author: Johnson, J.

text:
    Berkmeyer v. Kellerman.
    1. It is the peculiar province of equity to take cognizance of transactions growing out of relations of trust, and to prevent those holding such positions from using them and their influence for their own aggrandizement.
    2. All the power, influence, and skill of one occupying such a relation is to he used for the advantage of the beneficial owner, and not for personal gain; and all increase, gains, and profits, whether arising from, the natural increase in value of the property, or from the management of the trustee, are the absolute property of the beneficiaiy.
    3. One standing in the relation of a parent and guardian — in fact, of a minor, having the custody and control of such minor and of his property during such minority, is bound to the most scrupulous 'good faith in the management of the estate, and where, on such minor’s coming of age, he attempts to make a settlement of his trust with him, a court of equity will examine the transaction with extreme jealousy, to see that no undue influence has been exercised; that the parties have been put on an equal footing, by full disclosures; and that no advantage has been taken.
    4. "Where a party occupying such a relation claims any benefit or advantage from a settlement with his ward, on bis coming of age, of his trust transactions, the burden of proof is on him to show that he has made full disclosures; that he has exercised no undue influence; and that such settlement is fair and equitable.
    5. A conveyance by such minor, on the day he comes of age, of all his real estate to the persons occupying such relations, in execution of such a settlement made for such minor by others not authorized to bind it, and while he is still under their influence and control, and not advised of his rights, is not binding, and can only be upheld in a court of equity by clear proof that under all the circumstances it is just and equitable.
    6. If the settlement relied on to uphold such conveyance embraces distinct and several claims of two or more, who hold such relations to the child, such conveyance may be sustained as to one and set aside as to-the others, according as the equity of the case will warrant.
    Error, to the Superior Court of Cincinnati.
    This action was brought by the present plaintiffs to set-aside a deed, made by Lisette Berkmeyer, before her marriage, by which she conveyed to defendants jointly a certain piece of real estate in Cincinnati. This deed is dated September 1, 1859.
    It appears that John H. Overbeck died in August, 1845, leaving a widow, since married to Joseph Kellerman, one of the defendants, and two small children — Joseph, since deceased, and Lisette, then four years old, now married toller co-plaintiff, Frederick Berkmeyer.
    At his death, Overbeck was the equitable owner of this .real estate, which he had theretofore purchased of one George W. Tucker for $650, of which he had paid $250, and on which he had erected a brick dwelling-house of four-rooms, and a stable. He owned some personal property, chiefly household goods, and a team, consisting of a wagon and two horses.
    His widow was duly appointed and qualified as administratrix, but never attempted to settle up the estate, as required by statute.
    Being in possession of her husband’s estate, she took possession of all the property, real and personal, and continued her husband’s former business of hauling with this-team for a living. From the earnings of the team and rents of part of her house, and by her own industry, energy, and' economy, she succeeded in paying the balance of the purchase money and the other debts of her deceased husband..
    At his death, Overbeck also owned eighty acres of land in Mercer county. He left a nuncupative will, which was; duly probated, by which he gave the “house and lot, horse and wagon, and stable, and all within and outside of the house, also eighty acres of land, lying in the State of Ohio, Mercer county,” to his wife and their two children.
    On the 12th of June, 1846, Tucker having been paid in full out of Mrs. Overbeck’s income from above sources and by money borrowed, executed a deed, in accordance with-this nuncupative will, to Catherine Overheek, his widow,, and to their two eiiildren, Lisette and Joseph Overbeek,. who died shortly after, leaving Lisette his sole heir.
    The widow, by whose good management and industry the estate had been saved, accepted this deed as a full, and to her a satisfactory, adjustment of the family matters, according to the terms of her husband’s will. She then made; no claim to a greater share than the will gave her.
    By this will, and under the deed, she became owner in-fee of one undivided one-third, and, on the death of Joseph,. Lisette was a like owner óf two undivided thirds.
    About the time of Joseph’s death, the widow married her co-plaintiff, Joseph Kellerman. He had been in her employ, engaged in driving this team, and was without means. She took him into her house, and thenceforth the three lived as one family until Lisette’s marriage. Until .after 1851 the income of this family ai’ose from the common labors of the family, in the usual and ordinary way, together with the earnings' of-the team and rents from two-rooms of the dwelling-house. After Kellerman erected the second residence, he received the rents from it. ■
    Lisette was sent to school until thirteen years of age,, when she was hired out. At first she received $1.50 per-week, but, after learning her work, she got $3 per week,, her mother receiving her wages, and clothing and furnishing her a home, until her marriage, which took place in 1862, some three years after she made this deed, now in controversy.
    In 1851, Kellerman, out. of his earnings, mostly by hauling with this team, as we understand the evidence, built another building on this lot. Before doing so he was warned that it was not safe, as he had no title. He concluded, however, to build, and settle with the girl after she came of age. ■She was then ten years old.
    The evidence tends to show that the rents from this new building, to the time plaintiff came of age, had nearly if not quite paid for it.
    It also establishes the fact, that with this estate of John H. Overbeck as a nucleus and a foundation, this family, and especially the mother, by their mutual earnings, improved this property, and that by the extraordinary rise in real estate, in that part of the city, it became very valuable, so that this property, which at Overbeck’s death was not worth over $1,000, rose in value to from. $5,000 to $7,000 in 1859. It probably was more than doubled in value by the rise in real estate alone. In 1845, that part of the city (Eighth and Freeman streets) was not then inclosed, nor laid off into lots, but was sold mostly by the acre. In 1859, by the rapid growth of the city, it had greatly increased in value, the lots, without improvements, being worth from $100 to $150 per front foot.
    The circumstances under which this deed of September I, 1859, now sought to be set aside, was made, will be stated in the opinion.
    In the court below, the petition was dismissed, on condition that the defendants, on being repaid the taxes on the Mercer county land, should quit-claim that land to plaintiffs.
    A bill of exceptions containing all the evidence is made part of the record.

      Stanton & Richards, for plaintiffs in error:
    1. On the subject of family settlements, see Gordon v.
      Gordon, 3 Swanst. 473-476; 2 Eden, 177; Hartop v. Hartop, 21 Beav. 265; Bergen v. Adall, 31 Barb. 25, 26; Hatch v. Hatch, 9 Ves. 292; Harrison v. Guest, 6 De M. & Gr. 432; Cocking v. Pratt, 1 Ves. Sr. 400; 3 Dowry & W. 330; Butler v. Haskel, 4 Desauss, 654; Hallett v. Collins, 10 How. 185; Greenfield’s Estate, 14 Penn. St. 504; Whelan v. Whelan, 3 Cowan, 537; Brice v. Brice, 5 Barb. 533; Williams v. Powell, 1 Ired. Eq. 460; McCants v. Bee, 1 McCords Ch. 383; Blundell v. Baker, 1 P. Wms. 639; Herron v. Herron, 2 Atk. 160; Young v. Peachy, Ib. 254, 258; Hylton v. Hylton, 2 Ves. Sr. 547, 548, 549; Wells v. Middleton, 1 Cox, 112; Archer v. Hudson, 7 Beav. 551; Hoghton v. Hoghton, 15 Beav. 278; Bury v. Oppenheim, Ib. 594; Cooke v. Lamotte, Ib. 234; Maitland v. Irving, 15 Simons, 437; Maitland v. Backhouse, 16 Simons, 58; Wallace v. Wallace, 2 Dru. & Warren, 452; Dawson v. Massie, 1 Ball & B. 97; Aylward v. Kearney, 2 Ball & B. 563; Murray v. Palmer, 2 Sch. & Lef. 474, 486; Roche v. O’Brien, 1 Ba. & B. 151; Ormond v. Hutchinson, 13 Ves. 51; Pierse v. Waring, 13 Ves. 53; 1 P. Wms. 121, note; Baker v. Bradley, 7 De Gex. M. & G. 610; Long v. Milford, 17 Ohio St. 504; Story’s Eq. Jur. § 131; Thornber v. Sheard, 12 Beav. 595; Buffalow v. Buffalow, 2 Dev. & Ba. Eq. 253.
    2. As to the maintenance of the child.
    Even if the defendants had the right to charge the income of the daughter’s estate with expenses necessarily incurred in her support, they had no right to charge the estate itself. Holmes v. Logan, 3 Strob. Esq. 31; Walker v. Witherall, 6 Ves. Jr. 474; Clark v. Clark, 8 Paige, 152.
    3. As to expenditures upon the property.
    If either of the defendants expended money of their own upon the property of the plaintiff, such expenditures must be deemed advancements, and would give defendants no claim upon the property. Such is the rule of law not only when the expenditures are made by a parent, but where made by anyone standing in loco parentis. Story’s Eq. per §§ 309, 1202; Hill on Trustees, 152; Creed v. Bank, 1 Ohio St. 1; Vanzant v. Davies, 6 Ohio St. 52; Hazzard v. Rowe, 11 Barb. 22; Baker v. Bradley, De Gex. M. & G. 610.
    4. Joseph Kellerman stood in loco parentis. When a stepfather “ takes the wife’s child into his own house, he is then considered as standing in loco parentis, and is responsible for the maintenance and education of the child so long as it lives with him, for, by that act, he holds the child out to the world as part of his own family.” Stone v. Carr, 3 Esp. 1; Cooper v. Martin, 4 East, 82. And the step-child is not liable on an express or implied promise, during minority, to pay for necessaries furnished by his stepfather. 2 Kent’s Com. 192, note, citing Sharp v. Crapsey, 11 Barb. 224, and Hussey v. Roundtree, Busbee’s (N. C.) Rep. 110.
    Indeed, whenever any person voluntarily assumes the duties of parent toward another by admitting such person into the family, no claim arises on the one side for maintenance, nor on the other side for services. Williams v. Hutchinson, 3 Comst. 317; Lantz v. Frey, 14 Penn. St. 202. See also 14 Penn. St. 202; 19 Penn. St. 366; Andrews v. Foster, 17 Vermont, 260.
    The necessary consequence of allowing such a claim on one side would be to admit it also on the other. Robinson v. Cushman, 2 Denio, 154.
    5. The receipt by Berkmeyer and wife, of partial payment of the mortgage of September 1, 1859, was not a confirmation of the transaction of that date. Dunlap v. Mitchell, 11 Ohio, 117; Murray v. Palmer, 2 Sch. & Lef. 474, 486; Thornber v. Sheard, 12 Beav. 595; 3 Don. & War. 334; Hammond v. Allen, 2 Sumner, 400; Wood v. Downes, 18 Ves. 123; Roche v. O’Brien, 1 Ball & Beatty, 151; Dunbar v. Trendennick, 2 Ball & B. 304; Cockerill v. Cholmley, 1 Buss. & Myl. 418; Butler v. Haskell, 4 Desauss, 709, 715.
    To the same effect as the above cases, with regard to confirmation of impeachable transactions, are Michoud v. Girod, 4 How. 560; Crowe v. Ballard, 1 Ves., Jr.; McCants v. Bee, 1 McCord, 383; Cherry v. Newson, 3 Yerg. 369 Deloraine v. Brown, 3 Brown’s Ch. 633; Leonard v. Leon

