author: By the Court:

text:
    Overhiser Adm'x v. Overhiser et al.

      Divorced wife’may be beneficiary of insurance policy on husband, when.

    When a married woman is named' as a beneficiary in a policy of insurance on the life of her husband she is entitled to the proceeds of the policy, notwithstanding a divorce obtained by her before his death.
    (Decided May 22, 1900.)
    Error to the Circuit Court of Hamilton county.
    The plaintiff in error, as administratrix of George P. Overhiser, deceased, brought suit in the court of common pleas against Lena Overhiser and the Mutual Life Insurance Company of New York, for the recovery of two thousand dollars on a policy of insurance on the life of her intestate. The company, admitting its liability, made affidavit that without collusion with it the money due on the policy was claimed by Lena Overhiser, and asked that it be, discharged. The cause was submitted to the court on the motion of Lena Overhiser, for judgment on the pleadings.
    The material facts alleged in the pleadings are that on the 15th of January, 1895, in consideration of a premium of $97.84 to be paid annually during life the company executed a policy for two thousand dollars on the life of George P. Overhiser, payable “unto Lena Overhiser,- wife of George P. Overhiser of Montrose, in the county of Montrose, state of Colorado, if living, if not living to his executors, administrators or assigns.” At the time of the execution of the policy George P. Overhiser and Lena Overhiser were husband and wife. On the 7th of June, 1895, in a suit voluntarily instituted by her she was absolutely divorced from said George P. Overhiser. He died June 14, 1896, and letters testan) entsiry were issued to the plaintiff. The last premium on said policy was paid by the beneficiary. The court upon these facts alleged, in the pleadings adjudged the proceeds of the policy to Lena Overhiser. This judgment was affirmed by the circuit court.

      J. G. Robison, Jr., for plaintiff in error.
    It will be well to refer the court to the terms of the-policy. The policy provided tha.t the same was payable to Lena Overhiser, wife of George P. Overhiser,. if living at the time of his death; if not living, to his executors, administrators or assigns. As this is a demurrer to the answer and cross-petition, it searches the whole record, and nowhere in the answer is it set forth how she claims her right to this money, she only says as Lena Overhiser. Is that sufficient?' The claim is made that if the defendant does not. come under the terms óí the policy she can have no interest in the policy. The policy is made payable to-the wife of George P. Overhiser, if living as his wife at the time of bis death, if not, then to his executors, administrators or assigns. Defendant was not the widoAV of George P. Overhiser at his death, she was a divorced woman. Charlton v. Miller, 27 Ohio St., 298.
    She could receive no pension from the government.
    If the policy in its terms says that the defendant as a divorced woman can recover, when she is neither’ a wife or a widow, then I humbly submit that the j)olicy does not say that a divorced woman is the beneficiary. The decree of divorce provides “that all and. every right, duty and claim accruing to either of said parties, by reason of said marriage, shall henceforth cease and determine.’’

      No language in a decree could be stronger, or more to tbe point, and if she recovers the benefits under this policy, she obtains tbe same as one bolding no relation to tbe policy, but as a stranger.
    Prior to the death of George P. Overhiser, and before her interest in the benefit had become a vested one, she obtained, as we have seen, an absolute divorce from her husband. The effect of such an absolute divorce is set forth by the following authorities: Bishop, Marriage and Divorce, section 697A; Bell v. Smalley, 45 N. J. Eq., 478 and note; Barrett v. Failing, 111 U. S., 523; 2 Nelson, Divorce and Separation, section 1024; Ketcher v. Monroe, 43 N. E., 1053; Stewart, Marriage and Divorce, section 430; Weatherford v. McCracklin, 34 S. W., 24.
    When the wife sought the divorce court she knew the terms of the contract of insurance, she was a party to the same, and if she as a beneficiary can not come under the terms of the policy, can she recover said insurance in some other manner than that set forth in said policy?
    “A divorce from the bonds of matrimony is the same as death.” Heyman v. Meyerhoff, 16 W. N. of Cases (Pa.), 212; Funk v. Hake, 6 Watts, 131 Penn. St.; Miltinore v. Miltinore, 4 Wright, 151 Pa. St.; Flory v. Becke, 2 Barr, 470 Pa. St.; Sup. Council Am. Leg. v. Green, 71 Md., 263; American Legation v. Perry, 140 Mass., 589; Shillings v. Mass. Ben. Ass.,, 146 Mass., 217.
    Defendant, in her answer and cross-petition, says, “that to prevent said policy from lapsing, she paid the last premium due thereon.”
    Remarkable! This over zealous defendant, a divorced woman, being neither wife or widow of the assured, pays the last premium due on said policy.

      What interest has she to pay said premium? She pays the same as a stranger to said policy, and she now sets forth her claim to recover.
    First. As one holding no relation to said contract ■of insurance.
    Second. On a wagering contract of insurance, and her payment of said premium being voluntary, and the act of a stranger, she having ceased to be a wife. Stevens v. Warren, 101 Mass., 564; Bevin v. Ins. Co., 23 Con., 244; May on Insurance, section 117; Life Ins. Co. v. Hazzard, 41 Ind., 117; Ruse v. Life Ins. Co., 23 N. Y., 516.
    A woman engaged to be married, has an insurable interest in the life of her betrothed. Chisholm v. Life Ins. Co., 52 Mo., 213.
    The contract of insurance provided that it was payable at the death of the assured to his wife, and not to some other person who was a stranger to the policy. Ryan v. Rothweiler, 50 Ohio St., 595; Gass v. Life Ins. Co., 3 N. P. 216.
    The written contract controls the intentions of the parties. Greenleaf, sections 277, 278 and 282; Warren v. Wheeler, 8 Met., 97; Bigelow v. Collamore, 5 Cush., 226; Harper v. Gilbert, 5 Cush., 417; Titus v. Kyle, 10 Ohio St., 445; Potts v. Rider, 3 Ohio, 71; Collins v. Ruckeye Ins. Co., 17 Ohio St., 215; Bank v. Cook, 38 Ohio St., 442; Wilson v. Bailey, 1 Handy, 177; Robinson v. Kanawha Valley Bank, 44 Ohio St., 441; Weidman v. Weidman, 57 Ohio St., 101.

      Johnson & Levy, for defendants in error.
    The words, “My wife,” mere words of identification.
    Who is entitled to the proceeds of this policy of insurance? Who is the beneficiary? The answer to these questions is all this court has before it, and we almost feel as though we should apologize to the court for taking up its valuable time with even the brief discussion we intend to make in this case, in a point, which we consider settled beyond doubt or peradventure. We would feel safe in contenting ourselves with the citation of but a single authority, which determines this case for all time to come. This authority is the Schaefer case, decided by the Supreme Court of the United States (94 U. S., 457), and is on all fours with the case at bar.
    These words have no more importance in determining who is the beneficiary in this policy than if the policy had read “Lean a Overhiser, seamstress ” or “Lena Overhiser, artist/' or “Lena Overhiser, my sister.”
    More than this. . It is well settled that a beneficiary of a policy of life insurance has a vested interest in it, and such interest can not be divested without the consent of such beneficiary. Bank v. Hume, 128 U. S., 206; Manhattan v. Smith, 44 Ohio St., 156; Bliss, Life Ins., sections 337, 345, 571; Cooke Life Ins., section 121.

      The beneficiary need have no insurable interest in the life of the insured. “A” can insure his life and make the policy payable to whomsoever he pleases— to a total stranger if he desires. Insurable interest is only necessary in the life insured by the one taking out the insurance, and the beneficiary may always recover without showing any interest whatsoever in the life insured. Campbell v. Ins. Co., 98 Mass., 381; Life Ins. Co. v. Baum, 29 Ind., 236.
    But even assuming that the beneficiary must have an insurable interest in the life insured, and that such interest between man and wife ceased upon divorce, even that would not affect the right of Lena Overbiser in this case. She certainly bad a insurable interest.in the life of her husband before the divorce, and that was all that was necessary. Cooke on Life Ins., section 64, pp. 103 and 104.
    Contract of life insurance, valid in its inception, is not avoided by the cessation of interest in the life insured. Ins. Co. v. Bailey, 13 Wallon, 616; Trenton L. & F. Ins. Co. v. Johnson, 4 Zab., 576; Bliss, Life Ins., section 30; Mutual Co. v. Allen, 138 Mass., 24.
   By the Court:

Lena Overhiser was named in the policy as the beneficiary, and the words “wife of George P. Overhiser” -were descriptive only. The policy defines in express terms the only condition upon which it should be payable to the administrator of George P. Overhiser, viz.: that Lena should not be living at the time of his death. It contains no terms indicating that ber right to the fruits of the policy is conditioned upon her remaining his wife.

The policy was executed to him, and the presumption is that it was upon his application. But if the insurance was effected by her, she had at the time an insurable interest in his life and the contract would not become void by the termination of the marital relation before his death. The conclusion of the courts below is in accordance with settled principles. Connecticut Mutual Life Insurance Co. v. Schaefer, 94 U. S., 457; Central Bank of Washington v. Hume, 128 U. S., 195.

Judgment affirmed.


source: Caselaw Access Project

author: Davis, J.

license: Public Domain

text:
    Brayton v. The Cleveland Special Police Co.

      Corporation cannot maintain action for slander — Upon words spoken solely concerning individiial stockholder — Must prove slander in direct relation to business of corporation.

