author: Minshall, J.

text:
    Baker v. Rice.

      Easement — Implied grant.

    Where one who is the owner of a body of land, during his occupancy of it, constructs a private way over one part of it to another as a means of egress and ingress to the latter from his home and also to the public highway, which way is apparent, continually used, and reasonably necessary to the use and enjoyment of the land to which the way is constructed, and, also, adds materially to its value, conveys by deeds of the same date, the part with the way to it to one of his children and the part with the way over it to another one of them each takes his part to be enjoyed with reference to the way as the same existed at the time of the division — the one with an implied grant of the way to it, and the other subject to such way as an easement therein.
    (Decided June 8, 1897.)
    On Error to the Circuit Court of Knox county.
    In this case the action below was commenced by the plaintiff, Druzilla Rice, against the defendant, Phillip Baker, to enjoin the latter from obstructing a private way she claimed over his premises to the public highway as incident to her own land. The defendant denied the right of the plaintiff. A temporary injunction was obtained at the commencement of the action, which, at the hearing on the merits, was made perpetual. The cause was appealed to the circuit court, where it was tried with the same result as in the common pleas. On the trial the court made a finding of the facts and its conclusions of law thereon. The findings and conclusions of law are as follows:

      First — That on the first day of April, 1867, Oliver Baker, father of the plaintiff and defendant, purchased of one Jacob Young, the one hundred and twenty acres of land described in plaintiff’s petition, and also a certain twenty acre tract, designated on the plat hereinafter mentioned as the M. Strang tract; that at the time of said purchase, said Oliver Baker, owned and was in ppssesson of a tract of land containing about one hundred and nineteen acres, lying immediately west of said one hundred and twenty acre tract, and also owned a tract of land containing about two hundi-ed and ten acres, lying immediately north of said one hundred and nineteen acre tract; that at the time said Oliver Baker purchased said one hundred and twenty acre tract from said Young, he, said Oliver Baker, resided and continued to reside on the said two hundred and ten acre tract until the eighth day of September, 1888, hereinafter mentioned.
    The following is a plat showing the relative locations of the three several tracts. The one hundred and twenty acre tract or plaintiff’s tract, is shown on the plat by the letter “A.” The one hundred and nineteen acre or defendant’s tract, is shown on the plat by the letter “B. ” The two hundred and ten acre tract, by the letter “C. ”

      Second — That immediately after said Oliver Baker purchased said one hundred and twenty acre tract and the said twenty acre tract from said Young, to-wit: During said year of 1867, he, said Oliver Baker, made and constructed a private road or way from where he resided in said two hundred and ten acre tract, in an easterly and south-easterly direction over a portion of said last named tract, and over the said one hundred and

      nineteen acre tract to the west line o± the said one hundred and twenty acre tract; that said way. was enclosed with a gate on the west side of said one hundred and nineteen acre tract; that shortly thereafter and prior to the said 8th day of September, 1888, said Oliver Baker, extended said private way westward to a public highway, known as the Oliver Baker road, which runs in a northerly and southerly direction through said two hundred and ten acre tract, a short distance west of said Oliver Baker's dwelling; that said private way
      from the time so constructed, and up to the said 8th day of September, 1888, was used by Oliver Baker in passing to and from said one hundred and twenty acre tract, by foot or team, and generally in all such 'manner as ways are used, and that said way is plainly obvious and apparent, and is reasonably necessary for the use and enjoyment of plaintiff’s lands and adds materially to the value thereof.

      Third — That at the time said Oliver Baker purchased said one hundréd and twenty acre tract and the said twenty, acre tract from said Young, he, said Young, used as a means of egress and ingress from and to said one hundred and twenty acre tract, a certain lane known as the “Strang Lane,” which leads from the south-east corner of said one hundred and twenty acre tract, eastward to a public highway known as the “Snyder Road,” and that said lane was the only means of outlet said Young had to a public highway from said one hundred and twenty acre tract; that from the time said Oliver Baker purchased said tract from said Young and up to the time he conveyed the same to the plaintiff as hereinafter mentioned, to-wit: Up to the eighth day of September, 1888, the said “Strang- Lane,” was available to said Oliver Baker, and he did use the same as an outlet to the said public highway from said one hundred and twenty acre tract, without objection from the owner of the soil over which the said lane passed; and that plaintiff from the time said tract was so conveyed to her as aforesaid, has had, and still has the use of said “Strang Lane” as a means of an outlet to the said public highway, if she chooses to so use the same, without objection from the owner of the soil over which said lane passes, and that said lane is reasonably convenient for travel' whether by foot or team, and generally in such manner as ways are used.

      Fourth — That on or about the first day of September, 1888, said Oliver Baker had three children, to-wit: The plaintiff, defendant and Nancy Baker, for whom he desired to make provision by conveying said two hundred and ten acre tract, the one hundred and nineteen acre tract, the one hundred and twenty acre tract and the twenty acre tract; that on the first day of September, 1888, the said three children met at the house of the said Oliver Baker, and it was then agreed that said Oliver Baker should convey his homestead, the said two hundred and ten acre tract, to the defendant, Phillip Baker, and that said Phillip Baker should convey back to said Oliver Baker a life estate in the same; that said Oliver Baker should convey to said Nancy Baker, the said one hundred and nineteen acre tract, and also convey the one hundred and twenty acre tract and said other twenty acre tract to plaintiff; and that the said Nancy .Baker should convey to the said Phillip Baker, the said one hundred and nineteen acre bract, for the sum of $3,000, to be paid by said Phillip Baker to her; that pursuant to the agreement, thereafter to-wit: On the eighth day of September, 1888, the said Oliver Baker executed his deed for said two hundred and ten acre tract bo the defendant, Phillip Baker, with general covenants and warranty and against encumbrances, and he, said Phillip Baker, executed his deed to said Oliver Baker for a life estate in said last named tract; that at the same time said Oliver Baker executed his general warranty deed with covenants against encumbrances to the said Nancy Baker for the said one hundred and nineteen acre tract, and at the same time she, said Nancy Baker, executed her deed with covenants of general warranty and against encumbrances to the said Phillip Baker for said tract; and- he thereupon executed a mortgage deed back to said Nancy Baker, upon said premises, to secure the payment of the said sum of $3,000; that the said Oliver Baker, also executed his deed for said one hundred and twenty acre tract and the said twenty acre tract to the plaintiff, Druzilla Rice.
    No mention was made in any of the deeds of the way in controversy; but the granting clause of Oliver Baber’s deed to plaintiff contains, after the description, the usual words, “with all the privileges and appurtenances thereto belonging;” that all the parties had full knowledge of the construction and use of said way by said Oliver Baker.

      Fifth — That the defendant, to-wit: On the 22nd day of August, 1894, obstructed said way in controversy by locking and securely fastening a gate which stands across said wajr, at the west side of said one hundred and nineteen acre tract as aforesaid, and that defendant still continues said obstruction.
    As its conclusions of law the court finds as follows:
    1st. That the way in controversy is nofc a way of necessity.
    2d. That said way is and was at the time of the execution of the deed to plaintiff by Oliver Baker of a continuous character and an appurtenant belonging to the lands of plaintiff; and as such passed by the general words of said deed granting all privileges and appurtenances thereto belonging; and that plaintiff is, by virtue of said deed, the owner of said right-of-way, and is entitled to the use of the same.
    3d. That said Nancy Baker took said one hundred and nineteen acre tract subject to plaintiff’s right of way over the same.
    4th. And for a like reason said Phillip Baker took said two hundred and ten acre tract subject to the right of the plaintiff to said way over the same; and for like reason, said Phillip Baker, took said one hundred and nineteen acre tract, subject to plaintiff’s said right-of-way over the same.
    5th. That defendant’s obstruction is wrongful and unlawful.
    Error is prosecuted here to reverse the judgment on the ground that the court erred in its conclusions of law.

