author: Okey, J.

text:
    Holtz v. Dick.
    1. While the parents of a married woman are not liable in damages where they have encouraged her to separate from her husband, and supported her in such separation, in the honest belief that it was necessary for her protection, the appearances seeming to indicate such necessity, although in fact there was no ground for separation and no actual necessity for such protection ; yet where the motive is not protection to the wife, but malice and ill-will toward the husband, an action may he maintained.
    2. A marriage entered into in this state when the wife is less than sixteen years of age, becomes irrevocable by cohabitation at the time, and after ■ she arrives at that age ; and she may also ratify the marriage, at that age, in other ways, as by letters to her spouse, addressing him as her husband, and signing the letters by her Christian and his surname.
    3. Where the parties to a marriage in this state arrive at the common law age of consent, and also arrive at a period when they are man and woman, the parents have no authority to compel a separation in opposition to the wishes and interests of the husband and wife, on the ground that such wife had not, at the time of the marriage, arrived at the age of sixteen years, and that the marriage was without the parents’ consent; and where such separation is caused by her parents, not for her protection, but solely to gratify their feelings of ill-will and hatred toward her husband, he may maintain an action for the injury.
    4. On the trial of an action against husband and wife, for inducing the plaintiff’s wife to abandon him, in which the illegal acts are charged to have been done by the female defendant, evidence of her acts is competent, even if such acts were unknown to the husband and he had not encouraged her to commit them ; and if a cause of action is proved, both are liable.
    5. Where a wife has separated from her husband and is living with her parents, and in an action by the husband against such parents, the question is whether she is there voluntarily or by the malicious interference of the parents, evidence is competent to show that the parents had, after such separation, knowingly encouraged her to associate with disreputable persons.
    6. A wife was living with her parents, separate from her husband, and the question whether she was there by the wrong of the husband or the parents being on trial, in an action of the husband against the parents, letters written by her, during such separation, in which she addresses him as her “dear husband,” are competent to show the condition of her feelings towards him ; and the husband is a competent witness to show that such letters are in the hand-writing of his wife.

      7. A witness who has been fully examined in chief and cross-examined, may he re-examined to explain the sense and meaning of any expression used in cross-examination; but ho cannot he examined concerning new matter not referred to in the cross-examination, as to which he might have been examined in chief. Any relaxation of the rule is but an exercise of discretion, and not reviewable.
    Error. Reserved in the District Court of Richland county.

      Thomas McBride, for plaintiffs in error.

      Miriam da Leyman, and Sidles da Sidles, for defendant in error.
   Okey, J.

James Dick and Irena Holtz were married in this state, on April 5, 1877, in due form of law, but without the consent of Irena’s parents. They lived together as husband and wife until September 1, 1877, when Irena returned to her parents, Frederick Holtz and Elizabeth Holtz, with whom she continues to reside. Dick brought suit in the court of common pleas of Richland county, against Holtz and wife, charging that Elizabeth Iloltz, by a series of acts, caused the separation, and that the acts were malicious. The defense was that Irena abandoned her husband voluntarily, being under sixteen years of age at the time of such abandonment. There was a verdict and judgment in favor of Dick for $2,000, and a petition in error having been filed in the district court, that court, regarding the questions of law as difficult, reserved the cause for decision by this court.

We think it is clear from the record, which contains all the evidence, that while there was evidence tending to show that Irena was only fifteen years of age on May 1, 1877, she was, in fact, sixteen years of age at that time ; that from the time of the marriage (April 5, 1877), until the time of the separation (September 1, 1877), she cohabited with Dick as his wife on terms of affection; that Irena, neither during the time of such cohabitation, nor since, has made the slightest complaint of Dick in any respect, nor had she any cause of complaint; that Dick was an industrious young man, belonging to a respectable family ; that Mr. and Mrs. Holtz resided on a farm which they owned, and Irena was their only child ; that the separation was not the voluntary act of Irena, nor was there any evidence fairly tending to show that it was voluntary, but it was caused and maintained by Mrs. Holtz alone, not with a view to the protection or happiness of Irena, but solely to gratify her (Mrs. Holtz’s) hatred of and ill-will toward Dick —Frederick Holtz, under the dominion of his wife, consenting to such acts ; and that Dick was entitled to recover; nor can we say, looking to the extraordinary character of the evidence, that the damages were excessive.

The inquiry is whether error of law intervened, and the questions thus presented we will now consider.

1. Anna Harbridge testified that the second week after the marriage, at the request of Mrs. Holtz, sh® wrote a letter to ■ Irena, to the effect that if she wished to see her father alive, she would come home. Irena came, and found her father at the barn at work. Subsequently the witness, at the request of Mrs. Holtz, told Irena that her mother would give her jewelry, a paisley shawl, a silk dress, and a gold watch and chain, if she would come home. When Irena came Mrs. Holtz told her she would disinherit her if she returned to Dick. Mr. Holtz Tvas not present at these conversations. The defendants excepted when they were admitted in evidence. But we think they were competent. The statutes in relation to the property of married women have not changed the common law as to the liability of husbands for the torts of their wives (Fowler v. Chichester, 26 Ohio St. 9); and in order to hold him liable for her acts, it was not necessary to show his presence at the place where the acts were done, or even his knowledge that they were contemplated, or that they had been committed.

2. Evidence was offered that in the fall of 1877, two young women, relatives of Mrs. Holtz, made a visit to her house, and while there they drove out several times accompanied by Irena. The defendants objected to the testimony. If the young women were of good character, the evidence was harmless, and we do not reverse judgments for errors which cannot be prejudicial. But the evidence shows that Mrs. Holtz knew at the time that the young women were not of good repute, and hence in permitting such association, the wrong done to Dick was aggravated, and the possibility of a reconciliation rendered more hopeless. The pertinence of the evidence is more apparent when considered in connection with other facts of a very serious character, which we need not detail in this report.

3. Dick testified that he carried on a correspondence with his wife from the time she ceased to live with him until in May, 1879. He deposited letters to her in the gate post in Mr. Holtz’s yard, and she deposited answers in the same place. Three of the letters he produced on the trial, and he testified that they were in the hand-writing of Irena. One of the letters begins as follows: “Wednesday, May 28th, 1879. Dear Husband.” And it is signed “ Irena Dick.” One is dated in April, and is addressed in the same way. The other, without date, was addressed “ Kind Husband.” There was no evidence to show whether any person was present when the letters were written. The defendants objected that Dick was not competent to testify to his wife’s hand-writing, and also objected that the letters were not competent. The court, however, overruled the objection, permitted Dick to testify to his wife’s hand-writing, and also admitted so much of the three letters as is above set forth, and the defendants excepted.

Dick was a competent witness. The only limit to the competency of husband and wife is that they cannot testify “ concerning any communication made by one to the other, or an act done by either in the presence of the other, during coverture, unless the communication was made, or act done, in the known presence or hearing of a third person competent to be a witness.” Rev. Stats. § 5241. Biit Dick did not testify to a communication. He testified to a fact, namely, the hand-writing of Irena, and was competent for such purpose. And the parts of the letters offered were competent evidence, assuming, as we may, that the defendants had the privilege of offering the whole of either or all the letters. The words read tended to show that Irena was living separate from her husband, not because she had no affection for him, but because it was the will of her mother she should do so ; and if the marriage had needed ratification, the letters tended to show ratification. The letters were competent, and we do not see any reason for confining the evidence to the parts of the letters which were read. Perry v. Lovejoy, 49 Mich. 529; Preston v. Bowers, 13 Ohio St. 1. Used for the purposes above stated, neither of the letters could be regarded as a “ communication” by the wife to the husband, within the object or purpose of the statute. The rule on the subject existing before the statute assumed its present form, would not have excluded the letters, as will appear from the above eases, and it is clear to us that that rule has not been limited by the present legislation, but enlarged.

4. Mrs. Holtz was a witness in her own behalf. After she had testified fully as a witness in her examination in chief, she was cross-examined. She was then re-examined, and on such re-examination, her counsel asked the following question ; “ When Irena came home what reason, if any, did she give why she did not live with James Dick? ” Counsel stated -at the time he expected to prove by her that when Irena came home she said she would not longer live with plaintiff, because she was satisfied she was not legally married to him, and also because the relations of the plaintiff did not use her well. The court l'efused to permit the evidence to be given, and properly. It was'stated more than sixty years ago, in an opinion of the judges, delivered in the House of Lords by Abbott, C. J., in Queen Caroline's case, 2 B. & B. 284, 294, as the well settled law, that “ counsel has a right, upon re-examination, to ask all questions which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful, and also of the motive by which the witness was induced to use those expressions; but I think he has no right to go further, and to introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness.” That rule has been re-asserted in numerous cases (1 Wkart. Ev. §§ 572, 575; 1 Green. Ev. §§ 467, 468), and a relaxation of it in any case is but the exercise of discretion by the court, and not reviewable. The matter sought by this re-examination was in no way connected with anything appearing in the cross-examination, but, if proper, was evidence which should have been called for in chief, and no reason whatever was stated why it had not been brought out in chief. All though the ground upon which the evidence was rejected is not stated, we are bound to say it was excluded' upon the true ground, and we would not be warranted in saying that the court erred in this respect.

