source: Caselaw Access Project

author: McIlvaine, G. J.

license: Public Domain

text:
    Teeters v. Lamborn.

      Promise of debtor to second mortgagee to remove lien of first mortgage, whether valid— Whether within statute of frauds — Extension of time by mortgagee to purchaser of premises — Effect upon debtor.

    1. A dobtov executed a note and second mortgage to his creditor, and afterward, in consideration that the creditor would relieve him from personal liability on the note, and look solely to the mortgage for payment, agreed to remove and discharge the first mortgage, so that the second should become the first lien on the premises, whereupon the creditor released, in writing, the, debtor from personal liability on the note. ' Held: 1. The promise of the debtor to remove and discharge the first mortgage is valid. 2. Such promise is not within the statute of frauds, and need not be in writing.

      2. A debtor who has given a note secured by a mortgage on real estate to his creditor sells the mortgaged premises to a third person, who, in part consideration of the purchase, assumes and agrees with his vendor to pay the mortgage debt, of all which the creditor has notice. Afterward, without the knowledge of the debtor, the creditor agrees with the purchaser, in consideration of the payment of interest in advance, to extend the time of payment. Held: 1. By such extension of time the debtor is not discharged from all liability on the note. 2. That, in equity, such debtor is released from liability to the extent of his loss by reason of such extension.
    Error to the District Court of Stark county.
    The record before us for review is quite complicated, being the records of two causes pending in the court of common pleas of Stark county, which were consolidated and tried together by order of the court. We will state only so much of the ease as is necessary to understand the questions decided.
    The action first commenced, and numbered 699, was brought by Levi L. Lamborn against Teeters & Son on a promissory note given on May 81, 1870, by defendants to plaintiff, for $9,858, with eight per cent, interest, payable in one year.
    This note was secured by mortgage on certain real estate owned by the makers, which mortgage was subject to a prior mortgage lien for $4,000, held by one P. C. Hull on the same premises.
    The defendants answered :
    Eirst defense. That on July 14, 1873, the plaintiff, being then the owner of the note and mortgage, by a certain written agreement did discharge and release them from all personal liability on said note, and did agree to look solely to the mortgage lien for satisfaction thereof, in consideration, among other things, of the agreement of said defendants to remove and discharge the priority of the Hull mortgage on said premises, so that said plaintiff’s mortgage lien should become the first lien thereon.
    Second defense. That on June 5, 1873, the defendants sold said mortgaged premises to one II. E. Rawson, subject to said mortgages of Hull and plaintiff, and tha't Rawson, as part of the purchase-money and price, did agree with defendants that he would assume and pay to plaintiff the debt secured by his said mortgage, and that plaintiff knew of said agreement and assumption and assented thereto ; that afterward, on July 1, 1878, said Rawson sold said mortgaged premises to one Silas Bigelow, who agreed, as part of the consideration of the purchase of said premises, to assume to pay the said mortgage debt so held by plaintiff; that the plaintiff had knowledge of the assumption and agreement of Bigelow and assented thereto, and adopted him, Bigalow, as his sole debtor for said debt; that' afterward, on November 20, 1873, said plaintiff entered into an agreement with said Bigelow to extend the time of payment of said debt, and did receive from him interest in advance for the period of ninety days, without the knowledge or consent of defendants.
    The plaintiff demurred to these defenses. The demurrerto the first was sustained; but the demurrer to the second was overruled. Thereupon the plaintiff replied to the second defense, denying the facts therein set forth.
    On the issue thus joined the case was tried, and judgment rendered for the defendants.
    A motion for a new trial, on the ground that the judgment was contrary to the law and contrary to the evidence, was overruled, and a bill of exceptions containing all the testimony was made part of the record.
    The action consolidated with the foregoing was numbered 970, brought by same plaintiff against same defendants. The following is a copy of the petition :
    “The said plaintiff says that, on the 31st day of May, 1870, the said defendants, who were then partners in the banking business, by the firm name of E. Teeters & Son, for a valuable consideration, executed, in the name of said firm, and delivered to the plaintiff their promissory note of that date, for the payment of the sum of $9,858 to the plaintiff, or order, one year after date, with eight per cent, interest, to be paid semi-annually.
    “Before the maturity of said note the plaintiff assigned the same to Lydia B. Clayton; and, on the 2lst day of November, 1871, while she was the owner thereof, the defendant, Richard W. Teeters, executed and delivered to her, to secure the payment of said note, his mortgage deed of that date, whereby he conveyed to her, her heirs and assigns forever, lots numbered sixty and sixty-one, in E. Teeters’ addition to the incorporated village of Alliance, in said county of Stark, which mortgage was left for record on the 12th day of December, 1871, and duly recorded on the 30th of the same month.
    “Prior to the 14th day of July, 1873, the said Lydia B. Clayton, for a valuable consideration, reassigned said note and transferred said mortgage to the plaintiff. Said mortgage was subject to a prior mortgage on the same real estate, executed and delivered to one Patrick C. Hull on the 1st of June, 1870, and duly recorded, to secure the payment of a promissory note, of the same date, for the sum of $4,000.
    “ On the 14th day of July, 1873, the plaintiff, being then the owner of said note and mortgage first described, made and entered into a written contract of that date with the defendants, which was signed by the plaintiff, and by him delivered to the defendants, who accepted and assented to the same, whereby the defendants agreed, in consideration of the plaintiff’s part thereof, to remove and discharge the priority of said Hull’s mortgage, so that the one held by the plaintiff, as aforesaid, should come in as a first lien upon said real estate, for the purpose of payment in case of a foreclosure. In consideration of which agreement of the defendants, and for no other or further consideration, the said plaintiff, by said contract, agreed to look for the satisfaction of his said note to the said mortgaged premises, a copy of which written contract is hereto attached and herewith filed and made a part of this petition.
    “The plaintiff further says he was always ready and willing and offered defendants to duly perform the conditions of said contract on his part to be performed, but the defendants were unwilling and failed and refused, in any manner, to remove or discharge the priority of said Hull’s mortgage, so that said mortgage of plaintiff' should, or could, come in as a first lien on said premises in case of foreclosure, for the purpose of payment. On the contrary, on the 11th day of October, 1873, the said Hull commenced an action in this court to foreclose his said mortgage ; in which action the plaintiff, the defendants and others were made defendants, and duly served with a summons; and such proceedings were had in said action that both mortgages were foreclosed therein, and that of said Hull was adjudged to have priority over that of the plaintiff, and said real estate was ordered to be sold in said action, and the sheriff was ordered, out of the proceeds of sale, to pay : first, the costs; second, the amount of the decree on the said mortgage of said Hull, to wit, the sum of $4,030.50, with interest from September 17, 1874; and, third, the amount found due the plaintiff on his said mortgage, to wit, the sum of $9,506.22. 'Afterward, one William P. Martin was, on his own motion, made a defendant in said action, and set up a lien on said premises arising out of a purchase of the same at tax sale ; and the court ordered tbe said sheriff, out of the proceeds of the sale of said real estate to pay to said Martin, the sum of $1,328.
    “ The sheriff, under said order, sold said real estate for the sum of $8,667, out of which he paid, first, the costs, amounting to $317.90; second, said sum of $1,328 to said Martin; third, on the 27th of August, 1878, in full of said Hull decree, the sum of $4,943.37; and, fourth, on the 23d of July, 1878, to the plaintiff, on his said decree, the sum of $1,318.16; and on the 6th of December, 1878, the further sum of $620 on the same, making together the sum of $1,938.16, which is the entire sum the plaintiff has received or can realize on his said claim out of said premises ; and, after giving defendants credit for said sum, and also for all other payments made on the same, there still remains due to the plaintiff thereon a sum exceeding $8,500.
    “ If the defendants, within a reasonable time after making said contract, had removed or discharged the priority of the said Hull mortgage, as by said contract they were bound to do, the said mortgage owned by plaintiff" would have been full security for his said claim; but, in consequence of the failure and refusal of defendants to do so, thereby violating and breaking their said contract, the plaintiff'has only been able to and can realize out of said mortgage property, on his suit claimed, said sum of $1,938.16, to the damage of plaintiff in the sum of $9,000.
    “ Wherefore, plaintiff demands judgment against defendants for said sum of $9,000, his damages sustained, as aforesaid; or, if necessary and effectual, to give the plaintiff an adequate and full remedy for defendants’ said breaches of contract, that the court may adjudge and declare said contract rescinded and annulled, and for other proper relief.
    “ S. V. Essicit,
    “Erease & Case,

      “Attorneys for Plaintiff.”

      Copy of written agreement referred to in the petition.

    “ Be it remembered that, on the 31st day of May, 1870? the firm of E. Teeters & Son executed their note of hand for the sum of nine thousand eight hundred and fifty-eight dollars, payable to L. L. Lamborn, in one year from the date thereof; and that whereas, said Lamborn, before the maturity of said note, assigned the same to one Lydia B. Clayton; and that whereas, after said note became due, to wit, on the 21st day of November, 1871, at the request of said Lydia B. Clayton, R. W. Teeters, one of the firm of E. Teeters & Son, for the purpose of securing said note, then executed his certain mortgage deed on lots Nos. 60 and 61, in E. Teeters’ addition to Alliance, Ohio, as will more fully appear by reference to the mortgage lien records of Stark county ; and that whereas, since said 21st day of November, 1871, the said L. L. Lamborn has again become the owner of said note and mortgage; and that whereas, said mortgage is now, at this date, the second lien upon said lots 60 and 61, and being subject in its priority to one held by P. C. Hull for four thousand dollars. Now, in consideration of an agreement on the part of said E. and R. W. Teeters to remove and discharge the priority of said Hull’s mortgage, so that the one held and owned by me shall come in as afirst lien upon said lots, for the purpose of payment in ease of a foreclosure, I now hereby, for divers valuable considerations received, do hereby discharge Elisha and R. W. Teeters from any personal liability on said notes so secured by said mortgage lien, and now hereby, by these presents, agree to look for the satisfaction of said note to the mortgaged premises alone.
    “ July 14, 1873. [Signed.] L. L. Lamborn.
    “Attest: Jambs Amerman.”
    To this petition the defendants demurred, and the court of common pleas sustained the demurrer, and final judgment was rendered for defendants.
    On petition in error, the judgments on the consolidated actions were reversed.
    This proceeding is prosecuted to reverse the judgment of reversal.