    1. A corporation can not maintain an action for slander upon words spoken solely of and concerning an individual, who is averred to be a stockholder and officer of the corporation.
    2. In such case, the corporation can not maintain an action to recover damages for consequential injuries resulting from the slander, without averring and proving that the slander was spoken of the individual in direct relation to the trade or business of the corporation.
    (Decided June 19, 1900.)
    Error to the Circuit Court of Cuyahoga county.
    The plaintiff’s petition is as follows:
    The plaintiff says that it is: a corporation, duly organized and existing under and by virtue of the laws of the state of Ohio. That its general manager and treasurer, and the owner of a majority of the stock of said corporation,.is one, William K. Maher.
    That the defendant contriving to injure said plaintiff, and to bring it into public ridicule, and destroy its business, and particularly to destroy that branch of its business, which consisted of doing night watching, in and upon Prospect street, between Perry street and Case avenue, in the city of Cleveland, Ohio, where plaintiff had a large and. profitable business, did on or about the 1st day of March, 1897, falsely and maliciously, speak and publish, of and concerning the said William K. Maher, then and there well knowing that the said William K. Maher was the general manager and treasurer of said plaintiff, the false and malicious words following, to-wit: Maher (meaning the said William K. Maher) is a had man, a dangerous character, and under suspicion, and not to be trusted. There was a barn burned up here, and he is under suspicion of setting it on fire. Then and there meaning that the said William K. Maher was a bad and dangerous character, and that he had been and is guilty of the crime of arson, and was regarded as guilty of said crime, in so much that many of the persons, neighbors and citizens, to whom said defendant so as aforesaid stated and published said false and malicious words, and to whom the innocence and integrity of the said William K. Maher were unknown, and knowing the aforesaid connection of said William K. Maher with this plaintiff, have on account of the speaking and publishing of said false, malicious and defámatory words, from thence hitherto, suspected and believed the said William K. Maher to have been and to be, a bad and dangerous character, and guilty of arson, so as aforesaid imputed to him by the said defendant, and has suspected and believed the plaintiff (from their knowledge of the connection of said William K. Maher with this plaintiff) to be entirely unworthy of confidence, and patronage. And they have by reason thereof, since that time, wholly refused to patronize or have any business transactions • with this plaintiff, as they were accustomed to have prior to said time, and that by reason thereof said plaintiff has lost its large and profitable business of night watching on Prospect street in the city of Cleveland and has suffered a falling off of its business, and has been injured in its prospects and good will.
    Plaintiff says that by reason of the premises it has been injured to its damage in the sum of ten thousand dollars.

      Wherefore plaintiff prays judgment against said defendant in the sum of ten thousand dollars and costs of suit.
    To this petition the defendant demurred on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained in the common pleas court, and the plaintiff not desiring to amend or further plead, judgment was rendered for the defendant. This judgment was reversed in the circuit court, and plaintiff below filed this petition in. error to reverse that judgment.

      Gonlder, Holding & Hasten, for plaintiff in error.

      Johnson & Dunlap, for defendant in error.
   Davis, J.

The petition in this case may be considered from two points of view. It may be regarded as an action in slander, or as an action to recover damages for consequential injuries resulting from an alleged slander upon a third person. On the first reading it would seem that the pleader regarded the slanderous, words as affecting the plaintiff directly, and brought the action upon the theory that the plaintiff had been slandered touching its business. If we interpret the petition in this way the action cannot be sustained. Although a corporation may sue for a slander upon it in the way of its business or trade, it cannot sue for a slander upon one of its stockholders or officers, if the slander be not in direct relation .to the trade or business of the corporation; because the fight of action is personal and is confined strictly to the person of whom the slanderous language was uttered. This is especially so when the words impute to the individual a crime, as in this case. Newell on Libel and Slander, 360. State v. Cincinnati Fertilizer Co., 24 Ohio St., 611. The words here charged were spoken of Maher and of him alone. It is not alleged that they were spoken of, or in connection with, the plaintiff or its business. So that, the plaintiff could not maintain this action as an action for slander.

When we regard the case in the other aspect, it is not so easy to formulate a general rule for all cases, although the general principles involved are clear enough, and Ave readily reach a satisfactory conclusion as to the case at bar. In general, every man must be taken to be answerable for the necessary consequences of his oato wrongful acts; and so also if the result is so clearly the natural outcome, in sequence, that he ought to have contemplated it when he spoke the Avords, Avhether he actually did so or not. No good reason appears Avhy these principles should not be applied to the consequences of words spoken, as Avell as of things done. And this would seem to be the law whether the words were actionable slander or not. This seems to be tb,e foundation of the decision in Riding v. Smith, 1 L. R. Ex. Div., 91, which is the authority upon which the circuit court reversed the judgment of the common pleas. But the circuit court misconceived the scope of the case cited, and misapplied it, as Ave think, in the decision of this case. Riding v. Smith, was an action by husband and wife to recover for language imputing unchastity to the wife. As the words were not actionable per se, and it appeared on the trial that there was no special damage to the wife, she was dismissed from the case, upon the application of the counsel for the plaintiffs, and the case proceeded as the action of the husband alone. The allegation Avas that the wife assisted her husband in the conduct of his business and that the words complained of were falsely and maliciously spoken of the wife “in relation to the business,” whereby the plaintiff was injured in his credit and business. It was held that in such a state of facts the husband might recover. It will be observed that the wife had no right of action whatever; and that the husband’s right depended wholly on the fact that the defamatory words were spoken of the tvife distinctly in relation to, and in connection with, the husband’s business, and in relation to the wife’s conduct as an assistant in such business. The petition now before us falls very far short of presenting such a case as was decided in Biding v. Smith. It discloses that the words were spoken of Maher without so much as a remote allusion to the plaintiff or its business. It does not show that they were spoken in a conversation of or concerning the plaintiff, or of its business, or of Maher’s relation thereto. It is true that it is alleged that the words were spoken of Maher, knowing that he was treasurer and general manager of the plaintiff; but that is by no means an averment that the words, which only import a charge against Maher’s personal character, were spoken in direct relation to the plaintiff’s business and to Maher’s connection therewith. Tbe court of common pleas, therefore, properly sustained the demurrer to the petition and properly gave judgment for the defendant; and the reversal of that judgment by the circuit court was erroneous.

The judgment of the circuit court is reversed and that of the common pleas affirmed.


author: Spear, J.

text:
    Coggshall v. The Marine Bank Co.

      Interest of vendee of land — Before conveyance is an equitable estate — Equal to purchase money paid — On full payment vendee entitled to legal title — Until then vendor holds legal title— And beneficial interest which may be attached.

    1. The interest of the vendee of land, before conveyance, is an equitable estate in the land, equal to the amount of the purchase money paid, and which, upon full payment, may ripen into a complete equity entitling him to a conveyance of the' legal title according to the terms of the contract, and it is of these rights that notice is given to all the world by the possession of the vendee.
    2. The interest of the vendor is not that of a mere naked trustee.' for the vendee, but he holds not only the legal title, but a. beneficial estate in the lands to the extent of unpaid purchase money.
    3. Such interest of the vendor is subject to levy by attachment, on the land, and it is not essential that garnishee process be served on the vendee.
    4. Where, in such suit, the creditor in attachment obtains judgment against the defendant, and in proper time begins an action to marshal liens and sell the attached property to satisfy the same, his right to have his lien enforced will not be affected by the fact that no order of sale of the property was. entered in the attachment suit.
    (Decided June 19, 1900.)
    Error to the Circuit Court of Cuyahoga county.
    As stated by counsel for plaintiff in error, the caso below was this: The case was begun by the defendant in error in the court of common pleas, to subject, land to the payment of an attachment lien. That, court decided against the plaintiff, dismissing its petition. Appeal was taken to the circuit court, where a decree was rendered in favor of the plaintiff, defendant in error, against the plaintiff in error who-was defendant below.

      The petition alleged in substance that the plaintiff, the Marine Bank Company, on October 31, 1893,, brought an action against the defendant, F. W. Goakes, accompanied by an attachment which was. levied on land in petition described. That after-wards a judgment in the attachment suit was obtained against the defendant; that by reason of other liens no sale of the property could be had, and prayed that certain defendants might set up their liens, and that the property be subjected to the payment of the judgment which had been obtained in the attachment, suit, and costs. The defendant, Carrie Drake Coggshall, filed an answer stating that in February, 1893,, she bought the real estate in the petition described under a land contract, from the defendant Goakes,. for $4,400; that before October 31,1893, she had taken exclusive possession of the premises, and occupied the same under the contract at the time the attachment Avas levied; that prior to the attachment she had paid $600 of the consideration money to said Goakes, and owed the balance, $3,800. She alleged that she was-the owner of the property and in possession of it and denied that the plaintiff acquired any lien thereon by the attachment. Plaintiff, in its reply, denied each and every allegation of the answer.
    The decree of the circuit court, so far as important to state in this connection, is as follows: This case' coming on to be heard was submitted to the court upon the pleadings, exhibits and evidence, and Avas argued by counsel; and the court being fully advised in the premises find that on and prior to February 1, 1893, the real estate in the petition described was-owned by the defendant F. W. Goakes, who, on that date, sold, and agreed in Avriting to convey the same' to the defendant, Carrie Drake Coggshall, as in her answer set forth, for the sum of $4,400, whereof $600 became due under said contract and was paid by her to the said Goakes prior to October 31, 1893, and the balance of said money, $3,800, was then owing by her to said Goakes, but not due. That prior to October 31,1893, under and pursuant to the terms of said contract said Coggshall took possession of said premises, and has continuously ever since occupied the same. That on October 3.1, 1893, as in the petition alleged, the said premises "were duly attached in the action mentioned in the petition, wherein the plaintiff herein was plaintiff and the defendant herein, P. W. Goakes, was defendant. And afterwards, at the April, 1894, term of the common pleas court of this county, the plaintiff in said action duly recovered a judgment against said Goakes for the sum of $264.-72, but no order to sell said attached property was then or at any time, made by said court. The said judgment and costs still remain unpaid. The court further find that by virtue of said attachment the plaintiff acquired and still has, a lien on the equitable interests of said Goakes in said premises to the extent of the purchase money still owing to him by said Coggshall at the date of said attachment, and has a right to have said premises sold to pay said judgment and costs. The court also found the amount due plaintiff, the amount of costs in the attachment suit, and ordered the same paid in five days, and in default of payment that the premises be sold and from the proceeds there be paid the costs, then to said Coggshall the sum of $600, with interest, then the amount due the Bank, and the balance be brought into court. Thereupon the cause was ordered remanded to the court of common pleas to carry the judgment into effect. Mrs. Coggshall excepted; filed a motion for new trial, which was overruled, and now comes with petition in error asking a reversal.