      ard, 2 Ball & B. 171; Baker v. Bradley, 35 Eng. L. & Eq. 464; Carpenter v. Heriot, 1 Eden, 338; Cocking v. Fratt, 1 Ves., Sr., 400; Morse v. Royal, 12 Ves. 372, 373; Burrows v. Walls, 5 De G. M. & G. 233; Lloyd v. Atwood, 3 De G. & Jones, 514. See also 1 Story’s Eq. Jar., § 322a.

      The burden of proof is on the defendants, to show that the acts, which they claim to be confirmation of the,deed, •were attended with all the circumstances necessary to give them the effect to confirm it. It is not enough to prove some fact which might amount to confirmation. It must, as we have just seen, be shown that the persons performing the act did so with full information of all the facts bearing on the matter, and of all their rights with regard to "them; with the knowledge that the acts they are about to perform will confirm an impeachable transaction; and the acts must have been done freely and voluntarily; with the intention to confirm, with entire freedom from the influence of the former transaction, and without the exercise ■of any undue pressure to obtain' such confirmation. That the defendants are bound to prove all these facts, before this •defense will avail them, is established by the cases above referred to. Crowe v. Ballard, 1 Ves., Jr. 220; Cockerill v. Cholmley, 1 Buss. & Myl. 418; Cherry v. Newson, 3 Yerg. 369; Long v. Mulford, 17 Ohio St. 509; Butler v. Haskill, 4 Desauss, 713; Morse v. Royal, 12 Ves. 378.
    6. Lapse of time. The petition was filed in this case on May 31, 1870, less than eleven years after the date of the transaction complained of. During three years of this time (until her marriage in 1862), Lisette remained in the family, and under the influence of her mother and stepfather. As in Hatch v. Hatch (9 Ves. 297, 298), “ it is the •case of a ward under the influence of her guardian part of the time, and of her husband the rest. See Long v. Mulford, 17 Ohio St. 508; Alden v. Gregory, 2 Edn. 285; 4 Desauss, 706; 5 Ves. 485; 7 Ves. 599; 11 Ves. 385; 18 Ves. 119, 123; Taylor v. Taylor, 8 How. 183; 3 Dru. & War. 17; 2 Ball & B. 463; 2 Sch. & Lef. 474; 1 Ball & B. 151.

      T. D. Lincoln, for the defendants in error:
    I. The burden of proof was on the plaintiffs. Delano v. Bartlett, 6 Cush. 366, 367; Bridge Co v. Butler, 2 Gray, 131, 133.
    II. As to family settlements.
    The eases cited by counsel for plaintiff on this subject are, most of them, good law, as applicable to the facts involved iu them. They relate to cases where children have been left with money or property, and have been induced to give it away, or convey it away, under such circumstances a§ to excite suspicion. There is not one of them like this, where the infant has nothing left of any value, and where all there was, was, in fact, created by the labor-of the party attacked. None of. the cases sustain any such principle. Nor do they go so far as to decide that a child may not make a fair settlement with its father or mother. On the contrary, when there is reasonable evidence that the arrangement or settlement was such a one-as commended itself to good feeling and fairness between the parties, it will be upheld. Indeed, it is the well-settled law, that a child may make even a voluntary conveyance-of its property to its father or mother, if it acts freely and voluntarily. The case of Jenkins v. Pye, 12 Pet. 243, is to that effect, and that case is regarded as good law to this, day. Taylor v. Taylor, 8 How. 201; 31 Barb. 25; 12 Pet. 253; 1 Story’s Eq. Jur., § 309a.
    But this case is not a voluntary conveyance. It is a family settlement of matters proper for the child to recognize- and pay, and the rule in such a case is quite different. 1 Story’s Eq. Jur., § 309a; Baker v. Bradley, 7 De G. McN. & G. 620. And courts of equity strive to sustain agreements dictated by honorable and even generous motives, if there has been no fraud practiced. Stapilton v. Stapilton, 1 Atk. 5; Cory v. Cory, 1 Ves., Sr., 18; Kinchant v. Kinchant, 1 Brown Ch. 374; Gordon v. Gordon, 3 Swans. 463; Hartopp v. Hartopp, 21 Beav. 262; Hoghton v. Hoghton, 15 Beav. 300; Wycherley v. Wycherley, 2 Eden Ch. 178; Pullen v. Ready, 2 Atk. 292; Green v. Goodall, 1 Cold. 409.

      III. There were delays and acts amounting to confirmation. The receipt of Berkmeyer and wife for the seven Rundred dollars, if not a technical ratification, was an acceptance of the settlement, certainly a recognition of it, and an acting upon it. Garrett v. Gouter, 42 Penn. St. 146; Hadlock v. Hadlock, 22 Ill. 388; 12 Pet. 254; Atkin v. Hill, 7 Geo. 577, 578; 23 Ind. 572; 31 Beav. 153; Mangum v. Bell, 20 La. Ann. 216.
    It is also well settled, that a party, to have a rescission where much time has elapsed, must show clearly that he was not only ignorant of the facts which he claims entitle Mm to rescission, but that he could not by reasonable diligence have discovered such facts. Parks v. Ev. Ind. & C. S. L. R. R. Co., 23 Ind. 572.
    The ignorance that the law will overlook when such time has passed, is only such as the party, by reasonable, active, diligence, could not have known. 23 Ind. 572.
   Johnson, J.

The deed sought to be set aside, was executed September 1, 1859.

The legal title to the premises was then in the plaintiff, Lisette, and the defendant, her mother, the former holding* two undivided thirds.

It had been so placed with the assent of the mother in 1846. By the deed from Tucker at that time, she took according to her-husband’s will, one-third in fee, instead of her dower under the statute. The day Lisette became of age, the deed now in controversy was executed by Lisette to her mother and her step-father, Joseph Kellerman, in consummation of an alleged family settlement, made by A. M. Dengler, an attorney, selected by the mother for that purpose, who came to the conclusion that Lisette was only entitled to six hundred dollars out of her father’s estate (the Mercer county land not included).

Under the employment of the mother, he made what he calls a settlement, and adjudged that the step-father should Lave a deed for half of this property, and the mother the other half, and that they should jointly make a mortgage to Lisette to secure the payment of this $600, iu two years, with six per cent, interest.

The settlement and award was made, and the necessary papers prepared for execution before Lisette became of age> without, any consultation with her, and without her knowledge, until on her way, with her mother, and by her directions, to Lengler’s, to execute them.

To carry out Lengler’s award, he had prepared a deed, whereby Kellerman and wife conveyed all their title, being the one-third, to Lisette, and she reconveyed to them jointly the whole title. They then executed back to her a mortgage to secure the $600 awarded to her, which was evidenced by note.

As Mrs. Kellerman alr'eady owned one-third, the effect of this transaction, was to increase -her interest in the lot one-sixth, and to increase Kellermau’s from a marital right as husband in his wife’s one-third to an ownership in fee of one-half.

The evidence warrants, us in finding that the occasion for this transaction arose from the dissatisfaction of the step-father, growing out of the fact that he had been engaged then some thirteen years, helping, as he claims, to save and improve this property.

He naturally valued his efforts and labors as the chief ■cause of its value, and was of the opinion that Lisette was not entitled to anything more than she had received in her raising.

