author: Williams, J.

text:
    Gartner v. Corwine.

      Warranty — Sale of chattels — Action for damages — Allegation of false warranty —Recovery may be had without proof of knowledge of falsity.

    1. Where, in an action for damages for breach of a warranty in the sale of chattel property the petition also alleges that the defendant knew the warranty to be false, the plaintiff, upon proof of the warranty and its breach, may Recover the damages he thereby sustained, though he fail to prove the defendant’s knowledge of the falsity of the warranty.
    2. Whether such petition contains more than one cause of action, Quaere ? But if there be two, they may be joined in the samei action.
    (Decided December 14, 1897.)
    Error to the Circuit Court of Ross county.
    The case is sufficiently stated in the opiuion.

      Frank P. Hinton, for plaintiff in error.
    The original action was not one to recover damages for the breach of an express warranty, but was an action for damages for a false warranty or deceit.
    In the general charge the court instructed the jury that if at the time of such sale the defendant ‘‘knowingly falsely warrants such horse,” etc.

      The general charge is based upon the authority of Swan’s Treatise, page 784; 12 Wheaton (U. S.), 183.
    The special instruction was based upon the authority of Taylor v. Leith, 26 Ohio St., 428.
    Under the general charge the plaintiff must prove: The warranty as claimed. Parmlee v. Adolph, 28 Ohio St., 20; 17 Texas, 372; 48 Illinois, 182; 2 B. Monroe, 375.
    Bates says, on page 788, vol. 2, “the action being for deceit or false representations, all the elements of such action must be averred and proved.
    “These are enumerated:

      ‘iFirst — Scienter of the falsity of the representation.

      li Second — An intent to deceive the plaintiff, etc.
    “ Third — The plaintiff must have relied on the representations, been deceived or misled.
    The intent to deceive must be averred. Bank, etc., v. Beebe, 6 Ohio, 497; Bartholomew v. Bentley, 15 Ohio, 659. This implies knowledge — otherwise could be no intent. Bates, page 416 and 417, vol. 1.
    No such case was made in the petition, hence no such charge would have been proper. Insurance Co. v. Reed, 33 Ohio St., 295.
    There are no allegations of reckless misrepresentations, or that he ought to have known the representations were false, but on the contrary, a positive allegation that defendant did know at the time he made them that they were false. The charge meets the case as plaintiff made it, and he cannot complain if the court did not read a treatise or essay on fraud to the jury, covering all its ■various phases. Vol. 28, Amer. and Eng. Ency., 858.
    Fraud and deceit implies bad faith, and has for its basis guilty knowledge, , and hence the charge correctly announced the law.

      The circuit court held that there were two causes of action set forth in the petition filed in the action in the court of common pleas, the first, declared upon an express warranty of the mare, and the second upon a false warrant}” or deceit.
    This was not the theory upon which the action was tried in that court, and we confidently submit, the petition will not bear any such construction.
    We submit that it sets forth but one cause of action, that of false warranty or deceit, with special damages. Wilcox v. Mc Coy, 21 Ohio St., 655.
    We may admit that a sufficient number of allegations of fact might be taken from this petition to make a cause of action upon an express warranty, but how could 'a petition be drawn declaring upon a false warranty or deceit of which the same could not be said? The allegations of fact declaring upon an express warranty, and a false warranty would be practically the same, except in the latter, the scienter must be alleged, and this, is what distinguishes the two actions.
    The weight of authority is to the effect that the code provisions have not abolished the distinction between causes of action excontractu and exdelicto, even when they arise out of the same transaction, although there are decisions to the contrary. Cohoon v. Bank of Utica, 4 How. Pr., 422; Maxwell v. Farnam, 7 How. Pr., 236; Furniss v. Brown, 8 How. Pr., 69; 9 How. Pr., 311; 12 How. Pr., 28,331; 15 How. Pr., 221; 65 Bar., 457; 56 N. Y., 332; 58 How. Pr., 152; 61 How. Pr., 163; 32 Hun., 332; 38 Hun., 380; 10 N. Y. St. Rep., 8; 94 N. Y., 22; 8 N. Y. Civ. Proc., 90; 10 N. Y. Civ. Proc., 43; 37 Cal., 183; 44 Ind., 223; 86 Ky., 530; 35 Mo., 483; 36 Mo., 350; 71 Mo., 424; 76 N. Car., 416; 78 N. Car., 22; 38 Wis., 603; 63 Cal., 97.

