author: Minshall, C. J.

text:
    Smith v. Hogg et al.

      Judgment — Revivor of dormant judgment — Not a lien on lands acquired after original recovery — Date of lien — Sectioji 6368, Rev. Stat.

    Where a dormant judgment is revived under section 5368, Revised Statutes, it does not, by virtue of its revivor, become a lien on lands acquired by the debtor after its original recovery, unless a levy is made thereon either before it became dormant or after ts reviv or. Where made after the judgment is revived, the lien dates from the time the land is seized in execution, and not from the time of the revivor.
    (Decided March 26, 1895.)
    Error to the Circuit Court of Licking county.

      George B. Smythe, for plaintiff in error.
    A judgment lien is a mere creation of the statute which must be strictly construed. Such lien attaches only to the legal title of lands of the judgment debtors within the jurisdiction of the court which renders the judgment. 6 Ohio, 156; 3 Ohio, 514; 1 Ohio, 318. And such lien attaches on the first day of the term of court which renders the judgment, and binds all other lands from the time they are seized in execution. Section 5375, Revised Statutes. The revival of this judgment can not create a new lien. It can only operate to restore such liens as subsisted before the judgment became dormant. Had the lien of this judgment attached to any lands belonging to Walter M. Smith by virtue of the judgment, such lien was lost by the dormancy, and he could have aliened them discharged from the judgment lien. Section 5380, Revised Statutes; 5 Ohio, 178; 10 Ohio, 403; 15 Ohio, 301; 25 Ohio, St., 358; 15 Ohio, 735.
    It is admitted that a-revivor under section 5367, Revised Statutes, operates to revive the judgment with all its incidents, including all liens subsisting before the dormancy, but we deny that it creates a new lien on property not owned by the judgment debtor at the time of the rendition of the judgment. It is well settled in Ohio that a judgment is not alien on after acquired land conveyed before levy. Roads v. Symmes, 1 Ohio, 281; Stiles v. Murphy, 4 Ohio, 92.
    We conclude, therefore, 1st, that ,the revival judgment,per se, was nevera lien on these lands. 2. That no lien was acquired by its revivor. 3. That none was acquired by the levy which was subsequent to the conveyance by Walter M. Smith to the-plaintiff in error.

      Kibler & Kibler, for defendants in error.
    The decision of this case, we think, depends wholly upon a construction of section 5367 of the Revised Statutes, and upon the determination of the meaning of its language. Section 4948, requires that provisions of the code and all proceedings under it shall be liberally construed in order to promote its object and assist the parties in obtaining justice, and that' the rule of the common law, that statutes in derogation thereof must be strictly construed, has no application to that part of the Revised Statutes which embraces section 5367, above mentioned. A remedial statute should be liberally construed to accomplish the object intended thereby. Saterlee v. Stevens, 11 Ohio St., 420; Tracy's Adm'x v Card's Adm'r, 20 Ohio St., 431; Pollock v. Spidell, 27 Ohio St., 86; Cross v. Armstrong, 44 Ohio St., 613; In re Will of Hathaway, 4 Ohio St., 383; Woodbury & Co. v. Berry, 18 Ohio St., 456.
    The legislative intent can be arrived at only by giving to the language used in the act its ordinary and natural import. If therefore the lien of the revived judgment operates from the entry of the conditional order of revivor, from that date it must become an incumbrance upon the real estate to which the judgment debtor had legal title at that date. If this construction be correct it is not essential to the validity of the lien upon the real estate, that the judgment debtor should have the legal title to it at the time the conditional order is made absolute. It would seem that this section 5367 plainly provides that the lien of the judgment when absolutely revived shall operate from the time of the entry of the conditional order of a revivor. This construction of the statute does no violence to the rights of the judgment debtor nor gives the creditor any undue advantage. It is in all respects analogous to the provision of section 5375, which provides that lands within the county where a judgment is rendered, shall be bound for the satisfaction thereof from the first day of the term at which the judgment is rendered. Tucker v. Shrader, 25 Ohio St., 358; Corwin v. Benham, 2 Ohio St., 36; Styles v. Murphy, 4 Ohio, 95.
   Minshall, C. J.

The action below was brought in the common pleas of the county by George E. Hogg and another, against Sarah Smith and her husband Walter M. Smith, and Benjamin J’. Wilson, to enforce the lien of a revived judgment, and set aside a conveyance alleged to have been made to defraud the plaintiffs. The defendants, Sarah Smith and her husband denied,the fraud, and averred that the land in question, was acquired by the husband by inheritance from his father, after the rendition of the judgment and before its revivor, and was conveyed by the husband to his wife for a valuable consideration before any levy was made on it. The court heard the case upon the issues and dismissed the petition. The case was then appealed by the ' plaintiffs to the circuit court, where the case was' tried and determined in favor of the plaintiffs. From the pleadings and a finding of facts made by the court, it appears that in 1874, the plaintiffs recovered'a judgment in the common pleas of the county against Walter M. Smith and Benjamin J. Wilson for some seven thousand dollars, on which a payment of some two thousand dollars was thereafter made No execution was issued and the judgment became dormant, and was revived by a conditional, order made November 7, 1889, the entry of the conditional order having been made September 20, 1889. After the recovery of the judgment and before its revivor, Walter M. Smith, the husband, acquired by inheritance the land in question; and, after the commencement of the proceeding to revive, on September 27, 1889, conveyed the same to his wife, Sarah Smith, for, as she claims, a valuable consideration, but, as the judgment creditors claim, to defeat the collection of their judgment. After the revivor of the judgment, the plaintiffs caused an execution to be issued and levied on the land. The 'court found, the facts as to the recovery of the judgment and its revivor as above stated. The time as to the • acquisition of the land by the husband, is averred in the answer and not denied by the reply. And, holding the judgment as revived to be a lien on the land, refused to find as to the alleged fraud, and, finding the amount due on the judgment, made an order for the sale of the land, if not paid in the time named. Error is prosecuted here for a reversal of this judgment on the ground that the court erred in its conclusion of law from the facts found; and the facts admitted by the pleadings. ■

Whether the court erred in its conclusion of law depends upon the proper construction of the last clause of section 5367, Revised Statutes. The section provides for the revivor of a- dormant Judgment; it may be done by a conditional order or by petition; and, it is provided, that when revived “the lien of the judgment for the amount due shall be revived, and shall operate from the time of the entry of the conditional order, or the filing of the petition.” Now, what is meant by “the lien of the judgment for the amount due shall be revived?” The court evidently held, that the revivor operated as a new judgment, and became a lien upon all lands owned by the debtor within the county, at the- entry of the conditional order, as in the case of an original judgment under section 5375, Revised Statutes. This, we think, does violence to the language of the statute, and is error. It is the lien of the judgment that is to be revived, not the creation of a new one — -the lien or liens, the judgment revived had when it became dormant. To hold' otherwise would be to disregard the propriety of language and torture the sense of the statute. A lien cannot be revived that never had an existence. Hence, it was not the intention of the legislature, from the language employed, to provide for the creation of new liens against the lands of a debtor, by the provision for the revivor of dormant judgments, but to provide for the revivor of a judgment with such liens as it had at the time it became dormant. .