      J. J. Parker, for plaintiff in error.
    It appears by the petition that the Teeters did not agree in writing to pay the debt, and the demurrer to the petition raises the question of the statute of frauds. Brandt on Sureties, §§ 60, 61 et seq.; Sturges v. Burton, 8 Ohio St. 215. The right of the plaintiff, Lamborn, to recover on the writing, even if the writing had been signed by the Teeters, depended not on Lamborn’s willingness and readiness to perform his agreements therein specified, but also on the condition that he absolutely discharged' the defendants from any liability on the note of May 31, 1870. The petition does not state that Lamborn has discharged the Teeters from that note.

      We contend that when an owner of land owes a debt, secured by mortgage given by him thereon, sells the land, and the purchaser assumes to pay the debt so secured by mortgage as a part of the consideration, that such purchaser is legally bound to pay the debt, and the creditor may maintain an action on the promise against the purchaser; that where such purchaser so assumes the payment of the mortgage debt he becomes the principal debtor for the debt, and the original debtor is only the surety, and if the creditor, with a knowledge of the contract in regard to the assumption of the debt by the purchaser, accepts him as the debtor, that he has no longer any claim against the original debtor for the debt. We admit that unless it appears that the creditor has released the original debtor, the original debtor still remains liable, but only as surety; and, if the time or the payment of the debt be extended by agreement between the purchaser and the creditor, without the knowledge or consent of the original debtor, that such extension releases the original debtor. 6 Moak Eng. Rep. 642; 11 Moak Eng. Rep. 27; 69 N. Y. 280 ; s. c., 25 American Rep. 195, with a full note; 124 Mass. 254; 26 N. J. Eq. 504; 36 Mo. 384; 73 N. Y. 215.
    The relation of principal and surety may arise after the original contract is entered into. 11 Ohio, 444.
    If a creditor learns of the relation of surety to his debt he will release the surety if he extends the time for payment. 11 Moak Eng. Rep. 27, and note.
    The fact that Lamborn did accept the promise of Bigelow may be proven by the receipt by him of interest from Bigelow.
    The deed to Bigelow was notice to Lamborn. 25 Moak Eng. Rep. 644; 76 N. Y. 274.
    The receipt of interest in advance is evidence of an extension of time. 26 Ill. 282 ; Brandt on Sureties, § 305.

      Frease Case, for defendant in error.
    I. a. The statute of frauds should have been set up by answer. Ogden v. Ogden, 4 Ohio St. 191; Seymour v. Mitchel, 2 Root (Conn.), 145.

      b. A contract will never be defeated by the statute of frauds, unless it be affirmatively shown to be within that statute. See cases above cited.

      c. That the statute of frauds may apply, it must appear that the promise to pay the debt of another, was made to the original promisee of that debt. In this case the promise should have been made to Hull. Brandt on Suretyship, § 58, and cases cited.

      d. Butfif we are wrong in both the last positions we yet maintain that their contract was not within that statute, because it appears by it “'that the main purpose and object of the promisors was not to answer for another, but to sub-serve some pecuniary and business purpose of their own involving a benefit to themselves, and a damage to the other contracting party.”

      e. The benefit to themselves was to be discharged from the Lamborn debt, and the damage to Lamborn the loss of their personal liability. Brown on the Statute of Frauds, sec. 212, note 1; Emerson v. Slater, 22 How. (U. S.) 28; Brandt on Suretyship, sec. 56, and cases there cited.
    II. a. It was not necessary that the petition should show that Lamborn performed his part of the contract. Lam-born was not bound to do any thing. By paying off the Hull mortgage, the Teeters would, ipso facto, have been discharged. No technical release would have been required.

      b. But if we are mistaken in this, we insist that at most Lamborn was not required to release, except concurrently with performance by the Teeters. Readiness to perform was all that -was required of him, until they were also ready.
    III. a. Payment of and receiving interest in advance is not, in itself, an agreement to extend time, and certainly not when the creditor refuses to extend time. Bank v. Bishop, 6 Gray, 317; Brandt on Suretyship, sec. 305; 8 Gin. Law Bull. (Dec. 11, 1882), 306; Rawson v. Taylor, 30 Ohio St. 405; Gard v. Neff, 39 Ohio St. 607. It is equivalent to the reservation of a right to sue. Osborn v. Low, 40 Ohio St. 347.

      b: Did Lamborn know, if he extended the time, that Bigelow had assumed his mortgage debt?
    Such knowledge was necessary, else he could not be held to know that Bigelow had become principal and the Teeters only sureties.
    "We deny that the law, in this state, is that where a mortgagee has knowledge that his mortgagor has sold the mortgaged premises to a purchaser, who as a part of the purchase price has assumed the mortgage debt, and with such knowledge extends the time of payment of the debt, for a sufficient consideration, by an agreement with the purchaser, without the consent of the mortgagor; that this, in itself, discharges the mortgagor from the debt, or, as between him and the mortgagee, converts the purchaser into the principal, and the mortgagor into the surety, only, in the debt. Lawson v. Taylor, 30 Ohio St. 389, and Maingay v. Lewis, 3 Irish R. C. L. 495, there cited; Meyer v. Lathrop, 10 Hun. 66; affirmed in 73 N. Y. 315; Corbett v. Waterman, 11 Iowa, 87.
   McIlvaine, G. J.

Ve will first consider the questions raised by the demurrer to the petition in case No. 970. The cause of action contained therein may be stated thus: The defendants, in consideration that plaintiff would release them from personal liability on the note held by him against them, and look to the mortgage security solely for his pay, promised the plaintiff to remove and discharge the prior lien of Hull upon the mortgaged premises, so that the plaintiff’s mortgage would become the first lien thereon. The debt for which Hull held a lien was the defendants’ debt, and they were the owners of the equity of redemption.

The plaintiff released the personal liability of defendants in writing, but the defendants failed to perform their promise. Hull’s mortgage was foreclosed and was held to be a prior lien to that- of plaintiff. Of'the proceeds of mortgaged premises Hull received $4,9-13.37, leaving a balance insufficient to satisfy plaintiff’s claim.

We can see no defect in tbe cause of action thus stated. It is contended by plaintiffs in error that the petition did not state facts sufficient to constitute a cause of action, inasmuch as it did not aver “that defendants had agreed in writing to pay the debt due to Hull.” It was not necessary to so aver. The debt to Hull was their own debt and not the “debt of another.” The case was not within the •statute of frauds. It was sufficient to allege a verbal promise.

It is also contended that it was not alleged that Lam-born had released defendants from personal liability on the note. We understand from the petition that such release was actually made.

Eor error in sustaining the demurrer to this petition, we think the judgment of the court of common pleas was rightfully reversed by the district court.

If the facts be as stated in the petition in case 970, or as stated in thq first defense in the answer in case 699, as they are admitted by the demurrer to be, the personal liability of defendants below' on the note sued on in case 699 can not be maintained, and as such personal liability is the only contention in 699, it would follow that the matter set up in the second defense in the answer in case 699 would be wholly unimportant and immaterial betw’een the parties. True, the demurrer to the first defense was sustained, but as final judgment in the case was rendered for the defendants, no complaint as to that.ruling on the demurrer was made in the district court and none is made here, yet it follow's from what has been said above as to the sufficiency of the petition in 970, that the demurrer to the first defense in 699 ought to have been overruled.

The admission of the facts by the demurrer, however, is to be regarded only for the purposes of the demurrer, and if it turn out that the facts so pleaded be not true, the matters set up in the second defense, upon which issue was taken by reply, become material in the case.

The matters relied on in the second defense raise this question : Where a mortgagor sells the mortgaged premises to a third person who, as part of the price, assumes and agrees with the mortgagor to pay the mortgage debt, of which assumption the mortgagee has notice, does an agreement with the purchaser by the mortgagee to extend the payment of the mortgage debt, without the consent of the mortgagor, discharge the mortgagor from personal liability to pay the debt?

The question raised here does not involve the element of novation of the debt, as it is clear from the testimony that the mortgagee did not agree to accept the purchaser as his sole debtor.

The point relied on by plaintiffs in error is, that after such assumption by the purchaser he becomes the principal debtor, and the maker of the note is his surety merely, so that the familiar doctrine applies, that the giving of additional time for payment by the creditor to the principal debtor, by a valid agreement between them, without.the knowledge or consent of the surety, releases the surety.

The solution of this question, we think, depends upon another. It may be admitted that as between mortgagor and purchaser, the relation of principal and surety exists, but, whether the creditor is effected thereby is another question. We are aware that decided cases differ upon this point. Boardman v. Larrabee, 51 Conn. 89; Murray v. Marshall, 94 N. Y. 611.

In our own state, the general doctrine is discussed in Ide v. Churchill, 14 Ohio St. 372, but the exact point is not decided. It is, however, laid down that “any material alteration of the terms of the agreement to which the surety acceded, made by a valid agreement between the principal parties, without his consent, will work his entire discharge from all liability; but where the original obligation remains unchanged, and only his equitable rights or remedies have been invaded by the wrongful act or omission of the creditor, he will be relieved only to the extent of his actual injury.”

At the time the note in suit was executed, Teeters & Son became absolutely and in all events bound to Lamborn for the payment thereof. This obligation was without condition, and no alteration has been since made by the contracting parties.

