text:
    Hiram Rankin and Wife v. James M. Hannan, Administrator of James H. Guthrie.
    A petition was filed by H., as administrator of O.. the assignee of a judg ment for money and order of sale of real estate, to satisfy the same, the object of which was to enable the plaintiff to enforce and carry this same into effect. The answer, reply and order of reference to a master, made by agreement of the parties, presented an issue of an equitable nature, which, if determined in favor of defendant, satisfied the judgment and extinguished the plaintiff’s right to enforce the same. The judgment based upon the master’s-report found, upon the issues joined, in favor of the plaintiff for part of the amount of said judgment still unsatisfied, and ordered a sale of the real estate in favor of the plaintiff, to satisfy the same. Held, that the defendant had the right to appeal from this judgment.
    Error to the District Court of Gallia County.
    . The only error assigned for a reversal of the judgment is, that the district court erred in dismissing an appeal by plaintiffs in error, from a judgment rendered against them in the court of common picas.
    It is essential to a clear understanding of this question, that a full statement should be made of the issues joined, and of the matters heard and determined befoi’e the master and in the court of common pleas, from'which an appeal was sought.
    The petition of defendant in error, plaintiff below, states as a cause of action, that at the May term, 1869, of the same court, one Isaac Carter recovered a judgment against said Hiram Rankin for $1,719.05, and costs, and also'a judgment and order of sale against said Rankin and wife to sell certain real estate, to satisfy the same; that subsequently, said Carter sold and assigned said judgment and order of sale to said Guthrie, who died in 1877 intestate; that said Hannan has been duly appointed and qualified as his administrator, and that no» part of said judgment has been paid.
    The prayer is, that said judgment and order of sale be revived, “ and for all other proper relief.”
    The defendant .answers: 1st. That said judgment has been fully paid. 2d. That on December 11, 1869, there was an account stated, including this Carter judgment, showing a balance due from defendant to said Guthrie for all indebtedness whatever of $2,639.18, and that in such statement sundry credits were omitted, which should be allowed in addition to those included in the account stated. 3d. That since said account stated sundry payments were made; the dates and amounts of which are set out, amounting in the aggregate to $2,900.90, which more than pays all that was owing to Guthrie, including the Carter judgment.
    The prayer is, that so much of said payments as are necessary be applied to satisfy said judgment and order of sale, and that defendants have judgment for the excess. To this, the plaintiff replies: 1st. Denying generally the special matter of the answer. 2d. Stating that, at the time the alleged payments were made, Rankin was largely indebted to Guthrie, on other and different matters than said judgment, and to a larger amount than all of said payments, and that all such payments have been rightfully applied thereon, leaving said judgment wholly unsatisfied.
    By the agreement of parties, the issues thus joined were referred to a special master to take the testimony and report specifically on the following points :
    1st. The amount due from Rankin to Guthrie before he purchased the Carter judgment.
    2d. The amount due at the time he purchased the same.
    3d. The amount of indebtedness accruing to Guthrie from Rankin upon other matters subsequent to such purchase.
    4th. All payments made on any of such indebtedness, upon what claims such payments were applied, and on what claims they were legally applicable.
    5th. What real estate embraced in the order has been sold, how has the purchase-money been applied, and what remains unsold.
    6th. And generally said master was ordered “ to hear all evidence and make findings on all points and facts, that said parties or either of them may request, in any way connected with a full and just understanding and adjustment of the matters in dispute between the parties in the action.”
    The master, after hearing the evidence, submitted a very elaborate report showing:
    1st. The amount due from Rankin to Guthrie, May 25,1869, the date of said judgment in favoi: of Carter.
    2d. The amount due June 24, 1869, the date of the purchase and transfer of the Carter judgment, including the same, after deducting sundry credits.
    3d. The balance due December 8, 1869, the date of said account stated, including the Carter judgment, after allowing sundry credits shown to have been made.
    4th. The amount of other indebtedness, incurred after said account was stated, and during the time said payments were being made, and the payments made thereon.
    5th. The master finds that sundry payments were made from time to time, and that by agreement between Guthrie and Ranlnn, all such payments were to be and were applied to the satisfaction of the various claims due Guthrie, other than the Carter judgment. lie states an account between tbe parties, and shows that, properly applying all the credits to the satisfaction of the other claims, there is still a balance applicable to the redaction of the Carter judgment, which being so applied, leaves a balance due thereon of $1,201.08.
    The master makes some further findings not necessary to be noticed in this connection. To this report, the defendant excepted, and upon a hearing the exceptions were overruled and the report was confirmed. It was therefore adjudged and oi’dered that that said judgment and decree referred to in the petition stand revived for the use and benefit of said plaintiff for the sum of $1,201.08, with interest and costs. The court then specially finds that certain lands covered by the original decree have been sold by consent of parties, and are exempt from the order of sale, and that certain other lands are subject to said order.
    From this judgment the defendant appealed, and the district court, on motion of defendant, dismissed1 the appeal on the ground that the case was not appealable.

      W. H. C. Ecker, D. A. Russell and Harrison, Olds & Marsh, for plaintiffs in error.

      W. J. Gilmore and S. H. Nash, for defendants in error.
   Johnson, J.

The judgment rendered against the plaintiffs in error, and in favor of Isaac Carter, may be regarded as two judgments: 1st. A judgment at law for money; and, 2nd. A judgment in equity for the sale of real estate for the amount found due in the judgment at law, to satisfy the debt.

It was not the object of the petition to revive the money judgment, for it is not suggested that it was dormant. It would become dormant in one of two ways only; either by the death of Isaac Carter, the judgment creditor, or by failure to sue out, execution for five years. Unless it had become dormant there, was no legal impediment to its collection by execution, the assignee using the name of the assignor for that purpose.

. Neither was the judgment in equity, or decree for the sale of land dormant, if, as we may assume, Isaac Carter is still living..

Decrees of this nature do not become dormant by a failure to issue execution for five years, as do money judgments.

' While the parties to the decree live, the case, for the purposes of the decree, is a lis pendens, though under the code practice the clerk is directed to leave it off the trial docket. Moore v. Ogden, 35 Ohio St. 430 ; Beaumont v. Ogden, 24 Ohio St. 456 ; Fox v. Reeder, 29 Ohio St. 181; Hunter v. Hopeton, 4 McQueen, 972.

By the death of Guthrie his right to enforce the judgment in equity, as well as his legal right to collect the judgment at law, vested in plaintiff as his personal representative. He might, as such representative,' have maintained an action for a money judgment on the original judgment at law, and had a new judgment in his own name for the amount found due at the time such new judgment should be rendered, and have enforced the same by execution. Healy v. Robey, 6 Ohio, 521; Tyler v. Winslow, 15 Ohio St. 364; Moore v. Ogden, 35 Ohio St. 433, 434. .This he has not sought to do. In substance the prayer is to authorize him, as the representative of the assignee, to carry into effect the original decree, and not to make a new decree or judgment.

Bills to enforce or carry into effect decrees in equity were well known in chancery practice. Mitford Eq. PI. ch. 1, § III., ¶ 6 ; 2 Daniels Ch. p. 1585, § YII.; Story Eq. PI. 429-432. .

Lord Redesdale, in the paragraph from Mitford, says: “ A bill of this nature was generally, partly an original bill, and partly a bill in the nature of an original bill, though not strictly original; and sometimes it is likewise a bill of revivor, or a supplemental bill, or both. The frame of the bill is varied ac-. cordingly.”

The necessity for such a bill arises from different causes, as where either of the parties under a decree has sold his interest therein, or in the subject-matter affected thereby. It may be brought by or against a person claiming as assignee of a party. The form of the final judgment is that the original decree be enforced with such modifications as events subsequent to its rendition render necessary to protect the rights of all parties. Mitford Eq. PI. cb. 1, § III., ¶ 6; Daniels Ch. Pr.; Story Eq. PI. supra ; Organ v. Gardner, 1 Cases in Ch. 231; Binks v. Rinks, 2 Bligh, 593 ; Cartarel v. Pasckal, 3 Peere Wms. 196 ; McGrew v. Andrews, 12 Met. 363.

While, under our civil code of practice, names and'forms of proceedings have been changed, yet the substantial rights of parties, in equity as well as at law, remain the same, except where changed by statute. We may therefore treat this petition as in the nature of a bill in equity to enforce the former decree for the sale of real estate, in favor of the personal representative of Guthrie, who became the owner by assignment.

Again, the answer, reply and order of reference, made by agreement of the parties, present issues of unquestioned equitable cognizance. They involve the question of a settlement between the parties, by an account stated, made by Guthrie with Rankin, who became the owner of the Carter claim, the correction of a mistake therein, the settlement of claims arising after said account stated, the proper application of numerous payments made by Rankin on these various claims and demands, the elimination of usurious interest, the ascertainment of what lands had been sold, since the original decree, what had been done with the purchase-money, and what lands remained subject to the decree. The report of the master is an elaborate response to these issues. ■ It involved an examination and adjustment of a number of claims and demands, other than the Carter judgment, and an equitable application of sundry payments. The issues thus presented, heard and determined, were founded on the answer, or, more properly, the cross-petition of defendant. To defeat the plaintiff’s right to enforce the decree, the defendant must show such a state of facts as would entitle him to have the same satisfied and canceled in whole or in part.

By express agreement of parties all these issues were referred to a master clothed with the largest powers. He was ordered, “ to hear evidence and make findings on all points and facts that said parties or either of them may request, in any way connected with a full and just understanding and adjustment, of the matters in dispute between the parties.”

An adjustment of the. matters in dispute other than the amount due on the Carter judgment became necessary, as the master found that these several payments were made under an express agreement that they should be applied first to the satisfaction of these other claims.