It is settled law in this state,-that a judgment without a levy does riot become a lien on after acquired lands. As to such lands the Judgment only becomes a lien by the levy of an execution issued upon it. And it is equally true that the lien of a judgment, given by section 5375, Revised Statutes, ■ and such as' are created by the' levy of an execution, are of no avail as against a purchaser, after the judgment becomes dormant before it is revived. Roads v. Symmes, 1 Ohio, 281; Stiles v. Murphy, 4 Id., 92; Norton v. Beaver, 5 Id., 178, 181; Miner v. Wallace, 10 Id., 403; Hutchinson v. Hutchinson, 15 Id., 301; Tucker v. Shade, 25 Ohio St., 355; Wuest v. James, 51 Id., 230. And, in fact, the statute provides, section 5380, Revised Statutes, that if execution on a judgment rendered in any court of record in this state, is not sued out in five years from its date, “such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.” By its revivor, a new judgment is not created. The object and effect of the proceeding is simply to revive an existing judgment, with such liens as it had when it became dormant, and so that execution may be issued upon it. Rights acquired by third persons, by purchase or otherwise, during its dormancy, are not affected. In Tucker v. Shade, it is said by White, J.: “It is well settled that the title of a purchaser from the judgment debtor, is, on the judgment becoming dormant, discharged from the lien, and that the subsequent revivor of the judgment will not affect such title.” .

The judgment in this case was recovered in 1874, and became dormant in 1879. The land in question was acquired by the debtor during its dormancy, by inheritance from his father in 1889, and was conveyed by him to his wife, September 27,1889, for, as claimed, a valuable consideration. No levy was made on the'land until after the revivor of the judgment, November 7, 1889. Now, as'the revivor of the judgment without a levy did not make the judgment a lien on the land, the fact that the revivor, by statute, is made to relate to the éntry of the conditional order, which, in this case, was September 20,1889, can make no difference ; for, if the judgment had been revived at that date, it would not, without a levy then made, have been a lien on the land. The lien of a judgment creditor, as to after acquired land, dates from the levy and not from the revivor of the judgment.

As then the judgment was not, at the time of its recovery, nor by virtue of its revivor, a lien on these lands; and, as against the prior purchaser, none was acquired by the levy made subsequently to the revivor, unless, as claimed, the conveyance was fraudulent, the court should have proceeded to hear and determine the question of fraud made by the pleadings. The judgment will, therefore, be reversed, and the cause remanded for the determination of that question.

Judgment reversed and cause remanded for further proceedings.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    National Bank v. Wheelock.

      Duress — Deed executed under duress voidable, not void — Neither party is entitled to jury, when.

    1. A deed executed during the duress of the grantor is not void, hut voidable only.
    2. On the trial of issues joined by a denial of the petition of the grantor, alleging that the deed was executed under duress, neither party is entitled to demand a jury.
    (Decided April 13, 1895.)
    Error to the Circuit Court of Cuyahoga county.
    On April 8, 1885, the defendant in error, Mrs. Wheelock, filed her petition in the common pleas court of Cuyahoga county, alleging in substance that on or about October 13, 1883, the plaintiff in error, The Commercial National Bank of Cleveland, Ohio, was a creditor of The Cleveland Chair Company, a corporation, in the sum of not less than $15,000.00; that her husband, C. S. Wheelock, and his father and brother were stockholders, directors and officers in said Chair Company; that it was then claimed by the bank that about $3,600.00 of said indebtedness was evidenced by forged acceptances of the drafts of said Chair Company, and that the forgeries had been committed by her husband and his father and brother, and caused them to be arrested and indictments to be presented against them on account of such forgeries; that this was done with the fraudulent intent of alarming and intimidating her and the defendants in said prosecutions, and of coercing her into the payment of said entire indebtedness of $15,000.00; that she thereupon became greatly alarmed, intimidated and bewildered; that in November or the early part of December, 1883, the bank, knowing that the Chair Company and all of its stockholders were insolvent, informed the plaintiff and threatened her that unless certain real estate described in the petition and owned by her and alleged to be of the value of $10,000.00, were conveyed to it, toward the payment of said indebtedness, said indictments would be prosecuted; that while she was overcome by fear, and her free agency destroyed, and her mind bewildered by said threats, she executed to the bank a deed for said real estate, and her husband being likewise overcome and coerced by such threats, joined her in the execution of said deed. She avers that by reason of the matters alleged, said deed is null and void, that she is the owner in fee-simple of said lands, is entitled to the possession thereof, and the bank unlawfully keeps her out of possession.
    A second cause of action is for rents and profits.
    She prays for a judgment against the defendant for possession of the premises, and for said rents and profits.
    In its first defense the bank admits its corporate character, the indebtedness to it of the .Chair Company, the conveyance of the real estate to it December 19, 1883, and denies all other allegations of the petition.
    In its second defense the bank alleges that the facts which led to the indictment- of the Wheelocks were submitted to the grand jury by the public prosecutor in the course of his duty; that an attorney representing’ them and the plaintiff called upon it and proposed that it should accept said real estate and some other property in satisfaction of its claim against the Chair Company, that it accepted said offer and upon receipt of said deed and the other property referred to, surrendered all the evidences of said indebtedness to it.
    Replying, Mrs. Wheelock denies that said attorney was employed by her, or in any way authorized to represent her.
    When the cause came on for trial in the court of common pleas, Mrs. Wheelock demanded that it should be tried by a jury, which demand was overruled by the court, and she excepted. The trial proceeded to the court, and resulted in a judgment in favor of the bank. Mrs. Wheelock’s motion for a new trial was overruled, and a bill of exceptions taken. She filed a petition in error in the circuit court, seeking a reversal of that judgment.

      In the circuit court the judgment of the common pleas was reversed for error, “in refusing to plaintiff a jury trial, and in holding that she was not entitled to try her right to possession, until she had first set aside the deed given by her to the defendant.” To reverse that judgment, is the object of this petition in error.

      James H. Hoyt, A. St. J. Newberry and A. C. Dustin, for plaintiff, in error.

      First — A deed of real estate made to stifle a criminal prosecution is an illegal transaction. When made, it is an executed contract and the court will leave the parties where it finds them. The facts as found by the court may be stated thus :
    1. The husband of Minnie E. Wheelock, the defendant in error, plaintiff below, her father-in-law and brother-in-law were under indictment for the crime of forgery and were guilty of the crimes charged against them.
    2. That the criminal prosecutions mentioned were not instituted by the bank for. the purpose of getting plaintiff’s property, and all negotiations looking to a conveyance of said property from Minnie E. Wheelock to the bank came from her husband,' his father and brother and their attorney.
    ■ 3. The deed of the premises described in the petition of Minnie E. Wheelock was made by her for the express purpose of stifling these criminal prosecutions.
    ■ 4. • At the time she made this deed she was not under duress, but acted of her own free will.
    There can be no dispute about the law applicable to this state of facts, and the court rightfully dismissed the plaintiff’s petition. The evidence offered by the plaintiff entitled her to no .relief against the bank. Her purpose and object being to stifle these proceeding’s and her contract having been executed, the court will leave her where it finds her. Roll v. Raguet, 4 Ohio, 420; Goudy v. Gebhardt, 1 Ohio St., 262; Hooker v. DePalos, 28 Ohio St., 251; Kahn v. Walton, 46 Ohio St., 195.