5. The remaining question relates to the law applicable to the case. A man properly demeaning himself is entitled to the society and assistance of his wife against all the world. Whoever unlawfully deprives him of such society or assistance is liable to an action. In estimating damages, however, each case must be determined by the circumstances attending it, and the motive of the intervening person must be ever kept in view. The cases may be properly divided into two classes. One where a villain interferes for the purpose of seduction, or the sole ground of interference is malice; the other where friends, usually parents, interfere for the protection of the wife and the offspring, if any. In the first class the husband, if without fault, is always entitled to damages; in the latter, if the motive of the intervening person was pure, and the appearances seemed to indicate necessity for interference, there can be no recovery, though no occasion for interference really existed. Much will be forgiven the parents > of a wife who honestly interfere in her behalf, though the interference was wholly unnecessary, and may have been detrimental to her interest and happiness, as well as that of her husband; still, where the motive is not protection of the wife, but hatred-and ill-will of the husband, it is no answer to his action for such interference that the offenders were his wife’s parents. Friend v. Thompson, Wright, 636, 639; Rabe v. Hanna, 5 Ohio, 530; Preston v. Bowers, supra; Schouler’s Hus. & W. § 64; Cooley’s Torts, 224.

Dick was twenty-one years of age at the marriage. Irena became sixteen on the first day of the month following the marriage, and then, and for months thereafter, she and Dick cohabited together as husband and wife. The statute then in force provided : “ Male persons of the age of eighteen years, and female persons of the age of sixteen years, not nearer of kin than second cousins, and not having a husband or wife living, may be joined in marriage; provided, always, that male persons under the age of twenty-one years, and female persons under the age of eighteen years, shall first obtain the consent of their fathers, respectively, or in case of the death or incapacity of their fathers, then of their mothers or guardians.” 67 Ohio, L. 6; Eev. Stats. § 6384. By force of such cohabitation, the marriage became, when Irena arrived at the age of sixteen — she becoming sixteen on May 1,1877 — as completely valid as though she had been eighteen years of age when the marriage took place. The want of consent of her parents under such circumstances, could have no effect on the validity of the marriage. Nor is the result different if Irena, when she returned to her parents in September, 1877, was less than sixteen years of age. Clearly, if such was the fact, she might have lawfully separated from Dick, and she might have effectually revoked the marriage then or subsequently by marrying another man (Shafher v. The State, 20 Ohio, 1; McDowell v. Sapp, 39 Ohio St. 558), or, on arriving at sixteen years of age, she might have revoked the marriage without a second marriage. So, 'on arriving at sixteen years of age, although then living with her parents separate from her husband, she might effectually ratify the marriage, and the letters to him, already referred to; would be strong, and in the absence of opposing testimony, sufficient evidence of ratification. But -in our opinion Irena at the time of the marriage, had not only arrived at the common law age of consent, but she was a woman and not a mere child, even if we could be led to believe she was less than sixteen at the separation. And as James Dick was living happily with his wife, and as it was the interest and desire of both that they should continue- to so live, we deny that the parents had authority to cause them to separate on the mere ground that she had not arrived at the age of sixteen years and the marriage was without such parents’ consent; and the motive having been malice toward Dick and not protection to Irena, we hold that the action was maintainable, even if her age was as her parents claimed it to be.

It is sufficient to add, that the charges requested were wholly at variance with the law as we have stated it to be, and therefore they were properly refused ; and that the charge as given was not prejudicial to the plaintiff’s in error.

I confess to some reluctance to the entry of judgment against Frederick Holtz. But if the law as to the liability of the husband for the tort of his wife is wrong, the evil must be remedied by the legislature and not this court.

Judgment affirmed.


source: Caselaw Access Project

author: Johnson, C. J.

license: Public Domain

text:
    Freon v. Carriage Co.
    1 Mandamus is not the proper remedy .to enforce the performance of a duty imposed upon the officers of a private corporation organized for profit merely, where such duty is not specifically enjoined by law, and where there is a plain and adequate remedy either at law or in equity.
    2. The purchaser of shares in such a corporation, where the incidental rights of a stockholder do not- depend on the ownership of these specific shares, is not entitled to a writ of mandamus to compel their transfer.
    3. The fact that the business of the corporation is very profitable, that its shares of stock have no known market value, or are greatly enhanced • by the good-will of a growing business, will not vary the rule where > the actual value is ascertainable in an action to recover damages.
    Application for alternative writ of mandamus.
    The district court of Hamilton county refused to grant the alternative writ prayed for, and the application is now made to this court for that purpose.
    There is no denial of the facts stated in the petition, so the question of law presented is, do these facts warrant the issuing of the writ ?
    The petition, after alleging that defendant is a manufacturing corporation under the laws of Ohio, avers that the plaintiff purchased of a stockholder, a share of stock in the defendant corporation, and received the certificate thereof, duly transferred to him, whereby he became the owner of such share.
    He avers that he presented said certificate with the transfer thereon, to the officers of the corporation and demanded a transfer of the stock to his name, and that he be enrolled among the list of stockholders, and be recognized as a member, and admitted to all the rights of a stockholder. These requests were refused, and he was then notified that he should not then nor at any other time be so recognized, or be admitted to the privileges of a stockholder, or to vote, or receive any profits or advantages to be derived by a stockholder.
    Then follows what are claimed as special reasons for granting the writs, as follows:
    “ Plaintiff further says that defendant company was organized and incorporated, as aforesaid, for the purpose of manufacturing carriages, buggies and other vehicles, in said city of Cincinnati, and has ever since been and now is manufacturing said carriages, buggies and other vehicles, and selling same for profit, and conducting said business; that his right to have said certificate named, transferred on the books of said company, and to have his name registered or enrolled on said book, kept for that purpose by said secretary, for said' company, as a member and stockholder therein, and to become a member thereof, to participate in the management and conduct of the business, is of great and inestimable value to him, not only in the present, but also, and more particularly, in the future, because of the great good will which the said business enjoys and the great prospective value of the business itself; that not only is the said paid up certificate of stock now the property of the plaintiff, of great value, but said company has for several years past been doing a large and profitable business, has • made large sums of money, acquired the title to valuable real estate, now of great value with prospective enhancement, and has a large factory now in operation, which it now owns and holds by legal title, with right of alien-ability, in said city of Cincinnati; and that the prospects for future business, based upon said good-will, and its property and assets, and the growing business of said company are conducive to further earning of large profits, in which the plaintiff, as said stockholder, has a vested right, which, by the said refusal, as aforesaid, he will be unable to acquire and enjoy ; that the real value of said share of stock, based upon the present assets and property of said company, cannot be ascertained with certainty, but in view of said good will and the said growing business will become very valuable by the proper conduct and management of said business, to which the plaintiff is entitled, by virtue of being a stockholder, to have a voice.

      “ That he has no adequate remedy at law in the premises, and that said company threatened to, and do prevent the plaintiff from any access to the said business or participation in the same, or in the profits, which will certainly be derived in the management of said business, and that the refusal and denial of the rights hereinbefore urged, will work, unless pro-ected by the court, irreparable injuiy to him.”

      Milton Safer, Long, Kramer & Long, for the relator:
    The relator being the undisputed owner of a share of stock in defendant company, and having demanded a transfer to his name, on the books of the company, and such demand being refused, mandamus will be awarded to compel a transfer. Weston v.Bear River Min. Go., 5 Cal. 186 ; People Y.Croclcett, 9 Cal. 112; Green Mountain Turnpilce Go. v. Bulla, 45 Ind. 1; Campbell v. Morgan, 4 Bradw. (Ills.) 105 ; Cooper Y.Oanal Go., 2 Murp. (N. C.) 195; State v. Warren Foxmd/ry Co., 32 N. J. L. 439 ; Townsend'Y. Mclver, 2 S. Car. N. S. 25; Martin v. N. O. da O. R. R., 30 La. An. 308; Field on Corp. § 139 ; 1 Redfield on Railw. 144; 2 Id. 281.
    And mandamus has been awarded to compel the admission as members to a corporation of those entitled to become such. Rex v. March,- 2 Burr. 999; Da Oosta v. Russia Go., 2 Strange, 783 ; Reg. v. Saddlers Go., Bail Court Cas. 183; People y. Medical Society of Erie, 32 N. Y. 187 ; Lamphere v. Grand Lodge A. O. U. W., 11 N. W. R. 286.