The master’s report shows that he was called on to exercise these enlarged powers, and to review and adjust large and complicated transactions between these parties, running through a series of years. This was a necessity arising out of the agreement above stated, as in no other way could the court determine whether said judgment had been satisfied in whole or in part. If we concede, however, that the petition tendered an issue at law, triable by a jury, the issue made up by agreement of parties, and founded upon the answer, was purely equitable in its nature and triable by the court. If the defense set up was found to be true, the right sought to be asserted by the plaintiff did not exist. The equitable matters involved in the issues raised on the answer and order of reference amount to a cause of action in favor of defendants, which if established, extinguished or superseded the plaintiff’s cause of 'action. This brings the case directly within the principle settled in Buckner v. Mears, 26 Ohio St. 514; Taylor v. Leith, 26 Ohio St. 427, where it was held the case was appealable from a final judgment thereon.

Judgment of the district covert reversed and cause remanded


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    E. J. Gormley v. The State of Ohio.
    Motion for leave to file a petition in error to reverse the judgment of tlie District Court of Shelby County.

      T. J. Sweeney, for the motion.

      George W. Wash, attorney-general, contra.

   By the Court.

A plea of not guilty was entered on an indictment, and subsequently, leave was granted to withdraw the plea “for no other purpose ” than to enable the defendant to plead a former conviction. No order was made to strike the plea from the indictment, and the plea remained thereon. The plea of former conviction not having been sustained, the defendant was placed on trial without further plea, and convicted. Held, that such withdrawal of the former plea was not absolute, and when the plea of former conviction was disposed of, it was not error to try the case on such plea of not guilty.

2. A plea of former conviction which is insufficient in matter of substance, does not raise an issue for a jury, but may be adjudged insufficient on demurrer..

3. A conviction for keeping a place where intoxicating liquors are sold in violation of law between designated days in 1879, and a judgment that such place is a common nuisance, constitute no bar to an indictment for keeping such place between designated days in 1880, although the order under the first conviction, that the defendant should shut up and abate the nuisance, was not obeyed or enforced.

Motion overruled.


text:
    The State ex rel. Eliza W. Schmidt v. W. S. Cappeller, Additor of Hamilton County.
    The refusal to allow an alternative writ of mandamus is not reviewable on error. The remedy of the relator is by application to this court, after its refusal by the district court.
    Ereoe to the District Court of Hamilton County. Motion to advance the case above named on the docket for hearing.
    Application was made by the relator to the district court of Hamilton county for the allowance of an alternative writ of mandamus against the auditor of said county. On hearing the application was refused. The relator filed a petition in error in this court to reverse the order disallowing the application. Motion is now made to advance the case on the docket for hearing, on the ground of the public interest involved in the questions in the case.

      W. A. and L. Hicks, for the motion.

      Charles Evans, contra.

   By the Court.

The refusal to allow an alternative writ of mandamus is not reviewable on error. The remedy of the relator is by application to this court for the allowance of the writ, after its refusal by the district court.

Motion overruled and case stricken from the docket.


author: McIlvaine, J.

text:
    H. B. Payne v. M. G. Watterson, &c.

    Under title 13 of tbe Revised Statutes relating to taxation, a person required to list property is not authorized to deduct his debts from his investments in bonds as therein defined, and to return the excess only for taxation.

      Appeal. Reserved in the District Court of Cuyahoga County.
    Henry B. Payne, of the city of Cleveland, county of Cuyahoga, in listing his property for taxation, in the year 1880, deducted his indebtedness, amounting to $30,939, from the amount and value of certain bonds of certain corporations, then held and owned by him, and returned for taxation, in the statement of personal property required by law, only the excess of the value of the bonds over and above the amount of his indebtedness. Subsequently, the city board of equalization directed the auditor of the county to add said sum of $30,939, to said statement, and to place tlie same on the general duplicate for taxation, which was done accordingly, and the sum of- $813.69, for city, county and state taxes, was assessed upon said added sum and the duplicate placed in the hands of Moses G-. Watterson, treasurer of said county, defendant, for collection.
    This action was commenced in the court of common' pleas of said county, to restrain the collection of said sum of $813.69 ; and, upon overruling a demurrer to the petition, final judgment was rendered in favor of the plaintiff, as prayed for.
    On appeal to the district court, by the defendant, the cause was reserved for decision in this court.

      R. P. Ranney, for plaintiff.

      A. J. Marvin and Carlos M. Stone, for defendant.
   McIlvaine, J.

The right of the plaintiff, in listing his property for taxation, to deduct the amount of his indebtedness from the value of the bonds held and owned by him, is the sole matter in controversy. The case was submitted in argument and has been considered by the court as controlled by the statute regulating taxation ;• namely, title 13 of the Revised Statutes. The plaintiff' claims that under this statute, especially section 2730, he was authorized to mate the deduction. This claim is controverted by the defendant. The section referred to assumes to define the meaning of certain terms used in the statute, and the right claimed by plaintiff is based on the meaning of the term “ credits ” as therein defined, to wit: “ the term credits ’ shall be held to mean the excess of the sum of all legal claims and demands, whether for money or other valuable thing, or for labor or services, due or to become due to the person liable to pay taxes thereon .... when added together (estimating every such claim or demand at its true value in money) over and above the sum of all legal bona fide debts owing by such person.” The contention is, that for the purpose of ascertaining the value of the plaintiff’s credits which are made a subject of taxation, the deduction of his bona fide debts from the value of these bonds was fully authorized hy this section. By the ordinary meaning of the terms, it would seem to be plain enough, that the plaintiff’s bonds were legal claims and demands ” for money ; but, on the other side, it is claimed that upon the whole statute, it is manifest that these bonds are not legal claims or demands ” within the meaning of those terms as used in defining “ credits.”

The subjects of taxation, as enumerated in section 2731, are “ All property, whether real or personal, and whether belonging to individuals or corporations; and all moneys, credits, investments in bonds, stocks or otherwise, of persons residing in this state.” “ Credits ” are specifically named as a subject of taxation, and “investments in bonds’ are also specifically named as another ; and in section 2730, the latter is defined as follows : “ the terms ‘ investments in bonds ” shall he held to mean and include all moneys in bonds, or certificates of indebtedness, or other evidences of indebtedness of whatever kind, whether issued by incorporated or unincorporated companies, towns, cities, villages, townships, counties, states, or other incorporations, or hy the United States, held by persons residing in this state, whether for themselves or others.” Now, hy the common meaning of words, the plaintiff’s bonds are as clearly within the definition of “ investments in bonds ” here given as within the definition of credits ” as above quoted; and if everything within the definition of “ credits ” were to be taxed as credits and everything within the definition of “ investments in bonds ” were to be taxed as investments in bonds, it would assuredly follow that the bonds of the plaintiff would be subject to double taxation. And again, this same section provides that “ the term ‘ money’ or ‘ moneys ’ shall be held to mean and include any surplus or undivided profits held by societies for savings, or banks having no capital stock, gold and silver coin, bank notes of solvent banks, in actual possession, and every deposit which the person owning, holding in trust, or having the beneficial interest therein, is entitled to withdraw in money on demand while it is provided in section 2737, that every person required to list property for taxation shall set forth in his statement, separately and distinctly, among other things, as follows: “ thirteenth, moneys on hand or on deposit subject to order; fourteenth, the amount of credits as hereinbefore defined ; fifteenth, the amount of all moneys invested in bonds, stocks, joint-stock companies, annuities or otherwise.”

Now, I shall be content to assume, at least until it shall be controverted, that the legislature, by these provisions and definitions, did not intend to impose double or triple taxation; hence, it must be assumed, also, that the legislature did not intend to embrace within the meaning of one of these terms property or things that were intended to be included in another. Therefore, it only remains to be determined whether the plaintiff’s bonds must be included within the term “ investments in bonds ” or within the term “ credits.” We think that they were the subject of taxation as investments in bonds,” which are defined by the statute to mean “ moneys in bonds.” This conclusion is in accordance with the first and only meaning of the words. If these were not “ investments in bonds,” we cannot conceive of anything that would be an investment-in bonds. If these are not investments in bonds, these words in the statute are meaningless; but not so with credits, or the definition of credits. Without embracing bonds, the term “ credits,” and its definition, have many subjects within their scope and meaning.

Again, the use of the word “investment” is not without significance W e are cei-tainly justified in saying that the common understanding is, that money invested is withdrawn from ordinary trade and active business and placed at interest for the sake of interest, while, on the other hand, in the ordinary course of active business and trade, legal claims and demands,” within the meaning of the statutory definition of credits, are created, not for the sake of interest which may or may not accrue, but for the purpose of promoting trade. Hence, a reason for the legislative distinction between investments in bonds, &c., and credits, as subjects of taxation.

And finally, the true meaning or construction of these provisions may be discovered in the reasonable and proper assumption that the legislature intended to provide for the imposition of taxes in accordance with the declared meaning of the constitution.

"We do not propose to review the case of Exchange Bank v. Hines, 3 Ohio St. 1, in which it was held by a majority of the court, that section 10 of the tax law of 1852, which authorized the deduction of debts from moneys and credits, was in conflict with section 2, article 12, of the constitution, which provided: “ Laws shall be passed, taxing by a uniform rule all moneys, credits, investments in bonds, stocks, joint-stock companies or otherwise ; and, also, all real and personal property, according to its true value in money.” It is true the general assembly has not acquiesced in the decision of the majority, which held that debts could not be deducted from credits; but in the unauimoús holding that debts could not be deducted from moneys, there has been a ready acquiescence. It is also true that the statute then under consideration, like the Revised Statutes, did not in terms authorize the deduction of debts from investments in bonds; but, if investments in bonds were not credits then, they are not now, for the reason that the legislature cannot, by improvising definitions, change the meaning of constitutional provisions; and if bonds were credits then, they are now; so that the decision stands as the opinion of the majority who concurred therein, that deductions on account of debts cannot be made from investments in bonds, and Ranney, J., who dissented in that case, remarked as follows: I say nothing of .the right to deduct from moneys, or from investments in bonds and stocks, for the double reason that these may be, and for most purposes are, regarded as property in possession, having intrinsic value, and not the mere evidences of claims upon others, and because no deduction is allowed from these ‘investments’ by the section of the law under consideration.”