Teeters & Son afterward, for a valuable consideration, obtained a promise from a third person to pay the note, whereof the payee had notice, but he was not a party to this contract. True, he consented to receive payment if tendered from the third person, but he did not consent to look to such third person as his sole or even principal debtor. The obligation of the makers of the note as to him remained as it was when the note was executed.

The fact that the creditor could enforce the promise of the purchaser by action in his own name does not change the legal relations between the parties. The right to such remedy on collateral securities held by the creditor would also exist, but the relation of creditor and principal debtor existing between the parties to the note is not thereby changed.

No doubt any loss sustained by the debtor by reason of the extension of the time of payment given by the creditor to the purchaser would, pro tanto, discharge the debtor, but we can find no good reason for holding that the mere facts of such extension should, ipso facto, discharge the debtor from, his liability to pay the whole or any portion of the debt,-whether or not any loss resulted from such extension.

The second defense does not allege auy loss or damage to the defendants by reason of the extension. We are of opinion, therefore, that it did not state facts sufficient-to constitute a defense to the action.

Judgment affirmed.


author: Okey, J.

text:
    Ranney v. Hardy — Zeller v. Bading.

      Occupation of premises notice to mortgagee — Deed—Contract for — Rights of subsequent mortgagee — Payment—Evidence of.

    1. A. loaned to B. a sum of money, receiving B.’s promissory note and a mortgage on real estate to secure the same; but when A. accepted the note and mortgage, C. was in actual possession of the premises, and resided thereon with his family. Held., that A. was chargeable with notice of O.’s rights and interest in the premises; and A. having assigned the note and mortgage, his assignee occupied the same situation; nor will the fact that A. and his assignee did not know that O. was in possession, make any difference.
    2. B. sold to O. real estate, placed him in possession, and agreed in writing to execute to him a deed on payment of the purchase-money in monthly installments. Subsequently B. executed to A. a mortgage on the premises, which was recorded. Held, that such mortgage was valid, hut subordinate to the rights of C.; that O. may, validly, make payments of purchase-money to B., until A. or his assignee, by suit or in some other unequivocal form, asserts the right to receive from C. the unpaid installments of purchase-money; and that the assignee of O. has the same right.
    3. The assignee of A. asserted, by action, his right against B., 0., and the assignee of 0., to such unpaid purchase-money. Held, that a deed from B. to the assignee of 0., reciting the payment of the purchase-money, is not, as against the assignee of A., evidence of such payment.
    Error to tbe District Court of Cuyahoga county.
    April 23, 1872, J. II. Hardy, owner in fee of real estate in the city of Cleveland, known as lot 17, entered into a contract in writing with J. C. McKinnon for tbe sale of it to him for $1,300, payable $20 in band and the balance in monthly installments of $20. McKinnon made the advance payment and was placed in possession of the premises. In the month following [May 9, 1872], Hardy borrowed of David Rauney $1,500, and gave him a promissory note for tbe amount, payable in one year. He also executed and delivered to him a mortgage on three parcels of real estate, one of which was lot 17; but before accepting the mortgage, Ranney went upon the various parcels of real estate embraced in it, and saw McKiunon’s wife and children occupying the dwelling-house upon lot 17. The mortgage was entered for record on the day of its execution and was recorded the same month. McKinnon remained in possession with his family until November 23,1874, paying Hardy in the meantime, on the the contract, $620, at which time he sold and assigned all his right, title, and interest in the premises to Michael Scanlon and placed him in possession. Scanlon having remained in possession until June 3, 1875, and in the meantime paid to Hardy $120 of the purchase-money, sold and assigned all his right, title, and interest in the premises to John Caldwell, and placed him in possession, and, on the same day, Hardy, his wife joining, executed to Caldwell a. deed in fee-simple for the premises, with covenants of warranty and seizin, and against incumbrances, which deed was recorded the same month. In the meantime, on February 19, 1875, David Ranney assigned and transferred the note and mortgage to C. W. Ranney.
    January 3, 1877, C. W. Ranney brought suit in the court of common pleas of Cuyahoga county to foreclose the mortgage. Among the defendants were Hardy, Scanlon, and Caldwell. After a trial in the court of common pleas, the cause was- appealed to and tried in the district court. There it appeared that neither McKinnon, Scanlon, nor Caldwell had ever heard of the existence of the mortgage to Ranney, until at a time subsequent to the execution and .delivery' of such deed to Caldwell. There is no express finding that all the purchase-money had been paid, but in the answer of Scanlon and Cakhvell, it is averred that it was all paid before the execution of such deed, though this is denied in the reply, and the only proof as to payments, except that above stated, is the deed, in which it is recited that the consideration of $1,300 had been paid by Caldwell. All the lands embraced in the mortgage would not sell for sufficient to satisfy the mortgage debt.
    The district court held that Ranney was not entitled to enforce his mortgage against lot 17 for any sum whatever, and this petition in error is filed to reverse that judgment.

      Zeller v. Bading is a case which was prosecuted in the court of common pleas and carried to the district court of the same county. In its material facts it is not distinguishable from Ranney v. Hardy, except that the mortgagee, Zeller, when he accepted the mortgage, did not know that .Bading, the purchaser, was in possession of and resided upon the premises. In both courts the judgment was in favor of Bading, and this petition in'error is prosecuted by Zeller to reverse the judgments.

      JL. H. Ware, Mix, Noble 'White, and Burke § Sanders, for plaintiffs in error.

      Adams § Bishop, Wilson ‡ Lykora, and Robinson § White, for defendants in error.
   Okey, J.

Upon the facts appearing in the foregoing statement, we are of opinion :

1. As David Ranney, when he loaned the money to Hardy- and acceptec| from him a mortgage ’on lot 17, knew that McKinnon was residing on the lot with his family, he was charged with knowledge of the terms and conditions upon which such possession was held. Cunningham v. Buckingham, 1 Ohio, 261; House v. Beatty, 7 Ohio (2 pt.) 84; Kelley v. Stanbery, 13 Ohio, 408; Williams v. Sprigg, 6 Ohio St. 585 ; McKinzie v. Perrill, 15 Ohio St. 162; Bank v. Sawyer, 38 Ohio St. 339, 343. And the other case [Zeller v. Bading) presenting the question whether knowledge by the mortgagee, at the time he accepted the mortgage, that the purchaser was in possession, was material, we answer the question in the negative. True, in some of the cases above cited, expressions may be found which seem to support the claim that such knowledge is important; but in neither of them was the fact material to the decision, and where, as in the case now before us,the premises are occupied by aman with his family as a homestead, no well considered case can be found, aside from those controlled by statutory provision, in which it was held that such possession was not notice to subsequent purchasers and mortgagees of the rights and interests of such occupant, although such purchaser or mortgagee did not know the premises were occupied. LeNeve v. LeNeve, Amb. 436; s. c., 2 Lead. Cas. in Eq. 35*, 63*, 4th Am. ed. 180; Wade on Notice, §§ 273-306; Holmes v. Powell, 8 De G. M. & G. 572 ; Hottenstein v. Lerch, 104 Pa. St. 454; Noyes v. Hall, 97 U. S. 34; Coari v. Olsen, 91 Ill. 273; Brunson v. Brooks, 68 Ala. 248 ; Pique v. Arendale, 71 Ala. 91. If the possession is not exclusive, or is not of a character to fairly give information that the occupant is asserting dominion over the property under some claim of right or authority, it will not operate as notice. Williams v. Sprigg, supra; Pope v. Allen, 90 N. Y. 298; Lincoln v. Thompson, 75 Mo. 613 ; Jeffersonville, etc., R. Co. v. Oyler, 82 Ind. 394; White v. White, 105 Ill. 313. But neither of the cases before us is within cases of that class.

2. As the note to David Ranney, secured by mortgage, ■was overdue at the time he indorsed it to C. W. Ranney, the latter occupies no better position than the indorser. Arid according to the law of this state (and in Illinois, Minnesota, Oregon, and Louisiana the rule seems to be the same) the fact that the note was overdue is not material. Baily v. Smith, 14 Ohio St. 396. Indeed, with us a mortgage is, both at law and in equity, a mere security for a debt, and the remedies to which the mortgagee or his assignee may resort are only afforded with a view to enforce payment of the debt. Harkrader v. Lieby, 4 Ohio St. 602; Williams v. Englebrecht, 37 Ohio St. 383; Rev. Stats., § 5782, as amended in 1883, 80 Ohio L. 66.

3. McKinnon purchasing in April, 1872, was not charged with constructive notice of the mortgage to David Ranney, subsequently executed and recorded, and might properly make payments in pursuance of his contract until notified by Ranney, in some form, that he claimed the unpaid purchase-money by force of his mortgage. Manley v. Hunt, 1 Ohio, 257; 1 Ohio St. 112; Doolittle v. Cook, 75 Ill. 354; approved Small v. Stagg, 95 Ill. 39; Laverty v. Moore, 33 N. Y. 658; Trustees of Onion College v. Wheeler, 61 N. Y. 88; Young v. Guy, 87 N. Y. 457; Kerr v. Day, 14 Pa. St. 112; Siter's Appeal, 26 Pa. St. 178; Frick's Appeal, 101 Pa. St. 485.

4. Precisely the same rule applicable to McKinnon applied to Seanlan and Caldwell. They were assignees and succeeded to the rights of McKinnon, and were entitled to the same protection in making payments to the vendor. The Trustees of Union College v. Wheeler, supra.