      Again, we insist that these two causes of action are contradictory and inconsistent with each other and cannot be joined in the same petition. A fraudulent sale is not void but voidable, at the election of the vendee. If there is a warranty, and the sale is fraudulent, the party may elect to keep the property and sue for a breach of the warranty, or he may return the property and avoid the sale. Swan’s Treatise, 783, 784; Roth v. Palmer, 27 Bar., 652; Kayser v. Sichel, 34 Bar., 84; Hion Bank v. Carson, 31 Bar., 230; Benj. on Sales, vol. 1, page 591, 593 and notes; also, pages 579, 580; vol. 6, Amer. and Eng. Ency. of Law, 247.
    A plaintiff cannot be permitted in one petition to allege a cause of action which would affirm a contract, and in another seek to rescind it. Kinkead’s Code Pleading, vol. 1, page 21, 22; Owens v. Hickmans, 2 Dis., 471; Trimble v. Doty, 16 Ohio St., 118; Morris v. Rexford, 18 N. Y., 552; Leading case, 95 N. Y., 237; 21 Ohio St., 277; Bliss on Code Pleading, section 11.
    Parties cannot have inconsistent remedies. Maxwell on Code Pleading, page 345.
    And where there is a warranty, with fraud, the vendee cannot rescind in part, but must do so in toto or be confined to his action on the warranty. Voorhees v. Earle, 2 Hill., 288.
    Fraud and warranty can not, in .any case, be united together. Moore v. Noble, 53 Bar., 425; 36 How. Pr., 385; Bates Ple., vol. 1, page 417; Sweet v. Ingerson, 12 How., 331.
    It is an action exdelicto and it would have been substantial error to direct a verdict for the plaintiff in case the jury shall find a mere breach of contract of warranty. Sweeney v. Vroman, 60 Wis., 278; Amer. and Eng. Ency. of Law, vol. 8, page 653.

      If the vendee both affirms and rescinds the contract, to whom does the property belong? Vol. 28, Amer. and Eng. Ency. of Law, page 858 and notes; Wallace v. Wren, 32 Ill., 146.
    We repeat that this petition contains but one cause of action, and after verdict and judgment the pleading should be construed so as to support the judgment. Trimble v. Doty, 16 Ohio St., 119; Dean v. Leonard, 9 Minn., 190.
    The case was tried in the common pleas court upon the theory that the petition contained but a single cause of action, and the court so charges the jury.
    The circuit court holds that the petition states two causes of action, one for a breach of warranty and one for false warranty or deceit, and, in effect, reversed the judgment because the court omitted to charge the jury upon the first cause of action, although, the record shows, that the plaintiff did not make any request of the court at all, as to the charge.
    In order to constitute this error, the plaintiff must have requested the court to so charge the jury. Jones v. State, 20 Ohio, 34; Doll v. State, 45 Ohio St., 452.