’ It also warrants us in finding that, to. the industry and good management of the mother,- before she married Keller-man, this estate of her first husband was kept together and saved to herself and her children, and that she was a kind, self-sacrificing mother and wife, anxious to do equal • and exact justice to her husband as well as to her child.

She recognized and was anxious to satisfy the equitable demands of her dissatisfied husband, and accordingly, some days before Lisette became of age, doubtless after consultation with her husband, she employed Lenglerto adjust this family difficulty, and told him all the circumstances as far as she knew them, and told him “to settle it right by me (her), and right by my husband, and right by her” (Lisette).

This Dengler attempted to do, without any communication with Lisette, or without any accounts or vouchers, or any computation in details of the value of the claims of either party.

He had acquired a general knowledge of the matter, but he does not claim to have done more than to make a general examination, and to make what he deemed an equitably award.

What demand the step-father had against Lisette, to require that she should convey one-half of this land to him, •does not clearly appear from the evidence. ■

The first that Lisette knew of what was being done, was after the deeds were ready to be signed, and while on her way to Dengler’s, where she was taken by her mother to execute them.

Mrs. Kellerman did not then herself know, or if she did, did not tell her daughter, how it had been settled, but says: ■“ I told her we were going to settle it there, and give her what was coming to her, and settle it fair for me and my husband and for her too.” -Before arriving at Dengler’s house all the plaintiff knew was this, and that she was being taken to Dengler’s to put her name to a paper that was there for that purpose.

When they arrived, Dengler told her that her father and mother had been there two days before, and had fixed it all up ; that the papers were all made up, and that she had just to put her name under, and that was all she had to do.”

Dengler says that Mrs. Kellerman came to his bouse several times, and told him how matters stood, how property was purchased, and about paying taxes, for filling up about the new house, etc., and about Lisette’s board, but he is unable to give any details or information of the basis •on which he made his award, or upon what valuable consideration to Lisette he required her to convey to Kellerman one-half the property.

Mrs. Kellerman says she kept no accounts, but had some vouchers, and Kellermau had none.

Mr. Somber, the parish priest, who happened in when; the papers were being signed, and heard them explained,, and witnessed their execution, says plaintiff signed them without objection, and gives it as his opinion that it was-a just settlement, though he had no knowledge of the matter further than was there explained.

It is not shown that any account stated, of the claims legal or equitable of either of defendants, was made out, or that any value was fixed upon the property so conveyed, in payment thereof.

All we know is that Dengler fixed this matter up according to his idea, after hearing from one side only. He does not claim to have carefully estimated the items of debit and credit to each, nor to have considered the fact that a larger part of the increased value arose from rise in real estate.

The mother stood in peculiar relations to her daughter. As her mother, she had the custody and control, exercising-personal care of her nurture and maintenance. This control she continued to exercise, until the daughter’s marriage,, some two years after the settlement.

At her husband’s death, she took upon herself the administration of her husband’s estate, took possession of it,, and thereafter carried on the business, and paid his debts. She made no settlement, and filed no accounts, as required by law.

She was also tenant in common with her child in the-property, acting for both, as the child had no other guardian.

Upon her second marriage, her husband became head of' the family, and with her used and enjoyed this property in common, receiving all the rents and profits, as well as the earnings of the daughter. They both stood in loco parentis. Courts of equity are especially charged with the cognizance of trust relations of this character.

It is their particular duty, in case of children and other, kelpless persons, to protect the weak, and to prevent those-holding fiduciary relations from, using their positions and. influence for their own aggrandizement.

All their power, influence, and skill is to be used for the benefit and advantage of the beneficial owners, and not for personal gain.

All increase, gains, and profits, whether arising from natural increase in value, aside from the efforts of the trustee, or from such efforts, are the absolute property of the beneficiary.

The rules governing parties occupying such relations is-well stated in Adams Eq. (marginal page 184) :

“ Where any person stands in a relation of special confidence toward another, so as to acquire an habitual influence over him, he can not accept from him a personal benefit without exposing himself to the risk, in a degree proportioned to the nature of their connection, of having* it set aside as unduly obtained. An attorney, therefore, purchasing or taking a benefit from his client, whilst the-relationship of attorney and client exists, and in respect of that matter wherein it exists, must show that he took no advantage of his influence or knowledge. . . . The same general principle applies to all the variety of relations in which dominion may be exercised by one person over another,but in proportion as the relationship is less known and definite, the presumption of fraud is less strong.”

The note of the American editors, on the same page, is-as follows: “A court of equity looks with extreme jealousy on transactions between parties who stand in any fiduciary relation, or relations of a similar character, by which an undue influence may be obtained by one over the-other; and unless he who receives the benefit can show that it was conferred understandingly, and with full knowledge of the circumstances, and apart from the bias of that connection, it will be set aside. Such relations are those of attorney and client, parent and child, guardian and ward,” etc.

In Harrison v. Guest (6 De G. M. & Gr. 452), the lord chancellor says : “ If persons standing in a particular relation to one another, deal as vendor and purchaser, the court expects the purchaser, when the purchase is complained of by the seller, to show that the seller had due protection afforded him. . . . Wherever there is any fiduciary relation between the parties, the court throws the burden of proof on the party who sets up the transaction against the person whom he was bound to protect.”

In Cocking v. Pratt (1 Ves., Sr. 400), the court said: “ Though there is no great evidence of undue influence, yet the court will always look with a jealous eye upon a transaction between parent and child just come of age, and interpose if any advantage is taken. The mother plainly knew more than the daughter, and only says .in general terms she believes she concealed nothing from her.” And a composition between mother and daughter, entered into four months after the latter came of age, though afterward ratified by the daughter’s husband, was set aside.

“ A trustee will not .be permitted to obtain any profit or advantage to himself in managing the concerns of his cestui que trust, but whatever benefits of profits are obtained, will belong exclusively to the cestui que trust. In short, it may be laid down as a general rule, that a trustee is bound not to do anything which can place him in a position inconsistent with the interest of his cestui que trust, or which will have a tendency to interfere with his duty in discharging it. And this doctrine applies, not only to trustees strictly so called, but to other persons standing in like relations. . . . It applies in like manner to executors and administrators, who are not permitted to purchase up the debts of the deceased on their own account; but whatever advantage is thus derived by them, by purchases at and under value, is for the common benefit of the estate. Indeed, the doctrine maybe more broadly stated, that executors or administrators will not be permitted, under any circumstances, to derive a personal benefit .for the manner in which they transact the business, or manage the assets of the estate.” 1 Story’s Eq., § 322. See also § 322a, and §§ 466, 466a, and 468.

Another rule applicable to transactions of this kind is, that there is no law against a child bestowing upon a parent any property of which she may be the owner, if freely and voluntarily done, when the gift originated in the mind of the child, or was unsuggested by any agency of the parent. Bergen v. Udall, 31 Barb. 25; Story’s Eq. Jur., § 309a.

In Gordon v. Gordon, 3 Swanston, Lord Eldon says that, “ in all cases of this kind, full and complete communication of all material circumstances is what the court must insist on.” Again: “ There must not only be good faith and honest intentions, but a full disclosure; and, without full disclosure, honest intention is not sufficient.”

In Bergen v. Udall, supra, it is said : “ In all dealings between parent and child, under such circumstances, the most scrupulous good faith — uberrima jides — must be observed, and the weaker party must be put upon an equal footing-with the stronger, by a complete disclosure of all material facts, and the abnegation, as far as possible, of any control or dominion, as well as of all mere selfish projects or attempts.”

That class of cases where family settlements are sustained, notwithstanding some proof of parental influence, and those where contracts will be set aside because of such undue influence, are readily distinguishable, and that distinction rests on sound principles of equity and justice.

In both classes, where, from the relations of the parties, there is a probability of such undue influence having been exerted, the court watches the whole transaction with great jealousy, not merely for the purpose of ascertaining “that the person likely to be so influenced fully understood the act he was performing, but also for the purpose of ascertaining that his consent to perform that act was not obtained by reason of the influence possessed by the person receiving the benefit; not that the influence itself flowing from such relations is either blamed or discountenanced by the court; on the contrary, the due exercise of it is considered useful and advantageous to society; but this court holds as an inseparable condition that this influence should be exerted for the benefit of the person subjected to it, and not for the advantage of the person possessing it. The case of parent and child is undoubtedly one of this class of ■cases, and is prominently put forward as such in all cases illustrating this principle.” Hogton v. Hogton, 15 Beav. 278.

In this ease it was added “ that if the settlement of the property be' one in which the father acquires no benefit not .already possessed by him, and if the settlement is a reason.able and proper one, the court will support it, even though it may appear that some influence was exerted by him to induce the son to execute it, and provided, also, there was no suppression of what is true, or suggestion of what is false. . . . When, however, the son confers on the parent, by the transaction, some advantage which he did not previously possess, then the principle which prevails in the first class of cases interposes, and this court, to use the words of Lord Langdale, in Archer v. Hudson, 7 Beav. 560, does not interfere to prevent an act, even of bounty, between a parent and child; but it will take care that such child is placed in such position as will enable him to form .an entirely free and unfettered judgment, independent altogether of any control.”

