text:
    Tilden v. Barker.
    Where a woman, having no children by her surviving husband, died, leaving issue by a former marriage and an estate which did not come to her from her surviving husband or his ancestors: Held, that under Section 17 of the Act of March 14, 1853 (S. & C., 504), as amended March 1,1869, (66 Ohio E., 21; Rev. Stats. § 4176), the surviving hus- • hand is not entitled to curtesy in her estate, notwithstanding she' had devised the same to her grandchildren.
    Error to the District Court of Portage County.
    Barker brought suit in the common pleas of Portage county against the plaintiffs in error to recover possession of certain real estate which was owned by his wife at the time of her death; and which he claimed by the curtesy. The case was tried to a jury and resulted in verdict and judgment in his favor.
    A demurrer to the petition had been overruled and exception noted. Thus the material facts are admitted on the record and are substantially these : In 1878 Tirza Hopkins, a widow, married Barker, and in 1879 died seized of the land in controversy, which had not come to her from Barker or his ancestors. She left only. one. child who was a son by a former marriage, and who had four children. She devised $300 to her son and the real estate to two of her grandchildren.
    On error to the district court the judgment was affirmed. The object of the present proceeding is to reverse the judgment of affirmance..

      JE. P. Hatfield, for plaintiff in error.
    What is title by the:curtesy? Our statutes do not define it. Our courts have recognized it as of .common law origin, and described its essential parts only by incidental recognition of the common law definition. Recourse must be had to. the common law. Marriage, seizin, issue, death of wife, gave the right to the husband. As soon as three of these essentials existed, i. e., marriage, seizin, and issue, the husband “ began to have a permanent interest in the lands,” 2 Black, 127, his right became a vested' one, and whatever right he had after her death, was, in the language of the supreme court in Watlcins v. Thornton, 11 Ohio St., 372, “a mere continuation of the right possessed during coverture.” The 14th section of the statute of.descents of 1853 does not modify or affect the rights or interest of the husband during the life of the wife; it is only at her death, when in fact he becomes a “ surviving husband,” that he can have curtesy without issue. Up to the death of the wife he gets no benefit, and takes no rights from that act. At her death, if there be no issue, his rights first spring into life. Denny v. MoQdbe, 35 Ohio St., 576. Up to the death of the wife, Barker had no vested interest in this land; he could not have curtesy by common law, for lack of issue; he could not have it by statute, for he was not a “ surviving husband.” It was then at the death of Tirza Barker that the interest of both the husband and son, whatever they are, first accrued.
    Had there been no will, it is conceded on all hands that the defendant would not have been entitled to curtesy. His claim rests entirely upon the assumption that the act of March 14,1853, deprived the wife of the power to dispose. of the property by will as against the rights of her husband. This statute was an act regulating descents; it was not intended to interfere with or modify the law regulating the disposition of property by conveyance or devise. The 17th section, so far as it gave curtesy without' issue, was in derogation, of common law, and must be strictly construed. It was evidently designed to apply only in cases of intestacy, and not to limit the power of the wife to convey or devise her estate. If the estate did not vest in the husband during the life of the wife, it follows that the wife during her life still retained in full her old power of disposition.
    But concede that the act in question limits the wife’s power of devise, what follows ? Upon the death of Tirza Barker the premises descended to and vested in the son and heir, unless taken from him by the will. The will does not say that he shall not have the property, but simply that his children shall have it. His failure to take is simply the result of their taking. It is taken.from him not by express words of disability applicable to. him, but as a necessary sequence of the fact that it is given to some one else. If, then, the devise for any reason fails, it leaves the property just where the law left it!, i. e., in the heir.
    The following from Jarman’s rules .are in point:.
    Rule 5. “ The heir is not to be disinherited without an express devise or necessary implication.” * * *
    Rule 6. “ That merely negative words are not sufficient to exclude the heir, or next of kin. There must be an actual gift to some other definite object.”
    It is true that this will devises the entire interest in the premises in question, but if it fail as to a part, then as to such part it fails to make “ an. actual gift to some other object;” and to the extent that it thus fails, it fails to disinherit the heir.
    The primary object of a will is to vest - property in the devisee, and the primary rule of construction is to carry out the intention of the testator. . A will which fails to carry the property devised to the party for whom it was intended, fails to carry out the intention of the testator; it is not his will. The devise must be regarded as lapsed, and the property remain in the heir. Otherwise, we are driven to the absurd conclusion that a will void for all the purposes for which it was intended is nevertheless good as against the heir, and may- be enforced in favor of an utter stranger.
    Curtesy was given by the common law because the husband, being chargeable with the maintenance of the issue, should have the estate; the act of 1853 giving curtesy without issue to “ surviving husbands,” is in derogation of common law, and must be strictly construed; it does not, we think, interfere with the wife’s jus disponendi; but if it does, then' the act of 1869, being a partial return to common law, intended to prevent the estate of the wife from being taken from her children and handed over tó a stranger under no obligation to provide for them, should be liberally' construed to carry out its design in favor of the heir, whose title in any event is better than that of the plaintiff below.
    The true intent of the • proviso is this, that where property came from a former husband, and there is issue by him, or legal representatives of such issue, the surviving husband can not have curtesy except where he has issue by the intestate, and then only in the interest of such issue of his.
    Defendant had no interest in. the wife’s estate — no initiate curtesy which could become consummate upon her death. He cannot take as surviving'husband, for the reason that the estate did not come from him, and the deceased had issue by a former husband, and had no issue by him.
    The defendant must derive curtesy by law, if at all;- he • cannot take curtesy by will. -

      Day $ Conant, for defendant in error.
    The question in the case' depends upon the construction of the proviso, or exception, appended to Section 17 (S. & C., 504), of the statute of- descents, passed March 1,1869. 66 Ohio Laws, 21; Rev. Stat., § 4176.
    Statutes made in derogation of the common law are to be construed strictly. The general policy of the legislation of- this state in. regard to the curtesy, is, to enlarge rather than to restrict the right, for it was enacted in 1853, that “ surviving husbands ” shall be -entitled to the curtesy in the • estate of their deceased wives “ whether there be issue born during coverture or not.”
    But; in derogation of both the common law and the general statute, in 1869, the proviso in question was enacted. The proviso, then, cannot be enlarged beyond the strict meaning and legal effect of the-words.used therein.
    Accordingly, it must be noted, in the first place, that the surviving husband is not entirely-debarred from the curtesy iii the estate of his deceased wife, even though she leave issue by a former marriage; for the exemption of the proviso extends only to “ the interest of such issue or the legal representatives of such issue in her estate.” Therefore, if a deceased wife have a ■ child by a former marriage, and a child by the surviving ■ husband, he may have the right by curtesy in the moiety of her estate falling to his own child; for the proviso only excludes him from the “ interest ” of the issue by the former marriage. It, therefore, clearly follows, that the curtesy of ' the surviving husband • is not excluded from- any estate of the deceased wife in which the issue of a former marriage has no interest.
    Again, if such issue has'no interest in the estate in question, his “ legal representatives ” cannot; for a legal representative is ohe — as the phrase is used in the statute of' descents — who takes an estate by descent, or inheritance,' from his ancestor. If, therefore, the estate of the deceased wife is one in which the issue' of her former marriage has1 no interest, his children can have no interest therein as his “legal representativesand, having no interest as-'such legal representatives, they are not ■ protected by the exception to the general rule in- regard to the curtesy: '
    Moreover, in the present case, the “issue'by á former marriage ” is living. ■ There are, then, no “ legal representatives of such issue” in the case; for nemo est’hceres vivero-' tis, and the phrase “legal representative,” as used in the statute of descents, is synonymous with - that of “ heir at law.” 2 Black, *201. Therefore, the “legal representative ” clause of the proviso may be laid out of the case.
    The record shows that the deceased wife died seized of the estate in question, and that she • bequeathed the only issue of the former marriage a specific sum of money,-which" has been fully paid. Such legacy, then, gives him no interest in the land in controversy. That was devised to other “ parties. It is true these' parties are children of the deceased ■' wife’s issue by a former marriage. But they take the land by purchase, and not by inheritance. Therefore, they never' can be, quoad this land, the “ legal' representatives ” of the • issue of the former marriage in the estate of the deceased wife.
    Since, then, the issue by the former marriage has no “ interest ” in the land, and his children have not, and never can have, any such interest as the “ legal representatives” of such issue, the surviving husband, upon a fair— not to say strict — construction of the language of the proviso, does not fall within the exception to the general rule of the statute created by the proviso.
    It is, however, claimed that if the curtesy prevails, then the devisees of the land did not take the whole estate therein under the will, and therefore there must be some interest left to go to the issue of the former marriage. This claim rests on the assumption that the curtesy prevails ; for, if it does not, there is no pretense that the issue takes any interest in the real estate of the deceased wife.
    If, then, the issue has any interest at all, it must be in the curtesy of the surviving husband, and not in the estate of the deceased wife, and so does not fall within the proviso; or else we fall into the absurdity of a case where each party, by the same token, both gains and loses the lawsuit.
    But the plain'answer to the claim is, that the deceased wife devised all — whieh includes. every part — of her real estate to parties other than the issue of her former marriage. No interest therein, then, was left to be inherited by such issue.
    All speculating about the inchoate rights of the issue by the former marriage, or of the surviving husband, in the land before the death of the wife, is futile; for it is apparent from the language of the section under consideration, that it contemplates the rights of each only as they are fixed at her death.
    Moreover, the issue had no vested interest in the land whatever. She could dispose of it absolutely by deed or devise.
    Whatever may have been the rights of the husband during the joint lives of himself and wife, his estate by the curtesy under Section 17, was at least consummate at tbe death of his wife. 2 Black, *126. At the same moment, then, both the curtesy and the devise took effect. Therefore, when the will took effect, the estate of the deceased wife eo instanti was subject to the curtesy given by the statute to “surviving husbands.” That, though created by law out of hex estate, can not be defeated by the issue, for the devise debarred him of all interest in the real estate of the deceased wife; nor can it be defeated by the devisees, for, as to this estate, they are not the “ legal representatives” of such issue, and so are not included in the proviso.
    The devisees took by purchase; but the proviso only shields the inheritance, and not those who take by purchase, from the deceased wife.
    It comes to this, therefore, at last, that the issue by a former marriage could, iu no way, have an interest in the real estate; and, if no interest, then the case does not fall within the exemption of the proviso of 1869, and stands upon the general statute of 1853.
   Martin, J.