The last sentence above quoted, being equivalent to a declaration that debts cannot be deducted from investments in bonds under the name of credits, the case stands as the unanimous opinion of the court upon that point; and it is reasonable to believe that in subsequent statutes the classification of the subjects of taxation was made and. adopted in accordance with that construction of the constitution.

Decree for defendant.

       See also, Latimer v. Morgan, 6 Ohio St. 279; Bank v. Smith, 7 Ohio St. 42.


author: Okey, J.

text:
    Merrick v. Merrick.
    1. Where property is devised by two descriptions, either of which is sufficient in form, but it is shown that one of them is erroneous and the other correct, the former should be rejected, and the property will pass by the latter description, according to the maxim, Falsa demonstratio non nocot.

    2. A. devised his lands to B. for life, in the following words: “All the . . . real estate I may die seized of.” He owned 160 acres of land, and no more, one-half of which was in section 27 and the other moiety was the east half of the north-east quarter of section 28. He devised the portion in section 27, by a correct description, to C., at the death of B., charged with certain legacies, and devised the portion in section 28 to D., at the death of B., charged with certain legacies, but by mistake in the particular description of the land devised to D., the word south was inserted instead of north. Held, that so much of the description as is erroneous should be rejected, and that the land will pass to D., on the death of B., by the other provisions of the will.
    Error to the District Court of Yan Wert County.
    In 1875, Adam R. Merrick, executor of and a devisee under the will of Adam Merrick, brought suit in the court of common pleas of Yan Wert county, against J. J. Merrick and others. In the petition it is shown that Adam Merrick, oh 'January 13, 1872, executed his will of that date in due form, which will is as follows : “ I do give and bequeath to my beloved wife, Mary Merrick, all the personal and real estate that I may die seized of, to have and to hold during her natural life, and all the personal estate of whatsoever kind I may die seized of, she my said wife is to have to dispose of as she may think best at her death, should she outlive me.
    “ Item 2. I give and bequeath, after the death of my wife, to my soh, Robert Merrick, the west half of the north-west quarter of section number twenty-seven (27),’ township one (1), south range three (3) east, he paying' Frank Merrick, son of J. J. Merrick, two hundred dollars, at the time, he, Frank Merrick arrives at his majority; and he is to pay Isia O. Merrick, daughter of J. J. Merrick, at the time she arrives at her majority, one hundred and fifty dollars. Elmer Merrick, the oldest son of Isaac Merrick, two hundred dollars at the time he arrives at his majority.
    “ Item 3. I give and bequeath to my son Adam R. Merrick, after the death of my wife, the east half of the south-east quarter of section number twenty-eight (28), township one (1), south range three (3), east, containing eighty acres of land more or less. And he, the said Adam R. Merrick, has to pay Mary Elsie Merrick, his daughter, three hundred dollars, when she arrives at her majority, and his son, Charles H. Merrick, two hundred dollars, at the time he arrives at his majority, and he is to pay Adam W. Smith, one hundred and fifty dollars, at the time he arrives at his full age or his majority.
    “ Item 4. I give and bequeath to Alice Eteline Stewart, daughter of John Stewart, deceased, three hundred dollars at my death, if she outlives me, to be paid out of my personal estate, at the time she arrives at her majority.
    “ Item 5. I do appoint my son, Adam R. Merrick, executor of this my last will and testament. I do hereby revoke all former wills by me made,”

      That on November 18, 1872, tbe will was admitted to probate in the probate court of Yan Wert county, and said Adam R. Merrick accepted the trust as executor under the will, and received letters testamentary as such executor:
    That neither at tbe time the will was made, nor subsequently, did Adam Merrick own any other lands than the following : tbe west half of the north-west quarter of section 27, and tbe east half of the north-east quarter of section 28, both tracts in Hoaglin township, Yan Wert county :
    . That by the third item in his will, above set forth, Adam Merrick intended to devise to Adam R. Merrick tbe east half of the north-east quarter of section 28, above mentioned, but by mistake of tbe draftsman, tbe land was described in the will as the east half of the southsast quarter of said section 28, in which tract Adam Merrick had no interest at or after the tune the will was made:
    That by a proper construction of the will, the word south, in said third item, should be read north :

    That Adam W. Smith, and other legatees, whose legacies are charged upon the real estate, as appears by the will, have arrived at majority, and their legacies are payable:
    And that doubts are entertained by the executor, and others interested in the will, as to tbe proper construction and meaning of the third item of the will, with respect to tbe land devised.
    The prayer is that the court will declara the proper construction and meaning of the will, in the particular aforesaid, to the end that the rights of the legatees and devisees, and tbe duty of the executor, may be known, and the legacies may be paid.
    The defendants, heirs of Adam Merrick, denied the allegations of the petition as to the mistake and the intention of tbe testator.
    Tbe widow of Adam Merrick is still living.
    Tbe district court, to which tbe cause was appealed, by its judgment construed the will as the plaintiff below claimed it should be construed, and the defendant below, on leave, filed in this court a petition in error to revérse tbe judgment.

      Alexander & Saltzgaber and I. D. Clark, for plaintiffs in error:
    There is no latent ambiguity. Broom’s L. Max. 468; Tucker v. Seaman's Aid Society, 7 Met. 188 ; 1 Red. on Wills, 503; Careless v. Careless, 1 Meriv. 384. Parol evidence is not admissible to vary or contradict the will or remove patent ambiguities. Worman v. Teagarden, 2 Ohio St. 280 ; Ashworth v. Carleton, 12 Ohio St. 361; Smith v. Bell, 6 Peters, 68; 1 Redfield on Wills, 497; Fitzpatrick v. Fitzpatrick, 36 Iowa, 674 (14 Am. R.) ; Judy v. Williams, 2 Ind. 449; Mann v. Mann, 1 Johns. Ch. 231; Kepworth v. Cabell, 19 Grat. 758; Jackson v. Sill, 11 Johns. 201; Watson v. White, 5 Md. 297; Kurtz v. Hibner, 55 Ill. 514 (8 Am. R.); Langston v. Langston, 8 Bligh. N. S. 167; Cheney's case, 5 Coke, 68; Hiscocks v. Hiscocks, 5 M. & W. 362; Newburgh v. Newburgh, 1 Madd. Ch. 364; Worthington v. Hyler, 4 Mass, 196 ; 1 Green. Ev. 297. This is not a case for the application of the maxim, Falsa démonstratio non.nocet. Broom’s L. Max. 490 ; Winckley v. Kaeme, 32 N. H. 268; Alen v. Lyons, 2 Wash. C. C. 475; Jackson v. Sill, supra ; Hiscocks v. Hiscocks, supra. See also Bacon’s Abr. tit. Devise.

      Price & Shissler, for defendant in error:
    There is a latent ambiguity in the will. 1 Burrill’s 1. Dic. 65; 1 Green. Ev. §§ 289-291, 297; 1 Red. on Wills, §§ 505, 574, 575, 584, 585, 587, 609, 610 ; 7 Met. 206 ; 9 Allen, 109 ; 15 Gray, 347; 5 N. Y. 434; 1 Wend. 541; 10 Paige, 140; 16 Conn. 302; 31 Conn. 190; 1 Ves. Jr. 257, 264; 3 Ves. Jr. 306. And parol evidence is admissible to show it. The cases of Ashworth v. Carleton, 12 Ohio St. 381; Worman v. Teagarden, 2 Ohio St. 380; Fitzpatrick v. Fitzpatrick, 36 Iowa, 674; Kurtz v. Hibner, 55 Ill. 514 (8 Am. R. 669), commented on, and the claim made that the erroneous description being rejected, sufficient appears to constitute a proper devise to Adam R. Merrick of the land owned by the testator. .
   Okey, J.

By statute, authority is granted to an executor to maintain a civil action in the court of common pleas, asking the direction of the court in any matter affecting the trust, estate or jaroperty to be administered, and the rights of the parties in interest. 54 Ohio L. 202, § 8; Rev. Stats. § 6202. And see Rothgeb v. Mauck, 35 Ohio St. 503.

This jurisdiction Adam R, Merrick has invoked; and the evidence fully supports the claim that, while the will on its face is free from ambiguity, the word south, in its third item, was inserted by mere mistake of the scrivener, the testator intending that the word north should be used. The sole question, therefore, is whether, on proof of such fact, it is competent for the court to declare that the east half of the north-east quarter of section 28 passed by the will to Adam R. Merrick on the death of his mother.

As there is a parcel of real estate which is accurately described in the third item of the will, it might well be argued, if that clause stood alone, that the testator must have believed he had some devisable interest in the land, and hence that the devise related to such land, although in point of fact he had no interest in it whatever. Fitzpatrick v. Fitzpatrick, 36 Iowa, 674; Kurtz v. Hibner, 55 Ill. 514; 2 Randolph & Talcott’s Jarman on Wills, 403. But the clause does not stand alone, nor is it to be construed as standing alone. On the contrary, regard must be had to the whole instrument; and while the' will can only be properly construed by its words, we may be aided in such construction by evidence of the situation of the testator, with respect to his property and the objects of his bounty, at the time the language was employed. Worman v. Teagarden, 2 Ohio St. 380.