      Dickey, Brewer, Bentley cG McGoioan, for plaintiff in error, contended that:
    1. When Goalees sold the land to Mrs. Coggshall, and put her in possession, she became in contemplation of equity, owner of the land, which in case of her death, would descend to her heirs and not to her legal representatives.
    2. Goalees, the seller, held the legal title in trust for Mrs. Coggshall, the purchaser, and for the unpaid purchase money he had a vendor’s lien, which was personal property and in case of his death would descend to his legal representatives and not to his heirs.
    3. This personal property could not be attached without garnishment in an action against him alone by seizing the land, any more than the interest of a mortgagee, not in possession, could be attached in an action against him by levying on the premises covered by the mortgage. .
    4. Possession by Mrs. Coggshall, the vendee, at the time of the attachment, was notice to the plaintiff of such rights as she had, and in the absence of garnishment, her interests were in no way affected by the judgment. • The order, therefore, to subject her land to pay the plaintiff’s claim, was clearly erroneous, opposed to legal principles, and hostile to the letter and spirit of the statutory provisions regulating attachments.
    And cited: Sections 5524 and 5528, Revised Statutes; Manley v. Hunt, 1 Ohio Rep., 257; Woolsey v. Seely, Wright’s Rep., 360; Minns v. Morse, 15 Ohio Rep., 568; Butler v. Brown, 5 Ohio St., 211; Gilbert v. Port, 28 Ohio St., 276; Ins. Co. v. Updegraff, 21 Penn. St., 513; Reed v. Lukens, 44 Penn. St., 200; Hill v. Ins. Co., 59 Penn. St., 474; Etna Ins Co. v. Tyler, 16. Wend. 294; Paine v. Meller, 6 Ves., 349; Smith, Adm’r, v. Loewoenstein, 50 Ohio St., 357; Shorten v. Drake, 38 Ohio St., 76; House v. Beatty, 7 Ohio Rep., (Pt. 2), 84; Kelley v. Stanberry, 13 Ohio Rep., 408; Harvey v. Jones, 1 Dis., 65; McKinzie v. Perrill, 15 Ohio St., 162; Jaeger v. Hardy, 48 Ohio St., 335; Hardin v. Boyd, 113 U. S., 765; Holman v. Peterson, 29 Ark., 363; Martin v. O’Bannon, 35 Ark., 68; Schall v. Biscoe, 18 Ark., 142; Moore v. Anders, 14 Ark., 628; Bayley v. Greenleaf, 6 Wheat., 46; Boone v. Childs, 10 Pet., 177; Lewis v. Hawkins, 23 Wall., 119; Story Eq. Jur., sec. 1217; 2 Sugden Vendors, 375; Chrisholm v. Andrews, 57 Miss., 636; Taylor v. Loewenstein, 50 Miss., 273; 1 Sugden Vendors, 211; 1 Pom. Eq Jur., secs. 105, 372, 368; 3 do., sec. 1261; 28 Am. & Eng. Ency. of Law, 107; Boone on Real Prop., sec. 372; Taylor v. Holmes, 14 Fed. Rep., 500.
    Also contended that even if the attachment created a lien, it ceased at the time the judgment was rendered without any order of sale, the court having adjourned, and no part of the case being continued, the-action going entirely off the docket, and cited section 5555, Revised Statutes.

      W. G. McFarland and Scott Stewart, for defendant in error.
    The legal question raised by the facts stated in the decree of the circuit court is: G. sells C. a house and lot on a land contract for $4,400; C. is to pay by installments, and when $800 is paid, G. agrees to convey the land to C. by good and sufficient deed, and notes and mortgage to be given G. upon the land to-secure the balance. C. is put in possession of the house and lot and has paid only $600 at the time attachment is levied upon the interest G. has in the land. Has G. such an interest in the property as can be attached in a suit at law, and does such attachment, which is regular in every respect, and still remaining and never dissolved, create a lien in favor of the attaching creditor? We insist that the attachment create a lien in favor of the attaching creditor upon the interest of Goakes, subject only to the payment of the amount Mrs. Coggshall had paid at the date of the attachment. Section 5524, Revised Statutes; 3 Am. & Eng. Ency. of Law, 209; Heard v. Fairbank, 5 Met., 111; Bank v. Byraun, 131 Ill., 92; 1 Freeman on Ex., sec. 181; Doak v. Runyan, 33 Mich., 75; Hardee v. McMichael, 67 Ga., 678; Bell v. McDuffey, 71 Ga., 264; Bank v. Nash, 1 Handy, 153; Finnell v. Burt, 2 Handy, 202; Paine v. Mooreland, 15 Ohio Rep., 435; McArthur v. Porter, 1 Ohio Rep., 109; Carty v. Fenstemaker, 14 Ohio St., 457; Armstrong v. McAlpin, 18 Ohio St., 184; Ranney v. Hardy, 43 Ohio St., 157; Jaeger v. Hardy, 48 Ohio St., 335.
    We further insist that the plaintiff below lost nothing by reason of not procuring an order of sale in attachment while the case was on the docket. The attachment once legal on the land it remains until removed by order of court. The lot being unencumbered, it could not be sold until the rights of the parties holding liens had been adjusted. Liebman v. Ashbacker, 36 Ohio St., 94. By the suit below we ask for an order of sale and are now asking for it.
   Spear, J.

Two propositions are urged by plaintiff In error in support of her claim that the judgment of the circuit court shouid be reversed. One: Where the owner of land sells it, receives a part of the consideration, and agrees in writing to convey on payment of the balance, and puts the vendee in possession, the purchaser becomes the owner of the land, having such title as would descend to his heirs, and not to his legal representatives, the vendor retaining only the naked legal title which he holds in trust for the vendee, with a lien upon the land for the unpaid purchase money, which is personal property, and hence the interest of the vendor cannot be attached in a suit at law, by merely levying on the land without garnishment. Two: Even if such leA^y of attachment creates a lien it ceases unless there is an order for the sale of the property while the case remains, on the docket.

That, in such case, the vendee is the beneficial owner to the extent of the purchase money paid, and that the vendor holds the legal title in trust for the-purchaser, subject to the duty of conveying the legal title on compliance Avith the terms of the contract by the véndee, is, we suppose, not disputed anyAvhere. The position of the vendor is sometimes described as that of a trustee, and it is declared, here and there, that the lands of a cestui gue trust cannot be taken for the debts of the trustee. And this, Ave suppose, is not. disputed anyAvhere. And so, in a number of cases,, some early ones in this state, and some in other jurisdictions, color is given to the conclusion that the rule applies in all cases of vendor and vendee. Manley v. Hunt, 1 Ohio Rep., 258, is a case of this character. One Lay had contracted to sell land to one Harman. The latter, for a valuable consideration and in good faith, and before receiving a deed, sold all his right and interest in the land to Manley. Afterward Hunt recovered a judgment at laAv against Harman, and after the judgment Lay conveyed to Harman and he to Manley. Shortly after, Hunt sued out execution against Harman and caused it to be levied on the land, and was proceeding to sell it. The question was whether or not the land could thus be sold on execution. The court held tlmt it could not be, observing that “it would be productive of much niischief and injustice to make trust estates liable to judgments against the trustee. Such a principle never has been, and we trust never will be, recognized in Ohio. From the moment Harman contracted in good faith to sell the land to Manley for an adequate consideration, he became a trustee for Manley, and the land ceased to be liable for his debts on after acquired judgments. It then became liable in equity to the debts of Manley, and the purchase money, if any part of it remained unpaid, might be reached in the same way by the creditors of Harman.” The gist of this decision, it will be especially noted, is that the land cannot be sold on execution, but creditors of the vendor might reach any purchase money remaining unpaid in equity. The rule that when lands have been sold, the vendor becomes a trustee for the vendee, and the land ceases to be liable for the debtsofthevendoronafteracquired judgments, is approved in Butler v. Brown, 5 Ohio St., 211, but the court also gives effect to the last sentence of the opinion in the Manley case and holds as the law of the case that: “The vendee of a judgment debtor who has not paid the purchase money, but has received a conveyance from the judgment debtor, cannot sustain a'bill to quiet his title as against the purchaser of the land under a judgment rendered after the contract of sale, unless he has paid or brings into court the purchase money.” It seems apparent that the general language of the opinion in the Manley case is somewhat qualified by the judgment rendered in the Butler case.