      And it lias been awarded to compel a corporation to keep a registry and insert therein the names of stockholders. Harris v. Irish Land Go., 3 Ellis & B. 512 ; Beg. v. Bailway Go., 11 Eng. C. L. 408; Beg. v. Midland B'y Go., 9 Law Times (N.S.) 151 ; Morris v. Irish Land Go., 8 Ell. & B. 525 ; Ma-rot y. South-Bast B’y Go., 29 L. J. Q. B. 177; Swan v. North British, etc. Go., 31 L. J. Ex. 425.
    And generally where the performance of a plain duty is imposed either by statute, charter, custom or contract on an officer of a public or private corporation mandamus will be awarded to compel its performance. Field on Gorp. § 504.
    Defendant company was organized under the act of April 12, 1858 (55 OhioL. 145) S. & C. 301. Section 81, page 304, provides among other things that the directors, “ shall cause a record to be kept of all stocks subscribed and transferred, and all business transaction, and their books and records shall at all reasonable times be open to the inspection of any and every stockholder,” and this provision has been substantially incorporated into the Revised Statutes, 1880. See section 3242„as amended 80 Ohio L. 42, 3263, as amended 79 Ohio L. 104, 3264, 3268. We are aware that there are a number of authorities in which it has been held that mandamus will not be awarded to compel a transfer of shares, because there is an adequate remedy at law in an action for damages ; but it will be noticed that they were all decided upon one of the follow-lowing points : 1st. That the shares in controversy had an ascertainable market value, and were of that class of stocks bought and sold in the market, and their value could be readily and certainly ascertained. 2d. That there was a controversy, or one likely to arise as to the ownership of the shares, and the title of the relator not clear.
    This will appear by reference to State ex reí/ v. Peoples B. & L. Ass'n, 43 N. J. L. 389 ; Staelepole v. Seymore, 127 Mass. 104; Murray v. Stevens, 110 Mass. 95; Shipley v. Bank, 10 Johns. 484; Dos Passos on Stock Brokers, 741.
    This writ lies in all cases where the relator has a clear legal right to the performance of some official or corporate act by a public officer or corporation, and no other adequate specific remedy exists. C. W. & Z. R. R. Go. v. Clinton Co., 1 Ohio St. 77, 105 ; Moses on Mand. 108; Wood on Mand. 23, 24.
    In other words, the remedy must be plain, adequate, and give relator full and complete satisfaction, equivalent to a specific relief, to justify the refusal of the writ.
    And the mere fact that an action or proceeding will lie, does not necessarily supersede the remedy by mandamus. The relator must not only have a specific, adequate and legal retnl edy, but it must be one competent to afford relief upon the very subject matter of his application, and if it be doubtfu-whether such action or proceeding will afford him a complete remedy, the writ will issue. Moses on Mand. 112; 6 Col. 318 ; Fremont v. Crijjpen, 10 Cal. 211; Ethide v. Rail, 7 Porter, 47 ; 23 Cal. 391; People ex rel. v. State Treas., 24 Mich. 469 ; State v. Wright, 10 Nev. 167, 175 ; G. IF. c& Z. R. R. Go. v. Clinton Go., 1 Ohio St. 77, 105 ; Dos Passos on Stock Brokers, 742.
    Tested by the rule stated in the foregoing authorities an action for damages could under the allegations of the petition be either plain, adequate, or equivalent to the transfer of the share to relator, the value of the share not being ascertainable, and such a remedy, resulting necessarily, in the loss of the stock as property, by a judgment for value, even if such value is ascertainable. The relator’s remedy at law is not only doubtful, but he has no adequate remedy except by mandamus, to give him all he is entitled to, and to allow him to retain his ownership of the share. The rule is that the measure of damages for refusing to transfer a share of stock is the value at the time of such refusal. Railroad v. Robbins, 35 Ohio St. 501.
    Of course this would deprive relator forever, from enjoj^-ing any of the rights or advantages, which belong to the share, either as an investment, or otherwise, after judgment rendered.
    How conld the value of the good-will be estimated ? It may be valued as of a certain time, at the death or retirement of a partner or the sale of the business, but not as of a future time, or in a going concern. 3 Kent’s Com. 64 and notes; Collyer on Part. § 162 ; Moody v. Thomas, 1 Disney, 294, 298 ; Gary v. Gunnison, 17 N. W. Rep. 881.
    The attempt to determine the value of the good will of a going concern like defendant company, at a future time, and the value of its property, assets and business for the purpose of ascertaining relator’s damages by the refusal to transfer the share, recognize and admit him to membership, with its rights and privileges, would be entering into the field of uncertainty, speculation and conjecture, which the law does not permit. Rhodes v. Baird, 16 Ohio St. 573.
    Uoadly, Johnson & Colston, for respondent:
    The relator is not entitled- to the writ of mandamus, because he has a plain and adequate remedy by action in the ordinary course of the law. 2 R. S. of Ohio, § 6744.
    A mandamus is a writ commanding the execution of an act, where otherwise justice would be obstructed, or the king’s charter neglected, issuing regularly only in cases relating to the public and the government; and is therefore termed a prerogative writ. 3 Bacon’s Abridgment, 527, Mandamus A.
    Prior to 1853, the date of the adoption of § 570 (2 S. & 0. 1126), there was no statute in Ohio pointing out “ the oc-. casion upon which the writ is to issue.” Matter of Turner, 5 Ohio, 543.
    The court there adopts the definition of mandaibus, and the rule as to when it will issue, that are laid down by Lord Mansfield in 3 Burrows, 1267.
    These principles of common law became statutory rules in Ohio, by § 570 (2 S. & 0. 1126), which provided that this writ “ May not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law.” Wo submit, therefore, that mandamus will not lie in this case, because the relator had a plain and adequate remedy, by action for damages. The following cases hold, that when a corporation improperly refuses to transfer stock, the party injured has an ample, though not a specific, remedy by action, and that mandamus will not lie. ' King v. Banh of England, 2 Doug. 524; Matter of Shipley v. Mechanics’ Bank, 10 Johns. 484; Exp. Firemen's Ins. Go., 6 Hill, 243; Wilkinson v. Providence Bank, 8 R. I. 22; Baker v. Marshall, 15 Minn. 177 ; State v. Rombauer, 46 Mo. 155; People v. Parker Vein Goal Go., 10 How. Pr. 543; American Asylum v. Phoenix Bank, 4 Conn. 172; Elliott v. Guerrero, 12 Nevada, 105 ; Murray v. Stephens, 110 Mass. 95 ; Stackpole v. Seymoior, 127 Mass. 104 ; State v. Warren Foundry Go., 32 N. J. Law, 439 ; State v. Building Association, 43 N. J. Law, 389 ; Birmingham Fire Ins. Go. v. Gommonwealth, 92 Penn. St. 72, 77; Bank v. Harrison, 66 Ga. 696 ; Hill v. Pine River Bank, 35 N. PI. 300 ; Morawetz Private Corp. § 337 ; King v. London Assurance Go., 5 Barnw. & Aid. 899.
   Johnson, C. J.

The defendant is a corporation for manufacturing purposes organized under the act of April 12, 1858 (1 S. & O. 301, 304), but is now governed by the provisions of the Revised Statutes relating to private corporations for profits. By section 3254, Revised Statutes, a stockholder is entitled to a certificate of stock, and it is made the duty of the president and secretary to issue the same to 'him. By section 3255, shares of stock are declared to be personal property, subject to levy and sale on execution.

The corporate powers, business and property of the corporation, are vested in a board of directors. The corporation may adopt a code of regulations, not inconsistent with the constitution and laws of the state, and the directors, with like limitations, may adopt a code of by-laws for its government. The directors are clothed with this general power, to be exercised in the discharge of the trust reposed in them. The statute does not in terms specifically require that registry and transfer books, be kept, nor does it specify in what form, nor under what conditions such a transfer will be made. Whatever duties exist in relation to transfers of stock, arise from the general provisions of the statute, and the nature of the duties imposed by the trust relation which the officers occupy towards stockholders.

By section 3259, the term “ stockholder ” within the meaning of the individual liability section (3258), includes the equitable, as well as legal owners,. — actual owners as well as registered owners. Such equitable owners by transfer of the certificate and notice thereof to the company, are entitled to draw dividends, where there is no dispute between the assignor and assignee as to title. Railroad v. Robbins, 35 Ohio St. 484.