5. The action of C. W. Ranney in the one case, and Zeller in the other case, in view of the issues made therein, were, in effect, the assertion of claims, which they might well make, for the unpaid purchase-money. Young v. Guy, supra. By the pleadings in Ranney’s case, the issue is made whether any pai’t of the purchase-money remained unpaid; and Caldwell was asserting that the premises were not subject to the mortgage for any amount for the reason that he was a bona fide purchaser and that the purchase-money had been fully paid. Under the circumstances, we think the burden was on him to show that fact. The only evidence to show that the purchase-money, except as appears in the above statement of the case, had been paid by McKinnon? Seanlan, and Caldwell, was the deed from Hardy to the latter. This recited the payment of the whole purchase-money, and, as between the parties to it, was prima facie evidence of such payment; .but such recital in the deed was no evidence against Ranney. Rose v. Taunton, 119 Mass. 99.

6. It follows, therefore, that the district court erred in holding, on the facts appearing in this record, that Ranney was entitled to no relief. Whether or not he was entitled to relief depended upon .the fact whether the whole purchase-money had been paid by McKinnon, Scanlon, and Caldwell before he gave notice to them, by suit or in some equally unequivocal form, that he would claim the balance of such unpaid purchase-money. If it appear that the whole of the purchase-money was paid before he took any such step, he is entitled .to no relief; but if at the time he first asserted the right to such purchase-money, any part of it remained unpaid, to that extent he is entitled to a decree against lot 17.

In Zeller’s case there is no error.

7. Counsel for plaintiffs in error insist that in Ranney’s case, the limited ground upon which we have placed his possible right to a decree, and the judgment denying any relief to Zeller, are inconsistent with principles recognized in several cases in this court, especially Grandin v. Anderson, 15 Ohio St. 286; Lewis v. White, 16 Ohio St. 444; McCombs v. Howard, 18 Ohio St. 436; Lefferson v. Dallas, Dayton, etc. R. C. v. Lewton, 20 Ohio St. 68, 401. But we do not think so.

Judgment reversed in Ranney v. Hardy, and affirmed in Zeller v. Bading.


author: Eollett, J.

text:
    Parmelee v. Youngstown.

      Assessments — Revised Statutes, sections 2269, 2270 — Benefited land not subdivided— Value as assessed for taxation.

    The plan of assessments for special improvements, and the provisions of Revised Statutes, sections 2269, 2270, were intended to equalize the expense upon all the land benefited, and should be so construed as to carryout their spirit and principle; and where there is benefited land, not subdivided into lots, and the council has fixed the value of the front of such land to the usual depth of lots adjoining, as therein provided, for this assessment such value is the value of the property as assessed for taxation, within the meaning of this assessment statute.
    Appeal. Reserved iu the District Court of Mahoning county.
    The city of'Youngstown is a city of the second class in a county not containing a city of the jirst grade of the first class.
    This is an action ‘to restrain the collection of a special assessment upon a part of o'ut-lot No. 80, in that city, to pay for a portion of the cost and expense of certain improvements. Prior to such improvement out-lot 80 contained four and 16-1000 acres of land in the central part of the city.
    The city appropriated the irregular part of the lot, straightened aud widened the street on which the lot abutted, so that it corresponded in width with the street upon either side.
    Prior to the appropriation proceedings this out-lot, excluding buildings, was valued in one parcel on the county tax list at $5,911; and for purposes of general taxation it has so remained.
    The city council determined that a part of the cost and expense of the improvement should be assessed upon property benefited thereby. As this out-lot was not allotted, the city council fixed the benefited part thereof at 420 feet along the improvement, and back to the depth of 200 feet, which was the usual depth of adjacent and benefited lots. This assessable part of lot No. 80 was not on the tax duplicate by itself, and was there only in bulk with other land; and the city council fixed the valuation of the benefited part for the purposes of the assessment at $30 per foot front, or $12,600 upon the whole frontage of 420 feet, and to the usual depth of lots in the neighborhood, 200 feet. On this benefited part and as an equivalent of the special benefits resulting thereto on account of the improvement, the council placed an assessment of $3,150 by the foot front. This would be $7.50 per foot front.
    The total cost of the improvement was $10,553.79, as follows: $5,000 for 319-1000 of an acre of land taken from this out-lot No. 80; $5,341.79 for improvements, fixtures, and an unexpired leasehold upon the same; and $212 costs of appropriation.
    Besides this $3,150 upon a part of out-lot No. 80 as property abutting upon the improvement and specially benefited thereby, the council assessed $3,598 upon property specially benefited and not' abutting thereon; and each assessment was made payable in four equal annual installments from and after August 1, 1881, and' the remainder, $3,805.79, was levied upon all the taxable property in the city.
    Plaintiffs claim that the city council could not lawfully assess upon the whole of out-lot No. 80, or oh any part thereof, in all a sum greater than $1,477.75, which is 25 per cent of the full bulk appraisement of all the lot for general taxation, $5,911; and they pray that defendants, the city of Youngstown, and the county auditor and the county treasurer, be enjoined from collecting of said assessment a greater sum than $1,477-75, etc., and for other relief.

      Sidney Strong, for plaintiff in error.

      Volney Rogers, for defendant in error.
   Eollett, J.

We will consider:

I. What is the assessed value of this benefited land ? Or what is the value of this benefited property as assessed for taxation ?

Plaintiffs do not aver or claim that this land is assessed by the city council at more than its true value, or at any higher rate than the adjoining property.

In making such improvements and such assessments the Revised Statutes provide as follows:

“ Sec. 2269. In making a special assessment, according to valuation, the council shall be governed by the assessed value of the lots, if the land is subdivided and the lots are numbered and recorded; but if the lots are not assessed for taxation, or if -there is land not subdivided into lots, the council shall fix the value of the lots or the value of the front of such land to the usual depths of lots, by the average of two blocks, one of which shall be next adjoining, on each side; and if there are no blocks so adjoining, the council shall fix the value of the lots or lands to be assessed, so that it will be a fair average of the assessed value of other lots in the neighborhood; and if in making a special assessment by the foot front there is land bounding or abutting said improvements not subdivided into lots, or if there be lots numbered and recorded, bounding or abutting said improvements, and lying lengthwise of said improvements, the council shall fix, in like manner, the front of such land and such lots to the usual depth of lots, so that there will be a fair average of the depth of lots in the neighborhood which are subject to such assessments, and this section shall be applicable to all special assessments provided for in this chapter.”

“ Sec. 2270. In municipal corporations other than cities of the first class, or in corporations in counties containing a city of the first grade of the first class, the tax or assessment specially levied and assessed on any lot or land, for any improvement, shall in no case amount to more than twenty-five per centum of the value of the property as assessed for taxation, and the cost exceeding that per centum shall be paid by the corporation, out of its general revenue, and there shall not be collected of such assessments, in any one year, more than one-fifteenth of the value of the property on which the assessment was made, as valued in the count}' tax list for taxation.”

The provisions and policy of these sections are clear. When the land is divided into lots and valued for taxation, such assessed value controls; but where it is not subdivided into lots, the council shall fix the value of the front of such land to the usual depths of lots by the average assessed value of adjoining lots in the neighborhood.

Plaintiffs had not subdivided this land into lots ; and this benefited part was not separately assessed for taxation, except as it was done by the city council; and this part was not separately in the county tax list for taxation until so placed there for this special assessment by the city council. Plaintiffs could have had it so placed there, but they did not. They preferred that this benefited part should remain in bulk with other lands and be valued in gross, rather than be divided and valued, as were the adjoining lots, at a higher rate.

As this benefited part was not separated from the other parts of out-lot No. 80, and as it was not subdivided into lots, and as it was not separately valued for taxation, the council had to fix its fair value by the former assessed values of similar lands, as provided by section 2269. The council found a definite standard, and with that standard they found and fixed the fair value of this benefited part to be $12,600.

In so fixing the value there was no'error, and $12,600 is the assessed value of this benefited land, as assessed for this special taxation.

II. What assessment may be taxed on this valuation is fixed by section 2270, which provides that such assessments “ shall in no case amount to more than twenty-five per centum of the value of the property as assessed for taxation.” The $3,150 assessed on this property is just twenty-five per centum of $12,600, “ the value of the property as assessed for taxation ” for this improvement. And in accordance with the principle and spirit of section 2,270, if not within the exact lettef of that section, an amount equal to one-fifteenth part of su'ch assessed value may be collected in any one year. So that there could have been collected in one year one-fifteenth of $12,600, being $840, when only $787.50 was sought to be collected in one year.

.Thus each part of these sections is in harmony with every other part, and all together they present a consistent plan that may secure equity. There was no error, and

The petition must be dismissed.


author: Follett, J.

text:
    Butler v. Moses.

      Sale — Construction of ambiguous proposition in writing.

    1. In ascertaining the meaning of a written offer to sell, all its parts and words should be examined in the light of the circumstances, and, if pos- • sihle, effect given to each; and when such writing may have different meanings, and the receiver of such writing, on inquiry of a third person, is given the true intent and meaning of the sender of the same, such receiver of the writing, who, without further inquiry, acts upon the same and then seeks to hold the sender upon such writing, is bound by such true intent and meaning of the sender.
    2. Where a proposition to sell goods is sent by a writing that, by mistake, is ambiguous; and, knowing of such ambiguity, the receiver of the writing claiming an improbable meaning, unreasonably favorable to himself, and not intended or thought of by the sender, and without notice to the sender or inquiry of him as to his intended meaning, orders the goods, obtains, and uses them, such receiver of the goods is liable to the seller of the same for the value of the goods used, as if no proposition had been sent.
    Motion for leave to file a petition in error to the District Court of Portage county.
    Thomas H. Moses leased and was repairing a flouring mill. Joseph G. Butler kept a feed store, but he had new bolting-cloth for sale. Bolting-cloth is a silk fabric forty inches wide and of foreign manufacture, and it is worth from $2 to $6 per yard, according to fineness.
    On November 11, 1879, Moses sent Butler a letter, as follows :
    “ Wikdham, Ohio, November 11, 1879.