The question raised by the record is, Is Barker entitled to the estate by the curtesy? The solution of the question requires the construction of the 17th section of the statute of descents as amended March' 1, 1869 (66 Ohio L. 21; Rev. St., § 4176) which reads:

“ Section 17. Nothing in this act shall be so construed as to affect the right which any person may have to any estate by the curtesy or in' dower, in any estate of any deceased person; and surviving husbands, whether there be' issue born during the coverture or not, shall be entitled to the estate of their deceased wives by the curtesy, provided, however, that if any deceased wife shall leave issue or legal representative of such issue by a former marriage, her surviving husband shall not be entitled to an estate by the curtesy in the interest of such issue or the legal representa fives of such issue in her estate, unless the estate came to the deceased wife by deed of gift from the surviving husband, or by devise or deed of gift from his ancestors.”

The chief contention is as to the meaning of the words “ the interests of such issue ” found in the proviso. It is claimed that they mean actual or vested interests, and that because the issue took no interest in the real estate curtesy is not excluded. The section provides curtesy for surviving husbands only; and is found in the act regulating descents. The pirrase in question, it seems to us, refers to such interests as the issue would have taken if the mother had died intestate. It is merely descriptive of the extent to which curtesy is excluded in cases falling within the proviso.

It is admitted that without a will the statute excludes him. The will in letter and spirit excludes him. And we cannot assent to the claim that he becomes entitled by the accidental circumstance of a devise to third persons.

Again, the proviso lifts from tbe general grant all cases where there are children by a former husband. Curtesy in the interests of such children is expressly excluded. But the exclusion goes no further. If there are children by the last marriage also, it attaches to their interests, thus partially returning to the theory of the common law which grounds the right on the legal duty of the father to support his children. Thus the .right is restricted and conditional upon the. fact of there being surviving children of tbe last marriage.

In tbe view we have taken, the question as to whether curtesy is limited to cases of the intestacy of the wife, need not be considered. It follows that Barker is nqt entitled to curtesy.

Judgments reversed.


source: Caselaw Access Project

author: DICKMA.N, J.

license: Public Domain

text:
    Wilson v. Hicks.
    1. Where a grantee obtains a deed of land by the fraud of his confederate, E., upon the grantor, H., and does not have the same recorded, and the land is afterward sold by the grantee for a valuable consideration to a bona fide purchaser, W., who has no knowledge of the fraud; and where instead of a deed from the grantee to W., the grantor H., without a reconveyance to him of the land, cancels the unrecorded deed made by him, and with knowledge of the fraud which had been practiced on him, makes a new deed to W., signed and sealed in the presence of but one witness and not acknowledged, and delivers the same to the confederate, E., to be by him delivered to W., who on the faith thereof parts with the consideration, he will be estopped from disputing the title or claim of W. to the land.
    2. Where a loss has happened which must fall on one of two innocent persons, it must be borne by him who is the occasion of the loss, even without any positive fault committed by him, but more especially if there has been any carelessness on his part which caused or contributed to the loss.
    3. The maxim, “he who is first in time is stronger in right,” does not prevail when the equity, junior in date, is superior in merit.
    Ebbob to the District Court of Lucas County.
    The original action was brought in the court of common pleas of Lucas county, by George W. Hicks, the defendant in error, against. Nathaniel Wilson, the plaintiff in error, George W. Imerson, Samuel Graeber, and John F. Eglin, to obtain relief against certain transactions wherein, he alleged, he had been defrauded out of the title to a certain house and lot on Michigan street in Toledo, Ohio, and out of certain notes and mortgage for about $1,776, by an exchange of the same for certain lands in Pike county, Ohio. A preliminary injunction was granted; an answer was filed by Wilson, claiming to own the house and lot as a bona fide purchaser thereof, and also an answer by Eglin, claiming the notes and mortgage.
    Upon the trial in the court of common pleas, judgment was rendered in favo^’ of Hicks, setting aside the deed under which Wilson claimed title, quieting Hicks’s title, and also setting aside Eglin’s claim to the notes and mortgage. This judgment reinvested Hicks with the title to the house and lot, and still stands as to all parties except Wilson, who alone appealed his branch of the case.
    In the district court there was a reference to a master, before whom testimony was taken and reduced to writing. The master reported the testimony with his findings to the district court. Exceptions to the report were filed by Hicks, and the cause was heard upon, the report, the testimony, and the exceptions; and the samé judgment which had been rendered in the common pleas in favor of the plaintiff against Wilson, was rendered in the district court. Wilson excepted, took bill of exceptions embodying the testimony, and filed his petition in error in this court.
    The lot on Michigan street, on the 29th of July, 1878, had thereon and still has a two-story brick dwelling-house and o'ther improvements; and the premises, with the improvements, were then of the value of about $5,500, with a mortgage thereon of $3,000 to Cook & Mitchell. The defendant in error, Hicks, was then the owner of certain notes amounting to the sum of $1,776, made by one Uriah Engleman, and secured on certain farm land in Wayne county, Michigan.
    On or about said 29th day of July, 1878, John F. Eglin, a real estate broker in Toledo, represented to Hicks, that he was the agent of said Samuel Graeber, and that Graeber owned in fee simple a certain tract of land in Pike county, Ohio, containing two hundred acres. Eglin, by means of. false and fraudulent representations made by him to Hicks, —upon which Hicks relied — in reference to the title, situation, quality and condition of said land in Pike county, and the buildings thereon, induced Hicks to trade and exchange for the same his said house and lot and the notes and mortgage made by Engleman. Eglin drew a deed of conveyance of the Michigan street house and lot from Iiicks and wife — not to Samuel Graeber — but to one George W. Imerson, which they executed on s&id 29th day of July, supposing that Graeber’s name was inserted as grantee. Said deed contained full covenants of warranty of title, but excepted therefrom the mortgage on the premises of $3,000, which the grantee in said deed assumed and agreed to pay. Hicks at the same time, as part of said transaction, duly assigned and transferred in blank, said notes and mortgage made by Engleman, and delivered the same to Eglin. Églin, on his part, delivered to Hicks a deed of the Pike county property made by said Graeber and wife, and dated July 29th, 1878, containing full covenants of warranty of title, but excepting therefrom the taxes for the year 1877 and a mortgage on the premises for $1,095, made by Graeber to one John A. Cobb — which mortgage and taxes the grantee assumed and agreed to pay. For reasons best known to himself, Eglin never placed on record the deed from Hicks to Imerson. On the 14th of September, 1878, Hicks rented of Imerson — or Eglin as his agent — the house and lot on Michigan street from October 1st, 1878, to April 1st, 1879.
    The plaintiff in error, Natha'niel Wilson, a retired merchant of Chillieothe, was the owner of certain lands in Ross county, Ohio, which he had obtained by purchase, at a public sale, at the instance of the Chillieothe National Bank, of which he was a director and the president. A party owning certain lots in West Toledo, being desirous of exchanging some of them for this land, induced Wilson to visit that city to ascertain for himself their situation and value. While in Toledo, on or about September 10th, 1878, and at the hotel, he casually met Eglin. During a conversation in the hotel, he made known to Eglin the object of his visit to Toledo. Eglin at once proposed to him to trade for his Ross county lands, the Michigan street house and. lot, which had been conveyed to Imerson — informing Wilson that, he had the handling of that property, which he thought would suit him much better than the lots in West Toledo. The house and lot he represented as worth from six to seven thousand dollars, but was incumbered with a mortgage for $3,000, which, if assumed by Wilson, the residue of the purchase price could be paid in the Ross county lands. Through persuasion, Wilson visited the site of the property on Michigan street, in company with Eglin, viewing it only, from the street. He inquired of Eglin if it was rented, and, if so, at what rental. Eglin answered that it was then rented to its present occupant until the first of April thereafter, at $28 per month, but that it would bring $35 to $40 per month. Nothing was then concluded upon. On a subsequent occasion, before leaving the city, Wilson was again approached by Eglin on the subject of a trade. The terms of an exchange were then talked over, and a proposition was made by Wilson, but no conclusion arrived at. Wilson returned to Chillicothe with the promise on the part of Eglin, that his proposal should be submitted to the owner of the property, and the conclusions communicated by letter. Up to this time, neither the name of the owner nor occupier of the house and lot had been made known to Wilson, nor the name of the mortgagor, mortgagee or holder of the mortgage. Nor had Wilson any knowledge of the dealings of Eglin and Hicks; and had never seen or heard of Hicks, Graeber or Imerson. The negotiations of sale or exchange were carried on entirely by correspondence between Eglin and Wilson; and a sale was finally effected by the assumption and payment, by Wilson, of the $3,000 mortgage to Cook & Mitchell, and the conveyance of 206 acres of Ross county lands to George W. Imerson, by deed dated October 15th, 1878, in full consideration for the house and lot in question. When Wilson executed the deed of his land, and paid off the $3,000 mortgage, he had no knowledge of the claim of Hicks; had no knowledge of who was the owner of the property •until after the receipt of a letter from Eglin dated October 10th, 1878; and first learned that Hicks claimed to have an interest in the property in the latter part of December, 1878. The deed to Imerson not having been recorded, Wilson acquiesced in the suggestion made to him by his attorney, that it would be as well to obtain a new deed from Plicks; but required that the Imerson deed should be cancelled and delivered to him, and so arranged matters that ’he should not part with his own property, or pay any part of the consideration, until a deed from Hicks directly to himself, and the cancelled deed to Imerson, together with an abstract of title, were delivered to him. Under the impression that by cancelling the unrecorded deed to Imerson, Hicks thereby became reinvested with the legal title so as again to convey it to another, there was no reconveyance of the fee to Hicks. Eglin accordingly informed Hicks that Imerson desired the deed made to him to be cancelled, and a new deed for the house and lot to be made directly to Nathaniel Wilson; and that by so doing, they would save the expense of recording, and the trouble of bringing down to Imerson the abstract of title. Hicks and wife thereupon on the 10th day of October, 1878, executed a warranty deed of the premises to Nathaniel Wilson, and placed it in the hands of Eglin to be delivered to Wilson. At the time of executing this deed, Hicks had been informed, that the Pike county lands were not as represented to him by Eglin; and was daily expecting further information as to the fraud in that respect that had been practiced on him by Eglin.
    The special master commissioner in the case appointed by the district court, made the following report:

      District Court, I/uccis County, Ohio.

    George W. Hicks, ) against > Nathaniel Wilson, et al. )
    The undersigned, Special Master Commissioner appointed in this ease, respectfully reports, that the plaintiff and the defendant Nathaniel Wilson, appeared before him with their respective counsel, and severally produced the evidence set forth in the schedule hereto attached, and the undersigned, having duly considered the saíne, and heard the arguments of counsel, finds that the defendant John T. Eglin, substantially in the manner and by the means set forth in the petition, and fraudulently as therein charged, procured from the plaintiff the deed of conveyance to George W. Imerson of the house and lot described in the petition; that he also in the manner set forth in the petition, procured from the plaintiff the deed to Nathaniel Wilson, therein mentioned, and that the last mentioned deed was signed, sealed and delivered in the presence of but one witness, and was not acknowledged.

      He further finds, that the defendant, Nathaniel Wilson contracted with said John F. Eglin, for the purchase of said house and lot, substantially as set forth in the answer of said Wilson, and received from said Eglin the last mentioned deed in pursuance of said contract; that in making said contract, and delivering said deed, said Eglin pretended, and said Wilson believed him, to be acting as the agent of the owner of the fee of said house and lot; but that in fact, said Eglin was not acting as such agent, but was acting for himself, and in his own interest; that said Wilson entered into said contract, and received said deed in good faith, and paid a valuable consideration therefor, by conveying the parcel of land mentioned in his said answer, and assuming and paying the mortgage upon said house and lot mentioned in the pleadings.
    He further finds, that said plaintiff, at the time of making and delivering said deed to said Wilson, had received information sufficient to put him upon inquiry, and was then prosecuting such inquiry, as to the value of the consideration received by him, for said conveyance to George W. Imerson, and the truth of the representations made to him by said Eglin, to induce him to execute said deed, and that he had unreasonably delayed making such inquiries, relying upon the undertaking of said Eglin to trade off for him the parcel of land which he had received as the consideration for said conveyance.
    The undersigned therefore concluded, as a matter of law, that said defendant Wilson acquired by virtue of said contract, and said deed to him, a valid equitable title to said house and lot, and that said plaintiff is in equity estopped from disputing such title or the right of said Wilson to the. possession and enjoyment of said property.
    Respectfully submitted.
    W. A. CoTjLINS,

      Special Master Commissioner.

    To this report, the plaintiff George W. Hicks filed ten exceptions, all of which the district court overruled, except the 9th and 10th, which were sustained.

      Exception number nine was to the finding of the master, that the plaintiff Hicks had unreasonably delayed making inquiries as to the value of Pike county lands.
    Exception number ten is as follows:
    “Plaintiff excepts to the finding that the plaintiff is estopped from disputing the equitable title or claim of Wilson to the property, as his right of possession, for the reason that such finding is not sustained by the evidence, and is contrary to law.”
    The finding of the district court is as follows:
    “ The court having heard the report, the said testimony and said exceptions, and the arguments of counsel, and being now fully advised in the premises, does sustain the last two of said exceptions, numbered nine and ten respectively, and does overrule all the remaining exceptions to said report. The court further finds, that at the time of the coimnencement of this action, the legal title to the premises in-the petition described (describing it) was in said George W. Imerson, and that the defendant Wilson has none against, and does not hold the legal title to any part of said premises. The court further finds, that the plaintiff has in said premises an equity equal to and more than that of the defendant, and that he is not estopped from asserting and maintaining his said equity, as against any and all equity of said defendant.Wilson; and the court finds' the equity of the case to be with the plaintiff, and that he is entitled to have his title to and possession of said realty above described quieted, as against all the rights of the said defendant Wilson, except his right to enforce and foreclose said mortgage for $3,000, made by the plaintiff to Cook & Mitchell, which has been paid off by said defendant Wilson. Wherefore it is considered, ordered, and adjudged by the court,” etc.

      W. 3. Safford, and Scribner, Hurd, Scribner, for plaintiff in error.

      Pratt Wilson, for defendant in error.
   DICKMA.N, J.

The record discloses, that the Master Commisssioner in his report to the district court, among other things, found as a fact, that George W. Hicks, the plaintiff below, unreasonably delayed making inquiries as to the value of the Pike county land, and found as a conclusion of law, that the plaintiff was in equity estopped from disputing the title or the right of Wilson to the possession and enjoyment of the Michigan street property. The court sustained the plaintiffs exceptions, numbers nine and ten, to these two findings, but overruled all other exceptions to the master’s report, and in effect, approved all other parts of the same. The court in its decree, found as a fact — which was not disputed on the trial — that the legal title to the premises in controversy was, at the date of the commencement of the action, in George W. Imerson, and not in Wilson; that the equity of the plaintiff in the premises was equal to, and more than, that of Wilson; and that the plaintiff was not estopped from asserting and maintaining his equity as against Wilson.

There being but little dispute as to facts, the main question is, Did the district court err in its conclusions of law in finding the equity of Hicks superior in merit to that of Wilson, and in permitting Hicks to dispute the right and title of Wilson to the possession and enjoyment of the property. We are of opinion that the district court erred; and that' judgment should have been rendered in favor of Wilson, in accordance with the findings of the master’s report.

We are satisfied that Hicks, the defendant in error, through the fraudulent representations made to him by Eglin, as to the Pike county land — the number of acres under cultivation and in timber, the title to the land and its value, and the character of the building thereon — was induced to exchange for the land, his house and lot on Michigan street, and the notes and mortgage executed by Engleman. Eglin. and Imerson were doubtless confederates in fraud; and, in order that Imerson might be a convenient and accessible instrument, Hicks was deluded into making his deed to Imerson, supposing at the time that the grantee named in his deed was Graeber, with whom he was exchanging property. But no knowledge of these fraudulent transactions was ever brought home to Wilson, the plaintiff in error, until after the execution of the deed by Hicks to himself, and his conveyance to Imerson of his land in Ross county. Indeed, it was never claimed by Hicks that Wilson was in any manner connected with the transactions in reference to the Pike county land deeded to him by Graeber.