      G. E. Oritchfleld and Critchfield & Graham, for plaintiff in error.
    Strictly speaking, a wajr, even of necessity, does ■not pass as an appurtenance to the dominant estate. It is in such eases, an implied grant of the right of the grantee to pass over the land of the grantor and nob a grant of any particular way, and this right ceases as soon as the necessity ceases. Nichols v. luce, 24 Pick, 102; Ins. Go. v. Wiliscn, 1 Barb. Ch., 353; Bass v. Edwards, 126 Mass., 445.
    A man cannot have an easement in his ownlands. There must be two estates, in regard to which it is predicated, and if the same persons own both, the easement is extinguished. Wash, on Real Prop., Fifth Ed., vol. 2, p. 314.
    There are, however, what are called quasi easements, “as when the owner of land has constructed a way or drain over a portion of it for the benefit of another portion and there has never been a separate ownership of a dominant and servient estate.” Parsons v Johnson, 68 N. Y.,66 ; Gale on Easements, 4th ed., 22; Washburn on Easements, 4th ed., 166; Fetters v. Humphreys, 19 N. J. Eq., 471; Fritz v. Tompkins, Supreme Court of New* York at Special Term, November 24, 1896, and reported in the New York Supplement of the National Reporter System, page 985; Francis Appeal, 96 Pa. St., 207; Pearson v. Spencer; 1st. B. & S., 582.
    A way of necessity is held to pass by implication, for the reason that the parties are presumed to have intended that the grantee should have possession and use of the thing conveyed so far as necessary to the enjoyment of what was conveyed, although not expressly named in the deed. Goddard on Easements, Fourth Ed., 317.
    Does a like presumption arise in respect to a way not of necessity, if forsooth it has long been used, is obvious and apparent and convenient as a means of access to the premises granted ? Pyer v. Harter, 1 Hurl. & N., 91 Q-,La,mpham v. Miller, 21 N. Y., 505.
    While the decision as applied to the facts in Pyer v. Harter, has been approved by some courts, the general rule there laid down, is denied both in England and in this, county. It was expressly overruled in White v. Pass, 7 Hurlst & N., 722; and denied in Suffielcl v. Brown, 4 De., G. J. & S., 185.' And this' is now the settled law in England. Grossly v. Lighteloxoler, L. R. 2 Ch., 478; Pearsonv. Spencer 3 Best. & S., 761; Warren v. Blake, 54 Me., 287; Buss v. Dyer, 125 Mass., 291; Adams v. Marshall, 138 Mass., 228.
    The general rule announced in the case of Lamp-ham v. Milks (21 N. Y., 505), was limited to the cases of continuous easement and such non-continuous easements as are strictly necessary. Dodcl v. Bur chill, 1 H. & C., 113; Bolton v. Bolton, 11 Ch. Div., 96; Walley v. Thompson, 1 Bos. & P., 371; Barlow v. Rhodes, Crompt. & M., 447; Worthington v. Gimpson, 29 C. J. Q., 116; Sheyseyv. Nicery, 16 M. & W., 484; Thompson v. Waterlozo, Law. Rep., 6 Eq. Cas. 36, and Langley v.'LLammon, Law Rep., 3'Exeh., 161.
    The American cases are quite as uniform and pronounced against the doctrine of implied grants of ways, other than ways of necessity, Washburn in his work on Real Property, vol. 2, 319, Nichols v. Luce, 24 Pick., 102; Carbrey v. Willis, 7 Allen 370; Ins. Co. v. Milnor, 1 Barb. Ch., 353.
    In the present case the court found as conclusions of law that the defendant in error is, by virtue of the deed of Oliver Baker, the ozoner of the way in controversy. HziMemeier v. Albro, 18 N. Y., 49; Schryrner v. Phelps, 62 How. Pr., 1; Serene v. Gregory, 8 Rich., 158; Trumbull v. Rivers, 3 McCord, 131; Warren v. Blake 54, Me., 276; Woosenv. Daniel, 116 Mo., 379; Field v. Mark, 125 Mo., 502; Wentzoorth v. Phillpot, 60 N. H., 193; 69 Me., 323; Dolliff v. N N. Co., 68 Me., 173;Kingsley v. Goz,tldborough, 86Me.,279; Bzirns v. Gallagher, 62Md.,462.
    The only ease in Ohio directly bearing upon the questions is Bailey v. Copeland, Wright’s Rep. 150. It was there held that in prescribing for a way of necessity, the case must show that the necessity for it exists; that such way does not result from necessity when the grantee has means of access to the premises granted other than by the way claimed.

      Critchfleld cl Devin, for defendant in error.
    Perhaps no subject known to the law has been productive of so much litigation and so many conflicting decision^ both in the United States and England as that of easements, but the claims of defendant in error clearly seems to be sustained by the great weight of both American and English authorities. Morgan y. Mason, 20 Ohio, 401; Ilazzard y. Robinson, 3 Mason, 279; Elliott y. Sallee, 14 Ohio St., 10; Meek y. Breekenridge, 29 Ohio St., 642; Shields y. Titus, 46 Ohio St., 528; National Exchange .Bank y. Cunningham, 46 Ohio St., 575.
    In none of the foregoing cases do the court limit the application of the doctrine to “continuous” easements as defined by counsel for plaintiff in error, or in the cases by them cited in support of their claims. In all of those cases continuous easements are said to be those which exist independently of any act of man, such as flowing water, the right to light, air, etc.; while those same authorities class all easements the enjoyment of which necessitates the act of man, as “non-continuous. ”
    In view of the foregoing from our own state it seems unnecessary to multiply authorities, but the following- also bear so directly upon the question that we feel justified in bringing them to the intention of the court. John Hancock Mutual Life Ins. Co. y. Patterson, 103 Ind., 582; Morrison y. King, 62 111., 31; Cihak y. IClehr, 117 111., 643; Kieffer v. Imhoff, 26 Penn. St., 438; Phillips y. Phillips, 48 Penn. St., 178; Penn. R. R. Co. y. Jones, 50 Penn. St., 417; McCarthy y. Kitchenman, 47 Penn. St., 239; Cannon v„ Boyd, 73 Penn. St., 179; Pnited States y. Appelton et al., 1 Sumner, 492; Jones y. Jenkins, 34 Md., 1; Payne y. Chandler, 134 N. Y., 385; Leonard y. Leonard, 7 Allen, 277; DonkleSY. Wilton Ry. Co., 24 N. H., 481; Tiedman on Real Property, section 842; Boone’s Real Property, section 140 et seq.; Washburn’s Real Property, 5 Eel. vol. 2, sections 10, 16; Washburn’s Real Property, 4 Ed. top pages 64 and 65, 70 and 71, 692, 297 and 698; Bowlancl v. St. John’s Schools, 163 Mass., 236; Cave v. Crofts, 53 Cal., 135; Washburn’s Real Property, page 317, section 9, vol. 2. Washburn on Easements, 4th Ed„, t. p. 692; Ballards’s Ohio Real Property, section 356; Boone’s Real Property, section 136 and 306, and many cases there cited. See also Washburn’s Real Property, 5th Ed., vol. 3, page 419; Wash-burn’s Easements, 4th Ed., t. p. 697. '■
    The cases most relied upon by counsel for plaintiff in error are those in which it was sought by the grantor to reserve an easement in his favor by implication. Comparatively few of these eases go to the point of holding that an easement for the benefit of the granted premises cannot be the subject of an implied grant. Most of that class of cases cited by opposite counsel make a distinction between an implied g’rant for the benefit of the g’rantee and an implied reservation imposing a servitude upon the granted premises in favor of the grantor. Wash-burn on Easements, 4th Ed., page 110; Payne v. Chandler, 134 N. Y., 385. ,
   Minshall, J.

Did the court err in its conclusion of law that the way over the defendant’s land passed as an incident to the lands of the plaintiff b3r the deed of her father? We think it did not.

It is true that at the same time the father conveyed to the plaintiff, he, through his daughter Nancy, conveyed to the defendant the land now owned by him; and if we were to consider this conveyance alone, the way in question would appear as a reservation by the father of a way over the granted lands in opposition to the covenants of his deed. Whether such a reservation could be. made bjr implication in derogation of the grant and the covenants of the deed need not be considered in this case. Both the plaintiff and the defendants must, from the facts found, be regarded as grantees of the father by deeds taking effect at one and the same time. And, therefore, neither has as against the other any superior right by reason of priority of purchase; and both were volunteers. Oliver Baker was the owner of both tracts and of two 'hundred and ten acres where he resided at the time of the conveyances. All the lands lay in a body, and had been acquired by him at different times during his life. He purchased the lands deeded the plaintiff in 1867; and, in- that .year, constructed the way in question from the lands then purchased over the one hundred and nineteen acre tract, to his residence on the two hundred and ten acre tract and shortly afterwards to the public highway. And the court finds, that from that time to 1888, when the division was made, Oliver Baker used the way in passing to and from the lands purchased in 1867, for all the purposes ways are generally used, and that the “way is plainly obvious and apparent, and is reasonably necessary for the use and enjoyment of plaintiff’s land and adds materially to the value thereof.” In 1888, desiring to divide his heritage between his three children,'he conveyed the one hundred and twenty acre tract acquired in 1867, to the plaintiff, the one hundred and nineteen acre tract to his son, the defendant, subject to the payment of $3,000 to his daughter, Nancy, and also the home tract of two hundred and ten acres, reserving a life estate therein to himself. The way in question was then in use over and upon the one hundred and nineteen acre tract given the defendant, and materially added to the value of the land given the plaintiff.