We are of opinion that the broad language of the earlier cases, and of some text books, is not in accord with later holdings, nor with reason. The misapprehension arises, as we think, in assuming that the vendor is a mere naked trustee. Such in reality is not his position. His legal title would, at common law, have been sufficient to maintain ejectment under the rule that, in general, the legal title must prevail. And such is the la w now in many of the states, and is the rule of the United States Supreme Court. 10 Am. & Eng. Encyc. Law (2d ed.), 498; Burnett v. Caldwell, 9 Wall., 290. Nor do we know of any rule in this state which would defeat ejectment by the vendor where the vendee is in default, at least where he has wholly defaulted. Showers v. Emery, 16 Ohio Rep., 294. These considerations have an important bearing upon the character of the vendor’s interest in the land, for it would be a strange situation to find a party clothed with sufficient title to and interest in land to constitute the basis of an ejectment to recover its possession, and yet not sufficiently the owner to permit execution or attachment against the same land by his creditors. The rule undoubtedly is that, while, in a general sense, the vendor holds the legal title in trust, yet so long as any purchase money remains unpaid, he still retains a personal right and interest in the laud, and cannot be compelled to part with the title except upon full compliance by the purchaser with the terms of the contract. The parties deal at arm’s length, and, in such circumstances, do not stand in relation of trustee and cestui 'que trust. The attitude of the parties is -well stated in Jaeger v. Hardy, 48 Ohio St., 335, to the effect that a vendor’s interest, before conveyance, “is the legal title, and a beneficial estate in the lands to the extent of the unpaid purchase money,” while that of the vendee is “an equitable estate in the land equal to the amount of the purchase money paid by him, and which, upon full payment, may ripen into a completé equity entitling him to conveyance of the legal title according to the terms of the contract.” This language cannot be reconciled with the proposition that the purchaser is the full owner and the vendor a mere naked trustee, and if we adhere to the principle above quoted, as we must, the latter proposition must fail. Every just right of the vendee is protected by the rule that his ownership extends to the amount of the purchase money paid, and the right to receive a deed upon payment of the balance of the purchase money in compliance with the contract. Possession by the purchaser gives notice of his right to all the world, and of nothing more. Record title being in the vendor, his creditors are justified in treating the land as his save only as to the rights of the vendee, and so long as the latter is protected in his rights under the contract and his possession, he cannot reasonably object to creditors of the vendor collecting their debts, the spirit of our law being that every man should pay his honest debts, and that strangers should not, without ground, interpose to prevent collection.

It is stated, at least inf eren tially, by counsel for plaintiff in error in their brief, that the levying of an attachment stands upon the same footing as that of an execution, and they cite Shorten v. Drake, 38 Ohio St., 76, as supporting the proposition, and they argue that had the land been levied on by execution, and the land sold under the levy, the purchaser would get no right nor title, legal or equitable. It is not necessary for the purposes of this case to combat the conclusion of counsel, for the sale ordered is not upon attachment or execution, but is sought in the way suggested in the Manley case and adopted in the Butler case, viz: an equitable proceeding. But, however that may be, the proposition is not in accord with the holdings in a number of Ohio cases. Parker v. Miller, 9 Ohio Rep., 108; Scribner v. Lockwood, do., 184; Paine v. Mooreland, 15 Ohio Rep., 435; Minns v. Morse, do. 568. These cases sustain the proposition that the interest of a vendor, while any of the purchase money remains unpaid, is one subject to levy by attachment or execution. And this conclusion is warranted by our statute. Admittedly the vendor has an interest in the land of some character, equitable in its nature, if you please, but equitable interests in land are by our legislation treated as real estate. The statute (sec. 5524), which directs the mode of executing an attachment, requires the officer “to attach the lands,” in other words, the real estate. But the case of Lefferson v. Dallas, 20 Ohio St., 68, is directly iu point. It is there held: “A contract for the sale of real estate does not, of itself, free the land from the lien of judgment against the vendor. It is the payment of the purchase money which entitles the purchaser to protection in equity; and to the extent that the purchase money remains unpaid when the lien attaches, the land will be held bound.” It would seem unnecessary to pursue the subject further, but see, also, Ranney v. Hardy, 43 Ohio St., 157, and Jaeger v. Hardy, supra.

But it is insisted that the question here discussed is controlled by the consideration that the interest of the purchaser, in case of death, would descend to the heirs and not to the legal representative, while, in ease of death of the vendor, his interest would pass to his legal representative and not to his heirs. It is true that, under our statutes, an equity in lands may be the subject of devise, and a perfect equity in lands held by an intestate, passes to his heirs by descent; and it is true, further, that, by force of the statute, money due as purchase money passes to the personal representative, and he may, upon receipt of it, obtain authority to deed to the purchaser. So, too, the personal representative may, in case the personal property is insufficient to pay all debts, resort to all real estate in which the intestate had an interest in order to make up the deficiency. Ting authority given is to sell the real estate, and that is the interest one has in lands, tenements or hereditaments. This may, under the statute, be legal or equitable or both, although under our former practice the test was that if it be such an interest as could be enforced in a court of law, it was legal in terest or estate, but if such as could be enforced only in a court of chancery, it Avas an equitable interest or estate. But the instances above given are only examples, of Avhich many are found in the course of the laAr, where, for some purposes real estate is treated as personalty, and personalty as real estate. In general these rules are resorted to in order to the more easily Avork out the rights of the parties in respect to descents and distributions, and the more convenient administration of estates of in-testates, but they cannot, Ave think, be regarded as changing the essential character of the different kinds of estates in land; nor do they, as we think, support the contention urged by counsel, that the interest of the vendor in this case is such as to be beyond the reach of levy by execution or attachment.

The proposition that even if the attachment created a lien it ceased because no order of sale was entered while the case remained on the docket, would seem to be answered by Liebman v. Ashbacker, 36 Ohio St., 94, and cases there cited. At all events we do not think the point well taken.

The case at bar was a suit to marshal liens and subject the land to the Bank’s claim. The judgment of the circuit court in legal effect simply subjected the purchase money remaining due to the payment of the Bank’s judgment, protecting the plaintiff in error as to the amounts previously paid, and the judgment will be

Affirmed.


author: Burket, J.

text:
    Myers et al. v. Jenkins, Admr.

      Independent Order of Odd ffellows — Liability of lodge for sick benefits under laws of order — Member claiming benefit must seek remedy first in tribunals of order — Right of appeal— Nature of final determination of order — If order refuses or neglects proper rights, member may sue in civil courts.

    1. A bill of exceptions is included in what are called original .papers in section 6716 Revised Statutes.
    2. Where the journal shows that a demurrer was argued by counsel, heard and decided by the court, and such demurrer bears the file mark of the clerk, it will be held to have been filed, even though the clerk has failed to enter such filing upon the appearance docket.
    3. The members of a lodge of the Independent Order of Odd Fellows are not liable to another member of the same lodge for sick benefits, unless there is some law of the order expressly making them so liable. The obligation to pay sick benefits, as the laws of the order in this state stood in the year 1890, rested alone upon the lodge, and not upon the members or officers thereof.
    4. When a member of such order claims to be entitled to sick benefits, he must seek his remedy, in the first instance, in the lodge and the tribunals of the order, and the determination of the matter by such lodge and tribunals in substantial accordance with the law's of the order, will be final and conclusive of the right to receive such benefits.
    5. If the lodge refuses or neglects upon proper demand to have the right to such benefits determined in substantial accordance with the laws of the order, or refuses to pay such benefits after the same have been awarded to such member, then such member may sue in the civil courts for the recovery of such benefits.
    6. Where, in a proceeding in a lodge in substantial accordance with its laws, it is determined that such member has no right to sick benefits, and the member appeals to the next higher tribunal in the order, and the lodge furnishes him a ' proper transcript of the proceedings, and he fails to secure a hearing of his appeal by reason of his own negligence, or by reason of the negligence of such higher tribunal or some officer thereof, such failure to secure a hearing on his appeal will not entitle him to sue the lodge for such benefits in the civil courts.

      7. A contract in advance to renounce and waive one’s rigM to appeal to the courts for the redress of wrongs, is void, and of no effect.
    (Decided June 19, 1900.)
    Error to- the Circuit Court of Licking county.
    On December 30, .1892, Albert B. Lucas, then in full life but since deceased, began his action against persons holding the offices of Noble Grand, Vice Grand, Secretary, Treasurer and Trustees of Olive Branch Lodge, No. 34, Independent Order of Odd Fellows, individually and as such officers. Afterward an amended petition was filed, and said Olive Branch Lodge was made a party defendant.
    The action was brought for the recovery of sick benefits at $4.50 per week from October 1, 1890, to the date of the commencement of the action, the plaintiff claiming that he was a member in good standing and disabled by sickness not caused by improper conduct on his part, during that period.
    The amended petition states that the said defendants and the other members of said lodge are associated together for the purpose following:
    “The object of said lodge as stated in their laws is to foster universal brotherhood among men, to administer relief and sympathy to its members and to assist them in distress, help them in want and counsel them in difficulty; that the questions involved in this case are of a common and general interest of many persons; that the real parties in interest other than those mentioned as defendants are very numerous, consisting of about 200 members, and it is impracticable to bring them all before the court; the said defendants ought, and the court by its order ought to require them to defend for the benefit of all”