Mandamus is a writ issued in the name of the state, to an inferior tribunal, a corporation, board or person, commanding the performance of an act, which the law specially enjoins as a duty, resulting from an office, trust or station (Rev. Stats. § 6741). The writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law” (R. S. § 6744). It results from these provisions that as against a corporation, the writ can only issue for a neglect to perform some corporate duty specially enjoined by law where there is no other plain and adquate remedy. If therefore the neglect or refusal relates to a corporate duty, not enjoined by law, or results in a private injury merely, that may be compensated in damages, or is a breach of the trust reposed in the corporate authorities that may be enforced in equity, the writ.must not issue. So where the right is doubtful resort must be had to the proper forum in law or equity for relief.

In the case at bar the only breach of duty alleged, is the refusal of the corporation to transfer this share of stock and to enroll the relator as a stockholder. True, it is alleged, that the corporation notified the relator that they would never recognize him as a stockholder, nor allow him the privileges resulting, such as the right to vote, receive dividends, etc.; but as it is not averred that there are dividends to be drawn, or election to be held, such a notification is a mere threat as to its future course toward him, and not a breach of official duty, for which mandamus would lie in any case.

This corporation is one of purely a private character. It is organized and operated for private gain merely. It is charged with no public duty or trust in the management of its affairs, that are not imposed on unincorporated associations or partnerships engaged in a like enterprise. Its refusal to transfer this share of stock, and enroll the relator as a stockholder, may be a breach of corporate duty to a private individual, but if he has a plain and adequate remedy for this, in the ordinary course of the law, he has no right to use the name of the state in his behalf to redress his injury. That an action for damages will lie for refusing such transfer" is settled by all the authorities, if the ownership is not in dispute.

It is said however, that this stock has no market value, that the corporation is doing a growing and profitable business, that its good-will enhances the value of the stock, and that by reason of these things, damages will not be an adequate remedy.

These facts do not change the rule. They are elements in assessing damages, which may be fully ascertained in an action at law. '

In actions for conversion of. personal property, such as these shares are, the damages are not limited to the market value of the stock. Its actual value to be determined under all the circumstances, such as the dividend making capacity, the good will, etc., etc., is the measure of damages.

In this connection we adopt the language of the court in Murray v. Stevens, 110 Mass. 95.

“ Where the incidental rights of ownership (such as eligibility to corporate offices, or the right to vote at corporation meetings), do not depend upon the ownership of the spécifio shares which are the subject of dispute, but could be as well and fully enjoyed by virtue of the ownership of an equal number of other shares, there would seem to be no occasion to resort to the extraordinary remedy of mandamus. The damages which the relator might recover in an action at common law for the violation of his right would be exactly measured by the sum of money which it had cost him, or would have cost him, to obtain the same right in another way — namely, by purchase. That is to say, with the amount in money of the market value of the shares in dispute they could be replaced. Where recovering the value of the stock would indemnify the party, the writ ought not to be granted.”

In tlie caso at bar there lias been no actual breach of duty-in respect to these incidental rights, such as the right to vote and be voted for, to draw dividends, &c. We are not now called on to determine whether a case might not be made for relief by mandamus, when special injury would result from a refusal to admit a member. The opinion in Shipley v. Merchants’ Bank, 10 Johnson, 484, very aptly expresses the rule : “ The applicants have an adequate remedy by a special action on the case, to recover the value of the stock, if the bank have unduly refused to transfer it. There is no need of the extraordinary remedy by mandamus, in so ordinary a case. It might as well be required in every case where trover would lie. It is not a matter of public concern, as in the case of public records and- documents; and there cannot be any necessity, or even a desire of possessing the identical shares in question, lly recovering the market value of them, at the time of the demand, they can be replaced. This is not the case of a specific and favorite chattel, to which there might exist the pre-tium affectionis.”

Our attention has been called to the fact that there is some conflict in the text-books and cases upon this point. The -result of a very careful examination of these, lead us to the conclusion, that upon authority as well as upon principle the writ should not issue in the case at bar. That the writ should issue to compel the admission of a member into an incorporated society, where the advantages are personal rather than pecuniary, is clear, for in such a case the loss is incapable of a money compensation.

Morawetz on Corp. § 331; High on Extr. Rem. § 313, and Wood on Mandamus, 23, concur in saying that the weight of authority is against allowing the writ to compel the transfer of shares in a purely private moneyed corporation, while Eield on Corp. § 139, is to the contrary, evidently on the authority of Weston v. Bear River Min. Co., 5 Cal. 186, and People v. Crockett, 9 Cal. 112, but these cases are in effect overruled in Kimball v. Union Water Co., 44 Cal. 173, where it is expressly held, that for a refusal to transfer shares in a private corporation, a party has an action in damages, and therefore mandamus will not lie.

In Norris Adm'r v. Irish Land Co., 92 Eng. Com. Law, 511 (8 Ell. & Black), it was held, that mandamus would lie, on the death of a shareholder, to compel a registration in the name of his representative, where the charter specifically required such registration. In that case it was conceded the writ will not issue to compel the execution of a mere private contract, but it is said that under section 68 of the common law procedure, act of 1854(17 & 18 "Victoria, c. 125), this remedy is not confined to cases, where, before the ¡sassage of that act, it would have been granted'. Inasmuch as in that case, the duty of "making the registry was specifically imposed by charter, the writ was awarded, and this seems to be the true ground of the decision.

Under our statute now in force, there is no such specific duty imposed as to transfers of shares in this corporation, but a general authority is given to manage the corporate business in the interest of all the stockholders. This power imposes a corresponding duty to make such by-laws and to keep such accounts and books as are necessary to the discharge of the duties imposed. If transfer books and registers of stock are necessary for this purpose, the law implies a duty to keep them, but we cannot say, that it is a duty specially enjoined by law, but rather an implied duty growing out of the trust relation, which the officers-bear to the stockholders.

"We annex some of the many decisions in support of our conclusion. King v. Bank of England, Doug. 524; Regina v. Mid. Co. & S. J. R. R. Co., 9 L. T. R. N. S. 151; Stackpole v. Seymour, 127 Mass. 104; Birmingham Fire Ins. Co. v. Commonwealth, 92 Penn. St. 72; King v. London Ass. Co., 5 B. & Al. 899; State v. People's Build. Ass., 43 N. J. L. 389; State v. Warren Foundry, 32 N. J. L. 439.

Norris v. Irish Land Co., supra, rests upon the' ground, that the charter specifically enjoined upon the officer the duty of making such transfer. Whether, under section 6741, it would issue in this state for the refusal to perforin a specific duty enjoined by statute, we need not now determine, as the duty of making sucli transfers is not specifically enjoined. That equity will often furnish relief in case of a refusal to transfer stock (or like cases of the breach of trust) where the trust ielation the directors bear to the shareholders is clear. Morawetz on Oorp. § 405 ; Cushman v. Thayer M. Co., 76 N. Y. 365; Railway Co. v. Robbins, 35 N. Y. 500; Ham v. Toledo, W. & W. R. R. Co., 29 Ohio St. 174; 3 Pomeroy on Equity, § 1412.

We conclude, therefore, that, upon the facts stated, the plaintiff’s application must be refused.

Judgment accordingly.


author: Follett, J.

text:
    Barrett v. Hart.
    A chattel mortgage contained the following: “If the said party of the second part shall at any time deem himself in danger of losing said debt or any part thereof, by delaying the collection thereof until the expiration of the time above limited for the payment thereof, . . . said party of the second part is hereby authorized to take possession of said goods ... at any time, wherever found, either before or after the expiration of the time aforesaid,” etc.