The inquiry, then, is whether the description in' the third item is referable to the fact that the testator must have supposed he had a devisable interest in the premises there described, or whether the mistake claimed, that is, the use of the word south when north was intended, was really made. Which is the more reasonable supposition ? It appears that the testator had no interest whatever in the land there described, at the time or after the will was executed. It then belonged to and was in the possession of his son Isaac, and the theory that the testator was perfectly aware of that fact is certainly reasonable. On the other hand, he did own the east half of the north-east quarter of the same section—indeed, resided on it when the will was made and until he died; and it is not denied that it is embraced in the devise to his wife, for he devised to her, for life, all his real estate, consisting of two eighty-acre tracts. One of these tracts he devised by proper description to his son Eobert, on the death of his mother, charged with certain legacies, and unless the other tract was devised to Adam E., at the death of his mother, it will pass at her death to the testator’s heirs. But a testator is not presumed to intend to die intestate as to any interest in his property to which his attention seems to have been directed. Collier v. Collier, 3 Ohio St. 369. Again, unless the testator intended by the third item to devise the tract in the north-east quarter which he really owned, why postpone the taking effect of such devise until the death of his widow ? Isaac, as we have seen, was the owner and in possession of the land in the south-east quarter, and it is not reasonable that the testator believed his widow could derive any advantage from a devise to her of that land during life. Moreover, why charge the land devised to Adam E. with the payment of $650 in legacies, unless he intended to devise the premises he really owned? Would he make such charge on land in which he had no interest, on the supposition that he had some claim upon it ? Besides, at the time the will was executed, Adam E. Merrick liad resided with his family on the north-east quarter in question for more than six years, and he continued to reside thereon. Is it not reasonable to suppose that the testator desired him to have the land upon which he resided ? Clearly, all the land which the testator owned was devised to his wife for life, and the inference is irresistible that the same land, and no other, was devised to his two sons, Eobert and Adam E., at the death of Mrs. Merrick. One moiety of it passes by clear words to Eobert, on the death of his mother; and, rejecting the erroneous description, the word south, sufficient appeal’s on the face of the will, in the light of the facts here disclosed, to warrant us in saying that by the will of Adam Merrick the other moiety, the east half of the north-east quarter of section 28, Hoaglin township, Yan Wert county, passes to Adam B. Merrick, on the death of his mother. And thus the case is determined by a just and proper application of the maxim, Falsa demonshratio non nocet. Ashworth v. Carleton, Banning v. Banning, 12 Ohio St. 381, 437; 1 Randolph & Talcott’s Jarman on Wills, 734, 744; 2 Id. 390.

Judgment affirmed.


author: Boynton, O. J.

text:
    Louisa J. Ball et al. v. Emily Foreman et al.
    Wliere a grantor in a deed delivers the same to a third person as Ms deed, to he delivered to the grantee at the death of the grantor, and the deed is accordingly delivered to the grantee upon the grantor’s death the title passes to the grantee as of the date of the first delivery.
    Error to the District Court of Noble County.
    The origina,! action was one in partition, brought by Mary Ellen Gregg, her husband uniting, who claimed to be a tenant in common with the defendants in the premises described in the petition.
    Her title to the portion of the premises claimed by her, depended on the fact whether the same, with the remainder of the lands described in the petition, was owned by Jonas Ball, her grandfather, at the time of his decease. It was agreed upon the trial that said Jonas Ball died seized of all said premises, unless certain deeds put in evidence and copied below, were so delivered by said Jonas Ball in his lifetime as to vest the title to the lands therein described in the grantees therein named.
    The first deed was as follows:
    EXHIBIT A.

      “ Know all lien by these Presents: That I, Jonas Ball, of the county of Noble and state of Ohio, in consideration of natural love and affection for my son Jonas Ball, Jr., and recognizing the high moral duty incumbent upon me as a parent to provide him, in view of his bodily infirmity, with competent means of support, have bargained and sold, and do hereby grant and convey unto the said Jonas Ball, Jr., his heirs and assigns forever, the following promises situate in the county of Noble, in the state of Ohio, and in the Zanesville land district, and bounded and described as follows, to wit: ” [Here follows a description of 280 acres of land.]
    “Excepting and reserving to the said Jonas Ball, the grantor, the use, occupancy, enjoyment and full control of the premises aforesaid, and all the rents, profits and issues thereof full and complete for and during the term of his natural life: To have and to hold said premises, with the appurtenances, unto the said Jonas Ball, Jr., his heirs and assigns forever, from and after the decease of the said Jonas Ball, the grantor. In testimony whereof, the said Jonas Ball has hereunto set his hand and seal this sixteenth day of July, in the year of our Lord one thousand eight hundred and sixty-six.”

      His

    JONAS [X] BALL. [Seal.] ; marls.

    The following is a copy of the second deed:
    EXHIBIT B.

      “Knoio all Men by these Presents: That I, Jonas Ball, of the county of Noble and state of Ohio, in consideration of natural love and affection for my daughters hereinafter named, and other good and valuable considerations to me paid and received, have bargained and sold, and do hereby grant and convey unto my said daughters Emily Foreman, Anna Hastings, Ruth Davis, Elizabeth Davis, Ellen Gregg, Hannah Granden and Martha Archer, their heirs and assigns forever, the following premises situate in the county of Noble, in the state of Ohio, and in the Zanesville land district, and bounded and described as follows, to wit: ” [Here follows a description of 326 acres and 16 perches of land.]

      “ Excepting and reserving to said Jonas Ball, the grantor, the use, occupancy, and enjoyment, full and complete control of the premises aforesaid, and all the rents, issues and profits thereof, full and complete, for and during the term of his natural life: To have and to hold, said premises, with the appurtenances, unto the said ■ Emily Foreman, Anna Hastings, Ruth Davis, Elizabeth Davis, Ellen Gregg, Hannah Granden and Martha Archer, their heirs and assigns forever, from and after the decease of the said Jonas Ball, the grantor, in the following proportions, to wit: the said Emily Foreman to have the first sum of eight hundred dollars in value thereof in consideration of that sum paid by her to me, and the residue thereof to be held by the said Emily Foreman, Anna Hastings, Ruth Davis, Elizabeth Davis, Ellen Gregg, Hannah Granden and Martha Archer, in equal proportions, to them and their heirs, share and share alike.
    “ In testimony whereof, the said Jonas Ball has hereunto set his hand and seal this twelfth day of November, in the year of our Lord one thousand eight hundred and sixty-six.”

      His

    JONAS [X] BALL. [Seal.]

      marie.

    On the trial, William H. Frazier was called and testified, that, “ in 1866, he was practicing law in Caldwell, Ohio ; had known Jonas Ball, Sr., since the year 1852. Was his attorney, whom he consulted in almost all his business matters since the time I became acquainted with him until his death. On the 16th of July, 1866, at the request of Jonas Ball, Sr., I prepared a deed from him to his son Jonas Ball, Jr., defendant.”
    [Said deed is here shown to witness and identified as the one prepared, á copy of which is attached to bill of exceptions marked “A.”]
    “ On the occasion of preparing and executing this deed, he, Jonas Ball, Sr., informed witness that he intended, in a short time thereafter, to make two other deeds, one to his daughters and one to the children of his son Daniel Ball. To enable witness'to prepare the two deeds, he took minutes at that time, so he (witness) could prepare them at his leisure, and have them ready when he (Ball) came down and called for them. After he (Ball) had executed said deed to his son Jonas, he left it with me, and said that if anything happened to him before he got back, to deliver it to said Jonas Ball, his son. I prepared the two other deeds spoken of. and on the ¿2th of November •* 1866, Jonas Ball, Sr., came down for the purpose of executing them. He said to witness that he had concluded to leave his daughter, Nancy Davis, out of the deed. Witness then erased her name from the deed before its execution, and made a note of it; and then executed the deed.” [The deed from Ball to his daughters was here shown witness and identified as the one referred to, a copy of which is hereto attached and made a part of this bill of exceptions, marked “ B.”]
    “ After the execution of the two deeds mentioned, he (Ball) left them in my custody. Nothing was said at that time about the delivery of the deeds. I thought he intended to deliver them himself during his lifetime. The reason I thought so was because he had preserved a life estate in them to himself. After the execution of these deeds, and within a year thereafter, I saw Jonas Ball, Sr., on one or more occasions. He said nothing about the delivery of the deeds. As nearly as I can remember, about one year after the execution of the two last deeds, Jonas Ball called on me at my office in Caldwell, and talked with me about these deeds he had theretofore executed and left with me. At this time, and during the conversation, he (Jonas Ball, Sr.) directed me to hold these deeds, and at his (Ball’s) death to hand or deliver the deeds to the proper parties named in the deeds.
    This direction was repeated to me by him on one or more occasions afterward. After this conversation some time, I enclosed these deeds (together with some patents and old deeds having reference to the lands conveyed) in an envelope, and indorsed thereon the following words : ‘ Jonas Ball’s papers. The deeds within were delivered to me to be delivered or handed over to the proper parties at his death. Attest, W. H. Brazier.’ In making said indorsement on the envelope I endeavored to embody the directions given me by Jonas Ball, Sr., in relation to the delivery of the deeds. I made the indorsement on the envelope so that if anything happened to me, the intentions of Jonas Ball, Sr., might be carried out in relation to said deeds. At the time he (Ball) was speaking to me about preparing the two last deeds, he inquired of me if a deed could tnot be made to his son Daniel for his (Daniel’s) life, and then to Ms (Darnel’s) children, in such a way that Daniel’s creditors could not reach, it. I told him I knew of no way in which it could be done. At one time, after the execution of said deed, Jonas Ball, Sr., and his son Daniel, called on me, and told me that Daniel’s cMldren were threatening to put their father off the farm that he (Jonas Ball) had deeded to Daniel’s children, and inquired if they could do it. I told Mm that he had reserved a life estate in th e farm, in the deed, and could control it during Ms lifetime. This appeared to satisfy him. After I had made the indorsement on the envelope containing these deeds, I put the envelope, with the deeds, in my safe and kept them in my office. After I was elected to the bench, and absent from home frequently, 1 deposited the deeds in the safe of the Noble County National Bank, in Caldwell,- of which 1 am and was then president. After the death of Jonas Ball, Sr., a short time, I delivered the deed made to Jonas Ball, Jr., and the one to Daniel’s children, to James Ball, son of J onas Ball, Sr. I also left instructions with Mr. Lewis, cashier, that in ease any of the grantees named in the deed to Ball’s daughters called for it, to deliver it to them. At the time Jonas Ball, Sr., called on me to prepare said deed, he was alone, and all the conversations I had with him about the deeds (except the one in which Daniel’was with him), we were alone. Jonas Ball, Sr., had full capacity to transact business at all the conferences we had in relation to said deeds, and at their execution.”
    The deed to the daughters was delivered to their agent by said cashier.
    The defendants then produced James Ball, who testified as follows: “ Am son of Jonas Ball, deceased.' I got the deeds spoken of from Jonas Balito Jonas Ball, Jr., and Daniel Ball’s cMldren from Judge Frazier and took them to the recorder’s office for record. I was acting as the agent of Jonas Ball, Jr., and Daniel Ball’s children, in receiving said deeds and entering them for record.”
    James Ball further testified, that some time before his father’s death, he had a conversation with his father, in which he (witness) advised his father, as he was getting old, he ought to fix up liis business; in reply bis father told bim (witness) tbat be bad already fixed up bis business and made deeds, and bad left tbem witb Frazier, of Caldwell, to be by bim delivered at bis death to the proper parties. Witness has frequently beard bis father say be was going to give bis son Jcnas Ball, Jr., the home farm. Father was afraid tbat bis son Jonas would become a charge, by reason of being badly crippled in bis limbs almost from bis infancy, so as to render him almost incapable of performing manual labor.
    Other testimony was given, which it is not necessary to state, as the following embodies the substantial facts relative to the delivery of the deeds. The district court found that the deeds were so delivered as to vest in the grantees therein named the title to the land, and gave judgment dismissing the petition. It is the object of the present proceedings in error to reverse tbat judgment.