Guided by these principles, we are unanimous in the • opinion that this deed, made on the day that Lisette became eighteen years old, in execution of an alleged settlement, made by one unauthorized to bind her, without her being fully advised of her rights, and while acting under the influence and control of her mother and step-father, was not binding upon her.

We are likewise agreed that it can only be supported as a family settlement, upon the inherent equities of the transaction, in view of the facts and circumstances of the case.

We are further agreed that, as to Mrs.'Eellerman, such •equities do exist in her favor.

Aside from her services as plaintiff’s mother in her maintenance and education, it appears that after this mortgage was executed, and after it had been canceled by Eellerman, by erasing his name, she, out of her own means, and with-out his knowledge, paid the same, with interest, and that this payment was accepted from her by the plaintiffs under such circumstances as amount to a ratification in her fávor.

The amount thus paid, some $700, was about equal to the value of the one-sixth of the property which she received by the deed, not estimating Kellerman’s improvements.

In view of these facts, and of the beneficial nature of her services to plaintiffs’ property and its management and improvement, we are of opinion that no substantial injustice has been done to the plaintiffs by the conveyance of this one-sixth to her mother.

3. As to the conveyance of one-half to Joseph Keller-man, a majority of the court are of opinion it is without ■any such equities to support it.

It has been urged with much ability, and supported by .an array of authorities, that Joseph Kellerman had no claim, either legal or equitable, against his step-daughter, or against her property, which a court of equity would recognize.

His claim was that he had erected this building, and helped to improve the lot, paid taxes, etc.

Assuming, however, for the purposes of this case, that this would constitute an equitable claim against the plaintiff during her minority, it was only a claim to an account in equity, in which he would be allowed for his betterments, and be subject to account for rents and profits.

In taking this conveyance, he gets the real estate, with all his improvements, for which he pays nothing, unless he can establish a claim for maintenance of the child.

When Lisette was but ten years old, he erected this building, with the intention of “fixing it.” with her when she became of age.

On the day she became of age, the papers were executed, in pursuance of previous plans, and an award made by an attorney employed by the defendants. Unless Kellerman can avail himself of the meritorious services of his wife, much of which were rendered before his marriage, there. Is no consideration to support this conveyance to him.

He was dissatisfied with the settlement, as he thought, lisette should give up the land without any consideration. The mortgage, though formally handed her at Dengler’s, was not in fact delivered to the plaintiff until 1866, some five years after due, and was never recorded. It and the note which it secured, and which was never returned to her, remained in defendant’s custody until December, 1866. ■When he did at last deliver the mortgage, on Christmas, 1866, his name was erased from it, thus repudiating, so far as he was able, all obligation to perform his part of the settlement by Dengler.

Before this mortgage was returned, he had flatly refused to pay the mortgage debt, telling the plaintiffs that he wanted back the money he had put in it, and if they would pay that they might have the property, as he did not want it, and his wife too. His opposition to performing this contract was such that his wife, out of her own means, and without his knowledge, paid off the mortgage, charging, her daughter not to tell Kellerman, as he did not intend it should be paid.

So far as he could, he repudiated and canceled the contract. He, in fact, paid no consideration for the deed to. him.

Eor these, and other reasons that might be given, we think the conveyance of the undivided half, to JosephKellerman, should be set aside,- and the property restored to her, leaving him to such an account with the plaintiff as-he may be entitled to in equity.

It is claimed that the plaintiff has ratified and confirmed this deed by long acquiescence, and by accepting payment of the mortgage.

Certainly Kellerman can claim nothing from this payment made contrary to his wishes, after he had canceled the mortgage, and after his refusal to pay.

The plaintiff was, at the time, feme covert, and so, at law,. Incapable of making a binding contract of ratification, and-there' is no equity in favor of Kellerman, that estops her as against him.

Furthermore, it does not clearly appear, that the plaintiff was fully advised of her rights in the premises at the time of such payment.

Nothing but a clear and unequivocal ratification, after a. full knowledge of the right-to impeach, and with the intention to do so, will satisfy a court of equity. Dunlap v. Mitchell, 10 Ohio, 117; Hammond v. Allen, 2 Sumner, 400; Wood v. Douns, 18 Ves. 119; Dunbar v. Trendennich, 2 B. & B. 304; Cockerell v. Chomley, 1 Russ. & Myl. 418; Michoud v. Girod, 4 How. 560.

4. It is said this action is barred by lapse of time.

It was commenced May 31, 1870, less than eleven years, after the deed was made.

For nearly three years, and until her marriage, the plaintiff remained at home, under the dominion of her parents, ignorant of her fights and unadvised by those, who were-properly her protectors. As to her, Kellerman stood in-loco parentis.

By the code, as well as in equity, time would not run against her, while the fiduciary relation existed, nor until the discovery of the fraud against her, and the burden of showing such knowledge as would make her guilty of' laches, or set the statute to running, rests upon the defendant. Long v. Mulford, 17 Ohio St. 508.

This is an action to recover the title to real estate, and is not barred by the statute. It does .not, affirmatively, appear that it -accrued before plaintiff’s marriage, and if not, time does not run against her until such disability is removed.

What constitutes such laches as will bar a claim like this, growing out of fiduciary .relations, and independent of the statutory limitations of civil actions, must depend on the circumstances of each case as it arises. Paschall v. Hinderer. 27 Ohio St. 568, and cases cited; Long v. Mul ford, 17 Ohio St. 508; Taylor v. Taylor, 8 How. 183; Piatt v. Longworth, 27 Ohio St. 159.

We think the plaintiff’ is entitled to the relief prayed for as to Joseph Kellerman, and that the judgment in his favor, and the conditional order as to • the Mercer county land, should .be reversed, and that the judgment in favor of Mrs. Kellerman should be affirmed.

Judgment accordingly.


source: Caselaw Access Project

author: Ashburn, J.

license: Public Domain

text:
    City or Dayton v. Hinsey.
    1. A bill of exceptions, taken at a term of tbe court subsequent to tbe trial, on overruling a motion for a new trial, will not avail to bring on the record for review errors of law occurring on the trial, in the admission, over obj ection, of alleged incompetent testimony.
    2. An error of law, occurring at the trial, must be saved and brought upon. the record by bill of exceptions taken at the trial term.
    Error, to the Superior Court of Montgomery county.
    Plaintiff below, defendant in error, brought an action for damages for alleged trespass upon and injury to her real estate, claimed to have been committed by defendant below. The answer denied the trespass, averring a verbal license to enter upon the land and do the acts complained of. The reply denied the alleged license.
    By law, the Superior Court of Montgomery county was required to hold monthly terms, except in the months of July, August, and September. The action below was tried to a jury at the Januai’y term, 1874, and resulted in a verdict for plaintiff. The defendant made a motion for a new trial, which motion was continued from term to term, until the May term, 1874, at which.term the motion was determined adversely to defendant. To this ruling defendant excepted and took a bill of exceptions, which is the only one in the record. The record shows that at the January term, during the progress of the trial, plaintiff’ offered testiunony which was objected to, and admitted to go in evidence over defendant’s objection. To this ruling defendant excepted, but took no bill of exceptions at the trial term, showing the nature and character of the testimony ■objected to.
    In this motion for a new trial, defendant assigned several reasons. The second and seventh only have any relation to the question to be determined in this case. ' In the second, the alleged objectionable testimony appears to be set out; the seventh is but a recital of the sixth subdivision of section 297 of the code, providing that a new trial may be granted when the verdict is not sustained by evidence, or is •contrary to law.
    Judgment was entered on the verdict, and this action in •error is prosecuted here to obtain a reversal of-that judgment.

      Alfred A. Thomas, for plaintiff in error.

      Conover & Craighead, for defendant in error:
    1. This bill of exceptions, being confined exclusively to alleged error in the action of the court below, at the trial term, in admitting testimony and in its charge to the jury, and not having been taken or filed at that term, can be of no avail to the plaintiff in error. Kline and Berry v. Wynne, Haynes & Co. 10 Ohio St. 223: The M. & C. R. R. Co. v. Strader & Co., 29 Ohio St. 448; Musser’s Ex’rs v. Chase, 29 Ohio St. 577.
    2. The noting on the journal of an exception to the action of the court in overruling the motion for a new trial, at the May term, is not the “ signing and sealing ” of a bill of exceptions, as required by the statute.
    No facts or grounds of exception to the action of the •court appear in such entry, nor is such exception embodied in the bill of exceptions filed at the May term, nor does the whole record raise any question of law, the only bill of exception in the case relating simply to alleged errors of the court, at the January term, and to which no exception wae taken at that term.
    3. If such entry, under any circumstances, might be held sufficient to justify this court in reviewing the action of the superior court, at its May term, in overruling the motion for a new trial, this is not such a case.
    The record of the court below must embody all of the testimony in the case, all of the charges or other-actions of the court, that the reviewing court, u|)on the record, of the whole ease, may determine whether substantial justice has been done between the parties, or whether injury has intervened to the prejudice of the plaintiff in error, which made it the duty of the court below to set aside the verdict of the jury. Cases in 29 Ohio St., before-cited. Bolen v. The State, 26 Ohio St. 371; Parmlee v. Adolph, 28 Ohio St. 15.
   Ashburn, J.

The material errors assigned all rest upon the question whether the trial court erred in the admission of testimony to the jury, over the objection thereto-of defendant below. If, from the state of the record, that question can not be considered, the other errors assigned can avail nothing.