We think the law well settled in this state, whatever the decisions may be in some of the others, and they are far from being in harmony, that where an estate is divided as was this one, each takes his part subject to or benefitted by such burthens as were openly and plainly attached to or imposed on it by the common owner in his use and enjoyment of the land at the time of the severance, and which on a severance would properly be termed easements or servitudes. Ignoring for the time the distinction between “continuing” and “discontinuing” easements, observed in some of the cases, the case of Elliott v. Sallee is directly in point. Edward Thompson was the owner of three mills on White Oak creek in Brown county. The lower mill was in part supplied with water by a tunnel constructed across the neck of a bend in the creek, so as to take the water from the creek above the dam of the middle mill, and was thereby, to that extent, servient to the lower mill. By deeds executed at the same time he divided these mills between his three sons, so as to give one of them to each. The plaintiff by purchase became the owner of the middle mill, and brought suit against the defendant, who had purchased the lower mill to recover for the diversion of the water from his mill by the tunnel. The court said: “On this state of facts it seems clear to us on every principle of reason and common sense that he (Edward Thompson) must have intended to grant to his sons respectively, and they must have expected to receive, each his mill with its appurtenances as it actually existed in fact and in use at the time of the conveyances — no more and no less; and this obvious intention on the part of the grantor, and reasonable expectation on the part of the grantees, furnish the exact measure of the rights of the grantees inter se, and of all parties holding under them respectively.” The court referred to and approved Morgan v. Mason, 20 Ohio R., 401. See, also, the case of Meek v. Breckenridge, 29 Ohio St., 642, where it is said, “A grant of a thing will include whatever the grantor has power to convey which is reasonably necessary to the thing’ granted;” or, as said by Justice Story in Hazard v. Robinson, 3 Mason, 279, ‘ ‘Whatever is actually enjoyed with the thing granted as a beneficial privilege at the time of the grant passes as parcel of it.” See also, the later ease of Shields v. Titus, 46 Ohio St., 528; and Bank v. Cunningham, Id. 575. In the latter case it is said, in the syllabus, “When the owner of an estate makes one part of it visibly dependent for the means of access upon another and creates a way for its benefit over another, and then grants the dependent part, the other part becomes subservient thereto, and the way constitutes an easement appurtenant to the estate granted .and passes to the grantee as accessorial to the beneficial use and enjoyment of the granted premises.” This case is supported in the latitude of its expression by many cases in other states. Mutual Life Ins. Co. v. Patterson, 103 Ind., 582; Morrison v. King, 62 Ills., 30; Cihak v. Klekr, 117 Ills., 643; Kieffer v. Imhoff, 26 Penna. St., 438; Phillips v. Phillips, 48 Id., 178; Railway Co. v. Jones, 50 Id., 417; McCarty v. Kitchenman, 47 Id., 239; Cannon v. Boyd, 73 Id., 179; U. S. v. Appleton, 1 Sum., 492; Paine v. Chandler, 134 N. Y., 385; Collins v. Prentice, 15 Conn., 39-43.

But it is claimed that only such easements as are termed “continuous” will pass by implication in a grant, and that such as are termed “discontinuous” will not. This is a distinction of the civil law, and has been incorporated in the law of some of the states, particlarly Maine and Massachusetts. The former are such as operate without the intervention of man, such as drains and sewers; the latter require the intervention of man in their use, such as ways. The distinction is. somewhat arbitrary and is not uniformly adopted, as will appear from the eases cited. The better rule, and the one now more generally adopted, is, not to consider the particular kind of easement, but whether it is apparent, designed to be permanent, and is reasonably necessary to the use of the premises granted. See the eases of Kieffer v. Imhoff, Phillips v. Phillips, Cannon v. Boyd, U. S. v. Appleton, Paine v. Chandler, Mutual Life Ins. Co. v. Patterson, supra. In Phillips v. Phillips, it is said “It may be granted that the continuance of drains, water pipes and mill-races may more distinctly indicate their permanent and essential nature than a private way.' but when the permanency of the way is proved, confessed, or not disputed, the difference vanishes; they stand upon the same footing.” In Paine v. Chandler, the court, after laying down the general rule, said; “The learned counsel for the appellant does not attack the principle, but his contention is, that the easement involved in this controversy is of the class known as ‘discontinuous’ and such an easement passes by implication only when absolutely necessary to the enjoyment of the property conveyed. To use his own language, ‘the rule contended for has been confined to cases where the easement was something without the use of which the premises would be practically worthless.’ The rule is not confined in its applications to continuous easements, but applies to those artificial arrangements which openly exist and affect materially the value of the respective parts at the time of the sale.”

The case of Prarieis’s Appeal, 96 Penn. St., 200, to which our attention has been called, has been carefully examined, but we do not think that it in any way affects or modifies the previous decisions of that court. Prom the finding- made by the master as to the nature and character of the uses there claimed as easements, on a severance of the properties, he could not well have held otherwise than, he did.

Much importance is attached to the conclusion of law drawn by the court from the finding of facts, that the way in question is not a way of necessity. There is some room for doubt as to whether this conclusion from the facts found, was well drawn. But • conceding that it is, still the authorities cited show, that in the case of a grant, this is not material where the way in question is reasonably necessary to the enjoyment of the land granted, and materially adds to its value. Phillips v. Phillips, 48 Penn. St., 178,

Judgment affirmed.


source: Caselaw Access Project

author: Minsi-iall, J.

license: Public Domain

text:
    Meredith v. Frank et al.

      Easement — Implied reservation.

    1. Where an owner of a tract of land has made and maintained a private way over his land to a public highway, and such way is his only means of ingress and egress to his home, sells, and conveys to another a portion of it, lying on the public highway, and is thereby deprived of all access to the highway, except by the way he had previously constructed and maintained, and which passes through the granted part, and the facts were well understood by both parties at the time in such case, the way is reserved to the lands of the grantor by implication, although'thé deed contains a covenant against incumbrances.
    2. It is a general rule that one cannot derogate from his grant; ■ so that to warrant the inference of a way reserved by implication, it must be one of strict necessity to the remaining lands of the grantor ; it is not merely a matter of convenience and if the grantor has another mode of access to his land, however inconvenient, he cannot claim a way by implication in the lands conveyed, though he may have been in the use of a way over it to a public highway at and a long time before the conveyance, and of which the grantee had notice at the time.
    (Decided June 8, 1897.)
    Error to the Circuit Court of Licking county.
    This was a suit commenced in the court of common pleas bv the plaintiff against the defendant, William Meredith, to enjoin him from closing a 'wav the plaintiffs claimed over his lands. The right was denied by the defendant. Having been tried and determined in the common pleas, the cause was appealed to the circuit court. On the trial this court made a separate finding of the facts and its conclusions of law thereon, and rendered a judgment in favor of the plaintiffs, enjoining the defendant as prayed for.
    The finding of facts and conclusions of law are as follows:

      First — That Samuel Meredith, the common source of title, owned a tract of land consisting of about 300 acres in Licking county, Ohio, the north end of which abutted upon the National road, and no part of the same abutted upon any other highway. The following is a plat of the premises:

      Second — He bought this land in parcels at different times, but the boundaries of the parcels so bought, are not identical with the boundaries of the parcels in the plat. He purchased the south tract, consisting of 100 acres, about sixty-five years ago, and had his homestead on that part, the homestead still being on the 54 acres shown in the plat. This parcel did not abut any highway, but he had a way out eastward, by sufferance over the lands of another person to the Linnville road. He used this way out for about fifteen or twenty years, when he bought the 100 acres north of it, shown on the plat as “B” and after that, in 1852, he bought the lands north of the last parcel, extending to the National road. This made the 300 acres, and no part of which abutted on any highway, except the north end lay along the National road.

      Third — After the purchase of the last parcel, Samuel Meredith opened a private lane or way from this residence northerly through all of his lands to the National pike, on which three gates were maintained — one of them at the National pike, one at about the middle of said lands, and one a short distance north of his house. And a part of the time said lane was fenced in on both sides. This lane or way, he opened for his own use and that of his family and those who visited his premises. This road was worked and kept in order by him and his servants for the purpose aforesaid, more than forty years, and was the only way passing over this real estate, apparently the only way out at the time the conveyance was made to William and John, and ever since then to date.

      Fourth — Samuel Meredith, in the year 1872, had six children as follows: Elizabeth Hupp, Mary Stewart, Levi W. Meredith, John B. Meredith, William Meredith and Robert Meredith. Elizabeth Hupp, Allie Lawrence, heir of Mary Stewart, Levi M. Meredith, Robert Meredith, and J. A. Franks, the grantee of John B. Meredith are the plaintiffs, and William Meredith is defendant.

      Fifth — That in the year 1872, said Samuel Meredith and his wife, by their deed of general warranty, conveyed to William Meredith, his heirs and assigns forever, about 135 acres of said lands, shown in the plat by letter “C” for full and valuable consideration, to-wit: Thirty-three hundred and fifty-one dollars; together with the appurtenances, with full covenants of warranty and the said Samuel Meredith and his wife, therein covenanted, for themselves, their heirs and assigns, with the said William Meredith, his heirs and assigns that they were lawfully seized of the premises aforesaid, and that the said premises were free and clear from any and all incumbrances whatsoever, and that they would forever warrant and defend the same against the lawful claims of all persons whomsoever, there being no special reservations of any right of way of any kind over said land, and in fact, said right of way was not mentioned in the deed. This deed was received for record, January 19, 1889.