      ITeld: 1. The mortgagee may take possession of such property, when he, acting in good faith and upon facts arising since making the mortgage, does deem himself in such danger.
    2. Such a mortgagee, if a witness, may testify as to whether or not he did deem himself in danger of thus losing his debt or part thereof.
    Error to the District Court of Ottawa county.
    On October 28, A. D. 1878, J. B. Hart, the defendant in error, commenced an action of replevin in the court of common pleas of Ottawa county, Ohio, against Elizabeth Barrett, the plaintiff in error, and one John Mitchell, to recover the possession of a steam tug owned by Elizabeth Barrett, and upon which she had given a mortgage to Hart, to secure the payment of four notes amounting to $750, given for a boiler furnished by Hart for the tug. The notes matured on the 24th day of May in each year, commencing in 1878, and the' first note had been paid at maturity. None of the other notes were due at the time suit was begun.
    It was provided in the mortgage that the mortgagor was to retain the possession of the tng until default in performing the conditions set forth in the mortgage, one of which was, if TIart should “ at any time deem himself in danger of losing said debt, or any part thereof, by delaying the collection thereof until the expiration of the time above limited for the payment thereof,” then Hart might take possession.
    On the trial in the court of common pleas the parties waived a jury and the ease was tried by the court. Hart testified, that at the time this suit was commenced the tug was lying on the bar in Lake Erie, outside of the government piers, she was lying on her side sunk, one side and part of her pilothouse was out of water; she seemed to be going down, she was on a sand-bar; her machinery was under water and damaging ; a northeast wind would have been damaging ; at .the time she was wrecked I do not know what she was used for; while she lay there I could not swear as to the condition of her hull as it was under water; I could not see it; at the time the petition was filed she was lying outside the bar; at that time there was nobody trying to get her off, but there had been; I came from Sandusky that day on the morning train, about ten o’clock, to Port Clinton, where she lay. Then the following question was asked the witness by his attorney, to wit: State whether or not at the time you commenced this suit you thought yourself in danger of losing the debt secured by said mortgage or any part of it if yon longer delayed collecting it? To which question the defendant Elizabeth Barrett then and there objected, on the ground that the witness could not be heard to testify as to what ho thought about the danger of losing his debt or a part of it. When the plaintiff, by his attorneys, stated to the court that they expected the witness would answer that at that time he thought himself in danger of losing said debt, or at least a part thereof, if he longer delayed the collection thereof. But the court sustained the objection and refused to allow the question to be answered by Hart, to all of wliicb ruling the plaintiff, by his attorney, then and there excepted.
    After other testimony judgment was given for Elizabeth Barrett for $1,500, and the case was dismissed as to Mitchell.
    The district court reversed the judgment of the common pleas as to Elizabeth Barrett, on the ground that the court refused to allow Ilart, to answer the following question, to wit:
    “ State whether or not at the time you commenced this suit yon thought yourself in danger of losing the debt secured by mortgage or any part of it if you longer delayed collecting it?”'
    To reverse this judgment of the district court, reversing the judgment of the common pleas, Mrs. Barrett has filed her petition in error in this court.

      T. L. MagerSy for plaintiff in error.

      T. J. Marshall, for defendant in error.
   Follett, J.

Did the district court err in reversing the judgment of the court of common pleas? This depends upon the true construction to be given to the condition in the chattel mortgage that, “ if the said party of the second part shall at any time deem himself in danger of losing said debt, or any part thereof, by delaying the collection thereof, until the expiration of the time above limited for the payment thereof,” then Hart had the right to take possession of the tug; and whether or not Hart was a proper witness to testify, that at the commencement of this action bethought himself in danger of losing the debt, or a part thereof, if he longer delayed the collection thereof.

No claim is made that the expression, “ deem himself in danger,” as written in the mortgage, and “ thought yourself in danger,” as asked in the question, are not equivalent.

When the question was asked, Elizabeth Barrett objected “ on the ground that the witness could not be heard to testify as to what he thought about the danger of losing his debt, or a part of it.”

Testimony was given that the tug was lying on her side sunk, on the bar in Lake Erie, outside the government piers, and seemed to be going down, that the machiueiy was under water, and being damaged thereby, and the deck planks were sprung, and that she was in danger of going to pieces, and that there was no one trying to get her off.

If these were facts there was danger of losing some part of the property mortgaged, and perhaps danger of losing some part of the debt.

The condition of the mortgage is, if Hart at any time shall deem himself in danger of losing the debt, or any part thereof.” Both parties have agreed that the state of Hart’s mind shall have something to do in determining whether or not he may take possession of the property before the claim is due.

The foots of danger are not made the condition ; but, that Hart shall deem himself in dangei\

To fulfill this condition, Hart cannot simply say he so thinks ; nor can he act from malice, or caprice. Still the state of his mind as to his danger of loss, is the determining fact agreed upon to decide whether or not he has a right to take possession. The mortgagee is made the judge, his mind is to be moved to a certain state, his judgment is to arrive at a certain conclusion, and his mind must be moved by facts — not opinions on questions of law, and the facts must be those arising after the giving of the mortgage.

The mortgagor trusts the mind of the mortgagee, such as that mind is, whether that be active, clear, strong and correct, or dull, weak and nearly certain to go wrong. And being thus trusted, the mortgagee must act in good faith; and when he thus acts and “ deems himself in danger of losing said debt, or any part thereof, by delaying the collection thereof, until the expiration of the time above limited for the payment thereof,” he may take possession of the property in accordance with the terms of the mortgage.

The facts of danger alone'cannot determine the breach of this condition. To a judge or jury on the trial, such facts may show only apparent, and not real danger, and yet the inert-gagee deem and know tbe danger real; or to such judge or jury the facts may show real danger, and the mortgagee deem and know the danger only apparent.

The true standard must be, whether or not the mortgagee, acting in good faith, at the time deems himself in danger. And the mortgagee, if a competent witness in the case, may testify as to whether or not he then deemed himself in such danger. Then the grounds of such thought may be tested to ascertain whether or not he did deem himself in such danger.

In Roy v. Goings, 96 Ill. 361, Chief Justice Dickey reviews Bailey v. Godfrey, 54 Ill. 507, and Lewis v. D'Arcy, 71 Ill. 648, and Furlong v. Cox, 77 Ill. 293, and Davenport v. Ledger, 80 Ill. 574, which cases seem to be in conflict; and says: All these cases, carefully examined and properly understood, are in strict accord with each other in so far as they relate to the construction to be placed upon this condition as to the right of the taking possession by the mortgagee. If Eoy should £ feel himself unsafe or insecure,’ he should have the right to take possession.”

“ The first two cases referred to lay down the law, that by the stipulation of the parties the mortgagee is made the sole judge as to whether the contingency has or has not happened upon which he is authorized to take possession, the latter two cases, recognizing the same proposition, that he is ma.de the sole judge of the happening of the contingency, lay down the rule, that in judging of that contingency he must act in good faith and must have reasonable grounds to support his.belief. He must have probable cause for his belief. As was said in Furlong v. Cox, he must in good faith, based upon reasonable grounds, believe there was danger ; and again, that he must have reasonable grounds to suppose there was danger.”

And five to two of the judges in that case held that, under a clause in a chattel mortgage, that if the mortgagee shall, at any time before debt becomes due, feel himself unsafe or insecure,’ he shall have the right to judge of the crisis for himself, subject only to the limitation that his judgment of insecurity must be exercised in good faith, upon reasonable grounds or probable cause.”

“ This rule does not require that there should be actual danger, or that the proofs should furnish the court, at the time of the trial, with reasonable grounds to decide that there was actual danger, but it will be sufficient if at the trial, it appears that at the time of taking possession there was apparent danger, such as a reasonable man might in good faith act upon, or in other words, there should be reasonable grounds to believe there was danger, or that the mortgagee did not act without probable cause.”

Scott and Shelden, JJ., dissenting said, “We think it enough that the mortgagee felt himself insecure, and that it is not necessary that in addition thereto there should have been probable cause for feeling himself insecure.”

The supreme court of Wisconsin, in Huebner v. Koebke, 42 Wis. 319, and in Cline v. Libby, 46 Wis. 123, held that, “ A clause in a chattel mortgage, providing that if the mortgagee shall at any time deem himself insecure, he may take possession of and sell the property, vests in him an absolute discretion; and his right does not depend upon his having reasonable ground for deeming himself insecure.” And in Evans v. Graham, 50 Wis. 450, the same court went fully as far.

In Huggans v. Fryer, 1 Lans. (N. Y.) 276, the supreme court of New York seem to recognize the same principles, and hold that the mortgagee’s “ testimony was competent upon the question whether he £ deemed himself unsafe’ to allow the property to remain in mortgagor’s possession.”

And in Smith v. Post, 1 Hun, 516, the supreme court of New York say, “The mortgage provided, that in case of default in payment, or in case the mortgagees should at any time deem themselves unsafe, they might take possession of the property and sell the same : Held, that this provision was for the benefit of the mortgagees, and authorized them to take possession when, in their judgment, they deemed it best for the safety of their demands so to do, and that no proof was required to show that they considered themselves unsafe, as the legal presumption would be that such was the fact, when possession was taken before the mortgage was due.”

See also section 431, and cases cited, of Jones on Chattel Mortgages.

We cannot agree with those who hold that the mortgagee has an “absolute discretion,” and may act from the mere dictates of his own will; nor can we agree with those who hold that the mortgagee can act only on grounds that he can show to a court are reasonable.

The mortgagee should act in good faith, and his mind and judgment should be controlled by facts arising after the making of the mortgage, and in regard to the condition of the property mortgaged.