      C. B. Foster and W. E. Evans, for defendant in error.
    In the general charge, the jury was instructed that the plaintiff could not recover unless he proved that the defendant ‘ ‘knowingly falsely warranted, ’ ’ etc. In the special charge, the jury was told that before it could find for the plaintiff, “it must find not only that the defendant made the representa tions in question, * * * that such represen bations were relied upon and were false, but also that the defendant at the time he made them knew they were false.”
    This was erroneous and prejudicial.
    It precluded the plaintiff from any recovery although the petition contains every averment, and the evidence may have satisfied the jury of the truth of every fact, essential to a recovery for a breach of warranty; and would drive the plaintiff (in the event of failure to prove false representations knowingly made) to a new action where he would have to reaver and reprove only what he in the action tried, averred and proved; and that, too, against the same party only. Morgan v. Bronson, 20 Ohio St., 54; 1 Herman Estop, etc., section 258.
    The question presented is, whether or not a plaintiff must resort to a new action for his remedy on a warranty, when he fails in his action for fraud.
    A plaintiff is directed, in his petition to state the facts constituting his cause of action in ordinary and concise language, and demand the relief to which he thinks himself entitled. Section 5060, Revised Statutes.
    The plaintiff, in this case, alleged the facts just as he believed them to be — he had been informed' and he believed that the defendant knew the representations in question to be false, and he so averred, and asked for the relief to which he thought himself entitled; but, according to the charge of the trial court, he did so at his peril — if he failed to satisfy the jury that the defendant knew the representations to be false, he could not recover anything although he proved the warranty, the breach of it, and damages resulting; and he must go out of court, and in a new action reaver and reprove the same things averred and proved in the trial had, against the same party, in order to get the relief to which he is entitled, omitting only in the petition the averment that the defendant knew the representations wére false.
    The claim to recover on the warranty in the event of failure to establish the fraud was made on the trial; but the court, in the charge to the jury, positively prohibited such a recovery. An exception was taken to the charge for that reason. Section 5019, Revised Statutes, expressly authorizes the joinder of several causes of action when they are included in “the same transaction, or transactions, connected with the same subject of action.”
    And this includes causes of action legal and equitable, excontractu and exdelicto. Sturges v. Burton, 8 Ohio St., 218; Sweet v. Ingerson, 12 How., 331; Parmlee v. Adolph, 28 Ohio St., 10.
    The person making the representations must not only believe them to be true, but the facts of the case must be such as to justify the belief. Taylor v. Leith, 26 Ohio St., 428.
    An action will lie for false representations of a material fact, whether the party making it knew it to be false or not, if he had no reason to believe it to be true when made, etc. Insurance Co. v. Reed, 33 Ohio St., 283.
    Reckless statements — “Representations made in ignorance of their truth or falsity, involve moral turpitude equally with knowingly false statements.” Notes to Pasley v. Freeman, 2 Smith’s Ld. Cases, pages 1331 of 9th American Edition; 21 Ohio St., 21.
    No motion was made in the trial court to require dlaintiff to separately state and number the different causes of action, which he could easily have done if asked so to do by defendant, and which he- would have done in the first instance had he considered it necessary, or even better pleading in this particular case, as defendant by answering as he no doubt would, and did in fact— would waive any such objection, and the result would be the same as to separately state and number. McKinney et al v. McKinney et al., 8 Ohio St., 429; Township, etc. v. Bennett, 10 Ohio St., 441; Blossom v, Barrett et al., 37 N. Y.; Freer v. Denton et al., 61 N. Y.,492.
    One injured by breach of warranty of such a nature as would justify a return cannot be compelled to elect between a return and damages, but may be entitled to both. Mfg. Co. v. Vrooman, 3 Mich., 518; 37 Id., 183; 1st Nash. Pl. and Prac., 4th ed., page 97.
    An action for fraud in the sale of a horse and for breach of warranty are joinable. 1 Kinkead Code PL, bottom page 26 and top page 27.
    ' In civil actions no one would be heard to contend at this late day, that, because the plaintiff had claimed more than, upon the trial he could maintain, it would be fatal to his rights to recover that to which he was entitled upon the facts and the law as they appear, upon the trial. State ex rel. v. Crites, 48 Ohio St., 173.
   Williams, J.

Suit was brought by Corwine against Gartner to recover damages for breach of warranty in the sale of a horse. The petition alleges, in addition to the warranty and its breach, that the defendant knew, at the time of the sale that the animal was not what it was warranted to be. On the trial of the issued joined by a denial of the warranty and its breach, and of the defendant’s knowledge that the warranty was false, the jury was instructed, in substance, that to entitle the plaintiff to a verdict in the case, it was necessary for him to prove, by a preponderance of the evidence, that the defendant knew the warranty was false in some material particular, or had reason to believe it to be false. The judgment rendered on the verdict, which was for the defendant, was reversed for error in giving the foregoing instruction; and, upon the question concerning which the courts below entertained different opinions, the case has been ordered to be reported.

The contention of counsel for the plaintiff in error appears to be, that the effect of the averment charging the defendant with knowledge of the falsity of the warranty, was to make the action one for deceit or fraud; and, therefore, proof of such knowledge was essential to the plaintiff’s right of recovery; otherwise, the petition would include two inconsistent causes of action which could not be joined.

The code permits a plaintiff to state the' facts which constitute his cause of action; and when, upon any of the facts so stated, he is entitled to recover, he cannot be denied that right because he has alleged other facts that he is unable to prove. A warranty in a sale of chattel property is a part of the contract; and the warrantor is bound by it, and answerable in damages for its breach, though he may have honestly believed the article to be as warranted. But the representations of the seller may fall short of an express warranty» and yet may be such as induce the purchaser to rely upon them, and entitle him to redress against the seller if the latter knew they were false, or recklessly made them without reasonable ground for believing them to be true. And which of these phases of his case the purchaser may be able to sustain by proof, can only be determined on the trial. But proof of either, entitles him to relief.

And it is competent, we think, for a plaintiff to state in his pleading all the facts of the transaction which enter into his right to recover, as he believes them to be, though they present different grounds of recovery, and admit of different modes or measures of relief; and he may ultimately have that relief to which the allegations proved, show him entitled.