      Sixth- — That for the purpose of curing a minor mistake in the description on the 18th day of June, 1874, said Samuel Meredith executed another deed of the same lands to said William with the same covenants as in the first deed, with said way still appurtenant thereto, for the use and benefit of the other lands of said Samuel and John Meredith and his son, and which deed was left for record August 30, 1879.

      Seventh — That in the year 1874, June 16, the said Samuel Meredith and wife, for a consideration of forty-five hundred dollars, sold and conveyed to his son, John B. Meredith, with full covenants of warranty, another portion of said three hundred acre tract, known as parcel “B, ” on the plat, together with the appurtenances, and the said Samuel and wife therein covenanted with the said John B. Meredith, for themselves and their assigns, with, the said John B. Meredith, his heirs and assigns, that they were lawfully seized of the premises aforesaid, and that said premises were free and clear from any and all incumbrances whatsoever, and that they would forever warrant and defend the same against the lawful claims of all persons whomsoever; and which deed was recorded April 7, 1876, more than three years prior to the filing of any deed to William for record, there being- no reservations in said deed concerning said right of way, but the said way was appurtenant thereto, and used as the only way out and into said premises.

      Eighth — That immediately upon the execution of the deed to said William, he took possession of the lands so conveyed to him, and after the execution of the deed to said John B. Meredith, he took possession of the land so conveyed to him.

      Ninth — William Meredith permitted without objection said Samuel and wife to use said lane over his lands as long as they lived, and during their lives said lane was worked and kept in repair as it was before.

      Tenth — Samuel Meredith died, his widow occupied the homestead after his death, on the 54 acres, until her own death, in the year 1888, and within a year after her death, said William refused to permit it any longer to be used over his lands.

      Eleventh — But the said Franks by grant now holds the north half of the John B. Meredith land, and the said Robert Meredith by grant holds the south half of the John B. Meredith land, they having the same title that John B. Meredith had.

      Twelfth — At the time of the execution of the deed to William, he had full knowledge that the lane or way was laid out over the land he was purchasing as a way, and its existence was apparent.

      Thirteenth — William never consented that said lane should be used or worked in his hands after his mother’s death.

      Fourteenth — And as a' matter of law, the courts find that the said deed to William, by reason of the fact that Samuel Meredith had no other way out. That Samuel did not covenant against the incumbrance of said road, and the law implied such a reservation, and that said deed did not convey a title to said William free of the incumbrance of said road or way, and that notwithstanding said deed to William, said Samuel retained said right of way over said lands of William as a matter of right, for the benefit of all the lands he retained, and when he conveyed the tract “B” to John B. Meredith, that John B. Meredith and his grantee took by said grant, the said way over said land of William as .appurtenances thereto. That said way over the lands of William is appurtenant to the lands of J. A. Pranks and Robert Meredith, who are the grantees of John B. Meredith, and said way over the lands of William and Robert Meredith and J. A. Pranks, is appurtenant to the residue of said lands, known as tract “A” of 54 acres in the plat, and that said William has no right to close up said way over his lands against the owners of the residue of said tract of 300 acres, and the owners of tract “C” have no right to close upon the said way over those lands as against the owners of tract “A” of 54 acres.
    William Meredith excepted to the conclusions of law, and, on error here, asks that the judgment be reversed, and judgment rendered in his favor on the facts as found.

      J. M. Dennis and N. M. Hunter, for plaintiff in error.
    The easement claimed in this case does nou arise by grant, for no grant is alleged.
    Though long use of this right is averred, yet the issue is, as made bj1- the pleadings, has the plaintiff by his deed a title of right of way over this strip of ground by way of necessity.
    To give a right of way over another’s land by necessity it must be strict necessity, and this necessity must not* in any respect be created by the party claiming the right of way. Washburn on Easements, 2nd Ed., 219; 6 Am. & Eng. Encyp., 144; Wright’s Rep., 250; Dillman v. Hoffman, 38 Wis., 572; Fryer v. Carter, 1 H. & N., 916; Tenant v. Goldwin, 2 Ld. Raymond, 1089; Burr v. Mills, 21 Wend., 290; Sloatv. Mo Doug al, 8 Advance Sheets N. Y. S. May 29, 1890; Yol. 6 Am. & Eng. Ency. of Law, 144.
    But we claim that this right of way by necessity as claimed is not indispensable, and that these plaintiffs who claim the right of way can obtain a township road from their home or plantation at reasonable cost and trouble to another public highway. 24 NJE., 135; 5 Ohio St., 109.-

      First — Are the defendants in error entitled to the way by long user?
    This cannot be. (1), because twenty-one years have not lapsed since the land became William’s; but only 17. (2), only fifteen -years have elapsed since Samuel deeded the middle portion. (3), even for this time, the user was not adverse, because it was under permission of William. (4), and nothing is shown to take the ease out of the statute of limitation.

      Second — Have the defendants in error a right to the way by necessity? We contend not, for the following reasons: •
    There cannot be a way by necessity in connection with agricultural lands in Ohio.
    Because in Ohio the statutes have always provided that any land owner may have a township road from his dwelling house or farm to the public road. He may petition for the same to the township trustees, and if they shall find that the same is right and proper, they may establish such road, either at the expense of the party wanting the same, or, if they deem the same of sufficient public importance, they may pay for the same court of the township treasury.
    This has been the law of Ohio ever since the act of June 1, 1831, 29 Ohio Laws, 365, and' which statute is substantially as at present, except the additional power, of the trustees paying for the same, was added in the year 1891. ' Weil v. State, 46 Ohio St., 450; Ins. Co. v. Miller, 1 Barb., 362; Broom’s Legal Maxims, 160; Ferris v. Bramble, 5 Ohio St., 109; Logan v. Stogate, 24 N. E. 135.

      O. II. Kibler and Charles II. Follett, for defendants in error.
    It will be seen from the finding of facts aforesaid that the deed from Samuel Meredith to John B. Meredith ante dates the corrected deed to William made in June, 1874, by two days, and was recorded three years before any deed was recorded or left for record by William for his lands; and the defendants in error had no notice or knowledge of any deed to William from Samuel Meredith for his 135 acres, or that his said deeds did not make any mention of said right of way until they were left for record with, the recorder of Licking county, and the statute in such cases provides as follows: Section 4134, Revised Statutes; Morris v. Daniels, 35 Ohio St., 406.
    If the defendants in error hold by grant prior to any grant to William under said provisons of the statute, does their deed include this lane or uy? Morgan et al. v. Mason, 20 Ohio, 412; Hazard v. Robinson, 3 Mason, 279.
    That a' right of way may be established by prescription, 'grant, reservation, implication, or by owelty of partition. Bailey v. Copeland, Wright’s Report, 150.
    We therefore claim the. conveyance of this 100 acres of land by Samuel to John B. Meredith, his heirs and assigns, being’ only a part of his premises, leaves the easement of this right of way as in use at the date of said conveyance.^ Elliott v. Sallee, 14 Ohio St., 10.'
    When the owner of an estate makes one part of it visibly dependent for the means of access upon another, and creates a way for its benefit over the other, and then grants the dependent part, the other part becomes subservient thereto, and the way constitutes an easement appurtenant to the estate granted, and passes to the grantee as accessorial to the beneficial use and enjoyment of the granted premises. National Exchange Bank v. Cunningham, 46 Ohio St., 575.
    We claim that said way has* been established and consented to by mutual agreement between the parties interested therein by their joint use and working and improving’ the same for the period of 40 years, after the same was laid out and established for the benefit of said lands by Samuel Meredith, and that this action was properly brought. Shields v. Titus, 46 Ohio State, 528.
   Minsi-iall, J.