The judgment of the district court is affirmed.


text:
    Williams v. Schatz.
    A., having executed in due íovm a deed of gift of real estate to his son, said to B.: “ Take this deed and keep it. If I get well I will call for it. If I don’t, give it to Billy,” the grantee. A. was then ill and died within a few days thereafter of the same illness, and B. then handed the deed to the grantee, who caused it to he recorded. Held, that this did not constitute a delivery, and the instrument was invalid as a deed. Crooks v. Crooks, 34 Ohio St. 610, and Ball v. Foreman, 37 Ohio St. 132, approved but d'stinguished.
    ERROR to the District Court of Franklin county.
    W. F. Schatz and Lydia his wife, in 1878, filed a petition in the court of common pleas of Franklin county, against William Williams and Mary Williams. Lydia Schatz and William Williams are the only children of William Williams, sen., deceased, and Mary Williams is his widow. It is stated in the petition that William Williams, sen., died seized of 188 acres of land in Franklin county (properly described); that it descended to Lydia Schatz and William Williams; that on March 7, 1877, William Williams, sen., executed an instrument purporting to be a deed for the land aforesaid to his son William, “ in consideration, of the sum of one dollar and love and affection,” and placed the same in the hands of Dr. Blake ; that the deed .was never delivered, and is void; and that subsequently to the death of William Williams, sen., William Williams placed the pretended deed on record. The prayer is for cancellation of the deed and record; that William Williams be compelled to convey to the plaintiff Lydia one undivided half of the lands; and that partition of the lands be made between William and Lydia, and dower be assigned to Mary Williams.
    Issue was joined, and on trial in the district court, to which the cause had been appealed, the finding and judgment were in accordance with the petition. This petition in error is filed to reverse the judgment of the district court.
    From the record it appears that the undisputed evidence M'as that on March 7, 1877, William Williams, sen., having signed and acknowledged in proper form such deed, which deed had also been properly attested by witnesses, said to Dr. Blake : “ Take this deed and keep it. If I get well I will call for if. If I don’t, give it to Billy,” the grantee. The grantor was then seriously ill of typhoid pneumonia, grew gradually worse, and died of that disease on March 12, 1877. Subsequently Dr. Blake delivered the deed to William Williams, who caused the same to be recorded in the office of the recorder in Franklin county, and the grantee in the deed has been in possession ever since he received the deed from Dr. Blake.

      G. H. Nash and Q. N. Olds, for plaintiff in error :
    There was a sufficient delivery. Wheelwright v. Wheel-wight, 2 Mass. 446 ; Foster v. Mansfield, 3 Met. Mass. 412 ; Hatch v. Hatch, 9 Mass. 307; Belden v. Garter, 4 Day, 6G; Morse v. Slason, 13 Yt. 296 ; 14 Yt. 185 ; Buggies v. Lemson, 13 Johns. 285; Arthbechc v. Willcs, 4 Abb. Pr. 315; Hathaway v. Payne, 34 N. Y. 92; Tooley v. Dibble, 2 I-Iill, 641; Goodell v. Pierce, 2 Hill, 659 ; 103 Mass. 568 ; 2 Pa. St. 434; 77 Ill. 475 ; Wallace v. Harris, 32 Mich. 380 ; 19 Mich. 157; Croolcs v. Crooles, 34 Ohio St. 610; Merrill v. Swift, 18 Conn. 257 ; Church v. Gilman, 15 Wend. 656 ; 2 Green. Cruise’s R. P. 335, note; Shirley v. Ayres, 14 Oliio, 310; 4 Kent’s Com. 447, 454; 6 Coke Litt. 360 ; Sbep. Touch. 55; Steele Lowry, 4 Ohio, 74; Bunn v. Winthrop, 1 Johns. Oh. 329; Sonverbye v. Arden, 1 Johns. Ch. 240; Schuygham v. Wood, 15 Wend. 545 ; Goodrich v. Walker, 1 Johns. Ch. 250; 1 Am. Ch. Dig. 241; Byers v. McClanahan, 6 Gill. & J. 250; Gardner v. Collims, 3 Mason, 398; 1 Green. Ev. § 658, note 6; 2 Id. § 297; 1 Swift’s Dig. 122; Hilliafdis Abr. 294; Phillip’s Ev. 467, notes bj C. & H. pt. 2, 1281 ; Chitty’s Con. 4 ; Lloyd v. Bennet, 8 C. & P. 124 ; 5 P. & C. 671; 8 D. & Ry. 348; Farrar v. Bridges, 5 Humph. 44; 8 Met. 436; 2 Hill, 64; Buhes v. Spangler, 35 Ohio St. 119 ; Ball v. Foreman, 37 Ohio St. 132.

      L. English and J. W. Baldwin, for defendants in error:
    There was no effectual delivery; and no case for relief is shown. Phiyyps v. Hope, 16 Ohio St. 586 ; Brown v. Brown, 62 Me. 315 ; Shirley v. Ayres, 14 Ohio, 310; Prutsman v. Baker, 30 Wis. 644; s. c., 11 Am. Rep. 502; Cook v. Bown, 34 N. II. 466 ; Bearmond v. Bearmond, 10 Ind. 191; Walker’s Am. L. 368 ; Addison’s Con. 7; Kent’s Com. 544 ; 30 Cal. 209 ; Phillips v. Houston, 3 Jones’ L. 302 ; Banlc v. Webster, 44 N. II. 264; Johnson v. F'arley, 45 N. H. 505 ; Balter v. Haskell, 47 N. H. 479; James v. Wander-heyden, 1 Paige, 385 ; Stimson v. Anderson, 96 Ill. 373 ; Elmore v. Meeks, 39 Yt.. 538; 3 Wash. R. P. 282; 17 Iowa, 486; 41 N. Y. 421; 3 Wall. 641; 2 Par. Con. 494; Mitchell v. Ryan, 3 Ohio St. 377; Crooks v. Oroolts, 34 Ohio St'. 610; Ball v. Foreman, 37 Ohio St. 132; Huey v. Jluey, 65 Mo. 694; Parker v. Parker, 1 Gray, 409 ; Merriam v. Leonard, 6 Cush. 151; Comer v. Baldwin, 16 Minn. 172; Pry Spec. Per. § 64; Waterman Spec. Per. § 186.
    See also the following additional cases on the subject which were examined while the case was under consideration : Hobart’s R. (Am. ed.) 246, note ; Patterson v. Snell, 67 Mo. 559 ; Stewart v. Weed, 11 Ind. 92, approved, Squires v. Summers, 85 Ind. 252; 47 Ind. 418; Brown v. Brown, 1 Wood. & M. 325; Siilwell v. Hubbard, 20 Wend. 44; Stephens v. Buss,
      54 Pa. St. 20 ; Stephens v. Rinehart, 72 Pa. St. 434 ; 5 Conn. 320; 6 Id. 113 ; 7 Id. 503 ; 18 Id. 262; 22 Id. 46123 Pick. 233; Stanton v. Miller, 58 N. Y. 192 ; Newton v. Bealer, 41 Iowa, 334; Campbell v. Thomas, 42 Wis. 437; Latham'v. Udell, 38 Mich. 238; 7 Grant’s Oh. (U. C.) 23; Byars v. Spencer, 101 Ill. 429; Blade v. Hoyt, 33 Ohio St. 203.
   Okey, J.

An instrument may be in the form of a deed ; it may be properly signed,'sealed, witnessed, acknowledged and recorded ; the grantor may have capacity to convey, and the grantee to receive and hold the title; the transaction may be free-from fraud or mistake; nevertheless, the instrument will not take effect as a deed unless' it is delivered. But no particular form or ceremony is essential to constitute delivery ; it need not be manual; it may be made by words and acts, or either, if accompanied with intention that they shall have that effect; it may be made by the grantor personally, or through his agent, to the grantee, either personally or through his agent; and it may be made in escrow, or to take effect immediately.

The direction to Dr. Blake, given by the grantor, then sick of typhoid pneumonia, was that if he died, the doctor should deliver the deed of gift to the grantee; but if he, the grantor, recovered, he.would call for it. lie died, and Dr. Blake delivered the deed to the grantee. But this was not a valid delivery, and hence the instrument never took effect as a deed. The transaction was in the nature of a testamentary disposition of property; but the instrument, not having been executed as, or with the formalities of a will, its probate would doubtless have been resisted ■ (though see Habergham v. Vincent, 2 Ves. jr. 204; 1 Jar. Wills [by R. & T.], 33 et seq.); and, however that may be, a will in Ohio is of no force until admitted to probate, and probate of this instrument is barred (2 Swan & Or. 1621, § 32 ; Eev. Stats. § 5943.) And the instrument is equally invalid as a deed. Dr. Blake was the agent of the grantor and not of the grantee, and hence the instrument was not-only revocable by the grantor at any time before his death, but not having parted with all dominion over it during life, it became, on bis death, a mere nullity. Wellborn v. Weaver, 17 Ga. 267; Carey v. Dennis, 13 Md. 1; Hale v. Joslin, 134 Mass. 310; and see Phipps v. Hope, 16 Ohio St. 586; 1 Jar. Wills (by R. & T.), 33 et seq.