      “That among the laws which govern said order and which is binding upon the said branch lodge is one which provides that each beneficial member in good standing, who shall be disabled by sickness or injury to his person, which prevents him from following some legitimate business, provided said sickness or injury shall not have been occasioned by his own improper conduct, and who shall have been a member of said lodge six months, shall be entitled to receive as benefits not less than $1 per week and not more than a sum equal to three-fourths of the ame unt charged by his lodge for annual dues during the time of said sickness or disability, which amount shall be drawn and paid weekly to said brother.”
    He avers in his amended petition that he became disabled by sickness not caused by any improper conduct on his part, so as to be unable to follow any legitimate business, that he was then in good standing and had been a member for more than six months, and still remained so disabled, of all which said lodge had due. notice.
    “That since said time of March, 1S90, said plaintiff has been entitled under the laws of said branch of said order to receive the sum of $4.50 for each and every week during said time, except that said branch has the right, during such disability to deduct the annual dues of such member as they become payable from the weekly benefit so due.
    “That said lodge has paid to plaintiff his said benefits, to-wit: The sum of $4.50 per week so due as aforesaid from about said 30th day of March, 1890, until the last Wednesday in September, 1890; that no other or further payment has been made upon said benefits and tha.t there is due to said plaintiff from the members of said lodge by reason of the premises, up to and including the 30th day of December, 1891, the sum of $297.00 with interest on each $4.50 thereof from October 1, 1890, and each week to this date and thereafter, the payment of which sums having been many times demanded by plaintiff of the defendants, but said payment has been refused, and said benefits during the pendency of this action will continue to accrue and be due and payable on Wednesday of each week at the rate of $4.50 weekly.
    “Wherefore, the plaintiff asks that the defendants herein named or anyone of them, who have knowledge thereof, be required to answer the interrogatories hereto attached and herewith filed, so that plaintiff may ascertain who are the members of said association; and when he so ascertains their names he may be permitted to so amend this his petition as to make them parties to this action, and that he may have judgment against sa.id association as hereinafter prayed for. /
    “Wherefore, plaintiff demands judgment against the said defendants and members composing said branch, lodge and against said association in said sum of $297.00 with interest on each $4.50 from October 1, 1890, and on said sum from each week thereafter to date, and also asks judgment for such sum as said accruing benefits still amount to during this, suit with like interest, and he asks for all proper relief.”
    To this amended petition each defendant separately demurred, upon the ground that the court had no jurisdiction of the person or cause of action, and that the petition did not state facts' sufficient to constitute a cause of action against said defendants or either of them.

      The court overruled the demurrer to the amended petition as to all and each of the defendants, to which defendants excepted. Thereupon the lodge and the' other defendants answered, both in their official and individual capacity. Tire answer admits that said individuals hold the offices as averred in the petition, that said lodge is in active operation under and in accordance with the rules, laws and constitution of the Independent Order of Odd Fellows, known, as the Grand Lodge of Ohio, and the Sovereign Grand Lodge from which said Olive Branch Lodge derives-its authority and principles of government; that said lodge was created for the purposes among others as-stated in said amended petition; that the plaintiff became a member of said lodge in the year 1885; that, said lodge has paid benefits to said plaintiff, and denies that plaintiff has complied with the laws, rules- and regulations of the lodge, and denies that he was-still a member of said lodge .in good standing Avhen the action was commenced.
    The answer denies the jurisdiction of the court and avers that said lodge is governed and controlled by the Grand Lodge of Ohio, and that the' Grand Lodge is governed and controlled by the Sovereign Grand Lodge, and annexes a copy of the laws governing the Grand Lodge of Ohio and said Olive Branch Lodge, and pleads a copy of the application for membership of said plaintiff in said lodge, aa herein he obligates himself to seek his “remedy for' all rights on account of said membership or connection therewith in the tribunals of the order only, Avithout resorting for their enforcement in any court or for any purpose to the civil courts.” That Avhen he became a member of the lodge he signed his name voluntarily to the constitution, and thereby became bound by its laws, and the sections of the laws as to such benefits are specially pleaded, and it is averred that he was expelled from the lodge for cause, August 4, 1891.
    It is further averred that said lodge refused to pay him further benefits after the last week in September, 1890, that the matter Avas referred to a committee of three under the laws of the lodge, he choosing one, the lodge one and these two a third; that the committee examined the matter after- notice to him, and unanimously reported that he was not entitled to further benefits; that the report was received and adopted by the lodge and spread upon its record; that plaintiff had the right under the laAvs of the order to take his claim for sick benefits by appeal or proceedings in error to what is known as the Grand Committee, thence to the Grand Lodge of Ohio, and thence to the Sovereign Grand Lodge, but that he failed to perfect such appeal or proceedings in error, and thereby became conclusively bound by the said determination of said lodge as to the sick benefits so claimed by him and sued for in this case.
    The reply admits the laAvs of the order as attached to the answer; that plaintiff signed the constitution, that he made application for sick benefits, and selected one member of the committee and denies the other allegations of the ansAver. He avers that the lodge arbitrarily refused to pay his sick benefits, and refused to investigate his claim for the same, and refused to permit the committeemen selected by him to serve or act in his behalf, and that he duly appealed from the decision of the lodge to the District Grand Committee, but that said committee and the District Deputy Grand. Master who has charge of the committee, refused to entertain his appeal or to hear the same; and that plaintiff was in consequence wholly without remedy, and he avers that the defendants are thereby estopped from claiming that he has no right to prosecute his action at law for the recovery of said sick benefits. To this reply there was a demurrer, which was overruled and exception noted.
    Upon the trial he claimed that he had obtained a transcript of the proceedings of the lodge as to his benefits, from the Secretary, and sent the same by letter to one J. E. Dow, who was the District Deputy Grand Master, and who had. removed to Findlay, Ohio. To prove that he had filed the transcript with ike District Deputy Grand Master, he offered in evidence the following letter which he said he had received by mail:
    “Findlay, O., April 2, 1891.
    “A. B. Lucas, Newark,
    “Dr. Sir & Bro. Yours to hand. I do not know the exact ‘date you sent me the papers but think it must have been about 1 to 10th of December. I know I forwarded them to NeAvark within a feAV days of the time I received them.
    “J. E. Doav,
    “222 Hardin Street.”
    The defendants objected to this letter being received in evidence, but the objection Avas overruled and exceptions noted.
    Plaintiff also testified that he had written a letter to the Grand Master of the Grand Lodge of Ohio at Toledo, and that he had received an answer and took it to the lodge, and that the Secretary read it to the lodge, but that he could not now find it after diligent search, and the Secretary could not find it. He was then permitted over the objection and exception of defendants to testify that in that letter the Grand’ Master wrote to him that he had instructed the Deputy Grand Master, Jones, to give him a legal hearing. It was also in testimony that when this Deputy Grand Master Jones was applied to by plaintiff’s-counsel to call the Grand Committee together and hear the appeal he replied that there was nothing to-hear. Mr. Jones testified that no transcript of the-proceedings as to plaintiff’s claim for sick benefits, ever came into his possession. The laws of the order-provide that an appeal shall be perfected by the filing of a transcript with the Deputy Grand Master,, and that, the trial on appeal shall be had within six months thereafter. Whether plaintiff’s demand for a trial was made before or after the expiration of such six months does not clearly appear.
    Plaintiff claimed that he perfected his appeal and that the District Deputy Grand Master arbitrarily refused to give him a hearing before the Grand Committee. The defendants deny this and claim that, if the District Deputy Grand Master refused to give a hearing, that the plaintiff had the means under the-laws of the order by application to the Grand Master- or by application to the Grand Lodge in the form of a grievance to compel such hearing.
    The court charged in effect that the plaintiff must, seek his remedy in the tribunals of the order, and that, their determination would be conclusive upon both parties, but that if the order refused or neglected at any stage to give him a hearing before the proper-tribunal, he might then abandon -the tribunals of the order, and seek his remedy in a court of justice. To this there was an exception.
    The jury returned a verdict for $392.58 in favor of the plaintiff and against all of the defendants. A motion was made for a new trial, which was overruled and exceptions taken, and judgment was then entered upon the verdict. The circuit court affirmed the judgment. Thereupon the plaintiffs in error filed their petition in this court seeking to reverse the judgments of the courts below.
    /§. L. James and /S', M. Hunter, for plaintiffs in error.
    We contend that the law is well settled that when an individual voluntarily joins an organization or friendly society, governed by its own constitution and by-laws, that he thereby contracts to be bound by that constitution and those by-laws, and if that constitution and those by-laws provide a means by which controversies between him and the lodge may be heard and decided, then he is bound to get his remedy in the manner proscribed therein.
    It is shown by the record, that the constitution and by-laws of the Olive Branch Lodge, provide expressly that in all controversies, between a member and the lodge, all questions shall be decided and settled finally in the lodge itself, with such provisions for review on appeal in the appellant courts of the order itself. And that in no event shall a member who feels himself aggrieved by any decision of the court of the lodge, appeal to the civil courts of the state.
    We contend that in the face of that provision this controversy must be settled and disposed of finally in the courts of the order, and Lucas by his own voluntary act in agreeing to be bound by the by-laws, has absolutely barred himself from appealing to the civil court.