      'J. G. Butler, Esq., Warren, Ohio,

      “ Dear Sir : Capt. Prior is working for me, and as we wanted some No. 12 bolting-cloth, and perhaps some other, he thought you would likely have some, and suggested my writing to you. Please let me know by return mail what you have in that line and the price you hold it at, and oblige, Yours truly, Thomas Moses.”
    On November 12, 1879, Butler answered by postal card, as follows:
    “Dear Sir: Yours of yest’y to hand this morning, and in answer I would say that I have the bolting-cloth, but it is out at Ferrill Hill, but I will write for it immediately, and if you desire will send them to you, and you can use what you want and acc’t to me for what you need at 5 cts. a yard thakGale would ch’g you. Yours, etc., J. G. Butler.
    “ There is No. 9, 10, and 12, I think, and some coarser.”
    This card Moses showed to Prior, his miller, and asked him what he thought of it. Prior read the card and talked over the matter with Moses, and he said to Moses that new cloth was then worth.from $2 to $6 per yard, and he thought there was a mistake in the card — that the word “¿ess” was left out. This would show the offer was to let Moses have what he needed at five cents a yard less than Gale would charge him. They knew Gale was a man in Cleveland who sold bolting-cloth, and whose charges they knew, or they could obtain them. After this, and on the same day, Moseá sent Butler the following by postal card :
    “ Dear Sir : Please send the cloth up immediately and we will select what we can use. Yours truly, Thomas Moses.
    “ P. S. Perhaps we can use considerable.
    “ Windham, 0., November 12, 1879.'’
    The cloth was sent to Moses, and after it was received and examined Prior again told Moses there must be a mistake in the card, and he advised Moses not to put on-the cloth without further inquiry, and said that if he did he should expect trouble. At all times .Moses claimed that the caret offered the cloth at five cents per yard. Moses directed Prior to use the cloth. There is no dispute as to the amount and quality of this cloth that Moses used. What was not thus used was returned to Butler, and $1.03 was sent to pay for tne twenty and one-half yards of cloth used. Butler did not know of the mistake in the card, and did not understand whát Moses meant by sending so small a sum in payment of what cloth Moses used; and some three weeks thereafter he called upon Moses to fix up the matter. Moses then claimed that the card offered the cloth at five cents-per yard; and Butler claimed that by mistake the word “ less ” was omitted or left out in writing the card, as was manifest; and that the card did not offer the cloth at five cents per yard, but only offered the cloth at a priee five cents per yard less than Gale would charge him for the same. Moses refused to pay any more, and Butler sued Moses on the following account:
    “ Mr. Thomas Moses. To J. Gf. Butler:
    1879, December 8, 10£ yds. Pfo. 12 bolting-cloth @ 3.10..............$30.77
    “ ” “ 8£ “ “ 10 “ “ @ 2.60.............. 21.45
    “ “ “ 2 “ “ 5 “ “ @2.00.............. 4.00
    $56.22
    Less 5 cts. per yard (as agreed).............................................. 1.03
    $55.19
    By cash received by mail....................................................... 1.03
    $54.16.”

      After judgment before the justice of the peace, the case was appealed to the court of common pleas. In that court Butler filed his petition on said account, and averred that Moses was “ indebted to him in the sum of $54.16 for bolting cloth formerly belonging to plaintiff, and on or about the 8th day of December, 1879, converted by said defendant to his own use.” Moses denied the allegations of the petition. On the trial Moses claimed that he had purchased the cloth at five cents per yard; and the case was tried upon all the facts, and Moses gave in evidence Gale’s price list for bolting cloth. The court gave in charge to the jury certain requests asked for by Moses, but subject to the following portion of the charge, to wit: “ It is claimed by the plaintiff that the defendant acted in bad faith in this, that he knew at the time he received the card from the plaintiff’ that there was a mistake in it, and that it did not contain his real proposition; and also that the defendant knew at the time he received and used the cloth that it was worth vastly more than five cents a yard, and that the defendant intended to get an unfair advantage of the plaintiff in the transaction; while on the other hand the defendant claims he acted in perfect good faith, honestly supposing the cloth was only worth five cents a yard, and that the card of the plaintiff contained his real proposition. If you find that Moses knew, or had reasonable ground to know, that the cloth was worth a great deal more than five cents a yard, and that Butler’s card did not contain his real proposition for the sale of the cloth, and that there was a mistake in the card, and that Moses, with such knowledge or such ground of knowledge, received and used the cloth, hoping and intending thereby to gain an unfair and undue advantage over Butler in the transaction, then the plaintiff can recover. But, on the other hand, if Moses acted in good faith, honestly supposing the cloth was worth only five cents a yard, and with no intent to gain an unfair advantage over Butler, then the plaintiff can not recover.”
    After verdict for Butler, a motion for a new trial was overruled and judgment was entered, and a bill of exceptions was taken. The district court reversed the judgment of the court of common pleas for error in the charge of the court, and Butler now seeks to reverse the judgment of the district court, and to affirm the judgment of the court of common pleas.

      George P. Hunter, for the motion.
    P. B. Gonant, contra.
   Follett, J.

No objection was made to the form of the pleadings, and it seems that all the facts of the case were presented to the jury that found in favor of Butler.

The doubt is in regard to the offer made in the postal card. What did Butler offer when he wrote, “ If you desire will send them to you, and you can use what you want and account to me for what you need at five - cents a yard that Gale would charge you.”

Gale was known by the parties to be a dealer in bolting-cloth, and what he would charge, was easily ascertained.

What Gale would charge was referred to as a standard of price. There is no other reason why Gale’s name was mentioned, or why what he would charge was referred to. And, on examination of all the card contains, it is clear that Butler did not make an unqualified offer to sell the cloth at five cents per yard, as neither five cents nor ten cents per yard could be what Gale would charge; but his offer was to charge either the same as Gale would charge, or more than Gale would charge, or less than Gale would charge.

In the circumstances the latter meaning was so” manifest that Prior, on reading the card, saw its true intent, and told Moses that Butler’s offer was to sell the cloth for five cents a yard less than Gale would charge him, and that it was not to sell at five cents a yard. And Moses, by thus sending for the cloth and using it, is bound by the trjia^ offer thus explained and known to him. But if Moses’ claim be true that he did not accept the offer, to sell for five cents a yard less than Gale would charge him, the minds of Butler and Moses never “ assented to the same thing in the same sense,” and no contract was made by them for the sale of this cloth. And in this view, as Moses has taken Butler’s cloth and put it to Moses’ use, Moses is liable to Butler for the value of the cloth so used. In this view Moses would not be entitled to the discount of five cents per yard which Butler gave him.

In either view of this case Moses is liable to Butler for all that was claimed in the petition in the court of common pleas, and the charge of the court was not to the prejudice of Moses.

The district court erred in reversing the judgment of the court of common pleas.

The motion is therefore granted, the judgment of the district court reversed, and that of the common pleas affirmed.


author: Johnson, J.

text:
    Elliott v. Lawhead.

      Married women — Separate estate — May charge by parot, contract — Jurisdiction— When equity exclusive — Rule—Remedy at law must be exhausted— Application — Prior action at law — - Whether bar to proceeding in equity— Voluntary appearance to action by motion — Revised Statutes, sections 4996, 5319, and 3108 to 3112.
    1. A contract by which a married woman charges her separate estate, in equity, with the payment of a debt, need not be in writing.
    2. An action founded on sucha contract, where a personal judgment against a married woman is not authorized, is of an equitable nature, of which a court of equity alone has jurisdiction.
    3. The rule that a creditor must exhaust his remedy at law before seeking equitable relief, does not apply to an action to charge the separate estate of a married woman for the payment of a claim, where the statute gives no remedy at law.
    4. A prior action to recover a money judgment, in which it is sought to reach the same separate property by attachment, in which the plaintiff fails, is no bar to a suit in equity, to charge such separate property, with the payment of the same claim.
    5. The appearance of defendant in court for the sole purpose of objecting, by motion, to the jurisdiction of the court over his person, is not an appearance in the action, but where such motion also asks to have the cause dismissed on the ground that the court has no jurisdiction over the subject-matter of the action, which motion is not well founded, it is a. voluntary appearance, which is equivalent to service of summons. Handy v. Ins. Co., 37 Ohio St. 366, approved.
    6. What effect, if any, the amendments to sections 4996, 5319 and 3108 to 3112, inclusive, of the Revised Statutes (81 Ohio L. 65, 209) have upon the state of the law, as it existed when this action accrued and was decided, is not involved in this case.
    Error to the District Court of Licking county.
    September 24, 1878, Lawhead commenced an action in the court of common pleas against Charlotte Elliot, a married woman, and Cyrus S. Gilbert, stating that there was due to him from her the sum of seventy-five dollars for services as her attorney, rendered by him at her request about her separate estate and property; that said employment for such services was made by her in reference to and upon the faith and credit of her separate estate, which she thereby charged.
    It is alleged that her co-defendant, Cyrus S. Gilbert, has in his possession moneys of the said Charlotte, as her separate estate, which in equity ought to be subjected to the payment of plaintiffs demand.
    The prayer is to ascertain the amount due from said Charlotte, and if necessary he may have judgment therefor, and to subject the money in Gilbert’s hands to the payment thereof.
    Gilbert made no defense. Mrs. Elliott filed the following motion:
    “ Charlotte Elliott, the defendant above named, by her attorneys, Charles Follett & Son, now comes for the purpose of this motion and for no other purpose, and moves the court to strike the above named case from the docket of said court, and the petition from the files, for the want of legal and proper service, and because the said court has no jurisdiction of the subject-matter of said action or of debt, and for the same reason that all proceedings herein by said plaintiff against her be dismissed.’’