This case was argued and submitted with the case of Baker v. Rice, reported ante, p. 463, on the assumption that each presented the same question, so that the affirmance of one would involve the reversal of the other and e con-verso. But in our judgment, there is a difference between the reservation of a way, and the grant of a way, by implication. The reservation of a way by the grantor in apparent derogation of his deed and its covenants, stands upon a much narrower ground than does the case of a grant. In the latter case, as held in Baker v. Rice, a way passes by implication where it had been attached to the part granted by the grantor, and is apparent and necessary to the reasonable enjoyment of the premises granted. It is not necessarily a way of strict necessity. But in the reservation of a way by implication, the case is different. Ordinarily a deed is taken most strongly against the grantor. He may insert in it such exceptions and reservations as he desires, and the grantee by accepting the deed is held to assent to them; and therefore, the grantor is not generally permitted to derogate from his grant, or disregard the covenants of his deed. But there seems to be a well recognized exception, and that is, where a g-rantor by the sale and conveyance of a part of his land, is thereby deprived of all access to any public highway from the part retained, and this is known to the grantee. In such case it is a fair inference that the grantor did not intend to. subject himself to the necessity of buying a way out, nor can it be inferred that the grantee with knowledge of the facts, supposed that he did, particularly where the grantor had a well defined way over the part granted to the highway in use at the time of his conveyance. In such case, the circumstances are such as to indie ¿te that the deed does not express the real understanding of the parties as to the way over the land granted, and might have been reformed in equity. But the courts in such cases have pursued a more liberal practice and done at law by the implication of a grant, what could have been- accomplished in equity by the reformation of the deed. 2 Washburn on Real Prop., 5 Ed., 319; Collins v. Prentice, 15 Conn., 39; Brigham v. Smith, 4 Gray, 297; Parker v. Bennett, 11 Allen, 389-392; Seymour v. Lewis, 13 N. J., Eq., 439, 444; Pennington v. Galland, 9 Exchequer, 1. In the case of Collins v. Prentice, it is said: “It is well settled, as a part of the common law of England, that if a man having a close, to which he has no access, except over his other lands, sells that close, the grantee shall have a way to it, as incident to the grant; for without i t, he cannot derive any benefit from the grant. This rule has been established for two centuries, and seems not to have been questioned on the trial’ ’ citing authorities. “And although doubts have formerly been expressed upon the subject, it seems now to be well settled, that, if the grantor had reserved that close to himself, and sold his other lands, a right of way would have been reserved.” Citing authorities. The court then observes. “The way, in the one case, in contemplation of law is granted by the deed and in other case reserved. And although it is called a way of necessity, yet in strictness the necessity does not create the way, but merely furnishes evidence as to the real intention of the parties.. For the law will not presume that it was the intention of the parties, that one should convey land to the other, in such a manner that the grantee could derive no benefit from the conveyance; nor that he should so convey a portion as to deprive himself of the enjoyment of the remainder. The law under such circumstances, will give effect to the grant according to the presumed intention-of the parties. ” In Brigham v. Smith, a case like this one, the court said: “If the way were expressly reserved in the deed, the covenants must apply to the premises granted, that is, an estate with a right of way reserved or carved out of the fee. In the present case, the law does for the parties the same thing, and the covenants apply to an estate with this way of necessity reserved. ”

It is then a question of intention, and the mode of determining’ it by reference to the necessity of the way, may be regarded as a rule of property, and, in this view, no more permits a grantor to derogate from his grant, than does any similar rule; for, under the rule, a way over the land granted is reserved to the grantor, under a legal construction given the deed in connection with the circumstances creating the necessity..

It is plain from the facts found, that the way in question was one of strict necessity to the land retained by Samuel Meredith on his conveyance to his son William, of the tract on the National road; and the plaintiffs below have succeeded to his rights. At the time of this conveyance, which was in 1872, he owned 300 acres, in the form of a parallelogram, with one of its short sides on the road. His home was at the opposite end. From his home to the highway was a well defined way then in use, which afforded his only means of access to his home. He then sold and conveyed to his son, the 135 acres, lying on the highway, the private way of his father to the remainder of his lands, being apparent, and well known to his son.

But it is said that Samuel Meredith had a way over his remaining lands to a highway. This, however, according to. the finding, was simply by “sufferance.” It constituted at most a license, and could have been revoked at any time. A way that defeats the implication of one ■ by necessity, must be a way of right and not a mere license, besides, this supposed way was abandoned in 1867, and has not since been used; so that whatever right the grantor may have had, has long since been lost by abandonment. It had not ripened into a way by prescription when abandoned. It is also claimed, that under the power given township trustees, on application, to establish township roads, a way could have been obtained; and therefore there is no ground, in any ease, on which a way by necessity can be claimed in this state. This does not as we think, alter the case. Whether a road can be obtained in that way, will depend upon the opinion of the trustees and of the viewers, whether it is necessary- and should be established. It cannot be had 'for the asking, and in no’ease without making compensation for the land taken. The necessity for a way cannot be removed by the fact, that one may be purchased from some third person, Collins v. Prentice, 15 Conn., 39. It is the fact that no way then exists, that can be had without purchase, by which the grantor can have access to his remaining lands, that. raises the implication of a right • reserved to an existing way over the land granted.

There is another finding in the ease, not however, probably material to its disposition, and that is, that from the making’ of the deed in 1872, Samuel Meredith and his subsequent grantees of part of the land, continued to use the way as he had done before the grant, without let or hindrance, until the time of his death, and that the same use was made of it until the death of his widow, which occurred in 1888, whereby both parties indicated, for some sixteen years that their understanding of the deed was in accordance with the construction the law places on it. We see no error in the record and the judgment is therefore,

Affirmed.


author: Shauck, J.

text:
    The Alemania Loan & Building Company No. 2 v. Frantzreb et al.

      Vendor of real estate retaining legal title — May by oral contract attach ¡urther conditions to sale — Mortgage of purchaser subject to such oral conditions.

    A vendor of real estate who retains the legal title as security for the payment of purchase money may, by subsequent oral contracts with the purchaser, annex further conditions to his obligation to convey ; and they will be enforced in equity against a mortgagee of the purchaser who acquires his interest after such further conditions have been annexed and while the legal title remains in the vendor.
    (Decided June 8, 1897)
    Error to the Circuit Court of Hamilton county.
    The case was tried on appeal in the circuit court. It is to determine the validity of liens on real estate described in the petition, and the priority of the several items asserted by the Loan Company as its lien upon the premises over the liens of Crawford, Becker and Oesper, mortgagees of Frantzreb. The rights of the parties arise out of the following facts as shown by the pleadings and the special findings of the circuit court:
    The Loan Company filed its petition in the court of common pleas November . 21, 1891, against Frantzreb and wife, alleging as its first cause of action that on July 30, 1881, it was the owner in fee of the premises, and on that day it offered them for sale when Frantzreb bid to pay therefor the sum of $2,100 in weekly and monthly installments of principal and interest as specifically set out, and he was put in possession upon an agreement that the company should retain the legal title until said sum should be fully paid with the interests thereon, and that he had defaulted in a specified portion of such payments.'
    For a second cause of action, it alleged that on June 14, 1890, Frantzreb, desiring to improve the property, borrowed $1,200 of the company, subscribing for the requisite number of shares of its stock and agreeing to make certain weekly and monthly- payments according to the by-law-s of the company, it being then agreed by the parties that the company should retain the title to the property until he should fully perform that obligation. In that he also made default.
    For its third cause of action, the company alleged that Frantzreb was its secretary from December 23, 1876, until December 27, 1890, and that upon his purchase of said premises in 1881, it was agreed between him and the company that it should still retain the legal title as security for the faithful performance by him of his duties as such secretary; and his default in that respect was alleged.
    None of the agreements referred to was in writing. The company continued to hold the legal title to the property at the commencement of the suit.
    The company asked for the appointment of a receiver to rent the property during the pendency of the suit, and for- the sale of the property and the payment to it out of the proceeds of the sale of the several sums so alleged to be due to it from Frantzreb.
    'After the commencement of the suit, on December 19, 1891, Frantzreb conveyed the premises to his wife, and they thereafter united in the execution of several mortgages to defendants in error; to Crawford, March 7, 1892, to Oesper, April 26, 1892 and to Becker, April 26, 1892.

      The mortgagees having been made parties, filed their several answers and cross-petitions denying the validity of the company’s liens as to its second and third causes of action, setting up their mortgages, and praying for the sale of the premises, and the payment out of the proceeds of the sums severally secured to them.
    On the trial the court found that the several oral agreements set out in the petition had been entered into between the company and Frantzreb, and it found the amounts of his defaults under said several agreements, and for taxes which it paid during his occupancy of the premises which he had agreed to pay as alleged in a supplement to the petition.
    As conclusions of law the court found that the company had a valid and subsisting lien on the premises for the taxes so paid by it, and for that portion of the purchase price of $2,100 which remained unpaid, being the amount of the default alleged in the first cause of action, but that it had no lion upon the property for the defaults of Frantzreb in the contracts set out in the second and third causes of action, and that after payment to the company of said taxes and the remainder of said $2,100 said mortgagees were entitled to receive the remainder of the proceeds of the sale.