      State ex rel. v. Cincinnati Chamber of Commerce, 4 N. P., 244, 6 Dec. 363; Am. & Eng. Enc. of Law (2 Ed.), 1071; Karcher v. Supreme Lodge Knights of Honor, 137 Mass., 368; Schryver v. Columbia Lodge, No. 32 I. O. O. F., 3 C. C. 122, 2 Circ. Dec. 238.
    - The latter is a case which is somewhat similar to the case at bar. It is an Ohio case. It is a case for sick benefits, and it is a case against the lodge of Odd Fellows. And the circuit court holds that he must, seek his remedy in the courts of the order, and can seek it nowhere else. Keefe v. Woman’s Catholic O. of F., 163 Ills., 78; Fee v. Big Sand Iron Co., 13 Ohio St., 563.
    Courts of conciliation are recognized by the constitution and statutes of Ohio. B. & O. R. R. Co. v. Stankard, 56 Ohio St., 221: The answers, filed in this case, was by the lodge, its officers and these members — and demurrers were filed to the amended petition and reply — these demurrers were overruled and exceptions taken. Now one word at this point: Could a judgment by any sort of proceeding be legally rendered against these private persons, jointly with Olivé Branch Lodge, or otherwise? If Lucas had any sort of a claim in this case it was against Olive Branch Lodge with whom he contracted, and no one else.
    The members of Olive Branch Lodge and fraternal organizations generally, are not partners or liable for any debt of such organization, unless by some express act of such members. If this proposition is correct, then this judgment a,gainst Jones, Carlisle, Crisman, Swisher and others is erroneous.
    No such facts are plead by plaintiff as entitled him to recover either against Olive Branch Lodge or these members jointly or severally — certainly no joint judgment is proper even if Lucas is entitled to recover. Devoss et al., v. Gray et al., 22 Ohio St., 159; Bacon on M. B. Societies, 454; 98 Ind., 149; 53 Ind., 380; 30 N. J., 313; 76 Ind., 191.
    The issues briefly stated, make the question whether Lucas, who was bound by the laws of the order, by becoming a member, as well as entitled to sick benefits under certain conditions, can resort to the civil courts for redress of his grievances, instead of being compelled to resort to the courts within the order.
    If he is compelled to resort to the tribunals within the order, to-wit: The subordinate and superior branches, and their determination is final, then Lucas, had no legal standing in the civil courts, and had no cláim of any kind against this lodge. Bear in mind all the time that the proof does not show that Jones was derelict in his duty — yet if he was — then Lucas had his remedy, which he did not avail himself of; but he acted just as if he had brought a suit in one court and had a judgment against him, then drop that, court and begin a new case in another

      Pape v. Castle Excelsior, Knights of the Golden Rule, which is squarely in point; 10 Cincinnati L. B., pp. 2, 3 and 4.
    Now, there is no claim made that Lucas ever attempted to exhaust his remedies within the order. This he must do. Forman v. Howard Beneficial Society, 4 Bar. 519; Black and White Smith Society v. Van Dyke, 2 Wharton, 309.
    Lucas, bound by the laws of the order which is a contract, and we present this theory, that if Lucas is entitled to recover at all this right rests upon a contract right and not a legal or statutory right; 92 Penn. Stat., 510; 111 Ind., 121; Anacosta Trite, No. 12, Red Men v. Marbank, 13 Maryland, 91; Daland v. Court of Good Samaritans, 128 Mass., 437; German

      Reformed Church v. Commonwealth, 3 Bar., 282; 38 N. Y., S. C. How., 49; 52 Pa. S., 125; 57 Maryland, 98; Hershell on laws of Fraternities, 49; Alberry v. Brown, 51 Howard, 92.
    When Lucas became a member he Avaived all right to sue in the civil courts, and obligated himself to be bound by his contract, to not sue in the civil courts. 4 App. Pr. N. 8, 162 and 202, Grand Lodge Free Masons, 41 Mich., 208; Poulson v. Odd Fellows, 8 Mo. Appeals, 148; as to errors and irregularities; Gregg v. Mass. Medical Society, 111 Mass., 185; also Commonwealth v. Pike Beneficial Society, 8 W. and 8., 250; Robinson v. Yates City Lodge, 86 Ills., 598.
    A member of a beneficial society must resort for correction of an alleged Avrong to the- tribunals of his order; and the judgments of such tribunals are final and conclusive. Sperry’s Appeals, 116 Pa. St., 397; McAllees v. Supreme Sitting of Iron Hall, 13 At. Rep., 755; Cotton Exchange v. State, 54 Ga., 658; Samsell v. Esher, 26 Law Bul., 156, 11 Dec. Re., 351; Moore v. Robison, 6th Ohio St., 302; Weyer v. Zane, 3 Ohio, 305; Lessee of Adams v. Jeffries, 12 Ohio, 272; Douglass v. Massie, 16 Ohio, 272; Aubrey v. Almy, 4 Ohio St., 525.
    A judgment of a court having jurisdiction is forever final and conclusive, notwithstanding the record abound with irregularities, which would authorize a reversal by a proceeding for that purpose. 1 Mass., 332; Hughes v. Blace, 1 Mass. C. C., 515; Thornton v. Campbell, 6 Fla., 546; Beal v. Pierce, 12 Md., 550; 14 Mich., 348; Welsh v. Childs, 17 Ohio St., 319; Billings v. Rossel, 23 Ohio St., 186; Wickersham v. Weldon, 33 Mo., 561. Schryver v. The Lodge, 3 C. C., 422, 2 Circ. Dec., 238, is directly in point.
      Steuve v. Grand Lodge, 5 C. C., 471; 3 Circ. Dec., 231; Rord v. Benefit Society, 31 Fed. Rep., 63.
    As to question of Property Rights, we wish to say that the organization and purpose of these institutions do not contemplate such a thing:
    “Membership in such corporations is like life, as the Apostle described it. “For we brought nothing unto this AvorltJ, and it is certain we can carry nothing out. And haAo'ng food and raiment, let us be therewith content.” — 1st Timothy, 6th and 7th verses.
    The interest of members is several; there is no community of interest. 22 Am. and Eng. Enc. of Law, 804; Milback on Mutual Ben. Societies, sec. 100; Ash v. Groine, 97 Penn. St., 493; State v. Odd Fellows, 8 Mo. Appeals, 148; Eershiser v. Williams, 4 Ohio Dec., 17, the Masonic case decided by Judge Evans of the Franklin Common Pleas, and subsequently affirmed by the circuit court, which was affirmed by the Supreme Court, 53 Ohio St., 663.

      Kibler & Kibler and B. G. Smythe, for defendant in error.
    Although this case wms tried upon the theory that the contract which Lucas made not to resort to proceedings at lawq Avas a binding contract on him providing the lodge accorded him a hearing to which he Was entitled by the rules of the order, we claim that this contract was void and not binding upon Lucas. We claim this under the authority of the case of B. & O. R. R. Co. v. Stankard et al., 56 Ohio St., 224; Supreme Council of the Order of Chosen Friends v. Forsinger, 125 Ind., 52; Whitney v. National Masonic Accident Association, 52 Minn., 378; Insurance Co.
      v. Morse, 20 Wallace, 445; Stephenson v. Insurance Co., 54 Me. 55; Mentz v. Insurance Co., 79 Pa. St., 478; Reed v. Ins. Co., 138 Mass., 572 ;Viney v. Bignold, 27 Cent. Law J., 40.
    But if we are wrong about tliis, were Lucas’ contract binding, could the order object to Lucas resorting to an action at law, when the order refused to grant him a hearing to which he was entitled? Counsel for plaintiff in error cite no decision or authority in favor of such a proposition. Their citations are all addressed to a state of facts which do not exist in this case, viz: To a case where the order has accorded the plaintiff a full and fair hearing according to the rules and regulations. It is universally held that this full and fair hearing must be accorded by the order to entitle them to insist upon the bar.
    We claim as to any benefit societies even where there be an agreement that there shall be no right of appeal to the courts, yet such a right nevertheless exists to the member, where by the violation of the rules of the order by the order itself, he has been deprived. of some substantial right. Canfield v. Knights of Maccabees, 13 L. R. A., 625; Mead v. Sterling, 62 Conn., 586, 23 L. R. A., 227.
    If it should be claimed that the court erred in refusing to permit evidence of the order’s adjudication and decisions upon introduction of the by-laws, it is held in the case of Manson v. Grand Lodge A. O. U. W., 30 Minn. 509, that the courts are not bound by such decisions.
   Burket, J.

It is urged by counsel for defendant in error that the record does not show that the bill of exceptions was filed in the circuit court. The record shows that eight original papers were filed in the circuit court, and the bill of exceptions being an original paper under section 6716, Revised Statutes, it sufficiently appears by the record that it was filed in that court. It is further urged that the record does not show that the demurrer to the amended petition was filed in the court of common pleas. The journal of January 30,1896, recites as follows: “This day came the parties and this cause came on for hearing upon the separate demurrers filed by the several defendants to the amended petition of plaintiff and was argued by counsel.” It cannot be presumed that a court and counsel on both sides would hear, argue and pass upon a demurrer which had never been filed. And as this demurrer has been argued by counsel and decided by the court, and bears the file mark of the clerk, we are satisfied it was filed, and that the omission of its filing from the printed record is the result of some oversight or mistake.

There is no promise or obligation on part of the members of the lodge to pay sick benefits to members set out in the petition. The averment is that a disabled member is entitled, under the laws of the order, to receive sick benefits, but there is no averment that he is to receive sick benefits from his fellow members, and the irresistible inference is that he is to receive his benefits from the lodge, and not from the members individually. True he says that there is due to him from the members of the lodge by reason of the premises the sick benefits claimed; but he has set out the premises in the forepart of his petition and those premises show that the benefits are not due from the members but from the lodge; and there is no averment in the petition that the officers are liable to pay sick benefits. The laws of the order as pleaded and introduced in evidence, show no obligation upon the members to_ pay sick benefits, either individually or as officers of the lodge. The demurrer to the amended petition should therefore have been sustained as to the officers and members of the lodge, and upon the conceded facts in the case there is no cause of action against them.

The petition seems to state a good cause of action against the lodge. It is silent as to whether there is a tribunal within the lodge to pass upon the question of sick benefits when claimed by a member, and it may well be doubted whether a court can take judicial notice of the existence of such tribunal. The better practice is to plead the existence of such tribunal if there is one, in the petition, and aver that the plaintiff has exhausted his remedies in the lodge, and has a cause of action .against the lodge in the civil courts, setting out the facts which give him such cause of action. In this case the existence of a tribunal in the order for the settlement of all disputes, as to claims for sick benefits, is shown in the answer, and also by the printed laws of the order attached thereto and introduced in evidence. We cannot hold therefore that there was prejudicial error in overruling the demurrer of the lodge to the amended petition of the plaintiff.