In Crooks v. Crooks, 34 Ohio St. 610, it appeared that- the grantor, without reserving or intending to reserve any control over the instrument, delivered it to a third person, to be by him delivered to the grantee at the death of the grantor,” and ‘ ‘ the depositary accepted the deed for the grantee, and at the death of the grantor, delivered it to the grantee.” This was held to constitute a delivery. That was upon the theory that the grantor had delivered the instrument as his deed, and that it took effect as of the date of the first delivery. The decision received the unanimous approval of this court in Ball v. Foreman, 37 Ohio St. 132. "While this may be regarded as an exception to the rule as to deeds of this character, we regard the law as settled for this state as to any case fairly coming within these decisions. But neither of the cases was like this, and properly understood they are decisive against the validity of this deed. They were cases in which the grantors had parted absolutely with all dominion over the instruments, and there was no revocation or attempt to revoke. Here it was in terms stated by the grantor, that if he recovered, he would call for the deed. As a deed of gift such an instrument was, therefore, a mere nullity, and required no revocation.

■ Finding no error, the proper order to be entered is —

. Judgment affirmed.


author: By the Court.

text:
    Bankhardt v. Freeborn.
    Notices to liquor dealers under tlie act of 1875 (72 Oliio L. 35, Rev. Stats. §§ 4359, 4360), need not be recorded by clerks of townships and municipal corporations. A tabular statement, showing-the substance óf the notices, is sufficient.
    Error to tlie District Court of Cuyahoga county.

      Wilson & SyJcora, and P. F. Young, for plaintiff in error.

      Foster <& Carpenter, for defendant in error.
   By the Court.

Freeborn obtained a verdict and judgment against Banldiardt for selling liquors to her husband in 1817. The judgment was affirmed in the district court, and he now seeks the reversal, in this court, of both judgments. Only one question is of sufficient importance to report. The act of 1875 (72 Ohio L. 35, Rev. Stats. §§ 4359, 4360), relating to the duties of clerks of townships and municipal corporations,’with respect to recording notices to liquor dealers not to sell liquors to specified persons, does not require such clerks to record such notices at length. ' The notices are to be entered in a book kept for the purpose, and then filed. The entry in this case" was in tabular form, showing the date of the notice, name of the person to whom sales are not to be made, residence of such person, and name of person giving notice. It is sufficient. To make an entry in that form is to make such record as herein provided,” within the meaning of the statute.

Judgment affirmed.


author: J OHNSON, C. J.

text:
    Stone v. Strong.

      Reid : 1. In proceedings by an executor or administrator for the sale of real estate to pay debts, where the same is encumbered by mortgages or other liens, the court is to settle the priorities among lien-holders and order a sale free from such liens.'
    2. When such proceedings are in the probate court, it is not authorized to make an order to sell the same subject to the mortgage or other liens. • •
    3. Where proceedings for such sale are properly instituted, the executor or administrator, under section 6165 Revised Statutes, is entitled to compensation and charges for making the sale, to be first paid, before applying the proceeds to mortgage or other liens.
    4. Such compensation is to be computed by the per centum authorized by section 6188, on the money arising from such sale to be administered.
    5. If a mortgagee, whose lien is fixed by the court, becomes the purchaser at such sale, the executor or administrator is not entitled to a per centum compensation on that part of the purchase money applicable to the satisfaction of his mortgage.
    6. Sections 6165 and 6188 should be construed together in determining the per centum compensation for the sale of real estate, and it is to be computed on the aggregate amount arising from both real and personal estate, as graduated by section 6188, and not each separately. Herice it is error where there are personal assets collected, to graduate the .compensation on the proceeds of the real estate without regard to the amount of personal estate.
    7. In graduating the per centum compensation the higher rate prescribed by section 6188 should be first applied to the personal estate.
    EekoR to tbe District Court of-Hardin county,
    Strong, as administrator of John D. King, upon a petition in the probate court, and upon a showing that it was necessary, obtained an order for the sale of decedent’s real estate to pay debts. It was alleged that the debts were about $6,000, that the costs and expenses of administration would be about $350, and that the personal assets would not exceed $4,000. The land was encumbered by mortgage and judgment liens, the holders of which were defendants, in the following order: 1st. a mortgage past due to plaintiff in error; 2d. A judgment lien to Mrs. King, and 3d. A second mortgage, also past dno, to plaintiff in error ; in all, the liens amounted to $4,400. Upon this order of sale, the land was sold for $4,125, which was not sufficient to pay liens thereon, aside from the cost of sale and any compensation to the administrator.
    The sale was made to the plaintiff in error, the holder of the 1st and 3d liens, and the controversy arises upon the order of distribution, which is as follows :
    1st. To payment of cost.• . $28.54
    .2d. To the administrator his commissions . on the amount for which the land sold, $4,125, computed at 6 per cent, on first $l,Q00and 4 per cent, on the residue . . . 185.00
    3d. To apply on the first mortgage to the plaintiff in error ..... 2,609.95
    ■ 4th. To payment of judgments to Sarah E. King, 2d lien .... . . . 1,059.95 Less her proportionate share of the above commission. 53.38 — 1,006.57
    5th. To apply on 2d mortgage to plaintiff in error, being 3d lien. 294.94
    $4,125.00
    This left a balance due plaintiff in error on her second mortgage of $429.17 unsatisfied.
    On the hearing of the case, it appeared that the personal assets would not exceed $1,700, and that the estate was insolvent, and if the real estate had sold at its appraisement, the liens would have been paid in full, and there would have been a surplus to be used in payment of debts.
    The plaintiff in error excepted to the order of distribution :
    1st. Because the administrator could not sell the fee, but must resort to the equity of redemption to pay debts, and therefore could only charge commissions on the surplus arising from the sale, after payment of prior liens.
    2d. That by proceedings to sell, the administrator could not acquire a lien for commissions and expenses for making the sale to the prejudice of existing liens.

      3d. That as plaintiff in error was the purchaser, the amount coming to her on her mortgages, was not “ money arising on the sale,” to be administered, and therefore did not come within the statute allowing a per centum compensation.
    4th. The court erred in allowing commissions on the purchase money at the highest rate fixed by statnte, disregarding the amount of personal estate in graduating the amount., -

      Stillings <& Allen, for plaintiff in error.

      Strong & Strong, for defendant in error.
   J OHNSON, C. J.

1. As to the right of the administrator to sell the mortgaged premises in fee in order to reach the value of the equity of redemption, when the same is needed to pay debts.

The statute expressly authorizes such a sale, and provides for adjusting prior liens, whether by mortgage or otherwise. The residue, after satisfying such liens, becomes assets in the administrator’s hands. The power not only is conferred, but a duty is imposed, to reach the interest of the decedent in lands, whether that interest be of a legal or equitable nature. The administrator is the trustee in that behalf for the unsecured creditors, and if he neglects to perform his duty, a court of equity will intervene, at the instance of creditors, for- the purpose of reaching such assets. McDonald v. Aten, 1 Ohio St. 293.

The statute does. not confer upon the probate court the power to sell the land subject to existing liens.

The provisions of this statute, as to the estate subject to sale (Rev. Stats. § 6139), who are the proper parties to the proceeding, including heirs, mortgagees and other lien-holders (Rev. Stats. § 6142),’ making it the duty of the court to determine priorities (Rev. Stats. §§ 6145 to 6148), requiring an appraisement of the land at its true value in money. (Rev. Stats, § 6155), requiring a sale at not less than two-thirds of such appraisement, if improved, or one-half if unimproved (Rev. Stats. § 6160), providing for a deed .to the purchaser which will vest the title in him in like manner as if conveyed by deceased in bis lifetime (Rev. Stats. § 6163), and inquiring the payment of all mortgage, or other liens, according to their priorities, as well as costs, expenses and compensation for making the sale (Rev. Stat. § 6165), preclude the idea of' a sale of a mere equity of redemption.

In Baird v. Kirtland, 8 Ohio, 21, and Seymour v. King, 11 Ohio, 342, and other cases, it was settled that this could not be done on execution, because the law required an ap-praisement of the fee at its value in money, and a sale of that at two-thirds of the appraisement.

Por like reason, if for no other, the same is true here. But it is obvious there is, if anything, a stronger reason, and that is, that a sale of the fee is of more advantage' to the estate, while at the same time it fully protects the lienholders.