In cases where the ground of error is that the verdict is against the law and the evidence, and the bill of exceptions, taken on overruling a motion for a hew trial, contains all the evidence, and the entire charge of the court, a reviewing court will look to the whole case, thus made, with a view of determining whether, upon a ionsideration of all the evidence and law of the case, a new trial ought to have been granted, in order to do substantial justice. M. § C. R. R. Co. v. Strader & Co., 29 Ohio St. 448.

Such is not the state of the case on this record. The bill of exceptions taken- on overruling the motion for a new trial, is the only one in the- case. ■ It professedly does not contain all the testimony offered on the trial, nor the entire-charge of the.court, and, for this reason, a reviewing court would not be authorized in holding that the lower court erred in overruling the motion for a new trial.

Where it clearly appears from the record, by means of some process known to the law, that the trial court has erred, to the prejudice of plaintiff' in error, in the admission or rejection of testimony, its judgment will be reversed. In such case, the judgment of the reviewing ■court is not invoked by the overruling of the motion for a new trial, but for the error of law occurring in the course of the trial, saved by the injured party, at the time and in the mode provided in the code. Where the alleged error .appears in the entry made on the decision, no bill of exceptions is necessary; when it does not so appear, and is extrinsic thereto, the alleged error must be brought upon the record by some legal process.

The alleged error, if error occurred, intervened at the trial term, in January, 1874. The motion for a new trial made at that time, was continued for four terms of court before final disposition, and no bill of exceptions to the ruling of the court, upon any question of law whatever, was taken at the trial term. As already stated, the only bill of exceptions in the record, is the one taken at the May term to the decision of the court overruling the motion for a new trial. It is not matter of complaint that the court erred in denying the mover a new trial, for the rea■son that the verdict is against the weight of evidence, but that the court erred in admitting incompetent testimony to go to the jury, over the objection of defendant below, and for error in the refusal of the court to charge as requested and in the charge given, grounded upon the alleged incompetent testimony. No bill of exceptions was taken to that portion of the charge now claimed to be erroneous.

To make and save an objection and exception to a decision of the court on a question of law arising during the trial, the party claiming to be prejudiced by the ruling, must bring the question on the record by bill of exceptions taken and perfected at the trial term.

This will be manifest, upon an examination of the provisions of the code, which governed questions of this nature, at the time this case was tried. Section 290 declare» an exception to be “ an objection taken to a decision of the court upon a question of law.” Section 291 provides that the party objecting to the decision “ must except at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the term.” Section. 292 declares “ the exception must be stated, with so much, of the evidence as is necessary to explain it, and no more, and the whole as briefly as possible.” Section' 293 provides for cases, where, from the nature of the entry, the grounds of exception appear in it. In such case, “ the exception may be taken by the pai’ty causing to be noted, at the end of' the decision, that he excepts.” Section 294 declares that, “ where the decision is not entered on the record, or the-grounds of objection do not appear in the entry, the party excepting must reduce his exception to writing, and present it to the court for allowance,” etc. \

Ey these provisions of the code, one who objects to the-decision of the court on a question of law, not within the-discretion of the court, arising in the progress of the trial, and which is extrinsic to the record, must save the question of law for review, by bill of exceptions to be perfected-'■within the time limited by the statute. If it arises upon, the admission or exclusion of evidence on the trial, exception must be taken at the time the decision is made, and,, within the time limited, be reduced to writing, “ with so much of the evidence as is necessary to explain it,” etc.. Such bill of exceptions when signed and sealed by the judge, becomes a part of the record in the case, and in this way the testimony and question ruled upon come upon the-record for review, and can not otherwise appear for fhat purpose.

This, we think, is the rule prescribed by the code, and in force at the time of this trial. As to the necessity for such, or a similar rule, there can be no reasonable controversy.. The whole matter, and all questions occurring at the trial, should be closed, while all the facts and circumstances are-fresh in the recollection of counsel and court. 19 Ohio, 426-437.

It seems to us, the question now for decision was, in effect, under consideration in the case of Kleine et al. v. Wynne, Harries & Co., 10 Ohio St. On pages 228, 229, Gholson, J. says: “And yet, if, upon a motion for a new trial for cause of error of law occurring at the trial, a continuance of that motion to a subsequent term will euable the court to reduce the exception to writing at such subsequent term, with precisely the same effect as if it had been done at the trial term, it is evident that the rule would have no positive or binding obligation, but might, in every case, be dispensed with at the pleasure, or in the discretion of the court. We are satisfied that such was not the intention of the legislature. The court is not authorized to grant a new trial for cause of error of law occurring at the trial, unless excepted to by the party making the application, aud if the exception be not reduced to writing during the time, in law there was no exception.”

Reducing the exceptions to writing,, means that, in cases where the grounds of objection do not appear in the entry made on the decision, the party excepting to a decision of law in the progress of the trial, must reduce his exception to writing, in the form of a bill of exceptions, at the term of the court at which the decision is made. We find no exception to this rule. As. the law stood, o,n this subject, in 1874, the court would grant time in which to reduce the exception to writing, “ but, for an error of law occurring at the trial, not beyond the term. Code § 291. By the act of April 8, 1876 (73 Ohio L. 140, 141), “ said bill of exceptions shall be signed during the term, or within thirty days thereafter.” . . . And “ shall be entered on the record of the term at which said trial of the case took place,” etc.

Objections to decisions made in the progress of a trial, to either or both testimony and charge, should be taken when the ruling is made or charge given or refused, and where a hill of exceptions is taken on the overruling of the motion for a new trial, at the trial term, embodying all the evidence and charge, or so much thereof as was objected to in the progress of the trial, the errors of law occurring at the trial may be saved for review in such general bill of exceptions. Where, however, the motion for a new trial is continued to, and is disposed of, at a subsequent term, the alleged errors of law occurring at the trial, not saved by special bill of exceptions, will be lost.

Judgment affirmed.


author: Wright, J.

text:
    Shindelbeck v. Moon.
    1. A landlord who has demised property, parting with possession and control thereof to a tenant in occupation, is not responsible for injuries arising from defective condition of such premises, when that defect arises during the continuance of the lease.
    2. Upon leased premises, a water-pipe and gutter, not defective in their original construction, became stopped up, so that water flowed upon the door steps of the leased house, forming ice, upon which plaintiff fell and was injured. As between lessor and lessee, in the absence of contract to the contrary, it is the duty of the latter to repair the pipe, or remove the ice, and for failure in this he is liable, and not the landlord.
    3. If the defective condition of leased premises occasions damage, in order to make the lessor or landlord responsible, it is not sufficient merely to allege ownership in him, but the special circumstances creating his liability, must be averred.
    Error to the District Court of Defiance county.
    This is a demurrer to an amended petition, which is- as follows:
    “ The said plaintiff says that at the time of the injuries hereinafter alleged, the said defendant, Simon Peter Moon-, was, and for a long time prior thereto had been, the owner, and the said defendant, Francis Brooks, the lessee, and possessed of the following premises, situate in said county, to wit, the north part of lot No. 94, in the incorporated village of Defiance, situate and abutting on the east side of Clinton street, in said village, which said street was a public highway, open and free to all persons to pass and repass at will, 'That said Erancis Brooks was then using and kept said premises as the post-office of said village. That said defendant, Moon, prior to his demise of the said premises to said Brooks,'had erected and attached to the building situate thereon, a part of which building was so used as a post-office, a conductor or water-pipe, leading from the roof thereof to the sidewalk of said street, and that the water brought down and running through said pipe, from the said roof, was discharged upon the sidewalk of said street, close by the steps and door leading therefrom into ■said post-office, and that at and prior to the time of said injuries, the said defendant had suffered the gutter attached to said roof to become filled and obstructed, and the water to fall directly from said roof upon said steps and sidewalk around the same. That said defendants, and each of them, had carelessly, negligently, and -wrongfully, on and prior to the 21st day of December, a. d. 1872, suffered the water which had so fallen from said roof upon said steps and walk, and which had so been discharged from said conductor around said steps, to become and remain frozen unevenly and in ridges on said steps and walk around the same, and by reason of the premises said defendants had then knowingly suffered said steps and walk to become unsafe to persons passing thereon.
    “ That on said 21st day of December, a. d. 1872, the plaintiff, without fault or negligence on his part, in the ■exercise of due care and prudence, and while lawfully passing from said post-office over said steps to and upon said sidewalk, by reason of the premises, unavoidably slipped upon said steps, and fell upon said sidewalk, whereby the left ankle of him, the said plaintiff, was then and there fractured and broken, and he became and was lame and injured, and so continued up to the time of bringing this suit, and still is so lame and injured. And plaintiff' says that for surgical attendance and care of his said injuries,, he was put to expense, in the sum of thirty dollars, and . thereby was put to further expense for necessary nursing .and attendance, in the sum of twenty dollars, and that during said time he was prevented from attending, and still is prevented from attending to his usual business, and put to expense in the further sum of one hundred dollars. To the damage of the plaintiff, etc.
    “Wherefore, the plaintiff prays judgment against the-defendants, in the said sum of two thousand dollars.
    “ Henry Newbesin, Plaintiff’s Attorney.”