      This motion was overruled, to which defendant excepted. Thereupon she filed the following demurrer:
    “The defendant, Charlotte Elliott, still protesting by her attorneys here against the jurisdiction of said court, or any intention to, in any manner enter her appearance in this action, and saving and reserving to herself, now and at all times hereafter, all manner of advantage and benefit of exception and otherwise to the proceedings herein. She by her attorneys demurs to the petition of said plaintiff for the following reasons: 1. Because the said court has no jurisdiction of the person of said defendant, Charlotte Elliott; 2. Because the said court has no jurisdiction of the subject of said action; 3. That there is a misjoinder of parties defendants and causes of action ; 4. That said action is not upon her written obligation, or any express promise or agreement; 5. That said petition does not state facts sufficient to constitute a cause of action against said defendant ; 6. Other causes that may be named are apparent in the ease.”
    This demurrer was also overruled, and the defendant answered, still persisting in her protest and objection that the court had no legal or equitable jurisdiction over the subjéet-matter, or of her person. Her answer is:
    1. An admission that Gilbert had in his hands money belonging to her, and that she is a married -woman, and a denial of each and every other allegation of the petition.
    2. That as a married woman she is entitled to the benefit of exemptions to heads of families in the state of Ohio, and that her separate property, including moneys in the hands of said Gilbert, do not exceed in value the sum of $500, and that she is legally entitled to hold the same exempt from being applied to the satisfaction of plaintiff’s claim, but as she was a non-resident of the state this defense is not relied on.
    3. That on the 13th of July, preceding this action, 'plaintiff brought an action against her, before a justice of the peace, to recover the same claim, and on the 17th of the same month dismissed said action.

      4. That on the 17th of July aforesaid, he brought another action against her and her husband, John Elliott, to recover against her on the same claim, which on motion of this defendant and upon full hearing was dismissed.
    5. That said Lawhead, at the time of the commencement of this action, had no lien, claim, right, or title to the money in the hands of said Gilbert, and that she, since this action is commenced, assigned and transferred to Charles Eollett, in payment of a claim due to him, the moneys in Gilbert’s hands.
    A reply was filed putting in issue the allegations of said defenses. In each of these several defenses the same objection is made and reserved as to the.jurisdiction of thé court, as is found in the motion and demurrer. On trial ■the court found there was due the plaintiff the sum of $50 and interest, and ordered Gilbert to pay the money in his hands into court, to be applied to the payment of plaintiff, and the balance, if any, to be paid to Charles Follett, who had become a defendant, and asserted his right to the money. Thereupon defendants gave notice of appeal, and the court fixed the amount of the undertaking therefor.
    The case was again tried iii the district court and resulted in a finding in favor of the plaintiff for the sum of $75, and a judgment that said services were rendered by the plaintiff for Mrs. Elliott, “ upon the full faith and credit of her separate estate, which she intended to charge for the reasonable value of said services,” and ordered that Gilbert pay the money into court to be applied to the payment of costs and the satisfaction of plaintiff’s claim.
    Up to this time no service of summons nor service by publication was made a matter of record. In fact, service by summons was not attempted, because Mrs. Elliott was a non-resident of the state of Ohio.
    It appears, however, that the proper steps were taken at the commencement of the action, by filing an affidavit for that purpose, and that due notice was published for the proper time before the motion to dismiss was filed. But no proof was made of such publication until after final judgment in the district court.
    There is a bill of exceptions taken to the judgment of the district court, which sets out the testimony in the case. The errors assigned in this court are :
    1. In overruling the motion to dismiss plaintiff's action.
    2. lu'overruling her demurrer to the petition.
    3. In finding the equity of the case with the plaintiff below.

      Charles Follett Son, for plaintiff in error.

      Charles H. Kibler, for defendant in error.
   Johnson, J.

1. The contract alleged in the petition and found by the district court to exist, was purely of equitable cognizance.

It is the contract of a married woman for services rendered to her in the management of her separate estate, by which, as the court finds, she charged that estate with the payment of reasonable compensation for the services rendered.

It is not alleged that this contract was in writing, and the proof shows that it was not.

A married woman can charge her seperate estate by parol contract.

The claim, therefore, that such charge should be evidenced by written instrument is not well founded.

2. The claim for services were not of that nature or character as would, under the law that then existed, warrant a personal judgment against a married woman, nor an execution against her separate property. No action at law, therefore, would lie against her for such services. The rule which requires a creditor to exhaust his remedy at law before seeking relief in equity has no application.

The only remedy the plaintiff had was in equity. Hence the claim that plaintiff below should have first obtained a judgment and exhausted her property liable to execution is not well made.

Neither the motion, to dismiss, because the court had no jurisdiction over the subject matter, nor the demurrer based upon the same ground, should have been sustained.

The case made was clearly within the equitable jurisdiction of the court of common pleas.

3. As to the attachment proceedings and their effect, as a bar to this action.

The proof shows that on the 13th of July, 1878, the plaintiff below commenced an action before a justice of the peace against Charlotte Elliott, alone, on the same claim to recover a money judgment, which was dismissed by the plaintiff', without attempt to get service. It further appears that on the 17th of the same month he commenced another action before the same justice against Charlotte Elliott and John Elliott, her husband, and caused an attachment to issue against them as non-residents of the state of Ohio, with notice to sundry persons to appear and answer touching the property of the wife in their possession liable to attachment.

McCullough, one of the garnishees, answered, showing that he had seventy-six dollars in his hands belonging to said Charlotte. This amount Ne paid into court.

On motion of said Charlotte the attachment was discharged, leaving the money in the hands of the justice, one Cyrus S. Gilbert, who is co-defendant in this action below. The next day the case was dismissed for want of prosecution.

The dismissal of these cases in attachment constituted no bar to the present suit in equity.

The plaintiff below could not proceed by attachment before a justice against a married woman in a case where no personal judgment for money could be rendered against her. Allison v. Porter, 29 Ohio St. 136.

4. As to the service by publication, or the jurisdiction of the court over the person of plaintiff in error.

The overruling of the motion to dismiss is assigned as error. This motion assigns two reasons why it should be granted:

First. "Want of legal and proper service; and, second, because the court had no jurisdiction of the subject-matter. This last ground was in the nature of a demurrer to the jurisdiction of the court, and was in itself an appearance in the case.

It amounted to a waiver of service, and gave the court jurisdiction over the person of defendant.

It is true the defendant “ comes for the purpose of filing this motion and for no other purpose,” and had the motion been confined to the want of proper service it would not have operated as an appearance. It was not so limited, but embraced an additional reason, to wit, the right of the court to hear and determine the subject-matter. The rule is that where a defendant appears solely for the-purpose of objecting to the jurisdiction of the court over the person, such motion is not a voluntary appearance of defendant which is equivalent to service.

Where, however, the motion involves the merits of the case made in the petition the rule is otherwise; Sandy v. Insurance Co., 37 Ohio St. 366; Maholm v. Marshall, 29 Ohio St. 611.

Here one of the grounds of objection, as raised first by the motion and afterward by the demurrer, was that defendant was not liable in that court; or, in other words, the court had no jurisdiction over her as a married woman to grant the relief prayed for. This was a waiver of service, or a voluntary appearance of defendant equivalent to service. We need not, therefore, determine whether it "was a case in which service by publication was authorized; nor whether such service was properly made; nor whether proof thereof could be made after final judgment.

As the court had jurisdiction over the subject-matter, and as the defendant had voluntarily appeared, these questions become immaterial.

The foregoing decision is made with reference to the state of the law relating to married women, as it existed when this ease was pending. What, if any effect, the amendments to sections 4996 and 5319 of the Revised Statutes, 81 Ohio L. 65, or of sections 3108, 3109, 3110, 3111, and. 3112 of the Revised Statutes, 81 Ohio L. 209, have, we do not consider.


author: Owen, J. McIlvaine, C. 3.,

text:
    City of Tiffin v. Shawhan.

      Contract to convey real estate — Specific performance — Rule—Discretion of court — Doubtful title deed by municipal corporation— When sufficiency of instrument considered, on error.

    1. The duty o'f a court of equity to decree specific performance of a contract • to convey real estate, can not be determined by any fixed rule, but depends upon the peculiar facts and equitable considerations of each case, and rests in the sound discretion of the court, guided and regulated, however, in .the exercise of that discretion, as far as may be, by precedent and established practice.
    2. If a contract for the purchase and conveyance of land is in all respects ; fair and free from ambiguity, and its enforcement as against the purchaser will vest in him a marketable title, the court has no legal discretion to refuse its enforcement.
    & If the specific performance of such a contract would be harsh, oppressive, or inequitable in its consequences, or would leave the purchaser with a doubtful and unmarketable title, the court, in the exercise of its discretion, will refuse to decree its performance, as no man will be compelled to accept a doubtful title.
    4. A deed for the conveyance of land owned by a city, which it has power to convey, signed by the city clerk, sealed with his private scroll seal and his official seal as city clerk, and made under the authority of an ordinance in form authorizing him to execute “a proper deed of conveyance, under the corporate seal of said city,” is ineffectual to convey to a purchaser the city’s title to such land.
    5. The execution of a special power to convey lands by a public officer must be in strict pursuance of the power, or no title is conveyed.

