the last clause of the will. lie appoints his son, Seth Painter, and his son-in-law, John Orimesey, his executors, and directs them to act and see the accomplishment of this my last will and testament, according to the true intent and meaning thereof.” It seems to us the testator could not have intended to devolve the making- of the sale and distribution of the proceeds upon his heirs; but that he regarded this as a matter to be accomplished by his executors. , •

As one of • the executors refused to act, the duty of executing the trust devolved, under the statute, upon the other executor. S, & C. Stat. 1629, §■ 65.

The remaining question is, whether there is a defect of' parties. As the interest vested in Oris is to be regarded as per-, sonal' estate, his personal representative ought to, be made a party. He died intestate; hence, if there has not been, there, ought to be an administrator appointed of his estate, so that, to the extent that may be necessary, the money belonging, to.. his estate may be applied to the purposes of administration.

■ The interests acquired under the will by the other legatees having been, by them, vested in John Pow, he is the proper party to represent such interests.

If the property in question could be considered as land devised to Oris, it would have descended from him as ancestral property to those who were of the blood of the testator from, whom the estate came. But as it must be regarded as of the personal estate of Oris, while the heirs may have been proper, we are not prepared to say that they are necessary parties.

■ The demurrer on the ground that the petition does not show a cause of action is overruled ; and as to the ground of there being a defect of parties it is sustained.