      Second — The plaintiff below, Minnie E. Whee-lock, was not entitled to a jury trial of this action.
    1. ' The remedy of an injured party is the same, whether he was induced to act through fraud or while under duress.
    There is no difference in the remedies given to a party, whether he be injured, or induced to act, through fraud, or compelled to act against his wishes, while under duress. 8 Am. & Eng. Ency. of Law, 649; 5 Am. & Eng. Ency. of Law, 430; 3 Am. &. Eng. Ency. of Law, 933.
    2. Deeds obtained through fraudulent representations or made under duress, are voidable, not void, at the election of the party injured. Contracts induced by fraud or made while under duress are sometimes said to be void, and sometimes said to be voidable. These terms are not always used with discrimination and care. We take it now to be the settled and the universal rule, that, where fraud, imposition or duress is practiced in inducing an engagement or contract, the party so frauded or imposed upon can rescind or get a rescission of the contract, as to .such party it is voidable, not void. Terrell v. Auchauer, 14 Ohio St., 85; Allis v. Billings, 6 Metc., 417; Anderson v. Roberts, 18 J. R., 529; Story on Contracts, section 405; Devlin on Deeds, par. 81; Knapp v. Thomas, 49 Ohio St., 388; Story on Contracts, section 405; Reece v. Allen, 5 Gilman Ill., 241; Frauchet v. Leach, 5 Cowen, 508; Williams v. Mears, 2 Disne, 608; Bigelow on Fraud, vol. 1, 73; George v. Tate, 102 U. S., 570; Hartshorn v. Day, 19 How., 223.
    3. There is a distinction between the rights and remedies of parties in the case or ordinary commercial contracts, and under deeds properly executed and delivered.

      a In ordinary business transactions, such as sales of personal property, a party induced to act through fraud, on discovery of the fraud, or having acted under duress, on being freed from the duress has a choice of two remedies — he can rescind his contract and recover back his property, or abide by and affirm his contract, and sue for damages. Strong v. Strong, 102 N. Y., 69; Bowen v. Mandeville, 95 N. Y., 237; Moller v. Tuskey, 87 N. Y., 166; Benj. on Sales, sections 648 et seq.; Syllabus, Doane v. Lockwood, 115 Ill., 490; Brewer v. Goodyear 88 Ind., 572; Talcott v. Henderson, 31 Ohio St., 162.

      b The deed of a party which was induced to make through fraud, is voidable, but this distinction exists between deeds and other contracts— that the grantor cannot, by his own act, cancel his deed, nor reinvest himself with the title to his property. This can only be done by a deed of reeonveyauce or by a court of competent jurisdiction. ,
    In Ohio no estate or interest, certain, or uncertain, freehold or term of years, can be granted, except by deed or note in writing, properly signed, or by operation of iaw, and such deed conveys to the grantee the entire estate, both legal and equitable. Sections 4106, 4198, Revised Statutes.
    The delivery of a deed passes title to the grantee and the destruction or cancellation of tJae deed would not reinvest the title in the grantor. Lindsley v. Coats, 1 Ohio, 245; Baldwin et al. v. Bank, 1 Ohio St., 148. Where a title has vested by delivery of a deed to the grantee, even the destruction of the deed by mutual consent before it is recorded, will not reinvest the grantor with the title, even though it was intended só to do and was destroyed for that purpose. Spangler v. Dukes, 39 Ohio St., 642; Starr v. Starr et al., 1 Ohio, 327.
    Our conclusion, therefore, is that the bank became the owner of the property described in the petition by the execution and delivery of the plaintiff’s deed to it, and can only be divested of its ownership therein and title thereto and right to use and enjoy the same by a deed regularly made, or by operation of law or the judgment of a court of competent jurisdiction. A court alone has power, or a deed duly executed is necessary to reeonvey the estate and title. Bigelow on Fraud, vol. I, p.. 76.
    This is exactly in harmony with the decisions hereinbefore cited from our own Supreme Court. Starr v. Starr, 1 Ohio, 327; Spangler v. Dukes, 39 Ohio St., 642; Truman v. Lore, 14 Ohio St., 144; Knapp v. Thomas, 39 Ohio St., 388; Walker v. Kynett et al., 32 Iowa, 524; Feret v. Hill, 15 C. B., 207; Hartshorn v. Day, 19 How., 223; Williams v. Mears, 1 Disne, 604.
    '4. The legal title and estate being in the bank, the plaintiff’s action was essentially one in equity, and she must get rid of her deed before she can get any relief. The relief asked .for is dependent upon the invalidity of her deed, which can be cancelled only by a court of equity.
    5. The reformed procedure, originally enacted ■in the Code, and more recently by the Revised Statutes, has not changed the rights or remedies of parties. If, before the adoption of the Code, a party’s rights were equitable in their nature, they are still equitable, and trials should be had to the court and not to a jury. If, before.the Code was adopted, they were legal in their nature, they are still legal, and parties are entitled to a jury trial. Dickson v. Caldwell, 15 Ohio St., 415; Pomeroy’s Remedies and Remedial Rights, section 68; Hager v. Reed, 11 Ohio St., 635; Kloney et al. v. Bradstreet, 7 Ohio St., 325; Rankin v. Hannan, 37 Ohio St., 118.
    6. At common law, in order to maintain ejectment, the plaintiff must have had the legal title, and the remedy provided by Revised Statutes, section 5781, is the same as the old action of ejectment. The plaintiff, therefore, must have had the legal title, or a legal estate in the premises, in order to have entitled her to a jury trial of this action.
    In an action of ejectment, a mere equitable interest will not avail as against the party having the legal title. Wallace v. Seymour et al., 7 Ohio St., 158.
    The remedy for fraud, when plaintiff executed the instrument, is in equity, not at law, and plaintiff cannot recover in ejectment where the legal title is in defendant. Truman v. Lore, 14 Ohio St., 144; Walker v. Kynett, 32 Iowa, 526.
    The equitable title accompanied with possession cannot be set up against the legal title in an action of ejectment. Lessee of Spencer v. Markel, 2 Ohio, 263; Smith's Lessee v. Hunt, 13 Ohio St., 268; Stehman v. Crull, 26 Ind., 436; Rowe v. Beckett, 30 Ind., 154; Groves et al. v. Marks et al., 32 Ind., 319; Peck v. Newton, 46 Barb., 173; Lombard v. Cowham, 34 Wis., 486; Clark v. Lockwood, 21 Cal., 222; Emeric v. Penniman, 26 Cal., 119; Kahn v. The Old Telegraph Miming Co., 2 Utah, 195; Gibson v. Chouteau, 13 Wallace, 103; Goepinger v. Ringland, 62 Iowa, 76; Rowland v. Entrekin, 27 Ohio St., 49; Adm. of Reed v. Reed, 25 Ohio St., 422; Ivinson, v. Hutton, 98 U. S., 79; Reid v. Burns, 13 Ohio St., 59.
    Reformed procedure does not affect the question or change the party rights, Minnie E. Wheelock’s right,, if she has any, is equitable, and the relief, cancellation of her deed, whether in terms such relief be given to her or not,. must in effect, be given her by the court, for, without in effect a cancellation of her deed, there can be no judgment in her favor. If the court finds her deed invalid, it, of course, can if it chooses award her possession and an accounting for rents and profits, as an incident to the judgment of cancellation, or it can refer the question of damages to a jury, but the equitable question of the right to a cancellation of that deed must be determined and disposed of before there can b¿ anything to try to a jury. Rowland v. Entrekin 27 Ohio St., 47; Massey v. Startford, 17 Ohio St., 597; Buckren v. Mear, 26 Ohio St., 514; Rankin v. Hannan, 37 Ohio St., 113; Shefull v. Murty, 30 Ohio St., 50; Dodsworth v. Hopple, 33 Ohio St., 616; Truman v. Lore, 14 Ohio St., 144.
    7. The facts stated, and not the prayer attached to the petition, determine the nature of the plaintiff’s action; Cory v. Gaynor, 21 Ohio St., 280; Reed's Admr. v. Reed, 25 Ohio St., 424; Moore v. Chittenden, 39 Ohio St., 563.