We regard Wilson a purchaser in good faith, for a valuable consideration, of the house and lot on Michigan street — having in all respects complied with the terms of his contract with Eglin, by conveying to Imerson the two hundred acres of land in Ross county, and assuming the mortgage debt of three thousand dollars on the house and lot. It is contended that Eglin was Wilson’s agent, and that the fraud of the agent is to be imputed to the principal. But we believe, as found by the master commissioner, and approved by the district court, that Eglin in his negotiations for the conveyance of the Ross county land to Imerson, was acting for himself and not as the agent of Wilson.

In making the transfer of the house and lot to Wilson, instead of a deed to him directly from Imerson, the unrecorded deed from Hicks to Imerson was cancelled, without a re-conveyan ce of the premises to Hicks, and a deed was executed by Hicks directly to Wilson and placed by him in the' hands of Eglin, to be by him in turn delivered to Wilson. By the cancellation of the deed without re-conveyance, Hicks was not reinvested with the legal title, but the cancellation and new deed taken together would make a good title to Wilson by operation of law. It is said however, and it is conceded, that at the commencement of the action neither Hicks nor Wilson had the legal title to the property. Their rights were equitable only, and it is urged in behalf of the defendant in error, that where the equities are equal, the maxim must govern, that the equity “ older in time is stronger in right.” In our view of the evidence, the equities between the parties are not equal, but that of Wilson though junior in time is superior in merit. In such a case, the elder equity cannot prevail, but must yield to the junior. Hume v. Dixon, 37 Ohio St., 66.

The testimony shows, that at the time Hicks executed the deed to Wilson, he had received information that the Pike county land was not as it had been represented to him by Eglin. This he had learned from two sources, and he was then in correspondence to obtain further information on the subject. In daily expectation of receiving explicit information — information which would reveal to him in its true form the fraud which Eglin had practiced upon him— he executed the deed to Wilson, and handed it to Eglin himself for him to deliver it to Wilson. When requested to cancel the deed which he had given to Imerson and execute another directly to Wilson, he discovered, that instead of a deed to Graeber, the name of Imerson had been deceptively ■ inserted as grantee; but the suspicious circumstance did not prevent his investing Eglin with power to pass the property over to Wilson. It is true, that the deed to Wilson was signed and sealed in the presence of, but one witness, and was not acknowledged; but, it is not to be presumed that the design of Hicks, himself, was to perpetrate a fraud, by palming upon a bona, fide purchaser, as a good and sufficient deed, that which amounted only to a contract for a deed. His intention doubtless was to divest himself of all title to the property. Certain it is, that he placed in the hands of Eglin, who he knew had deceived him, a deed signed and sealed by himself, and thereby enabled him to devise for presentation to Wilson, a deed on its face signed, sealed, witnessed and acknowledged according to law. Wilson, upon the faith of the deed, parted with the consideration, and, conveyed to Imerson the Ross county land, and paid off the mortgage debt of three thousand dollars on the Michigan street house and lot. On the face of the deed to Imerson, Hicks held him out as the apparent owner of the property which he had conveyed to him; and placed it in the power of the confederates Eglin and Imerson to initiate the trade for the Ross county land, which was afterwards consummated by the act of Hicks himself, in executing the new deed to Wilson. Under the circumstances, .we are of opinion, that Hicks should be estopped from disputing the title of Wilson to the premises conveyed to him.

If Imerson had recorded the deed made to him in the first instance by Hicks, and conveyed the premises directly to Wilson, it would not be claimed that the title of Wilson could be successfully attacked. In delivering the opinion of the court in White v. Graves, 107 Mass., 324, 328, Gray, J., said: — “It was long ago decided by this court, upon great consideration, that a person who voluntarily executed a deed, although induced to do so by fraud, could avoid it only as against the party who exercised the unlawful influence, or against one who took title under the deed with participation in or notice of the fraud, and not against one who took a title apparently good from those having capacity to convey.” And manifestly, a different rule would not prevail, where the party who exercised the unlawful influence surrenders his unrecorded deed to the grantor, who cancels the same, and voluntarily executes a new deed of the same premises, to an innocent purchaser for valuable consideration from the first grantee.

It is said, that in the transactions with Eglin, Imerson and Wilson, Hicks was in all respects an innocent party. There is no evidence that Wilson was not an equally innocent party; and his equity we deem superior in merit to that of Hicks. But it is a rule long established, that where a loss has happened which must fall on one of two innocent persons, it must be borne by him who is the occasion of the loss, even without any positive fault committed by him, but more'especially if there has been any carelessness on his part which caused or contributed to the loss. Somes v. Brewer, 2 Pick., 184, 202.

In accordance with the aforegoing considerations, we are of opinion that the judgment of the district court should be reversed, and judgment rendered for Wilson in conformity with the report of the master commissioner.

Judgment accordingly.


author: Nash, J".

text:
    Householder v. Granby.
    In. the trial of a case to a jury it is error for the court, after having been requested by either party, pursuant to statute, to reduce the charge to writing, to give oral instructions upon matters material to the issue, in addition to a written charge.
    Error to the District Court of Williams County.

      Leidigh Scott and J. M. Ritchie, for plaintiff in error.

      Pratt $ Bently and O. A. Bowersox, for defendants in error.
   Nash, J".

On the trial of this case in the court of common pleas, and before the argument to the jury was commenced, the defendant requested that the charge to the jury be reduced to writing. The court did write a charge, which he delivered to the jury, but immediately followed this with oral instructions upon matters material to the issues. The bill of exceptions shows that to this act of the court (charging the jury without having first reduced to writing all that was to be said), the defendants, and each of them, as soon as the same came to their knowledge, objected. In the defendants’ motion for a new trial, which was overruled, that act was assigned as one of the reasons for setting aside the verdict.

.The part of paragraph 7, section 5190, Revised Statutes, which relates to this matter is as follows:

“ Any charge shall be reduced to writing by the court, if either party, before the argument to the jury is commenced, requests it; a charge or instruction, when so written and given shall not be orally qualified, modified, or in any manner explained to the jury by the court;'and all written charges or instructions shall be taken by the jurors in their retirement and returned with their verdict into court, and shall remain on file with the papers in the case.”

The action of the court in this case, in reducing a part of his charge to writing and in delivering another part without so doing, cannot be, justified. The language of the statute is imperative, and a court, after the request has been made, has no discretion to reduce a part of the charge to writing and give the remainder orally.

The purpose of this statute was to secure a carefully considered charge from the court, free from misleading words, which are sometimes found in unwritten charges, and to have it in such form that the jury can read it, in their retirement, in case they have misapprehended, during its reading by the court.

We approve of the action of the district court in reversing the judgment of the court of common pleas, and in this conclusion we are sustained by the case of Hardy v. Turney, 9 Ohio St., 400.

Judgment affirmed.


author: Granger, C. J.

text:
    Bank v. Green.
    1. If the holder of a promissory note of a firm, after its dissolution, accepts the note of one of the partners, payable at a future date, retaining interest for said time by discount, and agrees to release the other partner, no action on the firm note can be maintained.

      lo . Such agreement may be implied from the acts of the parties.
    CO . The omission as party, to a petition in error, of one of the defendants in the court below, will not deprive the reviewing court of jurisdiction of the case.
    4. In such a case, if the defendant in error in the district court does not there complain of a defect of parties, and that court reverses the judgment below, this court will not permit him to make such objection here; and if it affirmatively appears that the judgment of reversal will not materially and injuriously affect the rights claimed in the original case by the absent party, this court will not interfere.with it,
    Error to the District Court of Athens County.