      Von Seggern, Pharen (& Pewald, for plaintiff in error.
    All Frantzreb had was the right to a conveyance upon the payment of the amount that he had agreed to pay, and whether that right be called a con-' tract for the purpose of real estate, or an equity of redemption, or by any other name, it was a right which he could waive by delivering possession of tlie property, or by relinquishing his contract, with or without writing, and notwithstanding the statute of frauds; and we insist that if he could waive his rights under this contract by parol, he could most certainly postpone them by parol. That a parol agreement to release an equity in real estate is valid in Ohio is too well settled to be questioned. Smiley v. Wright, 2 Ohio, 506; Shot-well v. Sedam, 3 Ohio, 375; Reed v. Me Grew, 5 Ohio, 375; Shaw v. Walbridge, 33 Ohio St., 1.
    There was no fraud committed or attempted. There was, as we believe, at the time these contracts were made, the utmost fair dealing and good intentions on the part of both parties. They were dealing with the understanding and belief that these acts were valid and binding on both. The property stood in the name of plaintiff in error, and was owned bjT it, as against all the world except Frantzreb, and he only had the right to purchase — a rig’ht he could release by parol, extend by parol, or postpone by parol. Peugh v. Davis, 96 U. S., 332.
    The right to urge the statute of frauds as a defense to an action on a parol contract rests alone with the party who made the contract. His creditor can not do it for him or for himself. A creditor can not thus put his debtor in the position of disregarding his moral obligaton to perform the contract. This is well settled by the decisions of this court. Lefferson v. Dallas, 20 Ohio St., 68; Minns v. Moore, 15 Ohio St., 568; Woods v. Dille, 11 Ohio, 456; Néil v. McKinney, 11 Ohio St., 58.
    And, further, let us say as to those mortgagees that aside from the notice by Us pendens the fact that The Allemania Loan and Building Company No. 2 retained the legal title is sufficient to put them upon inquiry as to its rights. The Dayton Y. <& B. B. Co. v. Columbus and Xenia B. Company, 20 Ohio St., 401.
    And this brings us back to the simple question of what are the rights of The Allemania Loan and Building Company No. 2 and Frantzreb as between themselves. Whatever these rights were, or are, their determination will settle this ease. Bushton v. Thompson, 35 Fed. Rep., 665; Bouvier’s Law Dictionary, Lien, par. 16.
    That a parol rescission or discharge in equity may be set up to defeat a bill for specific performance of a written contract, is well settled. Wharton, Law of Evidence, paragraphs 906, 927, 1017; Sudg., Vendors and Purchasers, 173.
    Parol evidence is admissible “to prove the existence of any separate or oral agreement, constituting a condition precedent to the attaching of any obligation under any contract, grant, or disposition of property, or the rescission of a contract.” Wharton, Law of Evidence, par. 927; Shughard v. Moore, 78 Penn. St., 469.

      S. T. Crawford, for defendants in error.
    The contract there set out was void under section 4198, Revised Statutes of Ohio.
    An equitable interest once acquired in lands can not be parted with except in writing, or by the same means that it was acquired. Kelly v. Stansberry, 13 Ohio, 426.
    A verbal contract for an interest in land is valid only where there has been a part performance of it, as by vendee taking possession under it, and by its authority. Armstrong v. Kattenhorn, 11 Ohio, 265; Crawford v. Wick, 18 Ohio St., 190.

      An interest in, or a permanent incumbrance upon, land in this state can only arise from some of the modes provided or recognized in law. Wilkins v. Irvin, 33 Ohio St., 144; sections 4106 and 4198, Revised Statutes of Ohio.
    If it be assumed that plaintiff did not obtain an interest in, or lien on, the land by this verbal contract, it would be a mere equity, and would • not prevail against subsequent duly executed and recorded mortgages of cross-complainants, whether the mortgagees had notice of plaintiff’s equity or not. Auketelv. Converse, 17 Ohio St., 21; Churehill v. Little, 23 Ohio St., 307; Bloom v. Noggle, 4 Ohio St., 45; Beroaw v. Cocherill, 20 Ohio St., 166.
    These authorities show that “the contention of plaintiff in error” will be predicated on facts that did not in law or equity vest in plaintiff any legal or equitable interest in the lands, or if it did, that it was a mere equity that would displace legal rights obtained by the cross-petitioners by their mortgages duly executed and recorded, so that there was no equities in fact that cross-petitioners had notice of in favor of plaintiff; and if there was, notice of them to the mortgagees was wholly immaterial.
    Plaintiff’s only legal or equitable lien on the premises are as the vendor for the unpaid purchase money. “The vendor after the sale has no interest in the estate, unless it be an equitable lien for the purchase money, and so far as the lien is concerned, the vendee holds the land as trustee of the vendor for the payment of the purchase money.” Stauffer v. Eaton, 13 Ohio, 334.
    When the lien of the vendor exists, the vendee is treated as the trustee of the vendor for so much of the purchase money as remains unpaid. Boos
      v. Eioing, 17Ohio, 520; Niel v. Kinney, 11 Ohio St., 67; Dayton, X cb A. A. A. v. Leioton, 20 Ohio St., 401.
    Frantzreb remained, and yet remains in possession, and this fact and this record show conclusively a release or surrender by anybody to plaintiff comes in too late. If we' are not correct in this, section 4192, Revised Statutes.
   Shauck, J.

It is true, as contended by counsel for defendants, that the mortgages were executed according to law. But it does not follow that, as against the company holding the legal title, they created legal liens. Since the mortgagor has never held the legal title, the mortgages operated only to create a lien upon his equitable interest. The controversy is between the company and the mortgageesrand the superiority of right incident to the legal title is with the former.

Counsel for the mortagagees also contend that, notwithstanding the extent to which they have been executed, the oral contracts set out in the second and third causes of action are void under the statute of frauds. Remembering that the legal title remained in the company, it is quite obvious that if we should adopt this view the only effect would be to defeat utterly the rights of Frantzreb and his mortgagees.

The mortgages were- effective to convey, upon the conditions named, ' all the interest which Frantzreb had at the time of their execution. They could convey no more, because the rights now asserted by the company had been reserved to it by contracts defining the conditions upon which it would surrender to the mortgagor its legal title, and pleaded in an action which was pending when they were executed. The rights of the company against the mortgagees are, therefore, determined by the proposition that at the suit of Frantzreb, a decree for specific performance would have been rendered against the company only upon performance by him of all the conditions on which the company had agreed to convey.

The limitations inhering in the general doctrine of the vendor’s lien apply only to vendors who have divested themselves of the legal title. They have no application to a vendor who retains it.

The judgment of the circuit court should have been in favor of the company upon all the causes of action.

Judgment reversed and judgment for plaintiff in error.


author: Bradbury, J.

text:
    The Cambria Iron Company v. Keynes et al.

      Contractor guaranty — Construed by circumstances at time of contract — Sale of goods tinder guaranty — Extension of time to purchaser — Does not affect guaranty, when.

    1. In construing a contract of guaranty, the object should be to ascertain the intention of the parties; and as in construing all contracts, the words employed by the parties should be construed in the light afforded by the circumstances surrounding them at the time it was made.
    2. Where the financial condition of a corporation for profit located in this-state requires its credit to be strengthened, and for this purpose all or part of its directors execute, in this state, a guaranty in the following items :
    “Logan, Ohio, Sept 21, 1891.
    We the undersigned directors of the Motherwell Iron & Steel Company of Logan, Ohio, do hereby guarantee the ultimate payment of all material purchased of the Cambria Iron Company of Johnstown, Pa., for the use of said Company during the season of 1891 and 1892.
    R. W. Keynes, I. N. Collins, B. R. Higgins,
    S. H. Bright, D. M. Motherwell, L. A. Culver,
    M. D. Moore.”
    And authorize such guaranty to be forwarded to a manufacturing concern in Pennsylvaina to be used by the latter as a basis for extending credit to the former company, such instrument should be construed to authorize the giving of a reasonable period of credit to the purchasing company, although such reasonable period should be for a longer time than had been customary in the previous course of its business.
    3. A sale of goods, made to the principal under such guaranty, upon four months’ time, with a privilege to the purchaser of sixty days’ additional time by paying six per cent, interest, and taking-therefor a negotiable promissory note running for six months, is not giving an unreasonable term of credit to the principal, although the prior dealings of the parties had been upon four months’ credit.
    (Decided June 8, 1897.)
    Error to the Circuit Court of Hocking county.
    The plaintiff in error sought by this action to recover on a guaranty executed by the defendant in error, and certain other directors of the Motherwell Iron & Steel Company, hy which such directors guaranteed the “ultimate payment,” by the Motherwell Iron & Steel Co., of all material purchased by it of the plaintiff in error during the season of 1891 and 1892.
    The parties having waived a jury, the cause was tried before the judge who sat in the court of common pleas; judgment was there rendered in favor of the defendants, which was affirmed by the circuit court. Whereupon the plaintiff in error instituted proceedings in this court to reverse both judgments.
    The facts necessary to the decision of the case will be stated in the opinion of the court.