There was no error in overruling the demurrer of the lodge to the reply, for the reason that if the lodge arbitrarily refused to pay his sick benefits and refused to investigate the plaintiff’s right to receive the same, and refused to permit the committeeman selected by him to serve or act in his behalf, he had a right to bring his action in the civil courts to recover such benefits. But if objection was made by anyone or for any cause to the committeeman selected by Mm, and he thereupon selected another who accepted and served on the committee, he thereby waived the first selection, and the committee as constituted became a lawful committee under the laws of the order.

There was error in the admission in evidence of the letter from J. E. Dow. The only purpose of the admission of that letter was to prove that the plaintiff below had filed a transcript -with Mr. Dow as District Deputy Grand Master. The controversy was between the plaintiff and the lodge, and what a third party said about the matter could not bind the lodge. Mr. Dow was not acting as the agent of the lodge, and if he had been what he said as to a past transaction would not bind his principal. lie was acting while in office officially as the deputy of the Grand Master, to supervise all the lodges within his district. What he did or said while in office was for and in behalf of his superior, the Grand Master, and not for or in behalf of the lodge to which he belonged. It is not clear whether or not he was still in office when he wrote this letter, but in either event it was not competent and could not bind the lodge. For aught that appears his testimony could have been obtained by deposition or otherwise, and this should have been done.

It was also error to permit the plaintiff below to testify as to the contents of the letter to him from the Grand Master at Toledo. The lodge was not bound by what was said in the correspondence between the plaintiff and the Grand Master. If the contents of the letter were competent, the letter press copy thereof, kept by the Grand Master, was better evidence than the recollection of the plaintiff. Such officers usually keep letter press copies of all official letters written by them, and an effort. should first be made to obtain such copy before resorting to less satisfactory testimony.

The most difficult question in the case arises upon the charge of the court, and the refusal of the court to charge as requested.

The laws of the order as shown in the evidence provide that when a dispute arises as to the payment of sick benefits, the Noble Grand shall appoint one member and the claimant of benefits one member, and these two shall choose a third, and the three members thus chosen shall constitute a committee to hear the evidence and report to the lodge; and the claimant being notified, the lodge shall proceed to consider the report, and determine whether the claimant is entitled to benefits. From the action of the lodge the claimant may appeal or prosecute error, to what is known as the Grand Committee, which consists of all the members in the district who have at any time held the office of Noble Grand in any lodge, and are in good standing. Such members are known as Past Grands. The Past Grands of the lodge to which the claimant belongs are by the laws of the order excluded from participating in the proceedings of the Grand Committee, upon such appeal or proceedings in error, so that the Grand Committee for the trial of such appeal or proceedings in error, consists of the Past Grands of the district, other than the Past Grands of the lodge to which the claimant belongs. The Grand Committee may hold regular meetings, and the District Deputy Grand Master shall call a special meeting on the request of five Past Grands i-n good standing, or he may, if deemed necessary, order a special meeting without request. From the action of the Grand Committee an appeal may be taken to the Grand Lodge, or error may be prosecuted thereto. If the District Deputy Grand blaster fails to perform his duties the- attention of the Grand blaster may be called to such failure, or a complaint in the nature of a grievance may be filed against him in the Grand Lodge, and he may be compelled to perform his duty. Prom the action of the Grand Lodge an appeal may be taken to the Sovereign Grand Lodge, if the Grand Lodge votes to permit such appeal.

The claim of the lodge was, and it requested the court to so charge, that the claimant of benefits must seek his remedy in said tribunals of the order, and that their determination was final, and that the civil courts had no jurisdiction of the matter. The court charged the jury that the claimant must in the first instance seek his remedy in the tribunals of the order, and wound up by the following:

“If that tribunal has been created, and has finally heard and determined this matter, that determination is conclusive upon the parties; but if, for any reason they have refused to hear and determine this matter in any of the various stages provided for its determination by the rules of the order, then he may come into court and sue and ask the court to determine his right to recover; and if he has a right to recover, he may recover it in the court.”

The request to charge was too broad in this respect, that it robs the civil courts of their jurisdiction in a matter for the recovery of money, by an agreement made in advance of the accruing of any claim or demand. The case of B. & O. R. R. Co. v. Stankard, 56 Ohio St., 224, is to some extent in point, and shows that after the settlement of preliminary matters and the fixing of the amount due, the courts cannot be robbed of their jurisdiction to compel payment. The right to appeal to the courts for the redress of wrongs is there held to be inalienable, but is by mistake printed “alienable.” The same mistake was made in Palmer and Crawford v. Tingle, 55 Ohio St., in fourth line from the top of page 443 where the word “inalienable” is printed “alienable.”

It is urged that the right to resort to the civil courts for redress may be waived, and cases are cited, among others, Butt v. Green, 29 Ohio St., 667, 671, Avherein it is held that a party may waive constitutional and statutory provisions intended for his benefit and protection. No fault is-found with that case, but it is not applicable to the question here under consideration. The distinction is this: after a right has accrued or an obligation has been incurred a party may waive his rights or refuse and neglect to enforce them, or he may by contract bind himself to submit the matter to arbitration or other special remedy. But a party cannot bind himself by contract in advance to renounce his right to appeal to the courts for the redress of wrongs. If this could be done an association might be formed in the state which would renounce our constitution and laws, and set up a different system of government for themselves, and in case of wrongs and oppression they would be debarred from resorting to our courts, and would be compelled to submit to the decisions of their own tribunals, and would most likely become dissatisfied and disorderly, resulting in riot and bloodshed. • The AA hole state has an interest in all its inhabitants, and it is to its interest that the rights of all should be protected and enforced according to the course of jurisprudence it has provided; and for that reason its courts are ahvays open for the redress of wrongs, and no person can by contract in advance, deprive himself of the right to appeal to them. As pointed out, in the case of B. & O. R. R. Co. v. Stankard, supra, contracts may provide for ascertaining and fixing certain matters in a particular manner, but the ultimate adjudication of the questions of law must, remain in the courts, unless waived after the rights, have accrued, or the obligations have been incurred. Jurisdiction cannot be conferred upon courts by contract, and it cannot be taken away by contract; but in certain cases a party may be estopped by his contract from invoking the jurisdiction and aid of a court in his behalf.

The Stankard case is different from the case at bar in this: In that case the construction of language,, the meaning of the regulations, or of any writing, decision, instruction or acts was to be conclusively determined by the superintendent, or by the committee-on appeal, and it was held that the court could not be-robbed of its jurisdiction to put its own construction upon such matters. In the case at bar it is claimed by the lodge that the tribunals of the order have sole-jurisdiction of the subject matter, and that the courts, cannot take jurisdiction in any event to compel payment of sick benefits. The claim is too broad. If the lodge refused to proceed substantially as required by its laws to settle the dispute as to sick benefits, or, if the right to such benefits should be determined in favor of the claimant and the lodge should fail to pay the same, an action might be maintained for the recovery thereof, but mere irregularities in the proceeding could not be regarded as a refusal to act. To authorize an action in court there should be no pretense-of a proceeding in the lodge-under the laws of the order upon proper request by the claimant for the settlement of the right to sick benefits, or else the proceedings should be so defective in substance as to render a judgment in a court of justice under the same circumstances null and void. There was therefore no error in refusing the charge as requested.

The next question is as to the charge as given, to which there was an exception. The lodge referred the dispute as to sick benefits to a committee of three as provided by the laws of the order, and that committee reported adversely to the claimant, and when he was present in the lodge and no further notice to him required, the lodge acted upon the report and unanimously adopted it, and thereby determined that he was not entitled to sick benefits. This was conclusive against him unless he should succeed in changing the result by a proceeding in one of the higher tribunals of the order. He gave notice of appeal, this seems to be conceded by all. He says that he obtained a transcript from the secretary, Avhile the secretary says he does not recollect of giving him a transcript and does not remember that he asked for, or demanded one. There is no claim or pretense that the lodge or the secretary refused to give him a transcript. The lodge therefore did all that the laws of the order required to enable the plaintiff to perfect his appeal and establish his right to sick benefits before the Grand Committee. The lodge had a determination in its favor, and by giving him a transcript did all in its power, and all the laws of the order required of it, to enable him to perfect his appeal; and if he thereafter failed in his appeal, it Avas his misfortune and not the fault of the lodge; and the lodge'could not be held in an action at law because he failed to secure a hearing before the Grand Committee on his appeal. The members of the lodge formed no part of the Grand Committee in the hearing of his appeal. By obtaining the request of five Past Grands in his district he could have compelled the District Deputy Grand Master to convene the committee and hear his appeal. It was his duty and not the duty of the lodge to see to the convening of the Grand Committee, and his failure to induce the District Deputy Grand Master to convene the Grand Committee, could not be charged against the lodge, and could not give him a right to sue the lodge for sick benefits which it had been determined by the laws of the lodge that it did not owe to him. As well might a party who has been defeated in a court of justice and appealed to a higher court, and failed for any cause to perfect his appeal, claim that by reason of such failure he has the right to begin a new action to recover his demand.

The court charged that “if for any reason they have refused to hear and determine this matter in any of-the various stages provided for its determination by the rules of the order then he may come into court, etc.” This is too broad. The lodge was not responsible for what occurred in the various stages in the higher tribunals after it got beyond the lodge. The determination was against him in the lodge, and after the transcript was furnished to him by the lodge, the burden was thereafter on him to get rid of that determination, and if he failed in his appeal by reason of his own negligence or the negligence of others than the lodge, he cannot hold the lodge responsible for such negligence, and cannot make the same a basis of an action against the lodge. There was therefore -error in the charge as given.