      Milbury M. Green and Geoi’ge T. Gould, partners in two firms styled “ M. M. Green & Co. ” and “ The Salina Salt & Coal Company,” dissolved on April 22,1873. Gould took all the firm assets and agreed to pay all the debts. The First National Bank of Athens held notes of. the firms, amongst which were the following: One dated January 29, 1873, for $4,000, due May 1, 1873; one of same date for $1,000, due same day, and one of same date for $2,000, due June 1, 1873. The bank had notice of the dissolution and that Gould took the assets and was to pay the debts. On May 19, 1873, it stamped said three notes “paid,” and surrendered them to Gould, taking from him two new notes for $4,000 each — one payable in ninety days and the other in four months. These notes were signed, the first,
    “G. T. Gotjld.”
    “M. M. Gkeen & Co.”
    and the second, “ Salina Salt & Coal Co.”
    “G. T. Gould.”
    The proceeds of these notes sufficed to pay said three firm notes, including interest to May 19, 1873, the discount on the new notes, and also to place to Gould’s individual credit $227^L. This was checked out by him on his individual check. The rate of the discount was eight per cent. Adding these new notes to other firm notes then held by the bank, made a sum of $14,500. Under the National Banking law no person or firm could borrow from that bank at that time-more than $9,000 or “ a little over.” At the time these notes were taken the cashier asked Gould if he had authority to sign the firm name. He said that he had in settlement of firm business. Green claimed that the bank took the firm signatures to evade the rule limiting loans to one person.
    On February 5,1874, the bank cancelled and surrendered to Gould the two notes of May 19, 1873, taking from him two new notes of $4,500 each, dated February 2, 1874. These were drawn to the order of G. T. Gould. He signed one “M. M. Green & Co.,” and the other “Salina Salt & Coal Co.,” and indorsed both “ G. T. Gould.” They were payable in four months. The proceeds of these notes sufficed to pay the notes of May 19, 1873, including interest at nine per cent. to.February 2,1874, the discount for the four months at nine per cent., and to give to Gould alone" a credit of $427.84, which he checked out in his ordinary business.
    On May 5, 1874, the bank dropped these notes of February 5, 1874, from its books 'as part of a plan for deceiving the examiner. It obtained United States bonds from a Mr. Ballard, one of its directors, giving him a simple receipt. No entry thereof was made on the books. The bonds were sold and the proceeds entered on the books of the bank as cash received on said notes. The notes Avere put in an envelope and “put away” in the bank. Green resided in Columbus and was all the time amply able to pay the notes, as the bank Avell kneAV. Gould and officers of the bank were intimate and interested in joint ventures. When Ballard called for reimbursement for his bonds the bank urged Gould to arrange for a loan from Ballard in order to make such reimbursement, and as he failed to do so, it raised means from another source and satisfied Ballard.
    •In August, 1878, Gould became insolvent, and on September 23, 1878, the bank for^the first time called upon Green to pay the notes of January 29, 1873. As he refused to pay, the bank sued him and Gould in Athens common pleas on said old notes. They filed separate answers. Green averred that the notes Avere paid and.discharged and he released; set out the dissolution of the firms, Gould undertaking to pay their debts and that the bank well kneAV this. Gould did not deny that he had agreed to pay all the debts of the firm, but he averred that the notes sued .on had been “paid and discharged,” and were cancelled and delivered up to “the defendants by the plaintiff as duly paid, and admitted and considered so to be by the plaintiff.” The replies denied these averments of both answers. The evidence did not sIioav an express agreement to accept the new notes in payment or to release Green. A trial resulted in a verdict against both defendants. Green, at the proper time, asked the court to charge the jury thus: “ Whether or not the plaintiff accepted the new notes made by Gould on May 19, 1873, for and in payment of the old notes of the firm sued upon in this action, depends upon the intention and agreement of the plaintiff at that time; and this intention and agreement, in the absence of any express agreement, can be determined by the jury from the facts and circumstances of the case, and if the jury believe, from such facts and circumstances, that the plaintiff, at the time of the transaction, intended to give up the old firm notes as paid, and accept the new notes in place of them, then, no recovery can be had upon such old notes in this action.”
    This was refused and exception noted. A motion for a new trial was overruled and a bill of exceptions presenting all of the evidence' and the entire charge was duly made part of the record, and judgment entered on the verdict. On Green’s petition in error against the bank, (Gould was not made a party) the district court reversed the judgment below and remanded the cause for a new trial. The bank made no complaint in that court because Gould was not a party. It here seeks a reversal of the judgment of the district court. Other exceptions were taken in the common pleas and urged in the district court but they do not affect the decision of the cause.

      Welch if Welch and ReSteiguer Jewett, for plaintiff in error.
    I. The judgment in the common pleas was a joint judgment against Green and Gould, and the district court had no power to reverse it withorrt the presence of Gould. The only power it had was to retain the ease, and cause Gould to be brought in as a party. To show that such is the law no authority is needed beyond the case of Smetters v. Rainey, 14 Ohio St., 287, where it was held that “ All the defendants to a joint judgment are necessary parties to a petition in error filed by one of their number to reverse it, * * and if such defendants are not made parties to the petition within three years from the rendition of judgment, the revising court has no such jurisdiction over the subject matter as will authorize them to revise or modify any part of it.” The principle of this ease was again affirmed in Jones v. Marsh, 30 Ohio St.,'20.: • What right or power had the district court to interfere with the relation between the bank and Gould, without the consent of either of them ?
    Possibly it may be contended that the supreme court has no jurisdiction of the case, because we have not made Gould a party. There is no ground for such a claim. Gould is not a party to the judgment which we seek to reverse. When we make parties all who were parties to that judgment, we have fully complied with the requirements of the law. We don’t seek to affirm the judgment of the common pleas. That judgment is still in force, because the judgment of the district court is a nullity, which, nevertheless, we have the right to reverse. The truth is that, in any ease, the express affirmance of a judgment by a court of error is a useless ceremony. The judgment sought to be reversed stands in full force until reversed. The simple finding of no error, and the judgment that the 'defendant in error go hence,'or the dismissal of the petition, is all that is necessary, and leaves the judgment sought to be reversed in full force; the express affirmance of it is mere matter of form. The case of Ohio L. Ins. Co. v. Gooden, 10 Ohio St., 557, is no authority against us. In that ease the revising court had jurisdiction. The interest of Stallo, the party left out, was several, and in fact there was a separate judgment in his favor.
    Should this court dismiss the ease for want of jurisdiction, how would the parties stand ? It would leave the judgment of the common pleas reversed by a court having no jurisdiction, and our only remedy, if we had any, would be to issue execution on the common pleas judgment. And • if so, where is our remedy on the supersedeas bond, which is conditioned to pay what shall be adjudged against the defendants ?
    II. The charge requested by Green, and refused by the common pleas court, as to the intention of the parties, and which the district court held should have been given, was misleading and erroneous. It makes the question of payment depend upon the intention of the bank officer and not upon the agreement of the parties.
    There must be the intention of both parties; and not only an intention “to take the new notes in place of the old ones” — nay, not only an intention to take them in payment of the old ones — but an intention to take them in absolute, unconditional payment. There undoubtedly Avas an intention to take them “in place” of the old ones — nay, to take them in payment of the old ones — but not in absolute payment. What the parties intended was, that until the maturity of the new notes, they should stand as payment of the old ones; and a paft and'important part of their intention was, that the new notes would then be paid, according to agreement, and that then, and not till then, the payment and substitution should become absolute. The whole intention, or agreement was, that the new notes should stand in place of the old ones, and should be paid at maturity. If the defendants violated this intention — this agreement — by failing to pay the new notes, then the plaintiff was no longer bound by. it. He could rescind the contract. Such is the law, and such was substantially the charge of the court.
    We might go farther, and say, that there was no evidence upon which to base such a charge, for the undisputed evidence shows that the transaction was a mére ordinary reneAval, and that no special agreement Avas made in any form. In such a case, the “intention ’’ of the parties is merely their opinion of the law of the case, and is of no possible importance.
    But for another obvious reason the instruction would haAre been erroneous. The evidence tended' to show, and did clearly show, that the notes were renewed by fraud or mistake in the belief that Green had authorized it. Upon the discovery of this fraud or mistake the bank had a right to repudiate the transaction; arid fall back upon the old notes, notwithstanding its “ intention,” even its agreeme.rft, at the time of the renewal. It is hardly necessary to cite authorities to show this, and to show that in Ohio, in all cases of simple renewal, based upon no other consideration 'than the old debt, the payee or creditor has the option, upon dishonor of ' the new notes, to sue upon the old notes, and that it is for the defendant to show, and by “ clear proof,” that there was a special agreement to waive this right.
    The Ohio authorities leave no doubt as to the law in such a case. Harsey v. Heath, 5 Ohio R., 353; Gardner v. Com., 34 Ohio St., 187; Hmerine v. O'Brien, 36 Id., 491; Puchford v. Maxwell, 6 Term, 52; Palmer v. Bodge, 4 Ohio-St., 21; Miller v. Woods, 21 Id., 485; Merrick v. Bowry, 4 Id., 60; Cumbaugh v. Engle, 3 Id., 584; Leach v. Church, 15 Id., 169; Bank v. Bank, 37 Id., 208; Hunter v. Moul, (Pa.) Am. Law Reg. (August, 1882), 514, 520; 21 Wend., 452; 1 Hill, 516; 54 Barb., 455; 3 Denio, 410.