      Second — Even had the plaintiff been entitled to a jurytrial and a jury had been sworn in the case, the court, under the evidence presented by the plaintiff, rhust upon motion, have directed a verdict for the defendant, and the plaintiff, therefore,'. was not prejudiced by the action of the court in denying her a jury. Moore v. Adams, 8 Ohio, 375; Herbst v. Manss, 6 Bull., 336.

      There was no attempt made to prove, nor claim made on the trial of this ease, that the Wheelocks were innocent of the crime with which they were charged, but, on the contrary, the evidence all showed that they were guilty, and there was no question of their guilt or innocence to be left to a jury. Besides the answer stated their guilt and the reply did not deny that fact. It therefore follows that in the eye of the law, as announced by our courts, Minnie E. Wheelock was not under duress when she executed this deed.
    The sole purpose and object of Minnie E. Wheelock in deeding this property to the bank was to stop these criminal prosecutions against her relatives. Roll v. Raguet, 4 Ohio, 420; Goudy v. Gebhardt, 1 Ohio St., 262; Hooker v. DePalos, 28 Ohio St., 251; Kahn v. Walton, 46 Ohio St., 195; Moore v. Adams, 8 Ohio; 373.
    But there is nothingin the claim that she was not in pari delicto. It is well settled that parties stand inpari delicto-W&sr% the consideration of an executed contract was illegal and immoral, even though there was fraud or duress. Haines v. Rudd, 102 N. Y., 372; Smith v. Rowlay, 66 Barb., 502; Watkins v. Baird, 4 Am. Dec., 170; Meeks v. Atkinson, 19 Am. Dec., 653; Hatter v. Greenlee, 26 Am. Dec., 370; Devlin on Deeds, 81; Yeaman v. Lasley, 40 Ohio St., 190.
    There was absolutely no evidence that the bank had aught to do with obtaining of the execution of this deed, and therefore, the delivery of this, deed to Judge Ingersoll by her, and the surrender by him of the deed to the bank will bind her. Baldwin v. Snowden, 11 Ohio St., 203.