      M. M. Granger, with whom were Chambers & Gibbs, for plaintiff in error:
    The only question is, were the deeds delivered in the life time of the grantor ? Neither deed was so delivered unless the grantor (Jonas Ball, Sr.), when “be directed” bis lawyer to bold the deeds and band and deliver tbem to the proper parties after the grantor’s death, so parted witb control over these papers tbat be could not thereafter lawfully revoke tbat “ direction ” and require bis lawyer to obey a different instruction. Tbat Jonas Ball considered himself as still controlling' the papers is shown by bis repeating bis direction, from time to time, down to and after the deposit in the bank. Judge Frazier deemed himself subject to such instructions, and received tbem as from one entitled to give tbem; in no instance informing the grantor tbat bis right to instruct bad ceased. He who “ directs ” can revoke bis order or direction. Nothing in Judge Frazier’s history of what was done even tended to prove tbat be bad any right to bold the papers in any other manner than as subject to the will or instruction of bis client. In support of the rule of law under which plaintiffs in error claim a reversal of the decree of the district court, I cite:
      Cook v. Brown, 34 N. H. 470, 476. “ The depositary must have had such a dominion, over the' deed during the lifetime of the grantor as the latter could not interfere with.” See also the following authorities cited by the New Hampshire court: Parker v. Dustin, 2 Foster, 424; Doe v. Knight, 5 Barn. & Cresw. 671; Commercial Bank v. Restlers, 1 Halstead Ch. 430 ; Baldwin v. Maulsby, 5 Wend. 505 ; Maynard v. Maynard, 10 Mass. 456; Jackson v. Phipps, 12 Johns. 421; Jackson v. Dunlap, 1 Johns. Cas. 114; Harper v. Ramsbottom, 6 Taunt. 12; Haberghem v. Vincent, 2 Ves. Jr. 231. See also, Prutsman v. Baker, 11 Am. Rep. 592, and same case in 30 Wisc. 644 ; also Brown v. Brown, 66 Maine, 316 ; and Hawkes v. Pike, 105 Mass. 560, 562 ; Block v. Hoyt, 33 Ohio St. 203; Crooks v. Crooks, 34 Ohio St. 610. Even if the delivery of a deed to a third party may under ordinary circumstances carry a presumption that the grantor parts with all control not expressly reserved—does such presumption arise, where (a) the third party is the grantor’s own lawyer, to whom he resorted for counsel for years before and for years after the execution of the deed, and who had prepared the deed, as his attorney ? And where (b) the deed had already remained for a considerable period in the attorney’s hand, subject to instructions from time to time by the grantor, and was not seen or handled by either at the time the instructions for delivery after death were given ? And where (c) the grantor continued thereafter to repeat directions as if he had a right to give them, and the lawyer continued to receive them as if rightfully given ?

      Belford & Okey and D. S. Spriggs, for defendants in error:
    The burden is on the plaintiffs in error to show that the grantor reserved control over the deeds. Crooks v. Crooks, 34 Ohio St. 610. No such testimony is found in this case. By the testimony in this case it clearly appears that Jonas Ball, Sr., executed the deeds in question and delivered them to Judge Frazier to be delivered by him, Frazier, after Ball’s death, and that the deeds were delivered after the death of said grantor to the grantees, therefore the title passed, and is vested m the grantees. Wheelright v. Wheebright, 3 Am. Dec. 66; Hatch v. Hatch, 6 Am. Dec. 67; Foster v. Mansfield, 3 Met. 412 ; Mathers v. Carliss, 103 Mass. 568 ; Hathaway v. Payne, 34 N. Y. 92; Stephens v. Rinehart, 72 Pa. St. 434 ; Stone v. Duvall, 77 Ill. 475; Wallace v. Harris, 32 Mich. 380; Thatcher v. St. Andrew’s Church, 37 Mich. 264. And we invite special attention to the case of Jones v. Jones, 16 Am. Dec. 35, and the note thereto collecting authorities; to the cases of Wheelright v. Wheebright, 2 Mass. 446 or 3 Am. Dec. 66, and of Hathaway v. Payne, 34 N. Y. 92, we also invite special attention. On the question of delivery we also refer the court to 2 Hilliard on Real Property, 284, §§ 114, 116, 133, 141, 142, 151; 3 Washburn on Real Property, 259, §§ 28, 34, 41, 42 ; 13 Johns. 284 ; Mitchel v. Ryan, 3 Ohio St. 380; Black v. Hoyt, 33 Ohio St. 203.
   Boynton, O. J.

The following propositions relative to the delivery of deeds seem to be well established, both upon principle and authority.

1st. Where the grantor places in the hands of a depositary, a deed to be delivered to the grantee upon the death of the grantor, reserving the right or j>ower to recall the deed at any time before his death, there is no delivery, and the deed passes no title to the premises therein described. In such case the depositary is the agent of the grantor, and holds the deed subject to his direction and control. Shirley v. Ayres, 14 Ohio, 307; Cook v. Brown, 34 N. H. 460; Prutsman v. Baker, 30 Wis. 644.

2d. But where the grantor delivers the writing as his deed to the depositary, to be delivered to the grantee at his death, or on some future event, it is the grantor’s deed presently, and the depositary becomes a trustee of the grantee. Crooks v. Crooks, 34 Ohio St. 6l0; Mitchell v. Ryan, 3 Ohio St. 377; Wheelwright v. Wheelwright, 2 Mass. 452 ; Foster v. Mansfield, 3 Met. 412 ; Mathers v. Corliss, 103 Mass. 568; Hathaway v. Payne, 34 N. Y. 92. In such case the deed passes a present interest to be enjoyed in the future. Ruggles v. Lawson, 13 Johns. 286 ; Tooley v. Dibble, 2 Hill, 641.

The district court found from the evidence that the deeds of Jonas Ball, Sr., deposited with Frazier were delivered to the respective parties for whom they were intended, as of the date that Frazier was directed to retain them and to deliver them to the grantees upon his, the grantor’s death. The case therefore was* held to fall within the second of the above classes. The question arising upon the record, and the only one, is, did the district court err in so finding ? Without undertaking a review, in detail, of the evidence, I will mention a few of the circumstances that lead us to agree with the district court in the view it took of the case. It appears from the testimony of Judge Frazier that at the time the grantor executed the two deeds, the delivery of which is the subject of controversy, he executed another to the children of his son Daniel, and left the three to be delivered respectively to the grantees therein named, after and upon his decease. While the three deeds were in possession of the witness and during the life of the grantor, he, the grantor, in company with Daniel, called upon the witness, and informed him that Daniel’s children threatened, to put their father off the farm that he had deeded to them, and inquired into their power to do so.

Why make this inquiry, if within his understanding, the deed had not taken effect ? Had he constituted Frazier bis agent, charged only with the duty to retain the manual possession of deeds under which no interest was intended to pass until after his decease, it seems highly improbable that he would have made inquiry as to the effect of a deed which he must have known was entirely without operation as a conveyance. Again, in each of the deeds, he was careful to reserve a life estate in himself, postponing the enjoyment in possession of the interest conveyed until after his decease. If the grantor intended no present interest to vest in the grantees, why make this reservation ? If the right of property was not to vest until the right of possession attached, and both were intended to be postponed until after his death, the reservation in the deed of the right of occupancy during the life of the grantor, was an act wholly •without efficacy or effect. How can a reservation be made where no estate is granted ? How can a life estate be reserved by the grantor if the grant does not take effect until he dies ?