      James A. Wilcox, H. Guthrie, and C. H Grosvenor, for defendant in error.
    That an express or actual agreement is not necessary, and that whether or not the plaintiff agreed or intended to take the new notes in payment of the old, in the absence of an express agreement, may be proved by the facts and circumstances of the case, the acts and dealings of the-parties.
    That if a creditor receives the negotiable note of the remaining partner and gives up the original firm.note, or grants long credit, for a consideration, as for increased interest; or does anything which changes the condition of the parties, or renders it inequitable to permit a recovery on the original note, he thereby releases the retiring partner.
    It will be seen, from the authorities below cited, that in cases of this kind all depends upon the intention of the parties at the time; that if it appears, either affirmatively or from the circumstances of the case, that the creditor intended to accept the remaining partner for the debt-; or, in legal effect, did accept him and took his negotiable note f5r the debt and surrendered the original firm note, the retiring partner is discharged.
    And the courts hold the least consideration to be sufficient — such, even, as taking a negotiable note; receiving more interest; extending the time, &e. And the fact of giving up the original firm securities for the new securities of the partner, is, of itself, usually held strong evidence, unless explained, that the creditor intended to accept him for the debt, as otherwise he would not give up the original securities. Parsons on Part. (3d ed. 1878), 457-462, (421-30); 2 Parsons on Notes (ed. of 1863), 203; 1 Story on Part. (5th ed.), 425, 426; 2 Id., 540, n 1; Collyer on Part. (ed. of 1834), 324, 325; Mason v. Wickersham, 4 Watts & Serg., 100; Arnold v. Bangs, 12 Johns., 409, 410; Hart v. Boiler, 15 Serg. and Rawle, 162, 163; Harsey v. Heath, 5 Ohio, 353; 4 Ohio St., 60; 3 Id., 544; 15 Id., 169; Rawson v. Taylor, 30 Id. 389; 34 Id., 187; 36 Id., 491.
    As to the question of jurisdiction and the appearance of Gould in this court, see Secór v. Witter, 39 Ohio St., 218.
   Granger, C. J.

We concur with the supreme court in Secor v. Witter, 39 Ohio St., 218, and think that so far as concerns the question of jurisdiction, here made, Smetters v. Rainey, 14 Ohio St., 287, is not sound. Gould and Green were so united in interest that service of a summons upon one prevented the running of the statute as to the other. Had the district court been informed of the defect of parties, Gould could and should have been brought in before the judgment of reversal was rendered. See Buckingham v. The Bank, 21 Ohio St., 131. As was held in that case, to reverse the judgment below before Gould was broijght in, was error. But the present plaintiff in error cannot here avail himself of that error because he made no objection in the district court based upon the defect of parties. His silence there leaves it optional with this court to listen, or not, to such an objection by him here. No consideration on behalf of the bank calls /or a relaxation of the rule. As it affirmatively appears that Gould made no claim in the common pleas that Green ought to pay any part of the sum for which that court rendered the judgment, we see no reason for interfering with the judgment of the district court for his protection. If such interference were called for (as it would be if his rights were- in danger) we would reverse the judgment of that court and remand the case to it, so that Gould could be there made a party and judgment properly entered upon Green’s petition in error to that court.

As the case stands we proceed to consider its merits as between Green and the bank. After the dissolution of the firms, Gould had no authority to sign the firm name except “in settlement ” of firm business. Whatever question might exist as to his right, under the agreement of dissolution, to renew an overdue firm note, it is clear that he had no authority to sign the firm name to the notes dated May 19, 1873, and February 2,1874, because they included moneys loaned to him individually. The bank well knew that such moneys were included. Legally, therefore, said notes were the notes of Gould only. We think that the real question at the trial was “ Did the bank agree to take Gould’s notes as payment of the firm notes?” Did it agree to release Green in consideration of Gould’s notes? It is well settled that the surrender of the right to pay the debt, and thereby stop interest, is a sufficient consideration to support such a contract for a release. The discount for the four months, on one note, and the ninety days on the other, was a sufficient consideration... Counsel for the bank do not claim that the law is otherwise.

How can such an agreement be proved ? Precisely as any other agreement, or contract, not regulated or affected by statute. By proof of express stipulations, oral or written, or by proof of such facts, circumstances, acts, conduct, &c., as satisfy the mind that the parties so understood or agreed. We see no reason why such an agreement cannot be implied from such facts, circumstances, acts and conduct as would suffice to establish any other agreement or contract, in the absence of statutory provisions affecting the mode of execution or proof. From the nature'of the alleged agreement, the absence of express words touching payment and release ought .to weigh against its existence; and therefore the acts and circumstances relied. upon to establish such an agreement should be such as were clearly inconsistent with its non-existence; they must be so controlling as to justify the belief that at the time of the transaction the parties understood and intended that Green was released, and that the old notes were paid. Counsel upon both sides have cited numerous cases bearing upon this question. Without quoting from them we content ourselves with the statement that the decided weight of authority both in Ohio, and outside of it, is in accord with the view we have outlined.

In the charge the court said: “In answer to this last question you will look to the evidence’ and say whether the notes given as renewals hy defendant Gould after the dissolution of the partnership — was payment. The fact that other notes were given of a similar kind, the original notes or evidences of indebtedness given up and stamped as paid are not proof in and of itself of payment. It should affirmatively clearly appear from the evidence that such new notes were taken and accepted by the plaintiff as payment of the original obligation; if you find it did not receive the same as payment, the plaintiff is not estopped by reason thereof from maintaining this suit.” And also said, “ On the question of payment you may look to all the evidence in this case touching or reflecting upon tliis issue of payment including the conduct of the parties at the time when it was claimed payment was made, and subsequent thereto what was said and done at the time the renewal notes were made; if it is claimed that they were taken by the plaintiff of defendant Gould as payment of the notes set up in the petition, did the plaintiff by agreement with the defendants or either of them give up the notes sued upon in this action as paid and satisfied, and take the renewal notes in payment and satisfaction thereof; if it did, then the plaintiff cannot recover in this action.” •

After the charge had been read, Green asked the court to add the instruction quoted in our statement of facts. Taken by itself that instruction did not correctly state the law. It omitted the essential fact of an agreement; the understanding and intent of both parties — Gould and the bank. But, when added to the charge already given, the instruction asked for was good law. An intelligent lawyer might understand the charge as given, as meaning precisely what it would have meant after adding the instruction asked for. But even he might be misled by the refusal of the court to add the instruction, if the refusal were not accompanied by a statement that the charge as given substantially included the request. This request applied to the vital point of the case. • Upon it the charge ought to have been clear and explicit. It is fair to presume, upon the evidence presented in the bill of exceptions, that the main argument by Green’s counsel before the jury had been that an implied agreement was proved' by that •evidence. The unqualified and unexplained refusal by the court to say that the acceptance by and understanding of the bank, to which it had referred in the charge, in the absence of an express agreement, could be established by acts and conduct of the parties, was so likely to mislead the jury, that we think the district court Aid not err in holding it error sufficient to justify a reversal of the judgment of the common pleas.

Judgment affirmed.


author: Martin, J.

text:
    Riley v. Rice.
    A husband and wife, to secure their joint note, executed and delivered a defective mortgage on land which was her general property, and after-wards sold and conveyed the same, subject to the mortgage, supposing it to be perfect, taking from the grantee notes arid mortgage on the premises for the purchase-money. They transferred the notes to a third party, and the grantee made a payment on the note given by the husband and wife.

      In an action to foreclose the mortgage given by the husband and wife, to which all parties in interest were parties:

      Held: 1. The grantee and those claiming under him are estopped to assert the defective execution of the mortgage.
    2. The holder of. the note intended to be secured by the defective mortgage, has a lien on the premises, and is entitled to priority of lien over the other mortgage.
    Error to the District Court of Wood County.
    The original action was brought by Riley, in the court of common pleas, against Ezekiel Rice and Harriet his wife, George A. Bryant and Remy, Hedges and Walters, to foreclose a mortgage oh lands in that county, executed by Rice and wife to one Lansdale, and recorded in March, 1877, and transferred to Riley. On the mortgage note there is indorsed a small payment made by Bryant.
    Remy, Hedges & Walters answered denying the existence of the mortgage or any lien in favor of Riley. They also set up a mortgage on the same lands made by Bryant, grantee of Rice and wife, to Mrs. Rice, and recorded in, April, 1877, and by her transferred to them. The other defendants made default. In the common pleas there was judgment for plaintiff and sale ordered, &c.
    In the district court, on appeal, there was a finding of facts, and judgment giving priority of lien to the mortgage held by Remy, Hedges & Walters. Riley excepted and prosecutes this proceeding in error to .reverse the latter judgment.
    The findings by the district court are these:
    That on the 5th day of March, 1877, the said defendants, Ezekiel Rice and Harriet P. Rice, his wife, executed and delivered to one Sarah Lansdale an instrument of writing purporting to be a mortgage on the lands and tenements mentioned and described in the petition herein, in order to secure the payment of the promissory note mentioned and set forth in said petition; that at the time said defendants so executed and delivered said instruments of writing they were husband and wife, and the said Harriet P. Rice was the owner in fee simple of said lands and tenements; that the only acknowledgment of said instrument of writing is in the words and figures following, to wit:
    “ State of Ohio, Wood county, ss.
    “Before me, a justice of the peace in and for said county, personally appeared the above named Harriet P. Rice and Ezekiel Rice, who acknowledged that they did sign and seal the foregoing instrument, and that the same is their free act and deed. I further certify.
    “ In testimony whereof I have hereunto set my hand and ■ official seal, at my office, this fifth day of March, A. D. 1877.
    “ Edward R. Sage,
    “ Justice of the Peace''