      Prentiss v. Vorce, for defendant in error.
    1. The plaintiff below was entitled to a jury trial, upon the ground that, whether the deed be treated as void or voidable, where the facts are found by the jury which render the deed void, the law makes it void ab initio, and. leaves the title in the party who made the void deed the same as if no deed had been made, and no order of court is necessary for any reconveyance or annulling of the deed.; and the plaintiff, therefore, needed no relief besides the judgment for the recovery of the possession, and for the rents and profits. 8 Am. and Eng. Law., 649.
    Duress is a species of fraud, in which compulsion, in one form or another takes the place of a mere deception. 46 Ohio St., 27; section 5130, Revised Statutes.
    It is perfectly manifest that, if the deed was void in the full sense of that term under the statute, or the decisions were criminal, prosecutions are unlawfully used to compel a conveyance, no title passed to the bank, no decree for a reconveyance or annulling of the deed was necessary, and the plaintiff was entitled to a jury trial. The penalties of fines and imprisonment imposed by the statute imply and constitute a prohibition against the receiving of the deed by the bank for the compounding or abandoning of the criminal prosecutions; and, assuming that the bank received the deed for abandoning the criminal prosecutions, the deed is thereby rendered void ab initio, and of no effect to pass any title, and incapable of ratification. Chitty on Cont., 597; U. S. v. Grossmayer, 9 Wall., 71; 19 Am. Dec., 71; 14 Ohio St. 85; 44 Pa. St., 12; 2 Pet. Sup. Ct., 539; 2 Story, E. J., section 695; 1 Story, E. J., section 298; Cox v. Donnelly, 34 Ark., 766; Burgett v. Burgett, 1 Ohio, 469.
    The statute, section 6901 having prohibited the bank from receiving the conveyance, and thereby left the title and ownership of the premises in the plaintiff below, the same as if no deed had been made, she cannot in law be denied the right to assert such title and ownership ; for in no other way can the public interest be protected, and the statute saved from disregard and violation. Any other view would hold out a premium for a violation of the statute, and defeat its object; for the large amount received would lead to a disregard of the small penalties named, and, as no one would be interested in prosecuting offenders under the statute, there would be little danger of its being enforced. It is perfectly manifest, in this view of the case, that the rule of pari delicto has nothing whatever to do with it, nor has the question as to the return of the notes anything to do with it, for the public have no interest in that question. Independently of the statute, the law makes a deed obtained by such unlawful use of criminal process' absolutely void, and entitled the party making it to recover the property; and in .such a case the law of pari delicto does not apply. Anderson’s Die. of Law, 387; Story Cont., sec. 394; 3 N. H., 508; 5 Hill, 158; 7 Wall., 215; Whar., Cont., sec. 151; 5 Hill, 158; 7 Wall., 215; Bishop Cont., sec. 721, 26 Barb., 122; 6 Wis., 54; 14 Cox’s Crim. law, Ca., 617; 42 Ohio St., 205.
    However the plaintiff was entitled to a jury trial even if the deed is to be treated as voidable only; for as already shown, that term means simply that the deed can be avoided by the party aggrieved, but not by any one else, and that it is just as competent for the law to stamp such a deed as void in' favor of the injured party, as it is to make a deed void as to all parties and incapable of ratification. The statutes as to the manner of executing deeds, and their recording having nothing to do with the case; for the question is not to the manner of making’ a deed, but to the vitiating and treating it as void. No decree or reconveyance or annulling of the deed is necessary in any point of view. The suit and the judgment for possession would constitute a public record, which, by section 5055 of the statute, is made notice to everybody, and no further record would be necessary, or if it were, a copy of the record of the ease could be recorded in the recorder’s office.
    The term “void” in section 4196 of the statutes against conveyances to defraud creditors has uniformly been construed by this court to mean “voidable, ’ ’ and this has been the established construction for over fifty years ; and it is fully established by the decisions of this court, under the code, that no decree of the court is necessary for a reconveyance, or annulling the fraudulent deed, but that the creditor may treat it as void, levy upon and sell the property and recover the possession of it by action of ejectment. These authorities, therefore, entirely defeat the long argument for the bank that ejectment cannot be maintained where the deed is only voidable. Burgett v. Burgett, 1 Ohio, 469; 10 Ohio, 163; 9 Ohio St., 433; 40 Ohio St., 107; 17 N. Y., 270; 13 Mass., 177; 100 Mass., 355; 5 Allen, 59; 7 Cush., 181; 13 Pa. St., 359; 92 Pa. St., 171; 100 Pa. St., 51; 56 Ill., 25; 77 Ala., 290; 57 Wis., 288; 109 U. S., 485.
    There is not only testimony tending to show, but absolutely showing, that the bank made use of the criminal prosecutions for the purpose of coercing Mrs. Wheelock into making the deed, and that it was made and delivered solely because of such unlawful use of the criminal prosecutions, which produced such a degree of fear and distress that her mind and will were overcome, and she would not otherwise have executed it, and she was not therefore in pari delicto. In other words, the evidence sustained the averments of fact in the petition. This being so, she was prejudiced by the refusal of the court to grant her a jury trial. Dick v. Railroad Co., 38 Ohio St., 389.
    The question as to the condition of her mind, and whether her mind and will were overcome, were for the jury; and the only inquiry now is whether there was testimony tending to show that this was so.
    It is claimed that the party is always in pari delicto unless his innocence can be shown, in other words, that, if he is guilty, he may be coerced by threats and his mind and will overcome, and still be in- pari delicto, and without remedy. This is a clear mistake, for the rule is founded on public policy, and does not depend upon the guilt or innocence of the party, as we have conclusively shown by the authorities cited and those which follow; and besides, the statute now especially covers all cases of receiving property for compounding or abandoning a criminal prosecution, without any reference whatever to the guilt or innocence of the party. The other eases in this state cited for the bank relate to gambling, betting, gaming and lotteries, and are not in point, for in all these the parties voluntarily unite in violating the statutes, and there is no coercion. Devlin on Deeds, section 83; Blair v. Coffman, 5 Am. Dec., 659; 26 Am. Dee., 376; 14 N. Y., 123; 11 Mass., 379; 13 Mass., 371; 14 Ohio St., 151; 17 Am. and Eng. Law, 406; 3 Am. and Eng. Law, 933, note 2; 22 Pick., 181; 28 Ohio St., 260; 107 N. Y., 111; 47 Conn., 223; 26 N. Y., 12; 14 R. I., 618; 131 Mass., 51; Bailey v. Williams, 4 Gifford, 638; 1 Law Rep., E. & I. App., 200; Law Reports, 8 Ch., Div, 473.
    It is claimed that Mrs. Wheeiock must procure the return of the paper which the bank gave up. This is not material, for, if the deed is void, the paper held by the bank would remain valid, and the bank could recover on it. If it were necessary to procure their return it would, be sufficient to do so at the jury trial, and the point is not material here. 11 Vt., 252; 13 Ves. Jr., 581; 151 Pa. St., 594.
    Mrs. Wheeiock never had, nor has she now, any control over the paper. She was simply coerced, through fear and distress, to make the deed, without receiving anything. It was the bank that received, and that too by means of its violation of the penal and criminal statute of the state; and it is not, therefore, entitled to ask any relief from the court, much less to ask anything which might result in defeating the clearly implied prohibition and public policy of the statute.
   Shauck, J.

That Mrs. Wheeiock did not, in her amended petition, pray for the cancellation of the deed does not aid in determining whether the. issues were triable to a jury or not. The execution of the deed was alleged in the petition, and, if it was an impediment to her recovery at law, it followed either that she was entitled to that relief upon the facts alleged, and without a specific prayer therefor, or that her petition did not state a cause of action. In either view, upon that assumption, the judgment of the court of common pleas should have been affirmed.

The contention of her counsel is, that Mrs. Wheelock’s legal title to the land remained unaffected by her deed, in view of the circumstances of its execution, and that, the deed being utterly void, she might recover possession by an action at law. But little reliance should be placed upon observations extracted from opinions and text books, where only the validity and binding character of contracts is considered, and where, without technical precision, the terms “void” and “voidable,” are used as equivalents.

It is suggestive that the combined industry of court and counsel have failed to discover a case in this state in which the grantor, having capacity to contract, in a deed executed in conformity to the provisions of the deeds act, has been permitted to assert rights contrary to its terms, without first securing its reformation or cancellation by a decree in equity, to be obtained upon the allegations and the deg'ree of proof there required, and upon such terms as may be imposed conformably to the doctrines of equity. Suits in equity for the cancellation of deeds in eases of fraud, undue influence and incapacity, are familiar in our practice. The constant exercise of the powers of courts of equity in cases of this character, has not been by chance or caprice, since the rule has been uniformly held that courts of equity do not act except to grant relief where the powers of courts of law are inadequate. The force of the inference to be drawn from this familiar course of practice, is not diminished by Westerman v. Westerman, 25 Ohio St., 500, or McVeigh v. Ritenour, 40 Ohio St., 107, since it is not the grantor, but his creditor, who, according to the doctrine of those cases, may treat á frudulent deed as a nullity, and the decisions are placed upon the provision of the statute, that evei-y grant made to defraud creditors, “shall be deemed utterly void and of no effect.” Revised Statutes, 4196. Indeed, it is well settled that, notwithstanding the comprehensive terms of this statute, such deed is, as against the grantor, effective to convey his interest, and that he cannot avoid it by any form of proceeding, either at law or in equity.

Nor is the question affected by the numerous cases in which deeds have been held to be void because of fraud not limited to the purposes for which they were executed or procured, but extending to the very execution of the instruments. They are cases where, in contemplation of law, the deeds were not executed.

It is the settled policy of the state, as indicated by a uniform course of practice in its courts, and by repeated decisions of this court, that instruments of this solemn. character, executed in conformity to the provisions of the deeds act, shall not be set aside or defeated of their natural purpose, except upon proper allegations which are supported by evidence of a clear and convincing character. The mere preponderance of evidence, which is sufficient to determine the verdicts of juries in civil actions, is not sufficient. Potter v. Potter, 27 Ohio St., 84; Ford v. Osborne, 45 Ohio St., 1.