      Weldy ds Buerhaus and J. S. Friesner, for plaintiff in error.
    It is a well settled rule of law, that where the surety or guarantor is fully indemnified by property placed in his hands or anyother kind of indemnity, such surety or guarantor is not discharged by an extension afterwards granted to the principal. Brandt on suretyship and guaranty, section 302, page 409 ; Klienhoss v. Generous, 25 Ohio St., 867.
    The facts in the ease at bar on this question are almost identical with the facts in the case of Wise v. Miller, 45 Ohio St., 388; and the case of the National Exchange Bank v. Gay, 57 Conn., 224.
    So where a party guaranteed the payment of a bill already bought for which the principal had given his note, and guaranteed the payment of such other bills as the principal might buy, and the principal bought other bills and gave his note for them it was held, that the giving of such notes was not payment by the principal which would discharge the guarantor. Brandton Suretyship and Guaranty. First Edition 430. Benjamin v. Hillard, 64 U. S. S. .C., 149; Bobbins el al. v. Robinson et al., 176 Pa. St., 341; Chittenden v. Dawson, 6 Hill, 543;Bushv. Critehfield, 5 Ohio, 109; Weitrnan v. Bumcrantz, 12 Ohio St., 273.
    The general rule in construing a guaranty is, that the words of the guaranty are to be taken as strongly against the guarantor as the' sense will demand. Drummond v. Prestman. 12 Wheaton, 515.
    The contract of guaranty although that of a surety is to be construed as a mercantile instrument in furtherance of a spirit of liberality to promote the use and convenience of commercial intercourse. Davis v. Wells Fargo dh Co., 104 U. S. S. C., 159; leuisville Mfg. Co. v. Welch, 10 How., 462.
    In the ease of Mauran v. Bullus, 16 Peters, 528, the court held, that generally all instruments of suretyship are construed strictly as a mere matter of legal right, the rule is otherwise where they are founded on a valuable consideration. In the case at bar there was a valuable consideration moving to the defendants from the plaintiff in error, for the reason before stated, the defendants were beneficiaries and therefore they did not stand in the position of sureties merely. Bushnell v. Church 15 Conn., 406; Brandt on S. & G.', section 165 and 166; First Ed. Forest v. Steioard, 14 Ohio St., 246; Stone v. Rockefellar, 29 Ohio St., 625.
    The usages of the trade in a particular business can not govern or contravene the expressed stipulation of a contract, but where in a mercantile contract there is no expressed stipulation, and a controversy arises between the parties in reference to such contract, there, the contract will be construed with reference to the usages and customs of such trade. 41 Iowa, 479; 6 Hill, 443.
    We are not unmindful 'of the old aphorism that “sureties are favorites of the law.”
    We deny this maxim,, no class of litigants are favorites of the law where the law is properly administered. And there is no reason why a surety should be a special favorite.
    In order to release a surety there must be another contract substituted for the original, such an alteration in a point so material as in effect to make a new contract without the consent of the surety.

      8. H. Bright and L. D. Tickers, for defendants in error.
    Brief of 8. II. Bright

    This was an authorized change in the terms of the contract as to place of payment, and the change was material. Sturges v. Williams, 9 Ohio St., 443; Randolph on Commercial Paper, sections 1755, 1759; Ide v. Churchill,■ 14 Ohio St., 383-, Brandt on G. & S., sections 397, 378, 381, 388. As to the place of payment see Randolph on Commercial Paper, sections 33 and 81.
    In Pennsylvania, the taking of anote operates as payment. 7 American State Reports, page 373, note.

    Guarantors are released by extensions of time and changes of contract the same as sureties. Brandt on Guaranty and Suretyship, sections 343 ; Rutherford v. Blackman, 40 Ohio St., 604.
    The. following authorities show the application of the doctrine of release of guarantors by exten sion of time, or change of contract. Brandt on Guaranty and Suretyship, sections 123,354,363, and 364; Wood v. JVewkirh, 15 Ohio St., 295; Fawcett v. Freshwater, 31 Ohio St., 15, and 637 Ohio Digest, volume 3, 251; Me Comb v. Kitredge, 14 Ohio St., 348 ; General Digest, volume 5, page 1019, sections 41; 17 Ohio St., 118; Reed Serving Machine Co. v. Oberreich, 38 Wisconsin, 325; Appelton et. al. v. Parker et al., 15 Gray, 173 ; Ravin v. Smith, 6 Hill.
    But the plaintiff undertakes to escape thegiving of one note for a whole month’s shipments by claim-that they were authorized so to do by the custom of trade.
    If it intended to claim so material a thing as a modification of the contract by usage, surely we were entitled to be advised of it by porper averment. Pulían v. Cochran, 10 Rec., 184; 6 B., 390.
    The evidence if admitted does not establish a custom. The custom must be shown to be “notorious, uniform, reasonable and acquiesced in by the public.” Steamboat Albatross v. Wayne, 16 Ohio, 513. ■
    Custom can not change the legal effect of the contract. Rodgers v. Woodruff 23 Ohio St., 632; Brandt on G. and S., section 345. Greenleaf on Evidence, volume 2, section 251.
    It will also be observed that the alleged indemnity does come from the principal debtor, the Motherwell Co. This fact takes the case out of the rule. Leggetts. McClelland, 39 Ohio St., 624; Osborn v. Noble, 46 Miss., 449; Machlin v. North Bank of Kentucky, 314.
    We now come to the question as to how this guar anty is affected, if at all, by the fact that the de fendants were stockholders in the Motherwell Iron and Steel Company. It can under the facts of the case make no difference at all. We insist that the corporation is in law one person, and the stockholder another.

      It is the general understanding of the business world that, a stockholder who becomes surety on the obligation of the corporation has all the rights and remedies, and is entitled to all the protection of any other ■ surety. Street v. Oldtown Bank, 67 Md., 421; Brown on Statute of Frauds, section 64; Hansen v. Donkersby, 37 Mich., 184.
    It has frequently been held that the promise of a stockholder to pay the debt of a corporation must be in writing under the Statute of Frauds: Brandt on Suretyship and Guaranty, section 68, citing Mass, and Md. cases. Home National Bank of Ghioago v. Waterman's Estate, volume 29, North Eastern Reporter, page 503. General Digest, volume 6, page 499, paragraphs 376 and 377, citing Rudd v. Robinson, 126 New York, 113; Pearsall v. Western Union Tel. Go., 124 N. Y., 256.
    But it will not do to say that the word “ultimate” authorizes any deviation from the contract as made by the parties. The natural import of the word “ultimate” as used in the case at bar, is: the guarantors will pay if the Motherwell Co. does not; or they will pay after the resources of the Motherwell Co. are all exhausted. Randolph on Commercial Paper, section 850.
    Brief of L. D. Vickers.

    The rule of law is, that upon the question of extension of time, sureties and guarantors both come under the same rule, and whatever will release a surety, will release a guarantor. James v. Turner, 6 Law Bull., 231; Rutherford v. Brackman, 40Ohio St., 624.
    As to what js sufficient to release a surety or guarantor. See 6 Law Bull., 231, 10- Ree., 31. Fawcett v. Freshwater, 31 Ohio St., 637; Farmers

      <& Traders Bank v. Lucas, 26 Ohio St., 385; Slagle v. Pow, 41 Ohio St., 603; Card v. Neff, 39 Ohio St., 607; Osborn v. Low, 40 Ohio St., 347; 2 Parsons on Contracts, 17 and notes; Leeds v. Dunn, 10 NY., 469; Brandt on Suretyship, section 297.
    The grantors have the legal right to a strict construction of their contract in their favor, and if it is departed from in any respect, it is sufficient for them to say it is not my contract. Barnes v. Barrow, 61 N. Y., 39; Grant v. Smith, 46 N. Y., 93; Birdsally. Seacock, 32 Ohio St., 177; Brandt on Suretyship 97; 39 Ohio St., 324 ; 40 Ohio St., 47.
    The rule in favor of guarantors is so strictly construed in their favor, that no change can be made from the terms implied by the contract; and it makes no difference what the change is if it is material; the time cannot be shortened any- more than it can be extended.

   Bradbury, J.

The plaintiff in error filed in the court of common pleas, a petition in the following words and figures:

Court of common pleas, Hocking county-, Ohio.

The Gambia Iron Company, plaintiff v. Robert W. Keynes, I. N. Collins, L. A. Culver, S. H. Bright, B. R. Higgins, D. M. Motherwell and M. D. Moore, defendants.

Petition. Civil action.

Plaintiff is a corporation duly incorporated under the law's of the state of Pennsylvania, and located at Johnstown, in said state.

On the 21st day of September, 1891, in consideration the plaintiff would furnish The Motherwell Iron & Steel Company of Logan, Ohio, which is a corporation duly organized under the laws of the state of Ohio, with certain material then used by said Motherwell Iron & Steel Company for manufacturing purposes, consisting of iron, steel and other merchandise, an itemized account of which material so furnished the said company is hereto attached (marked “Exhibit A,”) and made a part of this petition, the defendants guaranteed to plaintiff to be ultimately responsible for the payment of all material purchased by the said Mother-well Iron & Steel Company fo’" its use, from plaintiff during the season of 1891 and 1892.

The plaintiff in consequence of said guarantee, a copy of which is hereto attached (marked “Exhibit B, ”) and made a part of this petition, sold and furnished the said Motherwell Iron & Steel Company material as aforesaid to the amount of 83,937.86. The said sum was due and payable in installments as follows:

July 24, 1892, $1,405.98. .

August 22, 1892, $781.07.

September 19, 1892, $1,295.36.

October 12, 1892, $209.51.

August 3, 1892, $245.94.