    “ That said instrument of writing was recorded in the records of mortgages of Wood county, Ohio, and was after-wards assigned and transferred to the said plaintiff, as is alleged in the petition, herein of said plaintiff; that on the 9th day of April, 1877, the said Ezekiel Rice and Harriet P. Rice, his wife, sold and transferred said premises to the said defendant, George A. Bryant, and executed and delivered to him a warranty deed therefor, and said deed contained the following clause and covenants of warranty, to wit:
    “ ‘And we, the said grantors, do for ourselves and our heirs, executors, and administrators, covenant with the said grantee, his heirs and assigns, that at and until the ensealing of these presents, we were well seized of the above described premises as a good' and indefeasible estate in fee simple, and have good right to bargain and sell the same, in manner and form as above written, and that the same are free and clear from all incumbrances, except a mortgage of one hundred and ninety-six dollars, and will warrant and defend said premises, with the appurtenances thereunto belonging, to the said grantee, his heirs and assigns forever, against all lawful claims and demands whatsoever, except said mortgage.’
    “ That said defendant, George A. Bryant, then gave and executed the promissory notes and the mortgage security thereof mentioned and set forth in the answer and cross-petition herein of the said defendants Remy, Hedges & Walters, for the unpaid purchase-money of said lands and tenements; that said mortgage was duly recorded in the records of mortgages of Wood county, Ohio; that said notes and mortgages have been duly assigned arid transferred to the said defendants Remy, Hedges & Walters, as is alleged in their said answer and cross-petition herein; that there is now due from the said defendant, George A. Bryant, to the said defendants, Remy, Hedges & Walters, upon the two promissory notes and the mortgage security thereof mentioned and set forth in their said answer and cross-petition, the sum of $571.50; that said sum bears eight per cent, interest; and that there is due from the said defendants, Ezekiel Rice and Harriet P. Rice, his wife, upon the promissory note and the mortgage security thereof mentioned and set forth in the petition herein of the said plaintiff, the sum of $245; that said sum bears eight per cent, interest.
    “And the court further finds, as the law of this case, that the amount so found due from the said defendant, George A. Bryant, to the said defendants Remy, Hedges & Walters, is the first, and prior lien upon said lands and tenements; and that the amount so found due from the said defendants, Ezekiel Rice and Harriet P. Rice, his wife, to the said plaintiff, is the second lien thereon.”

      Harrison, Olds Marsh and 8. P. Harrison, for plaintiff in error.

      Pillars Pillars, for defendants in error
   Martin, J.

The mere finding that Mrs. Rice “ was the owner in fee simple ” of the mortgaged premises, is too general to enable us to say it was her separate estate. It may have been.her general property. We are. bound to make every presumption consistent with the record in support of the judgment. We therefore accede to the claim made by counsel for defendants, that for the purposes of this inquiry, it must be presumed that. the premises were her general property, and that with respect to it, she had not the enlarged powers of a married woman over her separate estate. ' We need not further notice the claim of priority for the defective mortgage, predicated on the theory that the facts show a charge -in- equity on the premises as her separate estate.

The- omission of the officer to certify the. privy examination of the wife is the only defect in the mortgage. And thus defective, it conveyed no interest whatever as against her subsequent purchasers and judgment creditors. Van Thorniley v. Peters, 26 Ohio St., 471. Bryant, her grantee, and those claiming under him, are not affected by it or its record.

Do the recitals in the deed to Bryant, in connection with the admitted facts, subject the premises to a charge for the mortgage debt and create a priority of lien over the mortgage given by him ? We are of opinion that the facts found clearly evidence such charge and priority.

Rice and wife undoubtedly supposed that the mortgage had been perfectly executed. They intended it to be such. The mistake was not theirs, but that of the officer.

Under the act to give additional security to land titles as amended April 17th, 1857, (S. & C., 694; Rev. Stats., § 5867, etc.) a mistake of the officer in omitting to certify the separate examination of the wife may be corrected. Kilburn v. Fury, 26 Ohio St., 153.

A mortgage thus defective is therefore good and enforceable as between the parties. The statute invests the mortgagee with an equity which he may enforce against the wife.

In this situation she conveyed to Bryant subject to the mortgage. The recitals are particular and style, it a mortgage, and recognize it as an incumbrance and lawful claim on the premises for the full amount.

.A further stipulation that the grantee assumes and promises to pay it, would have had no greater effect in subjecting the premises than was imposed by the recitals as they stand. Bigelow on Est., 307; Lawrence v. Fox, 20 N. Y., 268. There is nothing to show that Bryant had any knowledge of the mistake of the officer, or any desire, at any time, to repudiate the incumbrance. He surely understood the land was bound for it, and it presumably entered into the consideration of his purchase, and he made a small payment on the mortgage note. He took title subject to plaintiff’s claim and is estopped to deny the due execution of the mortgage. Bigelow, supra, and authorities there cited.

Bryant’s mortgage, set up by Remy, Hedges & Walters, rests upon the land thus subjected for the amount of the defective mortgage. The recitals are in the deed under which they claim, and the mere transfer of the notes to them could not affect the superior lien of the plaintiff’s mortgage.

It follows that the district court erred in adjudging priority to the mortgage held by Remy, Hedges & Walters.

'Judgment reversed.


author: Dickman, J.

text:
    Day v. Ramey & Co.
    If, upon rendition of judgment, a surety neglects to secure tlie proper entry by the clerk, certifying which of the defendants is principal debtor and which surety, the judgment creditor, while he will not he required to first exhaust the property of the principal debtor before taking the property of the surety in execution, yet, if with a knowledge of the suretyship, he levies upon unincumbered land of the principal _ debtor, and afterward abandons the'levy without the consent of the surety, the surety will be discharged to the extent of the value of the land released from the levy.
    Error to the District Court of Putnam County.

      Long Long and _5T. JE. Me Clure, for plaintiff in error.
    I. Wherever by the act or procurement of the creditor-the property of the principal debtor is permitted to escape to such an extent that the surety is deprived of his means of reimbursing himself from said property, to that extent is lie estopped from collecting the debt from the surety. Dixon and Hawke v. Diving's Adm'r, 3 Ohio, 280; Cass v. Adams, Id., 223, 224; Ford v. Commissioners, 7 Ohio, 2cl pt., 492, (overruling 4 Ohio, 379.)
    II. And this, notwithstanding the surety has omitted to have himself certified under the statute as surety when the judgment is rendered. The statute does not destroy the equitable rights of the surety to be protected in his surety-ship, it simply enlarges his legal rights to the extent that by causing the certificate, that he was surety only, to be entered of record, the law then requires the property of the principal to be first exhausted before levying on the property of the surety,

      C. J. Swan, for defendant in error.
    The authorities cited by the plaintiff in error, if they have any bearing at all, only go to this extent, that if a creditor voluntarily releases property on which he has a levy, and thereby the security is in any way injured, he may be released. With that we have no quarrel. The case presented by the record is not similar, either on principle or in fact, and without any further argument on that point we are willing to submit the question. We refer to Kelly v. Collins, 11 Ohio, 310; Flliot v. Flmore et al., 16 Id., 27; Ciateh v. Simpkins, 2§ Ohio St., 89.
   Dickman, J.