“The distinction between the terms ‘void’ and ‘ voidable, ’ in their application to contracts, is often one of great practical importance; and whenever entire technical accuracy is required, the term ‘void ’ can only- be properly applied to those contracts that are of no effect whatsoever; such as a mere nullity, and incapable of confirmation or ratification.” Terrill v. Auchauer, 14 Ohio St., 80.

The distinction suggested between deeds that are void and those that are voidable only, is usually regarded as determining the necessity for the interposition of a court of equity. Applying it here i¿ would seem to justify the ruling of the court of common pleas, since it is not doubted that Mrs. Wheelock’s deed was capable of ratification.

But it is said that the judgment of the circuit court was controlled" and justified by Cresinger v. Lessee of Welch, 15 Ohio, 156. It was there decided that if an infant conveys land, and, after attaining his majority, conveys the same land to another, such subsequent conveyance is a disaffirmance of the former, and the grantee in the subsequent deed may maintain ejectment. That case is distinguished from the present case upon clear grounds. The deed against which the title of the subsequent grantee prevailed was the deed of one who was without power to contract. The theory of the ease is that the deed was, when executed, ineffectual to pass title because of the want of capacity of the grantor to contract, and that it so remained until effect should be given to it by ratification. In this case Mrs.Wheelock had capacity to execute the deed, and it was effectual to convey the title subject to her right to avoid it in a proper suit because of the circumstances under which it is alleged to have been executed.

Duress is but the extreme of undue influence, and there appears no reason why a deed, voidable because of its exercise, should not be cancelled in the same manner and subject to the same conditions that are imposed in courts of equity, in suits to avoid deeds obtained by fraud or undue influence.

The consideration of other questions argued by counsel is unnecessary.

Judgment of the circuit court reversed, and that of the commo n pleas affirmed.


author: Spear, J.

text:
    Morgan v. Hudnell.

      Damages — Owner of domestic animal liable, when — Knowledge as to viciousness of animal — Trespass—Right of one tenant in common to maintain action — Other tenants not necessary parties.

    1. The owner of a domestic animal is not in general liable for an injury committed by such animal while in a place where it rightfully may be, unless it is shown that the animal was vicious in the particular complained of, and that the owner had notice of such vicious propensity.
    2. But if the animal breaks into the close of another, and there damages the real or personal property of the one in possession, the owner of the trespassing animal is liable without reference to whether or not such animal was vicious and without reference to whether such propensity was known to the owner.
    3. One tenant in common of a pasture field may maintain an action against the owner of a domestic animal which breaks into the field and injures the live stock of such tenant rightfully grazing therein; and the other tenants are not necessary parties to such action.
    (Decided April 23, 1895.)
    Error to the Circuit Court of Ross county.
    The action below was for the unlawfuLMllingbof ITudnell’s horse bv__a horse belonging to plaintiff in error. The evidence at the trial tended to show that Hudnell’s horse was rightfully in a pasture field belonging to one Houser; “that under a contract with said Houser, plaintiff had the right to keep the horse in question in Houser’s pasture field on pasture, and that on the night he was killed, the said horse was in said pasture field, under sald-eontract, along with horses belonging to other parties_ who had like contracts, and who, as well a.s'The plaintiffs paid a certain price per month for said jfight,--and plaintiff ofiierad-oiher testimony tending to prove that defendant’s horse had broken over'~the_p.ar.t-af— said-Jenee-to — be-k-ept up by defepda.rit’s wife, into the field of said Houser, and had while in sa,id field, attacked and_killed plalutiff’s .hause, and testimony tending to show that defendant’s horse was breachy and that he knew it, and tending to show that defendant’s horse was vicious and that he knew it, and testimony was offered by defendant tending to show to the contrary.”
    The court charged the jury, among other instructions, the following:
    “(1.) If the defendant’s horse, was at the time, trespassing in plaintiff’s field, on plaintiff’s land, or on the land of a third party where plaintiff was pasturing his horse by the month, for a consideration paid by plaintiff to such owner, and there attacked and killed plaintiff’s horse, defendant is liable for the injury, whether he knew or not of the vicious propensity of his horse.
    “(2.) If the jury find that the defendant’s horse was in pasture on his wife’s premises, and while there broke over her part of the partition fence, separating her said lands from the field in which plaintiff’s horse was being rightfully pastured by him, then the defendant’s horse was unlawfully in the place where the plaintiff’s horse was on pasture, and in such case, if the jury find that he killed plaintiff’s horse, the defendant is liable to plaintiff for the injury, whether his horse was in fact vicious or not, and whether he knew of such viciousness or not.”
    A verdict for plaintiff followed and judgment thereon, to reverse which this proceeding in error is brought.
    Mayo, Yaple & Phillips, for plaintiff in error.

      John C. Entrekin, for defendant in error.
   Spear, J.

The contention of the plaintiff in error is that the charge of the court is wrong, and that there should have been no recovery in favor of Hudnell, because (1), the owner of domestic animals cannot be held liable for injuries committed by them unless the owner has notice of their vicious propensities, and (2), the plaintiff below, not being in possession of the lot where his horse was being pastured, could not maintain an action of trespass.

, Undoubtedly it is settled law that the owner of a domestic animal is not in general liable for an in/fjury committed by su'ch animal while in a place where it rightfully may be, unless it is shown that phe animal was vicious in the particular com-I plained of, and that the owner had notice of such vicious propensity.

But we regard it as equally well settled that if the animal breaks into the close of another, and there damages the real or personal property of one in possession, the owner of the trespassing animal is liable without reference to whether such animal was vicious and without reference to whether such propensity was known to the owner, for the law holds a man answerable not only for his own trespass but for that of his domestic animal. The natural and well known propensity of horses, as well as other cattle, is to rove, and the owner is bound to confine them on his own land; so that,' if thejr escape and do mischief on the land of another under the circumstances where the other is not at fault, the owner ought to be liable. Beckwith v. Shordike, 4 Burrows, 2092; Angus v. Radin, 2 Southard, 815; Dolph v. Ferris, 7 Watts & Serg., 367; 3 Black Com., 211.

The question, then, in this case, is whether or not Hudnell was in possession of the pasture field in such sense as to authorize him to maintain the action.

It is the duty of this court to give such construction to the record as will' sustain the judgment of the court below if it can be reasonably done.

Looking to the bill of exceptions we find that the plaintiff ‘ ‘ had the right to keep the horse in question in Houser’s pasture-field on pasture,” and “paid a certain price per month for such right.” That is, Hudnell, the plaintiff, was keeping the horse there; Houser, the owner of the land, was not keeping the horse there. It does not appear that he was keeping any animal there. Other persons who had like right with plaintiff, had their horses in the same field on pasture. It does not appear that Houser reserved any right to use the field for his own stock, nor for the stock of others. Indeed, the circumstances are consistent with the idea that Houser had, for the time these contracts remained in force, given up the possession to those who had thus hired the pasture. In this view they were, then, the owners of the growing herbage. The rule that tenants so in possession may maintain trespass against even the owner of the fee, seems to rest on reason and abundant authority. Crosby v. Wadsworth, 5 East, 602; Tompkinson v. Russell, 9 Price, 287; Clap v. Draper, 4 Mass., 266; 1 Addison on Torts, 371-2. It would follow from this that had damage to the herbage been the ground for complaint, the tenants might have maintained a joint action for trespass.