One ground of error in the action for a new trial and also in the petitions in error, is that the amount of the verdict is excessive. The special verdict shows that the time was calculated to September 21, 1896, while the petition was filed December 30, 1892, and', it is averred that he was expelled from the order August 4,1891. It seems clear that he could not recover' for sick benefits which had not accrued when he filed, his petition, and that no sick benefits could accrue-after his expulsion. The verdict was therefore excessive.

For the errors above pointed out the judgments below Avill be reversed and a new trial granted as to the

claim against the lodge, and as to the other defendants below, final judgment will be entered in their favor.

Judgment accordingly..


author:
Minshall, J.
      Spear, J.,

text:
    Ward et al. v. Ward.

      Man under contract of marriage — Conveys land to sons without consideration — And without Tcnoioledge and consent of contemplated wife — Does so in fraud of her marital rights.

    A conveyance by a man who has entered into a contract of marriage, which subsequently takes place, of a portion of his land to his sons by a former marriage, without consideration other than love and affection, and without the knowledge or consent of his contemplated wife, is a fraud on her marital rights, and she, at his death, is entitled to dower therein
    (Decided June 19, 1900.)
    Error to the Circuit Court of Richland county.

      Bell & Brinherhojf, for plaintiffs in error.

      Laser & Huston, for. defendant in error.
   Minshall, J.

The plaintiff below as appears from lier amended petition, being the widow of John Ward, deceased, brought suit to set aside certain antenuptial deeds that had been made by her husband to his children by a former wife, and to be endowed in the lands, on the ground that the conveyances were voluntary and in fraud of her rights as a wife, she being without knowledge of the facts at the time of the marriage. The case was appealed to the circuit court and there decided in favor of the plaintiff. There is no finding of facts, the finding being simply in favor of the plaintiff and that she is entitled to dower in the land. But a bill of exceptions was taken containing all the evidence and made part of the record. The material facts are, however, not in dispute. Prior to November 18, 1892, John Ward, a widower, living in-Rich-land county, Ohio, was the owner of 106 acres of land, which he had acquired during the life of his first wife. He had five children all grown and married, three sons and two daughters. His eldest son, O. C. Ward,, lived on the premises and occupied a house on seven and a fraction acres which he had purchased from his father for $300, but for which he had no deed. As to this tract, however, there is no controversy. On November 18, 1892 in contemplation of marriage he executed and delivered to O. O. Ward a deed for twenty-five acres, including the seven acres and a fraction. On the next day he executed a deed to H. N. Ward for about thirteen acres ; and on November 23, 1892, he executed a deed to his other son for eighteen acres; and in the evening of the same day he married Catherine Stough, who is now his widow and plaintiff below. There is some controversy as to when these deeds were delivered; but we will assume that they were delivered, as claimed, before the marriage. She, however, had no knowledge of their existence at the time of the marriage, nor until after the death of her husband when they were placed on record. They were, in each case, voluntary deeds supported by no other consideration than the love and affection of a. father for a son, except as to the seven acre tract contained in the deed to the eldest son, and which, as we have stated, is not in question.

The question then arises upon this state of facts, whether the plaintiff is entitled to dower in the lands covered by these deeds, except the seven acres. We think she is. They were all voluntary deeds made in contemplation of marriage. It can make no difference in principle whether actual fraud was intended, or not, their execution and delivery beforethemarriage,, without her knowdedge or means of knowledge, opera ted a legal fraud on wliat Avould be her rights in case of marriage. A desire to provide for the children of his former ivife Avas both natural and proper, but as they had no legal claims upon his bounty, before he could rightly, in contemplation of marriage, dispose of his property to them for such purpose, it became his legal duty to disclose bis purpose to one who, by her intermarriage with him, would become vested by law with a legal interest in the property that could not be divested without her consent. A father’s legal duty to his children in no case requires him to practice a fraud on his wife or any one else. If, after entering into a contract of marriage, if not before, he desires to make provision for his children by a former-wife, it is his duty to communicate that fact to his intended wife, if thereby her rights are to be affected, that she may have an opportunity to say whether she consents to the disposition before consummating the agreement to marry. A failure to do this is, at least, a constructive fraud. In Arnegaard v. Arnegaard, 7 N. Dak., 475, where the question has received careful consideration upon principle and authority, it is, said: “Whatever may have been formerly held, it has become settled in these latter days that the purpose to deceive and defraud the other prospective spouse is imputed to the one Avho makes the attempted transfer, and conceals the fact until after marriage.” In England, for reasons largely relative to the custom that there prevails of making a settlement in lieu of dower, called a jointure, before marriage, less consideration has been given to antenuptial conveyances by the husband, while such conveyances by the Avife are uniformly held invalid. But in this country no such distinction is made : and the decisions are, as said in the case just cited, practically unanimous that the mere fact that a secret transfer was made after the engagement, is conclusive on the question of fraud so far as the right of dower is concerned. In some of the cases the element of actual fraud was shown v to have existed, and some of the rulings are placed on that ground, but, as said in the case just referred to: “In the great majority of cases the broad rule is enunciated that a man owes to the woman to whom he is betrothed the utmost good faith, and that he cannot consistently with that sacred obligation, secretly divest himself of property in which she would by marriage secure rights which would thereafter be beyond his control.” This proposition is fully sustained by the decisions: Swaine v. Perine, 5 Johns. Ch., 482; Chandler v. Hollingsworth, 3 Del. Ch., 99; Smith v. Smith, 2 Halstead Ch., 515; Youngs v. Carter, 50 How. Prac., 110, affirmed on appeal, 10 Hun., 191; Cranson v. Cranson, 1 Mich., 230; Pomeroy v. Pomeroy, 51 How. Prac., 228; Davis v. Davis, 5 Mo., 183; Gainor v. Gainor, 26 Iowa, 337; Thayer v. Thayer, 14 Vt., 107. See also Stewart Marriage & Divorce, section 44. Beach on Cont., section 1309.

In Westerman v. Westerman, 25 Ohio St., 500, it appeared that the wife in contemplation of marriage with the plaintiff and after she had entered into the engagement, conveyed certain of her lands to two sons by a former marriage without consideration. The land had not been fully paid for, and the husband was compelled by suit to pay the balance of the purchase money. The court held the conveyance to be a fraud on the marital rights of the husband; that the wife was primarily liable for the amount due, and substituted the husband, for the purpose of indemnity, to the place of the vendor as against the land. This case recognizes the principle that the parties to a contract of marriage are bound by the obligations of good faith; and that neither can thereafter by voluntary gifts affect such legal rights as either may acquire in the property of the other by marriage without the consent of the party to be affected.

After adverting to the rule in England that permitted a man, after contracting marriage, to make ante-nuptial conveyances of his lands, and the rigidity with which a like right was denied to the contemplated wife, and, pointing out the reason for this difference, Daniels, J., in Youngs v. Carter, supra, says: “There never was any good reason why the disability imposed in this respect upon the wife, should not be equally applied to the conduct of the husband. If it was inequitable for her to convey away her property in anticipation of marriage, in order to prevent it from becoming subordinate to her husband’s anticipated rights in it, it was equally so for him to do the same. The principle that restrained her should be equally as effectual over him ; for, if the act of one was a fraud, it was certainly no less so when it was performed by the other. In Chandler v. Hollingsworth, supra, the inability of the husband by an antenuptial conveyance to affect the wife’s right of dower after the contract of marriage has been entered into, without her knowledge, is placed on the ground, that dower is a property right, which she acquires by the marriage, and that such conveyance is as much a fraud on her rights, as a conveyance to defraud future creditors. Speaking of the “unjust discriminations made by the English courts of equity, in withholding from the wife such protection as is given the husband against secret antenuptial settlements,” and the reasons therefor, the chancellor says: “But in this counLry, clearly the same reasons do not apply. Her dower is the only provision made by law for the wife out of the husband’s real estate. Practically it is a most important resource, and the only form of provision out of real estate enjoyed by her, except under wills. It does, in fact, to a large extent, enter into the wife’s expectations in contracting marriage, and properly so. It, therefore, ought to receive all the protection accorded to any marital right; to refuse it would, in this country, where jointures are unknown, render the right of dower precarious, if not wholly illusory.”

It may be worth while to observe that the settlement of a jointure on a wife before marriage, in lieu of dower, freed the remaining lands of the husband from the marital right of the wife to dower in his remaining lands; and so antenuptial conveyances, under such circumstances, by a man under contract to marry, would not be open to the same imputation of bad faith, as where no such settlement had been made. For the reason and origin of the rule in England as to antenuptial conveyances by the husband, see the intelligent account given by the chancellor in Chandler v. Hollingsworth, 3 Del. Chan., at pp. 115, 116.

This annunciation of the law does not interfere with the power of the contemplated husband to make provision for his children by a former marriage; it only requires that in doing so, he shall not dispose of that, which, by the law of marriage, the wife will acquire as a legal right incident to the relation. He may dispose of his property in this regard as he thinks proper, subject, however, to his wife’s right of dower.

Judgment affirmed.

Spear, J.,

dissenting. I ara of opinion that a widower who is contemplating a second marriage and has entered into a contract for that purpose, has a legal, as well as a moral right, to convey a fair proportion of his real estate to his children by the deceased wife, and that love and affection is a sufficient consideration to support such conveyance. Nor is such conveyance in any sense an injustice to, much less a fraud upon, the second wife, and ought not to be even a disappointment to her. I am not ready to accept the implication of mercenary motives on her part which the opposite doctrine supposes.

The statute gives the widow dower in the lands of which her late husband died seized. The deceased did not die seized of .the lands in controversy in this case, and hence the defendant in error is not entitled to dower.