    In the court of common pleas, this demurrer was overruled, and the cause proceeded to trial, resulting in favor of the plaintiff below, now plaintiff in error. Of these proceedings it is not necessary to'take any further notice^, as the district court held that the court of common pleas erred in overruling the demurrer to the petition, and reversed the judgment; holding’ that the petition stated no cause of action — and that ruling will now be examined.

      Henry Newbegin, for plaintiff in error,
    claimed that the landlord was the party liable, and cited Irvine v. Wood, 51 N. Y. 224; Anderson v. Dickie, 26 How. (N. Y. Pr.), 105; S. & R. on Neg., § 511; 39 Barb. 400; 15 Conn. 225; 5 Robertson, 482; 53 Barb. 629; 1 Sweney, 517 58 Me. 109; Congreve v. Smith, 18 N. Y. 79; Creed v. Hartman, 29 N. Y. 591; Sexton v. Zett, 44 N. Y. 439 (affirming same case, 56 Barb. 119); Whalen v. Gloucester, 4 Hun. 24; Leary v. Woodruff, Id. 99; Chancy v. Byrne, 56 N. Y. 129; Kissell v. Butler, 53 N. Y. 612. See also Lane v. Atlantic Works, 107 Mass. 105; Hewison v. New Haven, 34 Conn. 136; Rylands v. Fletcher, E. L. R. 3 House Lords, 330; 23 Wend. 445; 55 N. Y. 666.

      S. T. Sutphen, for defendant in error,
    claimed the rule of’ law to be that the owner, being out of possession, is not hound to repair, and is not liable for injuries received in consequence of the neglect of the tenant to keep the premises in repair. See Wharton on Neg., § 817; Poyne v. Bogers, 2 H. Bl. 350; Lowell v. Spaulding, 4 Cush. 277; Chawntler v. Robison, 4 Excheq. 163; Russell v. Shenton, 3 Ad. & E. (N. S.), 449; Burdock v. Cheadle et al., 26 Ohio St. 393; Rich v. Basterfield, 4 C. B. 783.
    It is held that where a lease is silent as to who should make repairs, it is the duty of the lessee to keep the premises in repair. See Gott v. Gandy, 22 Eng. L. & Eq. 173; Leavitt v. Fletcher, 10 Allen, 121; Elliott v Aiken, 45 N. H. 36; Estep v. Estep, 23 Ind. 114; City of Lowell v. Spaulding,. 4 Cush. 277; Fish v. Thirkell, 21 Mich. 1.
   Wright, J.

The petition and demurrer involve questions relating to the liability of landlord and tenant, lessor and lessee, where a third person has been injured in consequence of some defect in condition of the premises. Moon was the owner of certain property in the village of Defiance, which he had leased to Brooks, who was in possession of and using the same for a post-office. A pipe or gutter attached to the building had become obstructed or stopped up, and the water, instead of running through it, flowed over the roof. This water, falling upon the steps of the post-office, in winter, ice was formed. Coming from the post-office, plaintiff stepped upon this ice, fell, and was hurt. Moon, the landlord, and Brooks, the tenant, were both sued. Brooks was dismissed from the action, and the question to be decided is, is Moon, the landlord, liable upon the statements made in the petition ?

The liabilities arising from the relation of landlord and tenant are these: Liability generally accompanies occupation, and when a landlord leases and parts with the possession, his liabilities are in certain instances devolved upon the tenant.

The principle which runs through cases, determining the responsibility of the one or the other, maybe thus defined r Whoever had control of the premises at the time the cause of injury originated, that person is liable in damages which simply means that the party in fault must respond.

Hence it is that where, at the time of tbe lease, the property is in a ruinous or defective condition, and by reason thereof the injury happens, then the owner or lessee is liable generally, though there are cases which make this liability dependent upon the covenants of the lease. And, upon the other hand, when this defective condition arose after the lease, then the tenant is responsible, with, perhaps, exceptions upon covenants. And when there has been a nuisance of continued existence, lessor and lessee may both be liable for damages resulting therefrom. The lessee in actual possession of the premises, if he continues the nuisance after notice of its existence, and notice to abate it; the lessor, if he at first created it and demised the premises with the nuisance upon them, and at the time of the damage done is receiving a benefit therefrom by way of rent or ■otherwise.

In Roswell v. Price, 12 Mod. 685, it is held that if an owner erect a nuisance, for which damages are recovered, and the nuisance is continued in the hands of his lessee, an .action for the continuance of it may be against either. Here the nuisance or original trouble was occasioned by the owner, and he is held responsible, even after the lease. The court say that both may be liable, the landlord for originating, and the tenant for continuing. It is said, in the case, that the erecter of the nuisance can not discharge himself by assigning over, and more especially when he grants over, reserving rent, by which he continues the nuisance, having a recompense for it in such rent.

This case illustrates the idea that control is the criterion of responsibility, for control means that power which occasions and which can prevent. The nuisance was erected, that is, originated, by the owner, who manifestly should, therefore, be responsible for its consequences.

But it will be observed that not only the owner, but the tenant also, is held liable, upon the ground that every continuance of a nuisance is a fresh nuisance. Taylor Land. & Ten., § 175; Vedder v. Vedder, 1 Den. 257; Little Miami R. R. Co. v. Comm’rs Greene Co., 31 Ohio St. 338. This fresh nuisance the tenant might abate, if he saw fit, being in control of the premises, and, for failure in this, h e is responsible.

In Todel v. Might, 9 Com. B. (N. S.), 377 (C. J. Scott, N. S.), there was a demurrer to a declaration. Defendant leased to a tenant a lot, on which stood a stack of old chimneys in a ruinous and dangerous condition at the time of the lease, and defendant knew it and so maintained them. The chimneys fell on plaintiff’s house, and defendant was held liable in the declaration.

Earle, J., says, p. 390 : “ It is alleged that the defendant let the houses when the chimneys were known by him to-be ruinous and in danger of falling, and that he kept and maintained them in that state, and thus he was guilty of the wrongful non-repair which led to the damage, and after-the demise the fall appears to have arisen from no fault of the lessee, but by the laws of nature.”

The owner of premises who leases them when they are-in such want of repair or bad condition as to be a nuisance, or when, from the ordinary course of events, they must become so, and receives rent for their use, is liable to a third person for injury happening in consequence of this defective condition or nuisance. In such case the landlord had the control of the property at the time the trouble was occasioned, and he might have removed it.

It is the party who does the wrong who should be made-responsible for the consequences it entails.

But if the nuisance arises solely from the act of the tenant, the landlord can not be held. Owing v. Jones, 9 Md. 108; Staple v. Spring, 10 Mass. 79; Waggoner v. Jermain, 3 Denio, 306; Fish v. Dodge, 4 Denio, 311; House v. Metcalf, 27 Conn. 632; Smith v. Elliot, 9 Barr, 345.

Rich v. Basterfield, 4 Com. B. 783, was a ease much discussed and decided for plaintiff at nisi prius, but unanimously reversed in full court. ' The owner of a house-standing back from the street built a low shop between his house and the street, with a chimney, and rented out the shop. The tenant used the chimney for a fire, and when the wind was from the east or southeast smoke was blown into the plaintiff’s windows, causing him great annoyance. Defendant, the owner, was sued on the ground that he ■built tbe chimney, which made the nuisance, and was an.swerable for the ordinary use of it.

The court held that the chimney itself was not a nuisance, but it was the fire made by the tenant; that coke might have been used, or he might have abstained from having a fire when the wind was in the wrong direction, and the •owner therefore was not liable. He had no control of the fire.

Upon the other hand, in House v. Metcalf, 27 Conn. 632, an owner had leased a mill situate so near the highway that 'its revolving wheel frightened horses. The owner was held responsible, although it would seem that not the mill itself, but its operations in the hands of the tenant, occasioned the difficulty.

Gandy v. Jubber, 5 Best & Smith, 485: A grate over the sidewalk, long there, had the bars so wide apart that a woman slipped her foot through and lamed herself. The premises were rented at the time from year to year, and the landlord, the heir of the original owner and builder, was held liable, on the ground that the grate was a nuisance in its original construction. Declaration avers that the tenant “ was not under obligation to alter, repair, and keep 'in repair,” and that it had been many years so that one might fall through. The jury found that the grate was a nuisance, “ both from the faultiness of its construction and from want of repair. Crompton, J., says: “ It must be a nuisance in its very nature and essence at .the time of the letting, and not merely something which is capable of thereafter being rendered a nuisance by the tenant.” Blackburn says : “ The nuisance must be a normal one.”

This case was reversed in the Exchequer, 9 Best & Smith, 15. It is, however, there said that “ to bring liability home to the owner, the premises being let, the nuisance must be one which was in its very nature and essence a nuisance- at the time of the letting, and not something which was capable of being thereafter rendered a nuisance by the tenant, and that it is a sound principle of law that the owner of . property, receiving rent, should be-liable for a nuisance existing in his premises at the date of the demiseand the judgment of the Queen’s Bench is reversed on the ground that “ it is not averred, either directly or by any reasonable inference, that the grating was defective at the time of the letting.”