If the conclusion just stated is justified, and we think it is, the only question remaining is as to the right of one of several tenants, in possession, holding by separate contracts, to maintain an action in trespass, where the damage for which he seeks to recover is to his own individual property rightfully in the close, by virtue of his rental contract. That the da'mag’e is to personalty will not, according to the authorities, stand in the way of a recovery. True, such damage is treated by many authorities as an incident, and in the nature of aggravation. But this distinction seems to have arisen from a desire to preserve the common law form of action, and at the same time not deny the injured party a remedy. The old action for trespass, quare clausum fregit, was strictly an action for damages to the land following an unlawful entry, and hence could not be resorted to for the purpose of a recovery for damages to personalty only. But forms of action not being important in this state, since the adoption of the code, we need not be embarrassed by any such distinction. The question in every case is, not what is the proper form of action, but, has the party a right of action.

Upon this phase of the inquiry we do not find authorities. But, upon principle, why should not one of several tenants in common have such ian action? Had he been in exclusive possession no doubt would exist. Why should the mere fact that others are interested in the growing herbage bar a recovery ? They are not concerned in the special damage suffered by plaintiff; and holding, not by virtue of a joint contract, but by separate several contracts, are not necessary or proper parties. It cannot prejudice the defendant that others having the same right of pasture do not join in the action, for they have no concern with it. If the claim were for damage to the herbage, the case would be different, inasmuch as it might be urged that the defendant’s entire liability should be determined in one action, and hence all should be parties. In Virginia and Vermont it is held that even in that case one alone may maintain the action, though it appears that the trend of authority is the other way. Probably the latter view would prevail in this state. And yet, if it were attempted to recover in one action for damages to the real estate suffered by all and for damages to the personalty of one alone, a vexed question of misjoinder would arise, because all the parties would not be interested in each ground of action. To hold, therefore, that one tenant could have no standing to recover for damages to his personalty save by joining with him the other tenants, is practically to refuse him any relief whatever. And this would in effect be to say that the law will take cognizance of a claim for damage to real estate, though it may amount only to a few cents, and refuse a hearing to a claim for destruction of personal property under like facts which may reach hundreds of dollars. It would be to say further that a party suffering injury to his personalty by an animal trespassing upon premises of which he has sole possession may be made whole, but if it happens that the possession is shared by others he is without remedy. Such a result would cast discredit on the power of the law to work out justice.

To deny the right of the injured party to maintain action for damage to his separate personalty upon any of the grounds referred to, would, we think, be to interpose a technicality for the purpose of defeating justice. It is the duty of courts, as we understand it, to override mere technicalities where they stand in the way of doing’ justice between man and man.

Stated in brief, the case is this: The plaintiff’s horse was in a, close where the owner, haying rightful enjoyment, had a right to keep him; he had a right in the field-; the defendanhisJio.iiser-by breaking the fence_w-hich his landlord was_bound to maintain, becam e a trespasser, and while_tkus unlawfullyiñvading the close as a trespassing animal, inflicted_thg_jiamage to plaintiff’s property. For such wrong we think the law should, and does, afford a remedy.

In this view the charge of the court was right, and the judgment will be

Affvrmed.


author: Burket, J.

text:
    Railway Company v. Salzman.

      Obligation of railroad company to care for sick passenger.

      A railroad company is under obligation to give sucb care to a passenger, who becomes sick on its train, as is fairly practicable, with the facilities at hand, without thereby unduly delaying its train, or unreasonably interfering with the safety and comfort of its other passengers.
    (Decided April 23, 1895.)
    Error to tne Circuit Court of Williams county.

      The facts in the case are as follows:
    William Salzman resided in Bryan, Williams county, Ohio. On the morning of the 26th day of April, A. D., 1887, he with his wife went on an excursion train to Toledo, in company with a number of his brother Odd Fellows and their wives, to attend the dedication of the Odd Fellows’ Temple at the latter place. At the conclusion of the ceremonies in the evening, he with some of his friends visited some of his acquaintances around the city until about nine o’clock, when he went to the Union Hotel and thence with his wife about eleven o’clock to the Union Passenger Station to take the train home.
    The passenger train was a special one made up on purpose to carry the excursionists to their homes, and consisted of a locomotive and four passeng-er coaches, all properly connected together continuously one after the other, properly warmed and lighted, and which offered ample and abundant convenience and accommodation for the carriage of the plaintiff and his wife, and all the passengers taking passage upon said train.
    After the train had pulled out of the station, but before proceeding on its way, there had been placed and attached to the rear of said train, as a protection and guard to said train, and for the sole use of the trainmen, a caboose car, provided with all the tools, lanterns and implements for an emergency. The platform of the caboose was several inches lower than the platform of the passenger coach, and the space between the two platforms was from twelve to fifteen inches. ,
    Salzman and his wife had taken seats in the rear passenger coach, and the train proceeded on its way. It had not gone far before a man by the name of Charles Shawley, a brother Odd Fellow, and who occupied the seat immediately in front of Salzman, was’ taken sick and was suffering great pain, occasioned from scrotal hernia.
    Some of the friends of the sick man sent for Mr. Wm. Darby, a friend of the sick man, who in turn went for Dr. Rotsel, also on the train. The doctor attended Mr. Shawley, but was unable to reduce the hernia in the seat where the sick man was. He said it was necessary to find some place where the man could be put on his back, and his lower clothes removed. The passenger car was filled principally with ladies, and that was not a proper place to expose his person.
    Thereupon Mr. Darby went for Conductor Covert and told him the trouble, and asked him if there was not some place on the train where they could take the man and lay him on his back. Conductor Covert said there was a caboose at the rear of the train, having seats at the side, and also a cot where they could take the man when the train stopped at the next station.
    Mr. Darby went back into the caboose to see and arrange for Mr. Shawley’s coming. The .conductor informed his rear brakeman of the trouble, and that when the train arrived at the next station, the man would be moved back into the caboose, and to look after and attend to same, and not to give any signal to start the train until everything was well.
    As the train began to slow down for the next station, four persons, viz: Dr. Rotsel, Messrs. Campbell, Salzman and Elliott, picked Mr. Shawley up out of the seat and started towards the rear end of the car. The brakeman at that time, passing back to the rear end of the car, stopped them, requesting them to take plenty of time and not to come out onto the platform until the train had come to a full stop.
    When the train stopped, the brakeman opened the door, and told the men carrying Shawley they could come on.
    Thus far the facts are undisputed. On part of plaintiff in error it is claimed, in addition to the foregoing, that the brakeman, after he opened the door of the car and told them to come on, immediately crossed over and down the caboose step to the ground; stepped between the passenger and caboose platforms, held up his lantern to light the way across, and as the men came out onto the platform, called out to them4 4 Look out and be careful in stepping across;” that this warning and notice was heard by all those carrying Mr. Shawley, as well as Mr. Shawley himself, and including also- Mr. Salzman; that the two ahead and in advance, R’otsel and Campbell, heard the warning* and stepped down and across; that Mr. Salzman heard the notice and warning, but mistook or misunderstood the call, and in stepping, stepped a little short and between the two platforms, fell and was injured.
    On part of defendant in error it is claimed that the conductor was present and asked Mr. Salzman to assist in carrying the sick man to the caboose; that there was no light on the platform; that it was not sufficiently lighted to enable a person to cross over to the caboose in safety; that the warning “Look out and be careful in stepping across,” came just as the step forward was being made, and coincident therewith; that defendant in error had no notice or knowledge of the condition of the step, and that there was a sudden jerk of the car by the engine just as the step across was being made.
    A verdict was returned in favor of plaintiff below, and a motion filed by defendant below for a new trial, which motion was overruled, and judgment entered on the verdict, to which defendant below excepted.
    On petition in error the circuit court affirmed the judgment. Thereupon a petition was filed in this court to reverse the judgments below.