Qn the other hand, the act of reserving a life estate admits of a very reasonable explanation on the theory that the grantor intended the delivery to operate as a conveyance of a present estate to be enjoyed in the future, as in such case it is held, that where the grantee obtains the deed from the trustee before the event occurs upon which the second delivery was to be. made, the grantor cannot avoid the deed by a plea of non est faeimm, whether generally or specially pleaded. Wheelwright v. Wheelwright, supra.

Hence the reservation in the deeds of the right to control the possession and to receive the rents and profits was a safeguard against any controversy concerning the nse, in case the deeds fell into the hands of the grantees prior to the death of the grantor. It is true that the habendum clause in the deeds is to the effect that the grantees, their heirs and assigns, are to have and hold the premises with the appurtenances, from and after the decease of the grantor.” Conceding the usual effect of this clause in a deed to be, to define the extent of the ownership in the thing granted, to be held and enjoyed by the grantee, yet it is not an essential part of a deed, and its effect may not only be qualified and restrained by other parts of the deed, but where it is repugnant to the grant, it has no validity or effect whatever. It always yields to the manifest intent and terms of the grant. Flagg v. Eames, 40 Vt. 16.

In Jackson v. Meyers, 3 Johns. 395, Chancellor Kent states the rule as follows : “ The intent, when apparent and not repugnant to any rule of law, will control technical terms, for the intent, and not the words, is the essence of every agreement. In the exposition of deeds, the construction must be upon the view and comparison of the whole instrument, and with an endeavor to give every part of it meaning and effect.”

In Shepard’s Touchstone, 106, it is said the habendum, as all other parts of a deed, for the most part, shall be taken most strongly against the grantor, and most in advantage of the grantee, yet so as withal it shall be construed as near the intent of the parties as may be, as in all the cases following doth appear. See Wash, on Real Prop. 483. Applying these rules of interpretation, we think it manifest that the grantor did not intend by the language of the habendum to qualify or limit the estate granted. The reservation in the deeds, as well as the facts surrounding their deposit with Frazier, is entirely inconsistent with such an intent. When the grantor was advised by his son that as he was getting old he ought to fix up his business, he informed the son that he had already done so, that he had made deeds and left them with Frazier to be delivered to the proper parties at his decease. The case in its circumstances is quite as strong in favor of the grantees as was Crook v. Crook, supra, where it was held that the title passed.

Judgment affirmed.


text:
    The State ex rel. Gustavus A. Doren v. John F. Oglevee, Auditor of State.
    Application for a mandamus to compel the Auditor of State to issue a warrant on the state treasurer for $3,000, in favor of the institution for feeble-minded youth, on an order drawn by said Doren as its superintendent and financial officer, and approved by a majority of its trustees.

      W. J. Gilmore for the relator.

      G. K. Nash, attorney general, for the auditor of state.
   By the Court.

The provisions of the first, second and third chapters of the fifth title of the Revised Statutes, aj>ply to the institution for feeble-minded youth; these provisions require the appointment of a financial officer as well as a superintendent; and the same person cannot perform the duties of both offices in drawing money from the treasury under section 654.

Application overruled.


author: "White, J.

text:
    Foresman et al. v. C. L. Haag.
    1. Proceedings in error under the code may be revived against the representatives of a deceased party, notwithstanding more than a year has elapsed since the death of such party; and such revivor may be by conditional order, instead of by scire facias as required under the former practice. Black v. Hill (29 Ohio St. 86), and Pavey v. Pamy (80 Ohio St. 600), approved and followed.
    2. The revivor may be had in this court although the party died before the reservation of the case by the district court.
    3. The case in error must be decided upon the record, and the representatives of a deceased party stand in the shoes of their ancestor. On the question of revivor, the merits of the action are not the subject of inquiry.
    Error to tbe Court of Common Pleas of Cuyahoga County. Reserved in tbe District Court.
    This case was decided at tbe last term, and tbe decision is reported in 36 Ohio St. 102.
    The judgment in tbe case not having been entered, it now comes before the court for tbe entry of sucb judgment.
    On the oral argument of tbe case, tbe death of tbe defendant in error was suggested by counsel who bad represented tbe defendant in error, and it was agreed that tbe argument of tbe casé should not be delayed on account of sucb death. The case was accordingly argued and submitted to tbe court, upon tbe understanding that tbe necessary steps would be taken to make tbe legal representatives of tbe defendant parties.
    On February 8, of tbe present term, on motion of tbe plaintiffs in error, a conditional order was entered against said legal representatives requiring them to show cause why tbe proceedings in error should not be revived against them and proceed to final judgment in their names.
    This order was duly served. Three grounds are relied upon in showing cause by tbe legal representatives why tbe order should not be made absolute or tbe proceedings revived against them. These grounds are in substance as follows;
    1. That more than one year had elapsed after tbe death of the defendant in error, before any steps were taken to revive the proceedings against his representatives or to make them parties to the proceedings in error.
    2. That the defendant in error died pending the proceedings in error in the district court and before the reservation of the cause to this court.
    3. That the defendant in error derived title to the lands in controversy from the purchaser at the guardians’ sale. That said purchaser had paid the purchase money and the defendant in error had paid all taxes and assessments levied on said lands subsequently to said sale, no part of which had the plaintiffs offered to refund; nor had they set up any claim to said lands until the bringing of the original action.
    Two of the heirs of the original defendant in error, Christian L. ITaag, are minors who show cause against the order by their guardian ad litem duly appointed for the purpose.
    The judgment under review was rendered in the court of coihmon pleas at the January term, 1875. The petition in error was filed in the district court by the plaintiffs in error on June 14, 1875, and the summons in error was issued on the same day and duly served on the defendant in error, Christian L. Haag. At the September term, 1876, of the district court the case in error came on to be heard, and the following entry was made in that court: “ This cause came on to be heal’d and was argued by counsel. Whereupon the court find that the questions which arise in said cause are important and difficult, and upon motion of the plaintiffs do order that the causebe reserved and sent to the supreme court for its decision.”
    It now appears that Christian L. Haag, the defendant in error, died on September 5, 1875, before the case was ordered to be reserved by the district court; but that such death was unknown to the plaintiffs in error or their counsel, until it was suggested at the hearing in this court.
    A motion is also made on behalf of the legal representatives to remand the cause to the district court as Christian L. Haag, the defendant in error, died before the case was reserved to this court.

      S. Burke, P. C. Smith and W. W. Andrews, for plaintiff in error.

      R. P. Ranney, for defendant in error.
   "White, J.

The main questions now before the court are: 1. Whether the proceedings in error can be revived against the legal representatives of the defendant in error, by conditional order—the mode adopted by the plaintiffs in error : and, 2. If this question is answered in the affirmative, whether the revivor can be had in this court, or must the case be remanded to the district court for the purpose.

The first question is answered in the affirmative by Black v. Hill (29 Ohio St. 86), and Pavey v. Pavey, (30 Ohio St. 600). In these cases the court applied the power given by section 39 of the code in original actions, by analogy, to proceedings in error: and although the section has been modified by the Revised Statutes, the modification need not here be noticed, as the present proceeding in error was pending at the time of the revision and is therefore not affected by it.

At common law a writ of error in no case abated by the death of the defendant in error. If the death occurred after joinder in error the case proceeded to judgment the same as if the defendant were living, and his representatives were made parties to the judgment by scire facias / if the death happened before joinder in error, his representatives could be required to join in error by like proceeding. 2 Tidd's Prac. 1163; Spark v. Vangundy, 3 Ohio, 307; Delaplaine v. Bergen, 7 Hill, 591; Schuchardt v. Remiers, 28 How. Pr. 514; Walpole v. Smith, 4 Blackf. 115.

In Green v. Watkins (6 Wheat. 263) it is said by the court, There is no doubt' that the heir or privy in estate, who is injured by an erroneous judgment, may prosecute a writ of error to reverse it. And there seems no good reason why, in the case of the death of his ancestor, pending proceedings, lie may not be admitted to become a party, or be cited to become a party, to pursue or defend the writ, in the same manner as in personal actions. The death of neither party produces any change in the condition of the cause, or in the rights of the parties. It would seem reasonable, therefore, that the suit should proceed, and not be dismissed or abated.” The supreme court of the United States adopted a rule to govern the practice in such cases, which is found in the volume last cited.

Analogous principles governed in courts of equity where a party died pending a cause under review on error, in the court of appeal. Rogers v. Patterson, 4 Paige, 409, 413.

The writ of scire faeias has not been abolished in this state ; and, doubtless, may still be resorted to when necessary for the purposes of justice. But the conditional order provided for in the code for the revivor of actions, contains the substance of a writ of scire facias for such purpose, and is a more convenient remedy, and, as was held in Black v. Hill, and Pavey v. Pavey, supra, may be resorted to for the revivor of proceedings in eiTor against the representatives of a deceased party.

We see no l-eason for remanding the case to the district court. This court has the same control over the case and the issuing of process as the district court would have had if the case had not been reserved. The order of reservation was not void; but operated to transfer the case to this court as it stood in the district court. Grant v. Ludlow’s Admr., 8 Ohio St. 31. And as the district court could have revived the proceeding in error against the representatives of the deceased defendant, the same may be done in this court.