Wharton on Neg., § 817, says : “An owner, being out of possession, and not bound to repair, is not liable in this •action for injuries in consequence of his neglect to repair. But where the nuisance existed when the property was leased to the tenant, the landlord may be held liable. So the tenant is liable for the nuisance thus retained by him, even though the nuisance was on the premises when leased to him. And both the landlord and tenant, under the circumstances, are jointly and severally liable for the continuance of the nuisance, supposing the nuisance to be on the property when leased, or to be put there with the landlord’s •connivance.”

The City of Lowell v. Spaulding, 4 Cush. 277, was a case for damage to plaintiff by falling into a space left open in the sidewalk, where it was held that the occupant, and not the landlord, is bound, as between himself and the public, so far to k^ep the buildings in repair that they will be safe for the public, and such occupant is, prima facie, liable to third persons for damages arising from any defect. If there is an express contract that the landlord shall repair, suit will be sustained against him to avoid circuity of action.

The occupier is, prima facie, liable, and the owner is not, merely as owner, without fault on his part. Russell v. Shenton, 48 E. C. L. R. 449.

There is another large class of cases that would seem to be not entirely in accordance with the view that has been advanced, though perhaps the difference is more in appearance than reality. They are eases where the liability is devolved in accordance with the covenants of the lease and made to accompany the duties it imposes. If the defect existed prior to the lease, and by its provisions, the tenant assumes the responsibility of keeping the premises in repair, it has. been held that the landlord was not responsible.

In the early ease of Payne v. Rogers, 2 H. Blk. 350, the head note is: “If the owner of a house is bound to repair it, he, and not the occupier, is liable to an action in the case for an injury sustained by a stranger from a want of repairs.”

This was an action against the owner of a house, in the occupation of a tenant. It does not seem to have been made a point in the case, whether the defect arose-before or after the demise, a question, important, as we have seen, in cases not involving the element of covenants in the lease. The case is made wholly to turn upon the agreement, as to repairs, between the landlord and tenant. And the landlord, having bound himself to the tenant to repair, is made liable for the injury. Although nothing is said in the case about who had the control of the premises,, and though the facts do not show in whom that control Avas, when the defect occasioning the injury originated, still it may be perhaps fairly said, that by binding himself to repair, the owner retained such control as would enable him to make those repairs. This view is sustained by the ■ language of the court in Burdick v. Cheadle, 26 Ohio St. “ But in case a landlord undertakes with his tenant to keep the premises in repair, having thus reserved the control to the extent necessary for making repairs, his duty to the public in relation to the property is not affected by the lease, and he remains responsible, under the doctrine of the above maxim (sic utere, etc.), for defects arising from the want of repairs during the continuance of the lease.”

In the case of Pretty v. Bickmore, L. R. 8 C. P. 401, the tenant had covenanted to repair. The premises were dangerous at the time of the demise. But it was held that the landlord was not liable, because of the tenant’s covenant. This case is disapproved of in Swords v. Edgar, although it is followed up by the case of Gwinnell v. Eamer, L. R. 10 C. P. 658. See also Leonard v. Storer, 115 Mass. 86; Shipley v. Fifty Associates, 106 Mass. 194; S. C. 101 Mass. 251; Shearman & Red. on Neg. §§ 501, 502; Whalen v. Gloucester, 11 Hun. 24 and 99; Nelson v. Liverpool, etc., Co., High Ct. Just. Com. Pl. Div. (Eng.) C. L. J. Oct. 5, p. 312. It is not,, however, necessary, nor do we undertake to decide as to-any of the rights or liabilities which subsist by reason of the covenants of leases. What the terms of the letting in this case are, we have no means of knowing, nor are we-advised whether the landlord or tenant undertook to repair. The remarks made apply only to such cases as involve no consideration of the agreement by which the demise was made, other than the mere fact of its existence.

The lessor is not liable to a stranger for an injury arising' out of the property being out of repair, unless under special circumstances, such as a covenant with the lessee to-make the repairs. Bears v. Ambler, 9 Barr. 153.

If the owner, as’distinct from the occupier, is sued for', damages, arising from a falling wall, a special ground of liability must be averred, other than mere ownership. The-public looks to the occupier, not to the estate. Ghauntler v. Robison, 4 Exch. 163.

“ Where property is demised, and at the time of the demise is not a nuisance, and becomes so only by the act of the tenant, while in his possession, and injury happens during such possession, the owner is not liable.”

But where the owner leases premises which are a nuisance, or must, in the nature of things, become so by their uses, and receives rent, then, 'whether in or out of possession, he is liable for injuries resulting from such “nuisance.” Owings v. Jones, 9 Md. 108; Fish v. Dodge, 4 Denio, 311 Hadley v. Taylor, L. R. 1 C. P. 53; Fisk v. Framingham Mem. Co., 14 Pick, 491; Cheetham v. Hampson, 4 T. R. 318; Norton v. Wiswell, 26 Barb. 618.

A well-considered case upon this subject is found in 59 N. Y. 28, Swords v. Fdgar. Defendants were owners of a pier, which was under lease. A laborer engaged in discharging the cargo of a steamer, was injured by reason of the pier falling, through rottenness of its timbers. The defect existed at the time the lease was made. It is held that'ordinarily it is the duty of the occupant to see that the-premises are secure, but where they are leased, and at the time of the demise and delivery of possession to the lessee, they are in a defective and unsafe condition, and, in ■consequence, thereafter, while in possession of the lessee, .an injury happens, the lessor, who is receiving a benefit by way of rent or otherwise is liable. And the owner or lessor was held responsible.

In this case, as in many others that might be cited, we •find the same principle, and it is thus stated in Fisher v. Thirkell, 21 Mich. 1 : “A party will not be liable for an injury occasioned by a nuisance, on the ground of his possession of the premises, where the nuisance is shown to exist, unless his possession be such as to give him the legal control of the premises.”

This was the case of a person injured by falling through •a coal-hole in the sidewalk, and the question was whether the landlord or tenant was liable.

When a landlord has leased premises, he parts with control of them; with possession that control passes to the tenant, and if defect arises, or want of repair, or the premises are allowed to get into such a condition as that they become dangerous during the demise, it is the duty of the tenant to take such steps as will prevent injury. The liability arising from the control of premises, is illustrated in that large class of cases where contractors build houses. If the premises are completely given up to the contractor, he will be responsible to one injured during the progress of the work. If, on the other hand, the owner retains supervision, and the building goes on under his direction, as he is in control of the premises, his responsibility continues; the contractor or builder then stands, to him, in the relation of servant. And there are many nice cases as to whether the party is an independent contractor or servant merely.

It is, however, not necessary to enter into this discussion. 'The principle of control and its accompanying liability is sufficiently illustrated in City of Cincinnati v. Stone, 5 Ohio St. 38.

The city contracted with B. to grade a street, and in doing which he blocked the water, so that it floAved over Stone’s ground, doing damage. The city was held liable on the ground that, by the contract, she reserved the right to direct the manner of doing the Avork. The syllabus says when the employer retains control and direction of the woi’k, and injury happens, he will be responsible. Clark v. Fry, 8 Ohio St. 358; Gwathmey v. L. M. R. R. Co., 12 Ohio St. 92.

The principle suggested is recognized in Burdick v. Cheadle, 26 Ohio St. 393. In that case, the person injured was in the store, upon the invitation of the tenant, or as a customer, and Avas not a stranger, maintaining his rights as one of the public. It is held that if one invites another into danger and hurt, the sufferer must seek his remedy against the party inviting him. That he can not maintain an action against another, must be apparent from the fact that if he had hot accepted the invitation he would not have been injured. In Burdick v. Cheadle, the court, in discussing the maxim, “ sic utere,” etc., observes : “ The principle ordinarily applies only to persons in possession and having control of the property, either as owners or tenants.”

The rule, therefore, deducible from the authorities, and which is applicable to the case in hand, is this : A landlord, who is out of possession of the premises, by virtue of a demise, and who has no control over them ; who would not have the right to enter therein, even to make repairs, without his tenant’s consent, is not liable for accidents occasioned by the fact that the property is temporarily out of repair.

If the defect is inherent in the original construction, and this occasions the injury, then the landlord or lessor is responsible ; but when the defect arises after the lease, then the tenant is responsible.

Examining the amended petition, therefore, we find this alleged : Moon was the owner, and Brooks the lessee and possessed of the premises, using and keeping them as a ,post-office. It is then averred that the water-pipe or gutter became filled and obstructed, and the water fell from the-roof upon the steps leading from the post-office to the sidewalk. This froze, and the plaintiff slipped on the steps and fell. The cause of the injury is the stopping up of the pipe. It is not alleged that there was a fault in its original construction, but it would appear to be one of those obstructions that may occur at any moment. It is not averred that this obstruction existed before the demise was-made, and such an averment is necessary before the landlord can be held. If it occurred after the demise, it is the duty of the tenant, or occupier, to see that such obstruction was removed. The petition, therefore, lacks the necessary averments to show that the landlord is liable, as it does not show a defect while the premises were in his control before he leased, and for which alone he is responsible. All facts necessary to raise a legal liability must be strictly averred. Metcalfe v. Heatherington, 11 Exch. 257.