      <&.. In a petition by a vendor of land for specific performance of the contract, it was averred “that the plaintiff tendered to the defendant a conveyance of said land and demanded payment of the purchase-money;” and “ that a deed for said lands, above mentioned and ■described, from the plaintiff to the defendant, is herewith filed and ten- > (dered to him.” The deed tendered was so filed. The answer avers that the plaintiff did not, within a reasonable time, tender to the defendant a conveyance of the land or seek to enforce the contract, “ and not until -■ April, 1876, when said property had largely decreased in value.” The averments in the petition, of tender of conveyance and' of filing the deed so tendered with the petition, are not denied by the answer. On the trial the plaintiff gave this deed in evidence, and incorporated it (without objection from defendant) in his bill of exceptions taken at the trial! Held; Such deed and its sufficiency may be considered by this court in reviewing the judgment of the trial court. Woodward v. Shan, 27 Ohio St. 592; Lovell v, Wentworth, 39 Ohio St. 614, approved and followed.
    Error to the District Court of Seneca county.
    On the 8d day of July, 1878, Rezin "W. Shawhan, defendant in error, duly conveyed to the city of Tiffin, for city park purposes, about six acres of land, for the consideration of $2,680, which was then paid him.
    On the same day, Shawhan agreed in writing with the city that he would, at any time within two years from the 1st day of July, 1873, upon receiving a reconveyance of thé s^me land, repay to the city the sum of $2,680, with interest at eight per cent, per annum from thelst day of July, 1873; and that the right to reconvey the lands to Shawhan and receive repayment therefor from him should be at the option of the city during such term of two years.
    On the 31st day of May, 1875, the council of the city of Tiffin adopted a resolution that the lands so conveyed to the city by Shawhan be reconveyed to him by the city, Shawhan was promptly notified of the action of the council. The reconveyance of the land to Shawhan within the period limited by the agreement of July 3, 1873, was mutually waived by the parties. ■

    On the 19th of July, 1875, the city council duly passed ah ordinance providing for the reconveyance to the respective grantors of three tracts of land, including that conveyed to the city by Shawhan.
    By this ordinance it was ordained : .
    “Sec. 3. That the city of Tiffiu does hereby bargain and sell to Rezin -W. Shawhan, the lands and tenements described as follows: [Description.]
    “ Sec. 4. That the city clerk of said city is hereby authorized and directed to make, execute, and deliver to each of the persons named in sections one, two, and three, of thil ordinance, a proper deed of conveyance, under the corporate seal of said city, for the lands so by them severally purchased from said city.”
    On the 22d day of April, 1876, Sylvester J. Kintz, city clerk of Tiffin, executed a writing of the tenor following :
    “ C.”
    “ Know all men by these presents: That whereas, the city council of the city, of Tiffin, in the county of Seneca and state of Ohio, on the 19th day of July, a. d. 1875, duly passed an ordinance of said city, entitled ‘an ordinance to authorize the conveyance of certain lands therein described,’ whereby said city council bargained and sold the lands and tenements hereinafter described to Rezin W. Shawhan, for the sum of two thousand six hundred and eighty dollars to said city then paid by said Rezin W. Shawhan.
    “And whereas, by said ordinance of said city, the city clerk of said city was authorized and directed-to make, execute, and deliver to said Rezin W. Shawhan a proper deed of conveyance of said lands.
    “ Now, therefore, I, Sylvester J. Kintz, city clerk of the city of Tiffin, by virtue of the powers in me vested by said ordinance, and in pursuance thereof, do hereby give, grant, bargain, sell, and convey, unto the said Rezin ~W. Shawhan, his heirs and assigns forever, the lands and tenements described as follows, to-wit: [Description.]
    “To have and to hold the same to him, the said Rezin W. Shawhan, his heirs and assigns forever.
    “ In witness whereof, I have hereunto set my hand and seal, and the corporate seal of said city of Tiffin, this 22d day of April, 1876. ■ Sylvester J. Kintz, [seal.]
    [city clerk’s seal.] City Clerk, City of Tiffin.

    Executed in presence of
    John McCauley.
    S. Dahm.

      The State of Ohio, Seneca county, ss.

    Before me, J ohn McCauley, a notary public, within and for said county, personally came Sylvester J. Kintz, and acknowledged the signing and sealing of the above -.conveyance to be his free act and deed.
    Witness my hand and notarial seal, this 22d day of April, 1876. John McCauley,

      Notary Public, Seneca Co., OP '

    This instrument was promptly tendered to Shawhan, of whom the repayment of the money agreed upon was demanded. Acceptance and payment were refused. Thereupon the city commenced her action in the court of common pleas of Seneca county to enforce specific performance of the agreement of July 3d, for the reconveyance of, and repaj^ment for, the lauds in question.
    The petition, among other averments, alleges “that the plaintiff tendered to the defendant a reconveyance of said lands and demanded repayment of said sum of money; ” and further avers “that a deed for the said lands and tenements, above mentioned and described, from the said plaintiff to the said defendant, is herewith filed and tendered to him.”
    The tender of the deed and the filing of it with the petition are not denied by the answer.
    The cause was appealed to the district-court, which, upon the issues joined, found the equities with the defendant Shawhan, and decreed accordingly, expressly remanding the parties to their legal remedies. The bill of exceptions taken at the trial shows that the deed, which was tendered to the defendant and filed with the petition (a copy of which is given above), was offered in evidence by the plaintiff, received without objection, and made part of the bill of exceptions. The foregoing statement sufficiently presents the questions which the court deem important to the disposition of the case. The present proceeding is prosecuted to reverse the judgment of the district court.

      Perry M. Adams, city solicitor, for plai.ntiff in error.

      James Pillars and N. L. Brewer, for defendant in error.
   Owen, J.

1. By the conveyance from Shawhan to the city, the latter was invested with the title to the lands in question. The city had ample capacity to reconvey the same lands to Shawhan. If the deed which was tendered to him Was-such an instrument as could reinvest him with his former title, unclouded by substantial doubt of the validity of the conveyance, the plaintiff was entitled to the relief prayed for, and there was error in refusing it. If it be suggested that the defendant admitted that the deed tendered to him was sufficient to pass the title of the land to him, by failing to deny the averments of the petition that the plaintiff “ tendered a reconveyance of the lands to the defendant,” and that the deed so tendered “is herewith filed and tendered to defendant,” the obvious answer is that the plaintiff) having presented the deed itself with the petition (to keep good the tender), expressly invoked the judgment of the court upon its sufficiency. If the plaintiff had simply averred a tender of a conveyance of the land, and the defendant had admitted it, there would have been foi’ce in the suggestion. As it is, the issue rests as upon express admission of the defendant that the deed filed with the petition was'tendered to him. How could he better raise the issue than to urge at the hearing, as he did, that the deed was not sufficient to pass title.

But the plaintiff offered this deed in evidence; it was received without objection, and a true copy of it is marked “ C,” and made a part of the bill of exceptions. It is given in the foregoing statement of the case. It ought to be sufficient, however, to say that the plaintiff did not and does not maké this question, but, on the contrary, all controversy is set at rest by the statement in the brief of plaintiff’s counsel, that:

“ A true copy of the original deed tendered to the defendant will be found in the printed record on page 25, marked ‘ C.’ This deed- was deposited with the elerl, and, when the the case was appealed, could not, for some time, be found, but was afterward found, and put in evidence on the last trial of this case, without objection, but in the argument to the court the defendant’s counsel claimed that it was not the deed of the city, but that of Mr. S. J. Kintz.”

As this deed must have entered into the consideration of the court below as one of the facts of the case, it is not easy to see how this court could review its action with the bill of exceptions silent upon this subject. This deed and its sufficiency were treated by the parties as involved in the issues, and it is now too late to contend that they were not in issue.,' Woodward v. Sloan, 27 Ohio St. 592. In that case it was held that where facts alleged in an answer are not denied in the reply, and the case proceeds to trial upon the evidence, as if such facts were denied, without objection or exception, until after the judgment of the court of common pleas is affirmed by the district court, the judgment will not be reversed on the ground that the answer was not denied in the reply.

2. As already stated, the right of the city to ask a specific performance, and hence the disposition of this case, rests upon the validity of this deed, or its sufficiency to pass to Shawhan a good, marketable title to the land.

The duty of a court to decree specific performance of a contract can not be determined by any iron' rule, but depends upon the peculiar facts and equitable considerations of each ease, and rests in the sound discretion of the court, guided and regulated, so far as may be, in the exercise of that discretion, by precedent and established practice; Port Clinton R. R. Co. v. C. & T. R. R. Co., 13 Ohio St. 549 ; Willard v. Taylor, 8 Wall. 557; Waters v. Howard, 1 Md. Ch. 112 ; Ewing v. Beauchamp, 6 B. Mon. 426; 3 Pars. Con. *352 ; 2 Story Eq., sec. 724; 3 Pom. Eq. 446.

If a contract for the conveyance of real estate is in all respects fair and free from ambiguity, and its execution according to the prayer of the vendor will vest a marketable title in the purchaser, it is as much a matter of course fob a court of equity to decree specific performance of it as it is for a court of law to award damages for its breach. St. Paul’s Division v. Brown, 9 Minn. 151; King v. Hamilton, 4 Pet. 311; Greenaway v. Adams, 12 Ves. 395; 3 Pom. Eq., sec. 1404; 5 Waite Ac. & Def. 765.

If, however, the specific performance of the contract would be harsh and oppressive, or would leave the purchaser with a doubtful and unmarketable title, the court, in the exercise of its discretion, will refuse to decree its performance, but leave the parties to their legal remedies.

The rule is fundamental that the purchaser will not be compelled to accept a doubtful title. Ludlow v. O’Neil, 29 Ohio St. 182; Wilson v. Tappan, 6 Ohio, 172; Richmond v. Gray, 3 Allen, 27 ; Watts v. Waddle, 1 McLean, 200; Bates v. Delevan, 5 Paige, 299; Fry Specif. Perform., secs. 576, et seq.; Powell v. Conant, 33 Mich. 396; Vreeland v. Blauvelt, 23 N. J. Eq. 483; Stapylton v. Scott, 16 Ves. 272; Wilcox v. Bellaers, 12 Eng. Chan. (1 T. & R.) 495 ; Adams Eq. *84.

The reason of this rule applies with equal force where the doubt proceeds from the form of the conveyance tendered as from the title of the vendor. The effect upon the title of the purchaser is the same in either case.