Ramey & Company, the defendants in error, in September, 1877, recovered judgment upon default in the court of common pleas of Putnam county, against Oliver Day and Hiram Day the plaintiff in error, on a promissory note by them jointly signed, and made to one N. W. Ogan, by whom it was sold and transferred to the defendants in error. On the 7th of March, 1879, an execution was issued on the judgment, and on the same day was levied on the real estate of Hiram Day, described in the petition of the plaintiff below. The land levied upon being included in a mortgage to the Michigan Mutual Life Insurance Company, Ramey & Company commenced an action to adjust the liens on the premises. In the court of common pleas, a demurrer was filed by the plaintiffs to the answer of Hiram Day and sustained. An appeal was taken to the district court, and Hiram Day therein filed an amended answer, to which a demurrer was filed by the plaintiffs and sustained, and thereupon judgment was entered for the plaintiffs. To reverse the judgment of the district court, a petition in error is filed in this court. The case is before us for decision, upon the amended answer filed in the district court, and the plaintiffs’ demurrer admitting the facts therein set forth. As facts, standing'undenied upon the pleadings, Oliver Day was the principal, and Hiram Day — though not so designated — was surety only, on the promissory note upon which judgment was rendered. The relation of the two, as principal and surety, was known' to the plaintiffs below. Upon rendition of judgment, there was no entry of record, under the statute, certifying which of the defendants was principal debtor, and which surety. After judgment, an execution was issued and levied upon a lot of land described as “Inlot 34,” in the town of Pendleton, in Putnam county, Ohio, being the property of Oliver Day, and which was under mortgage, at the time of the levy, to Hiram Day, to indemnify him against loss by reason of his suretyship upon the promissory note sued upon. This mortgage Hiram Day released, upon a promise from the sheriff to him, that he would enter the levy upon his writ of execution, and proceed to make the amount of the judgment out of the lot of land levied upon. The property thus disencumbered was amply sufficient in value to pay the judgment debt, but .the sheriff, under instructions from the plaintiffs, abandoned the levy, and levied upon and sold real estate belonging to Hiram Day to satisfy the execution. This levy upon Hiram Day’s property and the sale thereof, were by order of the court set aside and held for nought. Afterward — on the 16th day of February, 1878 — another execution, issued upon the same judgment, was by the sheriff levied upon “Inlot 34,” and thereafter, this levy was, against the will and protest of Hiram Day, released; and on the 7th of April, 1878, Oliver Day, the principal debtor, died wholly insolvent.

It is a well settled rule, that if the creditor recovers a judgment against principal and surety, and execution thereon is levied upon the property of the principal, and such property is released from the levy and lost as a security by the act of the creditor, the surety will be discharged, to the extent of his injury thereby. Dixon et al. v. Ewing's Adm'rs., 3 Ohio, 280; Curan v. Colbert, 3 Geo., 239; Brown v. Ex'rs of Riggins, Id. 405; Mulford v. Estudillo, 23 Cal., 94; People v. Chisholm, 8 Id., 29; Hubbell v. Carpenter, 5 Barb., 520.

If the creditor has the means of satisfaction in his hands, and chooses not to retain them, he cannot complain. The rights of sureties are largely creations of equity, and courts of chancery will not hold them liable, where the risk is increased by the act of the party for whose benefit the suretyship is intended to inure; and, if by the act of the creditor, the surety is injured or exposed to injury, that act may be laid hold of for the surety’s relief. Rathbone v. Warren, 10 Johns., 591; Cooper Arrington v. Wilcox, 2 Dev. & Bat. Eq., 90.

It is urged, that Hiram Day did not avail himself of the statutory provision, and at the rendition of judgment on the promissory note, secure the proper entry by the clerk, certifying which of the defendants was principal debtor and, which surety. The statute was designed to enlarge the legal rights of the surety, and although by such omission, Hiram Day lost the right of compelling the creditor to. first exhaust the property of the principal debtor, before his property could be taken in execution, he did not thereby lose any of his equitable rights as surety. The contract of the surety is with the creditor, and not with the debtor, and the creditor who accepts a surety is none the less bound to notice the nature of his engagement, because he is required to first proceed against the goods or lands of the principal.

After judgment was rendered against Hiram Day, the relation between him and Oliver Day,; as principal and surety, still continued, and he was then entitled to the same privileges, and was discharged by the same acts of the creditor, as before judgment. Commercial Bank v. Western Reserve Bank, 11 Ohio, 444; Brandt on Suretyship, § 27. La Farge v. Herter et al., 9 N. Y., 241; Hubbell v. Carpenter, 5 Barb., 520. Shaw, C. J., in delivering the opinion of the court in Carpenter v. King, 9 Met. 511, says, “There is the same reason for admitting evidence aliunde, to show the relations of parties who are joint debtors in a judgment, as in a contract. Prima facie, they are equally as well as jointly liable. Take the common case of a bond, where on the face of it one is principal and the other surety, yet the judgment is 'joint. By the record, apparently, both are principal debtors. If the grounds of the judgment could not be inquired into, so as to rebut the presumption of an equal liability, the surety, in case of paying the judgment, would have no remedy over against his principal for money paid; and in case the principal should pay it, he would have an action against his own surety for contribution. If it can be inquired into, to adjust the relations of the debtors to each other, it can be to determine the relation of the creditor to each debtor} where the fact becomes material to the respective rights.”

If the mortgage of indemnity on “ Inlot 34,” made to Hiram, Day, had remained in force, the property might have been released from the levy thereon without discharging the. surety, as he would not have been thereby injured. But, Hiram Day having cancelled his mortgage, another execution was levied upon “ Inlot 34,” while thus free from the incumbrance, and this levy was released without the surety’s consent, and, as alleged in the amended answer “ at the request ahd procurement of defendants in error ” — ■ Ramey & Company. From these words we cannot infer judicial action, or that the release was made by order of the court, upon motion and hearing, and the existence of such facts as would authorize a release of the levy without discharging the surety. For aught that appears, the “request and procurement” of Ramey'& Company, meant nothing more than an order to the sheriff to release the levy, and proceed against the property of Hiram Day.

In our view, therefore, Ramey & Company by dismissing their second levy upon the property of Oliver Day, the principal debtor, and releasing the property levied on, discharged the surety, Hiram Day, to the extent of the value of the property so released.

It follows, that the judgment of the district court sustaining the demurrer of the plaintiffs to the amended answer of Hiram Day, must be reversed, and the cause remanded to the district court for further proceedings.

Judgment accordingly.


author: Nash, J.

text:
    Bernstine v. Express Company.
    Where a creditor, living at a distance from his debtor, requests the pay-, ment of the debt' without giving specific instructions as to how the money shall be sent, and the debtor sends it by an express company, and it is lost in transitu, the debtor may maintain an action against the company for its recovery.
    Error to the District Court of Mahoning County.
    Marx Bernstine lived in Gustavus, Trumbull • county, Ohio, and M. B. Bernstine & Co. did business at Mantua, Portage county, Ohio. Marx Bernstine was indebted to M. B. Bernstine & Co. in the sum of about two hundred and twenty dollars. About the 20th of January, 1879, the debtor received a letter from his creditors requesting him to “send to them the money” or a portion of it — “whatever he could ” — to apply on the debt. About nine days later the debtor delivered to the agent of the Union Express Company at West Williamsfield, Ashtabula county, Ohio, a sealed money package, containing $200, addressed to M. B. Bernstine & Co., Mantua, Portage .county, Ohio. When the package was delivered to the consignees at Mantua it contained but $100. The Adams Express Company and the American Express Company constituted the Union Express Company. This action was brought in the court of common pleas of Mahoning county , by Marx Bernstine, the debtor and consignor, against the express companies, as common carriers, to recover the missing one hundred dollars.
    Judgment was rendered in favor of Bernstine in the court of common pleas, and the district court on error reversed the judgment of the common pleas.

      H. II. Moses, for plaintiff in error,
    cited Buell v. Chapin, 99 Mass., 594; Gurney v. Howe, 9 Gray, 404; Crane v. Pratt, 12 Id., 848; Hutchinson on Carriers, 567, §§ 723 to 737; Finn v. Western Railroad Co., 112 Mass., 524; Hooper v. The Railway, 27 Wis., 81; Southern ^Express Co. v. Craft, 49 Miss.; Dunlap v. Lambert, 6 Cl. & Fin., 600.

      A. W. Jones, for defendant in error,
    cited Hutchins, § 733; Or cult v. Nelson, 1st Gray, 542; Merchants. Chapman, 4 Allen, 364; Putnam v. Tillotson, 13 Met., 517; Morris v. State, 25 Ohio St., 229; Gurney v. Howe, 9 Gray, 404.
   Nash, J.

The important matter of contention in this action is as to whether Marx Bernstine had the right to maintain this action. On behalf of the defendants in error it is claimed that the action should have been brought by the consignees, M. B. Bernstine & Co. This court is unanimously of the opinion that Marx Bernstine was the proper party plaintiff in the court of common pleas. Marx Bernstine, the debtor, was bound to pay his creditors, M. B. Bernstine & Co., in person. Buell v. Chapin, 99 Mass., 594. From this duty he could only be relieved by authority from his creditors, either express or implied, to pay to some one else. By the letter of January 20, 1879, M. B. Bernstine & Co. requested their debtor to “ send to them the money,” or a portion of it — “ whatever he could ” — to apply on the debt. This was not the appointment of an agent to receive the money from the debtor and transmit it to the creditor. It did not relieve the debtor from his duty to pay to the creditor in person. It amounted simply to a request for the debtor to pay, and informed him that the creditors were willing to receive payment of a part of the debt, if he could not pay all. The ownership of the money remained in Marx Bernstine after he delivered it to the express companies and until it was delivered to his creditors. The judgment of the court of common pleas in favor of Bernstine for the amount of the lost money and against the express companies should have been affirmed.

Judgment accordingly.