And, again, it was the ice that occasioned the accident. It is not averred that it was the duty of the landlord to remove this ice, nor does it appear that he had such control of the premises, as called upon him to do it. If this ice-was a nuisance to the passing public, endangering their lives- and limbs, it was a nuisance arising during the continuance, of the lease. It was a thing temporary in its nature, a defective condition of things, such as the tenant was called-upon to remedy, and not the landlord, as between landlord- and tenant.

Judgment affirmed.


author: Day, J.

text:
    Schultz v. The State.
    1. Affidavits used on a motion for the continuance of a case, though copiedhy the clerk into the record, can not he regarded as part of the record, and considered on proceedings in error, unless they are made part of the record hy a bill of exceptions.
    2. A wife is not a competent witness for her husband in a criminal prosecution ; and her incompetency in such cases is not removed hy either the-criminal or civil codes of procedure.

      -15. The word “ keeper ” of a room or place of public resort, for the unlawful sale of intoxicating liquors, as used in section 4 of the act of May 1, 1854, to provide against the evils resulting from the sale of such liquors (S. & 0. 1431), does not exclusively mean the owner of the room, nor of the liquors sold ; but while such owner may be included, it also embraces any one who, though, not the owner, has the possession of both the room and the liquors, which, together with the unlawful business, are under his care and subject to his management and control.
    4. The order of the court to abate such room or place as a public nuisance, on conviction of the keeper thereof, as required by said act, is not to be directed to or executed by any officer; but must be an order to the person convicted, obedience to which may be enforced, if the nuisance be continued, by attachment for contempt of court.
    Error to the Court of Common Pleas of Guernsey county.
    At the April term, 1874, of the Court of Common Pleas of Guernsey county, Herman Schultz was indicted for keeping a room in violation of section 4 of the “ act to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio,” passed May 1, 1854. The case was continued to a special term, at which a motion was made by the defendant to continue the case, on the ground of the absence of a material witness for the defense. The motion was overruled.
    The defendant was tried and convicted, and was sentenced to pay a fine of $100, and imprisonment for fifty days. The court also ordered the sheriff to shut up and close the room kept by-the defendant as a liquor store, and to prohibit all access thereto for the purpose of selling intoxicating liquors therein, until the defendant should give bond not to sell liquors contrary to law.
    On the trial the defendant called his wife as a witness. The state objected, and the court sustained the objection.
    On the trial it was proved that the wife of the defendant leased the house in which they lived in her own name; that one room was used for a saloon, in which intoxicating liquors were sold; that the liquors were bought in her name; and that the defendant had the custody, care, and control of the room, and of the business transacted therein, which he advertised and conducted in his own name. Evidence was also given tending .to sustain the charge in the-indictment, and that the business was owned by the defendant. On the other hand, the defendant gave evidence-tending to prove that his wife owned the room, the liquors,, and business, and that the defendant was her agent in conducting the business.
    The defendant asked the court to charge the jury that,, if they should find the wife of the defendant was the lessee of the room, bought the liquors, and carried on the business, and that her husband sold liquors as her agent only, then the wife, and not the husband, would be the keeper of the room.
    This charge the court refused to give; but charged the jury that, if the defendant had the possession, care, and control of the room, and managed, conducted, and com trolled the business transacted therein, and sold liquor in-violation of law, then he was the keeper of the room, within-the meaning of the statute, whoever may have been the actual owner of the property. To all which the defendant excepted, and prosecutes this writ of error to reverse the-judgment of the common pleas.

      M. Skinner, for plaintiff in error :
    I. The reason of the rule of law, excluding husband or wife testifying where the other was a party, did not apply in this case.
    The wife was called to testify to facts within her own-knowledge, not derived from her husband, nor by means of her situation as wife, nor would her statements have been in violation of the confidence subsisting between husband and wife, nor would any principle of public policy have, been violated by her admission as such witness. Greenleaf Ev., §§ 334, 338, 254; State v. Neil, 6 Ala 685; Coffin v. Jones, 13 Pick. 445; Williams v. Baldwin, 7 Vt. 506; Wells v. Tucker, 3 Binney, 366; Strober’s Adm’r v. McCarter, 4 Ohio St. 513; and cases referred to in opinion.

      II. The order to shut up or abate the place or room was illegal. The order was directed to the sheriff, and was in fact executed by him, Mrs. Schultz, the owner of the property, being thus deprived of its possession and use. Such an order and proceeding were in violation of the law, and in conflict with the decisions of the supreme court of the state. Miller § Gibson v. The State, 3 Ohio St. 475.

      Isaiah Pillars, attorney-general, for the state:
    The court can not look at the affidavit filed as the showing for a continuance, unless it is made part of the record by a bill of exceptions.
    Mrs. Schultz was not a competent witness. See Steen v. The State, 20 Ohio St. 333.
   Day, J.

It is only necessary to notice the alleged errors which are relied upon in argument for a reversal of the judgment.

1. It is claimed the court erred in overruling a motion to continue the case to the next term. Aside from the consideration that nothing appears in the case, as claimed to be made, to warrant a reversal of the judgment on that ground, it is a sufficient answer to the objection that the record does not show that the overruling of the motion was excepted to. The record merely shows that the motion was filed and overruled. It is true there is copied with the record an affidavit for a continuance of the case; but whether the affidavit, or any proof whatever, was presented to the court on the hearing of the motion, does not appear. No allusion to the motion or affidavit is made in the bill of exceptions. The overruling of the motion could be brought in review only by placing upon the record all the evidence produced to the court upon which it was called to act. Evidence given in a case, though copied as part of the l’ecord by the clerk, can not be regarded as part of, or matter of record, unless it is made such by bill of exceptions, oris embraced in the entry of the court. Goldsmith v. The State, 30 Ohio St. 208; Garner v. White, 23 Ohio St. 192.

2. On the trial the defendant offered his wife as a witness, and the state objected. The court held that she was not a competent witness, and sustained the objection. This ruling is claimed to be erroneous. Steen v. The State, 20 Ohio St. 333, touching this point, may be safely regarded as conclusive. It was expressly held in that case, that, on the trial of a criminal prosecution, the wife of the accused is not a competent witness for him, and that her incompetency in criminal cases was not removed by the provisions of either the criminal or civil codes of procedure.

3. The next point presents a question of less easy solution, viz.: who may be l’egarded as the “ keeper ” of a room for the unlawful sale of intoxicating liquors, within the meaning of the section under which the defendant was indicted ?

The question arises upon the charge of the court to the jury, which was given with reference to the facts developed on the trial. This, as well as the meaning and object of the statute, must be kept in view, in considering whether the charge was erroneous.

The defendant-was indicted under section 4 of the act of May 1, 1854 (S. & C. 1431), which declares that all places where intoxicating liquors are sold, in violation of the act, shall be held to be common nuisances, and that the room or other place of public resort, where such liquors are so sold, shall be shut up and abated as a public nuisance upon the conviction of the “ keeper ” thereof, who is to be punished, as provided in another section, by fine and imprisonment, or both.

It is the clear purpose of the statute to abate such nuisances, and to prevent their occurrence, by punishing the keepers thereof. To this end, a broad and generic word is used, in describing the person amenable to its penalties. It does not necessarily mean the owner of the room, nor the owner of the liquors unlawfully sold. Both may belong to another person, and yet the room may be kept and the business conducted by one who has sole control of both the room and the business, and who is alone responsible for the nuisance, which may cease or continue -•at his will. It would not be difficult to give instances. Such a person would clearly come within the mischief aimed at by the statute. The descriptive words of the statute are broad enough to include him. The word “ keeper ” is defined to be one who has the care, custody, or superintendence of anything; as the keeper of a park, a pound, a gate, a prison, and (in the English law) keeper of a forest, great seal, and privy seal. The word, therefore, does not necessarily mean ownership; but, while it may include an owner, it also embraces one who has the possession and control of a place, thing, or business. The statute, then, is broad enough to include one who, though not the owner of the room or the liquors unlawfully sold, has the possession of both, which, together with the business, are iu his care and subject to his control. Otherwise, a person, as agent of one living in a foreign state or county, might keep, with impunity, a place of public resort in this state wdiich the law declares to be a public nuisance. In view of the mischief aimed at, the comprehensive word “ keeper ” is not used in the statute in such restricted sense. While it may not include a mere clerk or servant of one carrying on the unlawful business, it clearly embraces any one who has the custody, care, control, and management of the place and unlawful business.

The charge of the court was in accordance with this view of the law, and directly applicable to the case before it, in which it appeared that the liquors and the place where they were sold were held in the name of the defend.ant’s wife; that the whole were in his custody, and that the business of selling intoxicating liquors at the place was .advertised and carried on in his own name, and under his own control. There was, then, no error in the charge.

4. In respect to the order of the court, which was directed to the sheriff of the county to shut up and close the defendant’s place of business, it is only necessary to say that it was not in accordance with the statute as construed in Miller and Gibson v. The State, 3 Ohio St. 475.

The order is not to be directed to or executed by any officer; but must be an order to the person convicted, obedience to which may be enforced, if the nuisance be continued, by attachment for contempt of court.

'It follows that the judgment must be affirmed in all respects, except as to the order directing the sheriff to close the defendant’s place of business, which order must be reversed, and the cause remanded for such proceedings, in regard to the abatement of the nuisance, if continued, as are authorized by law.

Judgment accordingly.