3. The foregoing considerations invite inquiry into the form and effect of the deed by which the city of Tiffin undertook to 'convey this land to Shawhan.

There is no general statute in this state directing the form or manner of execution of deeds by corporations.

. “ The mode in which, at common law, corporations aggregate execute deeds, is by affixing thereto their corporate seal. 1 Bl. Com. 475; 1 Pars. Con. 140, 141; 3 Sugden on Vend. 353; Angel & Ames on Corp. 268; 15 Wend. 258.” Scott, J., in Sheehan v. Davis, 17 Ohio St. 581.

This proposition is also strongly supported by the following authorities, relating chiefly to the subject of conveyances by public corporations. De Zeng v. Beekman, 2 Hill, 489; Kinzie v. Trustees of Chicago, 2 Scammon, 187; City of San Antonio v. Gould, 34 Texas, 77. It is said in this case, by Walker J.: “A broad distinction is kept up through the authorities between trading and municipal corporations ; the former are permitted to do many things in the way of simple contracts without the common seal of the corporation, w'hich municipal corporations are not allowed to do.”

At common law the signature of a corporation is its corporate seal. Doe v. Hogg, 4 Bos. & Pul. 306; Gordon v. Preston, 1 Watts, 385 ; Frankfort Bank v. Anderson, 3 A. K. Marsh. 932; Beckwith v. Windsor Manuf. Co., 14 Conn. 594.

Regarding the form of conveyances by municipal corporations, it is said by Dillon (Mun. Corp., sec. 581): “ Conveyances of real estate should, in general, be executed in the corporate name and under the corporate seal.”

In the case at bar, the deed is neither in the corporate name of the city nor under its corporate seal.

The granting clause of the deed is in these words: “ Now, therefore, I, Sylvester J. Kintz, city clerk of the city of Tiffin, by virtue of the powers in me vested by said ordinance, and in pursuance thereof, do hereby give, grant, bargain, sell and convey unto the said Rezin W. Shawhan, his heirs and assigns forever, the lands and tenements described as follows,” etc.

The deed is signed by “ Sylvester J. Kintz, city clerk, city of Tiffin,” who affixes his own private scroll seal, and the seal of the “ city clerk of Tiffin, Ohio.”

It is maintained, howevei’, in behalf of the city, that as the statutes do not prescribe the form of conveyance by the city, it was competent for the city, by its council, to prescribe by ordinance how the conveyance should be made.

Section 4 of the ordinance relied upon directs: “ That the city clerk of said city is hereby authorized and directed to make, execute and deliver ... a proper deed of conveyance, under the corporate seal of said city.”

Whether the city could lawfully invest her clerk with power to make a conveyance under her corporate seal, is a question v'hich we are not called upon to determine. It would seem, however, to be a question of sufficient doubt to call for the application of the rule already announced, and justify the court below in refusing to compel the defendant to accept the deed tendered him.

By immemorial usage, if not, indeed, by our statutes, the mayor.of a municipal corporation is its chief administrative and executive officer. 1 Billon Muu. Corp. 208.

To him is confided the custody and use of its corporate seal.

The Revised Statutes (section 1745) provide that the mayor “ shall be furnished by council with the corporate seal of the corporation, in the center of which shall be the words, ‘ mayor of the city of-,’ or ‘mayor of the village of--,’ as the case may be.”

Section 1746 provides that the mayor “ shall sign all commissions, licenses, and permits granted by authority of the council, or authorized by this title, and such other instruments as by law or ordinance may require his certificate.”

Section 1764 provides that “ the city council shall cause to be provided for the clerk’s office a seal, in the- center of which shall be the name of the corporation, and around the margin the words, ‘ city clerk,’ or in case of a village, the words, ‘ corporation clerk;’ which seal shall be affixed to all transcripts, orders, certificates, or other papers which it may be necessary or proper to authenticate.”

The respective functions of the mayor and clerk in these respects would seem to be clearly defined by these provisions.

To the mayor is confided the “ corporate seal of the corporation ;” to the clerk, the seal of his office. To the mayor is confided the execution of such writings as the corporation may be called upon to issue; to the clerk, the authentication of such papers as may require it.

We can not suppose that it was ever intended or contemplated that the use of the mayor’s seal, which is the corporate seal, should be intrusted to the clerk, who is provided with a seal peculiar to his office.

If, however, we go to the extreme of holding that it was competent for the council to authorize the city clerk to execute a conveyance in behalf of the city under its corporte seal, we encounter another principle which suggests grave doubt of the validity of this conveyance. It is that the execution of a power to convey land bj public officers must be in strict pursuance of the power, or no title is conveyed. Osborne v. Tunis, 1 Dutcher (N. J.), 684.

The authority conferred upon the city clerk by the ordinance was to execute “ a proper deed of conveyance under the corporate seal of said city.”

Even this authority, doubtful at best, was not pursued by the clerk.

While too great nicety and formality ought not to be exacted in the execution of title deeds, yet the highest considerations of public policy demand that the certainty and stability of the tenures by which our people hold their lands be not placed in peril by encouraging and enforcing forms and modes of conveyances so doubtful and equivocal as that now called in question. When the sufficiency of this deed was challenged, as counsel for plaintiff inform us it was, it was not too late for the plaintiff to supply a valid deed; but it saw fit to rest its ease upon the deed tendered, and invoked the action of the court upon its case as made.

This deed is worse than doubtful. It is invalid, and ineffectual to pass the title of these lands from the city of Tiffin to Shawhan. The court below very properly exercised its discretion in refusing to compel its acceptance by the defendant. Whether the city is concluded- by this judgment from still tendering a sufficient deed and demanding performance of defendant, we are not called upon to determine.

Judgment affirmed.

McIlvaine, C. 3.,

dissenting: It appears to me that the judgment of the district court should be reversed. The action was to enforce the specific performance of a contract brought by the city of Tiffin against Shawhan. The city had purchased from Shawhan a tract of land, had paid the purchase-money and received a conveyance. By the contract of sale Shawhan had stipulated to repay the purchase-money, with interest, to the city, upon the reconveyance to him of said lands before the 1st of»July, 1875. Before the expiration of the time limited, the city determined to re-convey the land and insist on the repayment of the money. The city, having given notice to Shawhan of its determination, at the request of Shawhan and for his benefit, delayed the reconveyance of the laud and the repayment of the money until April 1, 1876. The defendant by his answer admitted the making of the contract, but denied that the time for reconveyance of the land or repayment of the money was delayed until April 1,1876, at his request.

The answer further set forth : “ That in and by the terms of said contract, as set forth in said petition, the said city of Tiffin, Ohio, had the option to reeonvey said property to this defendant, and insist on the repayment of said sum of money.”

But this defendant avers “that the city of Tiffin did not at or prior to the said 1st day of July, 1875, or within a reasonable time thereafter, offer or tender to this defendant a reconveyance of said property, or seek to enforce the said contract, and not until the-day of April, 1876, when said property had largely decreased in value.”

By an amendment to the answer the defendant averred certain new matter, which need not be here stated. These averments were denied by reply. •

On the trial of the cause in the district court, where it had been taken by appeal, the equities of the case were found for the defendant and judgment accordingly.

The testimony is all set forth in a bill of exceptions.

It is evident from the record that the finding and judgment in the court below were founded on the ground that the original purchase by the city was for an unauthorized purpose, and therefore the relief prayed for in the petition could not be granted in this action. The case was dismissed -without prejudice to another form of action.

On consideration of the case in this court, I understand that the court is unanimous in the conclusion that the testestimony clearly shows that the delay in tendering a re-conveyance of the land to Shawhan until April 1, 1876, was at his request; and also that the issue made by the amendment to the defendant’s answer and the reply thereto was wholly immaterial.

Upon consideration of these questions the judgment below was clearly erroneous.

There appears, however, in the bill of exceptions, a copy of the deed purporting to be a reconveyance of the land to Shawhan, delivered by the city to Shawhan on April 1, 1876. This deed does not purport to be a conveyance by the city to Shawhan, but a conveyance by one Kintz, who executed the same as city clerk. The seal of the city is not attached to the deed, but the seal of the city clerk is attached.

For the purposes of this case I concede that such deed would not be sufficient to transfer the title from the city to Shawhan, and was not such a deed as the city was bound to tender. The city clerk had been duly authorized to execute a proper and sufficient deed of the city, but admitting that he had failed to do so, as far as the record shows, my point is, that the judgment should, nevertheless, be reversed for errors heretofore stated.

The court, however, sustains it solely on the ground that the deed of which this purports to be a copy was not sufficient to reconvey the title from the city to Shawhan.

Under the state of the pleadings set forth in this record, there was no issue as to the fact of reconveyance. The plaintiff had averred the tender of a sufficient deed of re-conveyance on the 1st of April, 1876. The defendant had admitted the averment to be true. The plaintiff was not called upon to offer any proof. No such question of fact was raised by the pleadings. No such question, outside of the pleadings, was submitted to the court below, or passed upon by the court.

True, a copy of the supposed deed is found in the bill of exceptions. But it has no legal significance there. It is said that it was offered by the plaintiff in error; at least there was no objection to it. Suppose it be so, that does not give it legal significance. I may suppose that other immaterial matter be found in the bill of exceptions, offered by the plaintiff' or without his objection. Such exhibit does not change the law or the legal effect of the issue.

In my opinion the judgment should not be affirmed on the grounds stated. The judgment of the district court is now conclusive between the parties. No opportunity is now given to the plaintiff to show that a proper and legal conveyance was tendered the defendant, as he has admitted was done. If the defendant desires to rely on this defense, no opportunity is given the plaintiff to correct the mistake, if it be one.

I think the case should have been sent back for further proceedings.

Johnson, J., concurred in the dissent.