The remaining question is, whether the facts alleged with reference to the payment of the purchase-money, taxes and assessments, constitute cause against the revivor. Whatever effect these facts may have upon the prosecution of the original action, they can have no bearing upon the question of revivor. The case in-error must be decided upon the record, and the representatives of the deceased stand in the shoes of their ancestor. On the proceeding to revive, the merits of the action are not the subject of inquiry.

The order of revivor is made absolute, and judgment will be entered as heretofore announced.


text:
    Bothe v. Dayton and Michigan Railroad Company.
    1. Where a bill of exceptions was allowed and signed during the term at which the exception was taken, the omission to set forth the fact in the journal of that term may be supplied in that court by an order nunc pro tunc made at a subsequent term; and the bill of exceptions, trial docket, and entry of judgment are proper, and may be sufficient evidence to warrant such order.
    3. In an action to recover possession of real estate, an answer denying that the plaintiff has a legal estate in or is entitled to the possession of the premises, or that the defendant unlawfully keeps him out of possession, is to be regarded, under the civil code of 1853, section 559 (Rev. Stats. § 5783), as merely a denial of legal title in the plaintiff.
    3. Where a judgment affecting the title to property is reversed on a petition in error filed in his own name by one holding a conveyance of such property from one of the parties, the judgment of reversal is not void, although such grantee was not a party to the action in which the judgment so reversed was rendered. •
    4. Where a railroad company enters upon land under color of a proceeding in the probate court to appropriate the same, without first making compensation in money or first securing it by a deposit of money, and constructs thereon a railroad track and commences to run its cars along the same, after which the owner obtains a reversal of the proceeding and commences an action to recover possession of the land, the mere fact of delay, without proof of knowledge of or acquiescence in the acts of the company, will not estop the owner from maintaining such action.
    5. Where, in an action to recover the possession of real property, it appears that both parties claim under the same person, the fact that each party claims under such person by a different Christian name is immaterial.
    Error to tbe District Court of Auglaize County.

      W. F. Gilmore, for plaintiff in error:
    As to answer setting up first defense. Civil Code of 1853, §§ 558, 559; Rev. Stats. §§ 5781, 5782 ; Adams on Eject. 270; Ferme v. Holme, 21 How. U. S. 481; Nash’s Pr. 4th ed. 1204, 1209. As to acquiescence, he cited Teegarden v, Davis, 36 Ohio St.; and he commented on the cases cited on behalf of defendant in error.

      James Mwrra/y and D. R. Marshall, for defendant in error:
    The nunc pro tuno order was made without proper or sufficient evidence. Moore v. Brown, 10 Ohio, 197; Burk v. Railroad Company, 26 Ohio St. 643; Hill v. Bassett, 27 Ohio St. 597. There was acquiescence of the owner in the act of the company in taking and holding possession of the property, and an action to recover possession cannot be maintained, whatever other remedy may exist. Goodin v. Canal Company, 18 Ohio St. 179 ; Chapman v. Railroad, 6 Ohio St. 136; Kellogg v. Ely, 15 Ohio St. 64; Railroad v. Lewton, 20 Ohio St. 412; Walker v. Railway, 12 Jurist, N. S. (pt. 1) 18; 2 Story Eq. Jur. 460; McAuly v. Railroad, 33 Vt. 311; Leeds v. Amherst, 2 Phil. Ch. 117, 123; Dunn v. Railroad, 24 Miss. 493; Redfield on Railw. 231, 510.
   Okey, J.

John C. Bothe brought suit in the court of common pleas of Auglaize county, against the Dayton & Michigan Railroad Company, to recover possession of real estate (described in the petition) situated in that county, alleging in the petition that he had a legal estate in the premises, and that the defendant unlawfully kept him out of possession, and asking for the restitution of the premises and judgment for the possession.

The defendant for a first defense “ denies that the plaintiff has a legal estate in, or is entitled to the real estate in the petition described, or of any part or portion thereof, or that defendant unlawfully keeps him out of possession.” Under the civil code of 1853, section 559 (Rev. Stats. § 5782), this form of pleading must be regarded as objectionable; but giving to the averments the liberal construction required by the statute, they amount to a denial of legal title in the plaintiff.

The answer contains the further defense, that the company was organized under an act passed in 1850 (49 Local L. 440); and that on July 21, 1854, finding the real estate in question necessary for the purpose of constructing its railroad tracks and depots, it went into occupancy of the premises, aud has continued to occupy them for such purpose, with the acquiescence and consent of the owners and the plaintiff.. To this defense there was a reply denying such acquiescence and consent. But it is unnecessary in this case to determine what acts of an owner of real estate will estop him from recovering possession from a railroad company which has constructed its railroad tracks and depot on such land without authority. Such unauthorized acts of the company can afford no defense to an action of the owner to recover possession, where such owner had no information of the trespass until long after it had been committed. See Mills on Eminent Domain, ch. X.; Pierce on Railroads (ed. of 1881), 167 et sep Confessedly, in 1864, the land belonged to a minor or minors, living in a distant state; and it is sufficient to say there is no proof of acquiescence or consent, and hence the defense fails. True, possession was taken under color of a certain appropriation proceeding, but, as will be shown hereafter, that matter affords no defense.

A trial by jury having been waived, the case was submitted to the court on the question whether the plaintiff, Bothe, had shown legal title to the premises, and the court found, at the March term, 1869, that such title had not been shown, and rendered judgment for the defendant. A motion for a new trial was overruled, and a bill of exceptions embodying all the evidence was taken. The district court affirmed the judgment, and a petition in error was filed in this court, on leave, to reverse the judgment of affirmance.

In the record of the case, filed in this court, there was no journal entry showing the allowing and signing a bill of exceptions, but the court of common pleas of Auglaize county has made an order nunc pro tunc showing that such allowance was made and bill signed at the term the case was heard and judgment rendered. But the bill of .exceptions, properly signed, and the trial docket and journal, both of which contain a general exception noted at the time judgment was rendered, being all the evidence upon which the order was made, the defendant objects that the testimony was insufficient to warrant such mmc pro tunc order, and has filed in this court a cross-petition to reverse it. We are of opinion, however, that such evidence was sufficient to warrant the action of the court complained of, and therefore the order will be affirmed.

The evidence, embodied in the bill of exceptions, consists of deeds and records. It appears that on June 20,1848; Dorothea Eickleman, widow of E. H. Kiesekamp, deceased, was by the third judicial district court of Jefferson parish, Louisiana, appointed and confirmed as tutrix of Casper "William Kiesekamp, only child of the aforesaid E. Ii. Kiesekamp, deceased. Subsequently she married William Albert, and she and her husband became tutors and guardians of the aforesaid Casper William Kiesekamp, and resided at the city of New Orleans. On September 7, 1855, the guardians filed a petition in the probate court of Auglaize county for the sale of the land in question, and such proceedings were had in the case that the land was sold to John F. Vornholt, and the sale having been, on February 8, 1856, duly confirmed, the guardians executed and delivered to him a deed for the premises in proper form. And on March 25,1864, Vornholt sold and conveyed the premises in due form to the' plaintiff Bothe.

Meanwhile the defendant, the Dayton & Michigan Railroad Company, had taken certain steps to acquire title to the premises in controversy. On June 16, 1854, it file’d a petition in the probate court of Auglaize county to, appropriate the land aforesaid to its use for railroad purposes. In its petition it was alleged that the property is owned by certain persons, whose names are unknown to said company, as heirs-at-law of one Henry Kiesekamp, deceased, and that said persons reside in the state of Louisiana, as said company is informed and believes.” In the affidavit of the attorney of the company, appended to the petition, it is stated, “ that the names and particular residence of "the owners of said lots are unknown to said company or said affiant, except that said heirs reside, as said company is informed, in the city of New Orleans, in said,state of Louisiana.” A jury was impaneled and sworn, and a verdict was returned, and on July 21, 1854, the verdict was confirmed. On April 27, 1864, which was subsequent to the time Bothe purchased and received a conveyance of the property, and nearly ten years after such attempted appropriation, the railroad company paid into the probate court the amount of the verdict, with interest from its rendition; whereupon-the court caused to be entered on the journal a recital of the fact of such payment, and an order that “ it is considered by the court that said corporation, to wit, the said Dayton & Michigan Railroad Company, for right of way for road-bed and depot purposes, do forever hold the entire premises.” But where lands are appropiated, a compensation therefor shall first be made in money, or first seemed by a deposit of money.” Const. Art. 3, §19.

Subsequently to the time when the land was conveyed to Bothe—the date is not stated—the defendant commenced another proceeding in the probate court of Auglaize county to appropriate the land for such railroad purposes. The only person named in that proceeding was Bothe, and it was stated in the petition that he is the owner of the premises. But that proceeding was abandoned.

On August 13, 1866, Bothe filed in the probate court a motion to set aside the condemnation proceeding first above stated. He set forth the fact that he had become the owner of the premises on March 25,1864, in the way already stated, and that the appropriation proceedings were irregular and erroneous in various particulars, among others, that the verdict was rendered July 21, 1854, and the money not paid into court until April 27,1864, and that the court had no jurisdiction to render the judgment. This motion was overruled by the probate court, and Bothe filed a petition in error in the court of common pleas of Auglaize county, in which petition the railroad company was defendant; that court, on May 24,1867, reversed the order of appropriation, and the judgment of reversal was affirmed by the district court, and remains in force.