The time of payment given the said Motherwell Iron & Steel Company by plaintiff, has elapsed, yet the said Motherwell Iron & Steel Company has not paid the same nor any part thereof, and plaintiff requested payment thereof from said defendants and each of them, but no part thereof has been paid.

As evidence of the aforesaid indebtedness, the said Motherwell-Iron and Steel Company executed and delivered to plaintiff its four certain promissory notes for the respective sums and dates as follows:

■ January 21, 1892, $1,405.98, due six months after date.

February 19, 1892, $781.07, due six months after date.

March 16, 1892, $1,295.36, due six months after date.

April 9, 1892, $209.51, due six months after date.

And the sum of $245.94, not evidenced by note, due and payable August 3, 1892.

Which said notes the plaintiff now brings into court and surrenders up the same.

The plaintiff avers and charg'es the fact to be that the said Motherwell Iron & Steel Company is wholly and totally insolvent; that all its personal and real property has been levied upon by the sheriff of this county by virtue of execution placed in his hands for more than the value of the real estate and personal property levied upon, and the same is beyond the reach of plaintiff for the purpose of subjecting- the same to the payment of the aforesaid indebtedness. The. said Motherwell Iron & Steel Company has been declared by due process of law, under the statute in suela case as made and provided, to be insolvent, and a receiver has been appointed for all its property and rights of action and is now in possession of the same.

Wherefore plaintiff asks judgment against the said defendants for said sum of $3,937.86, with interest on $1,405.98, from the 24th day of July, 1892; interest on $781.07 from August 2d, 1892; interest on $1,295.36 from September 19th, 1892; interest on $209.51 from October 12th, 1892, and interest on on $245.94 from the 31st day of August, 1892.

The guaranty upon which the action was founded is as follows:

“Logan, Ohio, September 21, 1891.
“We the undersigned directors of the Motherwell Iron & Steel Company of Logan, Ohio, do hereby guarantee the ultimate payment of all material purchased of the Cambria Iron Company of Johns-town, Pa., for the use of said company during the season of 1891 and 1892. Robt. W. Keynes, I N. Collins, L. A. Culver, S. H. Bright, B. R. Higgins, D. M. Motherwell, M. D. Moore.”

To the petition a number of defenses were interposed by the guarantors, only two of which we care to notice: The third and the fifth.

The third defense sets forth: That at the time the guaranty was executed as well as before and since that time, the usual credit given by the plaintiffs on such goods as they sold the Mother-well Iron & Steel Company was four months, and that the guarantors believed and had a right to believe that the goods to be sold during the period covered by the guaranty would be sold upon those terms of credit; but that after the guaranty was executed, the plaintiff in error and the Motherwell Iron & Steel Company entered into a contract, the effect of which was to extend the credit on purchases covered by the guaranty to six months, and that the negotiable promissory notes of the Motherwell Iron & Steel Co., on six months, time were taken for the several purchases as set out in the petition, which extension of time was given without the knowledge or consent of the guarantors.

The fifth defense sets forth that at the time they executed the guaranty the grantors were not advised of ’ the intention of the Motherwell Iron & Steel Company to contract for an extension of the time of payment for the goods to be brought under the guaranty beyond the customary period of four months.

The plaintiff by its reply took issue upon these averments of the answer.

A jury was waived and the cause submitted to the court upon the evidence. The court found that the Motherwell Iron & Steel Company gave and the plaintiff in error accepted the several notes set forth in the petition and answers, and that such action constituted an extension of time which released the guarantors as to all sums the times for the payment of which had thus been extended.

We do not doubt the soundness of the rule that discharges a guarantor from liability whenever the terms of a contract he has guaranteed have been materially altered. That the guarantor 'Or surety may stand upon the very terms of his undertaking, is a doctrine sustained by the unbroken current of authority. Boalt v. Broten, 13 Ohio St., 364; Patterson v. McNeeley, 16 Ohio St., 348; Thompson v. Massie, 41 Ohio St., 307; Bank v. Lane, 8 Ohio St., 405; Hall v. Williamson, 9 Ohio St., 17; Bank of Steubenville v. Carroll's Admrs, 5 Ohio, 207; The State v. Crooks & Shaw, 7 Ohio, 573; State v. Medary, 17 Ohio, 554; McGovney v. State, 20 Ohio, 93; Smith v. Huesman et al., 30 Ohio St., 662; Palmer v. Yarrington, 1 Ohio St., 253; Stone v. Rockefeller, 29 Ohio St., 625; Morgan v. Boyer, 39 Ohio St., 324. The citations of eases bearing on this' proposition could be indefinitely extended. The established doctrine of this state at least, if not in substantially all the states, is, that a change of the time for .the performance of a contract is a material alteration of its terms. King v. Newman et al., 54 Ohio St., 273; 2 Am. & En. Ency. of Law, 236-240, 2nd Ed.

The question here, however, is not whether an extension of the time of payment would discharge the guarantors, but whether in this instance the time was extended beyond the terms of the contract of guaranty.

If in the light afforded by the circumstances that surrounded the parties when this contract of guaranty was executed and the custom of this particular trade, known to the parties, a guaranty couched in the words that the parties here employed, should be construed to mean that credit for goods sold upon its faith should not be extended beyond four months from the sale of each respective bill, then, as longer credit was given, it would follow that no recovery can be had upon the guaranty. We think the court was right in holding that by taking the promissory notes set out in the petition, the plaintiff in error extended to the Mother-well Iron & Steel Company a period greater than four months for the payment of the several bills of goods embraced within the notes. The contract of sale itself gave to the purchaser the privilege of sixty additional days, by paying six per cent, interest, and the notes being entitled to three days of grace, the giving and accepting of them, extended the time of payment that much longer.

This brings us to the real question in the case:

The construction that, in this respect should be given to the guaranty itself.

Doubtless the usual and customary terms of credit for such goods as were sold by plaintiff in error on the faith of the contract of guaranty, was four months. Did this custom attach to and become a part of the guaranty, so that, by giving longer credit, the guarantors were discharged?

In construing a contract of guaranty, the object should be the same as in construing any other contract; that is, to ascertain the intention of the parties to the instrument, when that intention is ascertained the guarantors are bound by it. While a guarantor may stand upon the strict letter of his contract, his rights extend no further. To ascertain whether an asserted obligation falls within a contract of guaranty, resort should be had to the situation in which the parties stood and the words they have employed.

The circumstances satisfactorily establish that the plaintiff in error, supposed the guaranty covered sales of goods although credit was given for a longer period than four months. Did the words employed by the guarantors, their relation to the parties, and the surrounding circumstances justify this interpretation of the instrument? We think they did.

The guaranty was in the following terms:

“Logan, O., September 21, 1891.
“We, the undersigned directors of the Mother-well Iron & Steel Company of Logan, Ohio, do hereby guarantee the ultimate payment of all material purchased of the Cambria Iron Company of Johnstown, Pa., for the use of said company during the season of 1891 and 1892. R. W. Keynes, I. N. Collins, B. R. Higgins, S. H. Bright, D. M. Motherwell, L. A. Culver, M. D. Moore.”

More comprehensive lauguage could not have been easily found, “ultimate” means “at last,” “finally” or “at the end.” The contract bound the guarantors for the ultimate (final) payment for all material purchased within the specified period. .The persons who empk^ed this language were not disinterested parties acting from a spirit of mere accommodation, like the bondsmen of public officers, or one who guarantees the contract of a neighbor. They were, or declared themselves to be, directors of the concern for which they became guarantors. They were not only pecuniarily interested in the successful operation of its business, but were charged with the general superintendence of its affairs. To give it power to buy, was to promote prospective personal gain to themselves. This guaranty was executed by the parties at home, in Logan, Hocking county, on September 21st, 1891, and on October 27th, following, forwarded to the plaintiff in error at Johnstown, Pennsylvania, accompanied by the followng letter:

The Motherwell Iron & Steel Co.,
Logan, O., Oct. 27, 1891.
Cambria Iron Co., Johnstown, Pa.:
Gentlemen: Enclosed find the guarantee of our directors to be attached to our contract for material for the coming season.
Yours truly,
Motherwell Iron & Steel Co.,
M. D. Moore, Gen. Mgr.

For the purpose of strengthing the credit of a concern under their general control, and in which they were pecuniarily interested they entrusted this instrument to a manager, selected by themselves, to be forwarded to the plaintiff in error, knowing it would become the basis upon which the latter would extend credit to their own concern.

Under the circumstances, we think the guarantors should be held to have intended to authorize any reasonable extension of credit upon purchases secured upon the faith of this guaranty. And the contract entered into by the terms of which the sales were made at four months’ time, with a privilege to the purchaser of sixty days additional time upon payment of six per cent, interest, and the taking of notes at six months as this was done by plaintiff in error was not an unreasonable extension of credit.

Upon the pleading and undisputed facts, the court of common pleas should have Tendered a judgment in favor of the plaintiff in error for the unpaid balance on the purchases made under the guaranty.

Judgment accordingly.