      E. D. Potter and C. A. Bowersox, for the plaintiff in error.

      F. H. Hurd, C. H. Masters and C. S. Bentley, for defendant in error.
   Burket, J.

This case was tried to a jury three times, and three judgments rendered in favor of the plaintiff below. The case was three times before the circuit court, and twice before this court. The second judgment in the common pleas was reversed by the circuit court, on the ground that the verdict was not sustained by sufficient evidence; and that judgment of reversal was affirmed by this court.

It is claimed now by plaintiff in error, that the evidence upon which the last verdict in the common pleas was. rendered, is substantially the same as that upon which the second verdict was rendered, and as the circuit court found that the second verdict was not sustained by sufficient evidence, it should have found that the last verdict was not sustained by sufficient evidence, and that failing to so find is error.

The defendant in error claims that the evidence in the last trial was much stronger in his favor than at the second trial, and that.the last verdict is sustained by sufficient evidence.

Be that as it may, the circuit court affirmed the last judgment, and thereby said that the evidence was sufficient .to sustain the. verdict.. Even conceding. that the evidence in the. second and third trials was the same, the rule is that the last judgment controls. The circuit court may have concluded that its former judgment was wrong, and in this last judgment concluded to right the wrong. This court, not being required to weigh the evidence, did not examine the evidence when this case was here the first time, to see whether the circuit court was right or wrong as to the verdict no.t being sustained by sufficient evidence; neither do we now weigh the evidence to ascertain whether the last verdict was sustained by sufficient evidence. The judgment of the circuit court on that question is usually final.

The charge of the court excepted to is as follows:

“If the jury find, from the evidence, that the plaintiff, pursuant to the direction or request of the conductor of defendant’s train, attempted to assist in the carrying of Mr. Shawley from the passenger coach to'the caboose, and that, in so doing, he used reasonable, care, and was injured by reason of exposure to a danger of which he was not aware, and of which the servants of defendant, if exercising only reasonable care, would have known of, and either protected him from or gave him timely and adequate warning of; then in that case, defendant is liable for the injury .resulting from exposure to such danger.” .

. On part, of plaintiff in error it is urged, in support of the exception to. this part of the charge, that the conductor had no control over Mr. Salzman to order him to do anything in aid of the sick man; that as Mr. Salzman was not bound to obey the orders of the conductor in that regard, whatever he did was purely voluntary on his part, and that he assumed all the risks incident to his voluntary acts, and that the conductor had no authority to bind the company in giving orders as to the sick man.

On part of defendant in error it is urg-ed, that there is no- difference in the obligation of • the company, whether the removal of the sick man was undertaken by the direction and order of the conductor, or simply by his permission; that the duty devolved upon the company to take reasonable care of the sick passenger on its train, and that when other passengers assisted the officers of the train in the performance of that duty, the company owed to such assisting passenger's the obligation of ordinary care to prevent injury to them.

If no duty devolved upon the company to take reasonable care of the passenger who became sick on its train, then neither the order, direction or permission bound the company, because such order, direction or permission was not within the scope of his employment, and not in the line of his duties.

The case therefore turns upon the question, whether or not a duty devolves upon a railroad company to take reasonable care of passengers who become sick after entering its cars. ■

In travel by ship, care and medical attendance are always provided' by the company, as one of the necessities of the journey. In travel by rail, no such necessity exists, and therefore a railroad company is under no obligation to furnish hospitais on wheels, or physicians or nurses to attend the sick on their journeys. But without hospitals, and without physicians and nurses of their own, still much can be done to alleviate the pains ■ and aches of a sick, passenger. While the train is in motion, the passenger is utterly helpless as to aid, except from those on the train. His fellow passengers owe him no duty, except humanity. The alternative is presented of being cared for by his fellow passengers, by the company, or to writhe in pain and sickness until relieved by death, or the end of his journey. By taking passage and paying his fare the relation of carrier and passenger is established between the company and himself, and as he is under the control of the company for many purposes, and debarred by the rapid movement of its trains from receiving aid from the outside world, it would seem to follow as a necessity of the situation that those who have received his money, and are thus rapidly transporting him, should assume the obligation of taking reasonable care of him, in case of sickness while on the train. This obligation is on the company, not only for the benefit of the sick person, but also for the comfort, and sometimes the safety of the other passengers. A sick person by his cries and moans, may so annoy the other passengers as to require his removal to a separate apartment, or from the train. In ease of small-pox or cholera, or other contagious disease, the comfort and safety of the other passengers would demand the early removal of the afflicted passenger from the train. The company would in such case be charged with the duty of removal, and reasonable care thereafter, until the afflicted person could be otherwise eared for. A., T. & Sante Fee R. R. v. Weber, 33 Kansas, 543; 52 Am. Reports, 543; Conolly v. Crescent City R. R. Co., 41 La. An. Reports, 57.

It is therefore clear that the company owed a duty to the sick passenger, and was under obli- . gation to take reasonable care of him — such care as was fairly practicable with the facilities at hand, without unreasonable delay of the train, or discomfort to the other passengers.

The defendant in error assisting in the care of such sick person by direction or permission of those in charge of the train, was entitled to at least ordinary care on their part for his protection from injury. There was, therefore, no error as against the defendant below in the part of the charge excepted to.

In fact, the charge throughout was much more favorable to plaintiff in error, than to defendant in error.

There was also an exception to another part of the charg-e, but when taking- in connection with the whole charge, there was no error.

The verdict, $9,100.00, seems large, but if too large, a remittitur ’ should have been ordered by the court of common pleas, or the circuit court.

After the amount of a verdict, in an action not founded on contract, has had the sanction of a jury, and both the common pleas and circuit courts, this court will not usually interfere to reduce the amount.'

Judgment affi/rmed.