2. Can the executor or administrator acquire a lien on the purchase money prior to that of a mortgagee ?

Revised Statutes section 6165 provides for the application of the money arising from the sale of real estate to pay debts of decedent, as follows:

First. To discharge the costs and expenses of the sale, and the per centum and charges of the executor or administrator thereon for his administration of the same.” If therefore a case is made which authorizes such sale, the statute controls the matter, and gives such priority. We must not be understood as holding that sucha proceeding can be prosecuted by the personal representative, for the mere purpose of earning commissions, when the probability is that the land will not pay the liens. In the case at bar the property was appraised at $6,000. Had it sold for that amount, it would have realized about $1,500 to the estate, after satisfying all prior liens. Apparently,.therefore, it was for the interest of the estate, with no detriment to the lienholders, to have it sold ; and we do not hesitate to say that the administrator would have failed in his duty had he neglected to reach this interest, when there was an admitted necessity for so doing. If he acted in good faith, and it is not pretended but he did, there is no good reason why he should not be compensated as the statute directs.

But it is claimed, that this compensation should fall on the personal estate, where the liens are not satisfied. We do not assent to this view. Every lienholder, holds the same, subject to the costs and expenses of enforcing the same. When the property is insufficient to pay in full, the mortgagee’s share is so much the less. These costs and expenses are to be first paid. If there is not sufficient to pay them, and his lien in full, his unsatisfied claim remains as a debt of the mortgagor or judgment debtor. He acquired his lien subject to the provisions of the statute, authorizing such a sale. The same result would follow if the mortgagee had been foreclosing his own mortgage, the costs and expenses of making the sale must first be paid, including poundage, if he is not the purchaser, although the residue is insufficient to pay his lien. Indeed, this is but the application of a familiaj- rule in equity, that a trust fund is chargeable with all necessary expenses of administering it.

3. Can he charge a per centum on thq amount of the purchase money going to a lienholder who is the purchaser ?

We think not. Ilis per centum is to be computed on, “ the money arising from the sale,” for, “ his administration of the same.”

Where no money arises, to be administered, there is nothing on which to compute commissions. This percentage was intended to compensate for the trouble and responsibility of collecting and paying out the money. Longworth v. Piatt, 27 Ohio St. 183. Here the mortgagee is the purchaser, and so far as the purchase money was applicable to her liens, it operated as a satisfaction of her mortgages. As there was a judgment prior to her second mortgage, it, as well as the costs, expenses and compensation should be first paid, and the balance should be applied on the second mortgage of the plaintiff in error.

Whatever deficiency there is must fall on the junior lien-holder. The court therefore erred, in taxing Mrs. Xing with a jpro rata share of the commissions. It also erred in computing a per centum commission on the amount of the purchase money to be applied on the mortgages to plaintiff in error.

4 Again, we think the court erred in computing commissions on the amount for which the land sold, to wit, six per centum on the first thousand dollars, and four per centum on the balance, as graduated by Rev. Stat. § 6188, without any regard to the amount of the personal estate collected and accounted for.

Section 6165, does not specify the amount of commissions, nor the rate for fixing them. This is prescribed by section 6188, which governs as to both real and personal estate, taken together.

This latter section provides as full compensation for ordinary services, by commissions on “ the amount of the personal estate collected and accounted for, and on the proceeds of real estate sold, as follows : ■ For the first thousand dollars, at the rate of six per centum; for all above that sum, and not exceeding five thousand dollars, at the rate of four per centum ; and, for all above five thousand dollars, at the rate of two per centum.” It further provides for a just and reasonable allowances for actual and necessary expenses and for extraordinary services.

These sections should be construed together. The aggregate amounts from personal and real estate, should form the basis of the graduated rate per centum of commission. They do not warrant a graduation on each separately, and giving the highest rates on each.

Neither do they authorize the higher rates against the real estate incumbered by liens, at the expense of such liens when there are personal assets. The personal assets are liable for the payment of costs, expenses and compensation for administering the same, and this burden cannot be shifted to the real estate. It is the primary fund for the payment of these charges, as well as of debts.

Assuming as the record shows, that there was about $1,100 of personal assets, they are properly chargeable with the higher rate. And the amount necessary to be paid, by the purchaser who owned the prior mortgage, to pay the costs and Mrs. King’s judgment, is the money realized on the sale, to be administered, and this, being less than $5,000 in the aggregate, should have been charged at four per cent.

5. The record shows that no money was actually paid on the King judgment, but she accepted in lieu of money the purchaser’s note and mortgage on the land. This was a side arrangement by which her debt against the estate was thus paid with the assent of the administrator. It was equivalent to his receiving the amount, paying it to her in satisfaction of the judgment, and a loan by Mrs. King to the purchaser. It was in lien of the distribution made by the court to pay this judgment, and was, we think, part of the proceeds of the sale administered upon by the administrator.

Judgment reversed, and cause remanded.


text:
    Long v. White.
    Tlie statute of frauds cannot defeat tlie recovery of the purchase money on a verbal contract for the sale of a dwelling house then annexed to real estate, hut to he severed from the freehold and delivered on rollers, after the same has been so severed and delivered in accordance with the contract.
    ERROR to the District Court of Geauga county.

      Burfee <& Stephenson, for plaintiff in error,
    cited Green v. Armstrong, 1 Denio, 550 ; Lansingburgh v. Orary, 1 Barb. 542; Warren v. leland, 2 Barb. 613 ; Pierpont v. Barnard, 5 Barb. 371; McGregor v. Brown, 6 Selden, 117 ; Silmernail v. Qole, 12 Barb. 685; Bennett v. Scott, 18 Barb. 347 ; Put-ney v. Bay, 6 N. H. 430; Olm,stead v. Nile, 7 N. IT. 522 ; Kingsley v. 1Tolbroolc, 45 N. IT. 313 ; 38 Yt. 64 ; 42 Yt. 306 ; Whitmarsh v. Walker, 1 Met. 313 ; Glafivn v. Carpenter, 4 Met. 580 ; Giles v. Simonds, 15 Gray, 441; Burton v. Schaff, 1 Allen, 133 ; Brake v. Wells, 11 Allen, 141; 35 Miss. 700 ; 33 Pa. St. 376 ; 61 Pa. St. 294; 20 Ala. 412 : 21 Iowa, 399 ; 46 Ind. 488; 17 Mich. 375; Jones v. Timmons, 21 Ohio St. 596..

      D. W. Cornfield and N. H. Bostwick, for defendant in error,
    cited Hilliard on 'Vendors, 112; Cassell v. Collins, 23 Ala. 676; Tyler on Fixtures, 667; Curtiss v. IIoyt,l§ Conn. 151, 164, 165,166; Brown on Stat. Fra. § 234; Cliitty on Contracts, 302; Fortman v. Goejoper, 14 Ohio St. 558 ; 2 Parsons on Contracts, 315; Bostwick v. Leach, 3 Day, 476 ; KiUman v. Mowlett, 48 N. T. 569; 5 Wait’s Actions & Defenses, 595; Slocum v. Seymour, 38 N. J. (7 Vroom) 138 ; s. c., 13 Am. Rep. 432.
   By the Court.

In the court of common pleas it was averred that, in March 1878, White entered into a verbal agreement with Benjamin Long to sell and deliver to him a dwelling-house, then standing upon the premises of White, situate in Middlefield, Geauga county, Ohio ; White agreed to deliver, standing upon blocks in his yard, on or before the 6th day of October then next; Long agreed to receive the same and to pay therefor $175 in cash, or apply the same on a certain note then held by Long against White. On or before the day agreed upon, White did deliver the house on blocks in his yard, and in all respects performed the conditions of the agreement; in May 1878, Long died ; the claim, duly verified, was presented to the executor a,nd was rejected ; White requested the executor to indorse the $175 on the note and the request was refused, and judgment was asked. In a second cause of action the same facts were averred and $175 damages claimed.

The executor answered that the contract was verbal, and that when made, the dwelling-house was standing upon the premises, erected upon permanent walls, and rested thereon, upon a solid and strong foundation, and was permanently affixed to the premises, and constituted a part of the realty, tenements and appurtenances of said premises, and no part of the agreement was in writing and signed by either party.

To this answer White demurred, and the court sustained ■ the demurrer; to which ruling the executor excepted. On error the district court sustained said ruling; and the case is here, asking to reverse the judgment of the district court.

The only question presented is, does the statute of frauds prevent recovery ?

In applying the statute of frauds, buildings are not classed with forest trees, but with growing crops, nursery trees, and fixtures attached to realty.

And buildings are realty or personalty, according to the intention of the parties. And when the parties in interest agree that they may be severed and moved from the realty, buildings are held and treated as personalty. Bostwick v. Leach, 3 Day, 476; Hollen v. Runder, Cromp. M. & R. 266; Curtis v. Hoyt, 19 Conn. 154; Shaw v. Carbrey, 13 Allen, 462; Hartwell v. Kelly, 117 Mass. 235, 237; Keyser v. District No. 8, 35 N. H. 477; Fortman v. Goepper, 14 Ohio St. 558; Wagner v. C. & T. R. Co., 22 Ohio St. 563, 576.

Judgment affirmed.