It is claimed that the appropriation proceeding is void, the provision of the constitution as to compensation having been disregarded, and hence that Bothe might properly move to set such proceeding aside (Civil Code of 1853, § 508; Rev. Stats. § 5121), and that when the motion was overruled, such action of the probate court might be reversed, and for such purpose Bothe was the proper petitioner in error. Miller v. Peters, 25 Ohio St. 270. However that may be, the judgment of the court of common pleas reversing the order of appropriation is not void, but, on the contrary, not having been reversed, it is as valid as any other judgment; and hence, such order of appropriation was not available to the company on the trial. Dussuau v. Municipality Number One, 6 La. Ann. 675, properly understood, is not inconsistent with this view. The defendant in error, the railroad company, is, consequently, without any other title than bare possession, the payment into court being wholly ineffectual, and it is compelled to rely for its defense, not on the strength of its own title, but on the weakness of Bothe’s title. The defendant says, however, that if that position be admitted, still the plaintiff must fail for want of proof of his title. But is that true ? In reversing the proceeding to appropriate, the court necessarily found that as between the railroad company and Bothe, the latter owned the land. Besides, the company admits, by the record of such proceeding, that the land it undertook to appropriate belonged to a man named Kiesekamp, and that his residence was Louisiana when he died. True, it is stated in the record that the name of the deceased was Henry Kiesekamp, but Henry Kiesekamp may be E. H. Kiesekamp, who died in Louisiana. True, it is stated in the record that Henry Kiesekamp left heirs whose names are unknown, but that they reside at New Orleans, and are owners of the land in controversy. E. H. Kiesekamp left to survive him one heir only, Casper William Kiesekamp, who resides at New Orleans, and claimed to own tho lands in dispute as such heir.' If Henry Kiesekamp is in truth E. H. Kiesekamp, then he left but one heir, and that was Casper William. On the most careful consideration of the records and deeds set forth in the bill of exceptions, we are led to the conclusion that the inquiry, whether Henry Kiesekamp and E. II. Kiesekamp were one and the same person, should be answered in the affirmative, although no witness has testified to the fact; and consequently that that person is the common source of title under which both parties claim. Having arrived at that conclusion, it clearly follows that when the railroad company commenced its proceeding in the probate court, and also when it entered into the occupancy of the premises in controversy, Casper William Kiesekamp was the owner of such premises; and that by the proceedings of the guardians in the probate court, tbe deed to T ornbolt and Yornbolt’s deed to Bothe, the latter bas acquired tbe title of Casper "William to the premises in controversy. Hence, tbe conclusion is reached that tbe court of common pleas erred in finding, on the evidence before it, for tbe defendant instead of tbe plaintiff, and tbe district court erred in affirming tbe judgment.

Judgment reversed.


text:
    The State ex rel. Taylor v. Winget.
    Section 550 of the Revised Statutes does not require the clerk of the court of common pleas of a county to certify a cause pending in said court to an adjoining county of another subdivision for trial, because of the fact that the only judge residing in the judicial subdivision composed in part by such county, was formerly of counsel in the cause. The interest which requires the removal of a cause, is a pecuniary interest of the judge in the event or result of the trial. Bcmsonr. BomgMon, 5 Ohio, 328,—distinguished.
    Application for a writ of mandamus.
    This is an application by tbe relator, William H. Taylor, for a writ of mandamus, commanding tbe respondent, William M. Winget, clerk of tbe court of common pleas of Union county, to certify cause No. 1839, of tbe docket of tbe Union common pleas court, to an adjoining county for trial. Tbe grounds of the application are that said relator is a party to said action, and that be has made it appear to said clerk by proper affidavit, that tbe Hon. John S. Porter, presiding judge of said court, is tbe only judge elected in tbe third subdivision of the tenth judicial district, to which subdivision Union county belongs, and that said Porter was, a.t tbe time of bis election as one of tbe judges of said district by the electors of said subdivision, of counsel for plaintiff in tbe aforesaid action.
    Notice of the application of said writ having been served on tbe respondent, be, for cause why tbe writ ought not to be allowed, says : first, that he denies that the interest that the judge of said court is shown to have in said cause is a disqualifying interest; and secondly he says, that the presence of another judge of said judicial district has been and at any time can be secured to try said cause within the county of Union.

      W. B. Loomis, for plaintiff.

      Robinson & Robinson, for defendant.
   Boynton, O. J.

The question presented by the application of the relator involves the construction of section 550 of the Revised Statutes. The section provides, that “ in every instance where a judge of the court of common pleas is interested in the event of a cause, proceeding, motion, or matter pending before the court in any county of his district, or where there is not a quorum of the judges of the district court of any district, by reason of interest, on affidavit of either party to such cause, proceeding, &c., or his counsel showing the fact of such interest, the clerk of the court shall enter upon the docket thereof an order directing that the papers and all matters belonging to the cause and proceeding in which such judge of the court of common pleas or of the district court, is interested, if in the district court, shall be transmitted to the clerk of the court of a county of one of the adjoining districts; if in the court of common pleas then to the clerk of the court of common pleas of an adjoining county of another subdivision, where practicable, of the same district: where not, then to an adjoining county of another districtthe cause to be docketed, and to proceed to final judgment or determination in the county to which the same is transmitted, in all respects as if originally brought within said county. We do not concur in the construction that counsel for the relator gives to this provision of the statute. The interest which disqualifies the judge and requires the cause to be certified to an adjoining county, is an interest in the event of the cause or proceeding. This we think plainly means an interest in the issue, result or outcome of the trial, or adjudication. It is doubtless true, that an attorney who has been retained by a party to try the action, may be said in one sense to be interested therein, but we think he cannot, from that fact, be said to be interested in tbe event or result of tbe trial within tbe meaning or intendment of tbe statute. Formerly, tbe rule prevailed at common law, that no one could testify as a witness in a cause who was interested in its result, but tbe interest that disqualified was held to be some' immediate or beneficial interest in tbe judgment to be rendered, or in tbe record as an instrument of evidence. Starkie on Ev. 10 ed. 118. To have excluded an attorney as a witness, especially after be bad dissolved bis connection with tbe cause, on tbe mere ground that from bis connection therewith be was interested in its result, would have been to extend or carry tbe rule far beyond its object and limitations. Tbe transmission of a cause for trial to another county is so often attended with so much inconvenience, as well as a large additional expense to tbe parties, that tbe legislature ought not to be held to have required it, except upon language of' tbe clearest import. It will be seen that tbe present statute is quite different in its phraseology" from tbe section of tbe act to which construction was given in Rawson v. Boughton, 5 Ohio, 328.

That section provided, that if, in any suit or action in tbe court of common pleas, it shall so happen that there is not a sufficient number of disinterested judges of such court, to sit on the trial of any particular cause then and there pending,. it shall be tbe duty of such court, on tbe application of either party, to cause the fact to be entered on tbe minutes of the court, and also to order an authenticated copy thereof, with all tbe proceedings in such suit or action, to be forthwith certified to tbe next supreme court of tbe county.” One of tbe associate judges of tbe court was interested in tbe subject-matter of tbe action, and tbe president judge bad been of counsel for one of tbe parties in tbe matter in litigation. Tbe case was certified to tbe supreme court of tbe county and a motion to dismiss tbe cause for want of jurisdiction was overruled. In giving judgment tbe court remarked: “ Tbe case is one within tbe inconvenience intended to be provided for, as well as within tbe letter of tbe statute. We would rather prefer to aid tbe full administration of justice by a liberal construction of tbe terms used, than to adopt a strained one to divest ourselves of jurisdiction.” The act under consideration in that case did not require the cause to be removed from the county, but required the same to be certified into a higher court to be held in the same county, when it appeared that there was no quorum of disinterested judges in the Court of common pleas before whom the cause could be tried. The interest of the president judge of the court of common pleas was held to be a disqualifying interest within the meaning of the statute.

The act, however, of February 19, 1852, “ relating to the organization of courts of justice, and their powrers and duties,” enacted soon. after the present constitution took effect, established a different rule. 50 O. L. 67. By section 16 of that act, it was provided that whenever a judge of the court of common pleas should be interested in the event of any cause or matter pending before said court, in any county of his district, it should be the duty of the other judges of the district, or one of them, to attend, and hold the court wherein such cause or matter was pending for the trial of the same ; and if all three of the common pleas judges should be interested in the event of any cause or matter pending in their district, the same should be removed for trial into the nearest county in an adjacent district, under the order of the court wherein the cause was instituted. The disqualifying interest provided for in this section, and which has been carried into all subsequent statutes, was an interest of a personal nature in the event of the cause or matter pending, as distinguished from a mere desire as respects the ultimate disposition of the case. 53 O. L. 25; 1 S. & C. 387. One of the-changes which the amendment of the act of 1852 effected, required that the cause should be certified out of the county, where it appteared that the judge was interested in its event, instead of requiring a judge of another subdivision, but of the same district, to attend and conduct the trial in the county where the action was originally brought. But this change in nowise affected the character of the interest which disqualified the judge from sitting on the trial, or which authorized the cause to be removed to an adjacent county.

The interest which is required to justify the removal is one of a pecuniary character, without which the order directing the removal is not authorized. This construction not only carries into effect the intent of the legislature, as indicated by the language used, but it obviates great inconvenience and expense to the parties.

That there is an obvious impropriety in a judge’s sitting at the trial of a case in which he has been counsel, no one can doubt; and no judge, formerly of counsel, who properly appreciates his duty, and has a proper regard for the impartial administration of justice, will for a moment hesitate to decline the service, without at least the consent of all the parties to the action. From the number of judges in the several judicial districts of the state, it cannot be difficult to procure the attendance of one wholly impartial to try any cause, which from considerations of delicacy, a resident judge of the subdivision, although legally competent, may be unwilling to try. It does not, however, follow, from the fact that a judge may refuse to try a cause, that it therefore falls within the class of cases to be certified out of the county. The legislature has limited this class to cases in which the judge has more of an interest than that arising from the mere relation of counsel to client, and as this was all the interest shown to exist in the present case, the writ must be refused.

Writ refused.