The petition of the plaintiff alleges an express warranty of the horse, and a breach of that warranty; and, his right to recover the damages resulting from that breach was not affected by the allegation of the defendant’s knowledge of the falsity of the warranty. The latter allegation did not, as counsel for the plaintiff in error contends, change the action to one exclusively for deceit, nor is it inconsistent with those upon the warranty; they may all be true. Whether there is more than one cause of action stated in the petition, is a question upon which differences of opinion may exist. But it need not now be determined. If there are two, one for breach of the warranty, .and the other for fraud, they grew out of the same transaction, and may be properly joined in the same petition; and no motion having been made to require them to be separately stated, that objection to the petition, if it were open to it, was waived by answer. In favor of the view that there is but one cause of action stated, it may be said, there was but a single transaction between the parties — the negotiations resulting in the sale of the horse; there was but one wrong of the defendant — the sale of an unsound animal as and for a sound- one; and there is but one right of the plaintiff growing out of the wrong, and that is, to have redress for the injury he sustained in consequence of it, and for which he can have but one recovery. And a statement of all the facts of the transaction, with a demand for the relief desired, as one cause of action, seems more in harmony with our reformed system of pleading than a repetition of them, which becomes necessary, in part at least, in their statement as separate causes of action. But in either event, whether the petition contains but one cause of action, or two, the plaintiff, upon proof of the warranty and that it was broken to his damage was entitled to a verdict, notwithstanding he failed to establish by proof the defendant’s knowledge that the warranty was false; and as this right was denied him by the instruction given to the jury, the reversal of the judgment for that reason was not error

Judgment affi/rmed.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Davis, Auditor, v. The Cincinnati Camp Meeting Association.

      Association organized for public charity — As camp meeting tmder control of some church — Property not subject to taxation, when.

    Where an association, organized and conducted for the purpose of a purely public charity, as a camp meeting, under the supervision and control of some church, owns real estate devoted exclusively to the same use; and thereon provides privileges for the comfort and convenience of those who may attend the meeting, the fact that it makes charges for the use of these privileges, does not subject its property, nor the piúvileges so provided, to taxation under the laws of this state.
    (Decided December 14, 1897.)
    Error to the Circuit Court of Clermont county.
    The suit below was commenced in the common pleas of the county, by the Cincinnati Camp Meeting Association of the Methodist Episcopal Church, incorporated under the laws of this state, against the auditor of the county to enjoin him from assessing the lands of the plaintiff for taxation and causing the taxes to be collected by placing them on the duplicate, on the ground that it is organized and holds all its property, for purposes of purely public charity, and that the same is not leased, or otherwise used with a view to profit. The answer of the defendant simply controverts this claim. The case having been heard and disposed of in the common pleas, against the plaintiff, was appealed by it to the circuit court, where judgment was rendered in its favor, restraining the defendant as prayed for in the petition. On the trial, the court, as requested, made a finding of the facts and its conclusions of law thereon which are as follows:
    “The plaintiff, The Cincinnati Camp Meeting Association of the Methodist Episcopal Church, is a corporation organized under the laws of the state of Ohio.
    “And the defendant, John W. Davis, is the duly-elected, qualified and acting auditor of Clermont county, Ohio.
    “That plaintiff is an institution of purely public charity, and is organized not for profit, but for the purpose of holding in trust for the use and benefit of the Methodist Episcopal Church, such real and personal property as may be necessary and convenient for the holding, conducting, managing and carrying on religious camp meetings, in strict accordance with the policy, established usage and discipline of the said Methodist Episcopal Church, and for the purpose of supporting and maintaining and managing, perpetually, public religious camp meetings, and such other public meetings for religious, educational and other public charitable purposes, as may be approved by the board of trustees of said association, all of said camp meetings and other meetings to be conducted and managed in strict accordance with the policy, established usage and discipline of said Methodist Episcopal Church, and all of said meetings to be conducted on the Camp Grounds of said Association, hereinafter described, situate near Loveland, * in Clermont county, Ohio.
    “That plaintiff is the owner in fee simple, in trust, for the uses and purposes of carrying on and conducting religious camp meetings and other public meetings, for religious, educational and other public charitable purposes to be conducted in strict accordance with the policy, established usage and discipline of said Methodist Episcopal Church of the following described real estate, the real estate described in the amended petition herein, and all situate in Miami township, Clermont county, Ohio.
    “That all of said real estate, and the buildings and improvements thereon, have been owned in fee simple by plaintiff herein, for more than six years last past, and all of the said building’s and real estate, are, and for said six years, have been actually occupied and used by plaintiff herein, for public, religious, educational, and other public charitable purposes, and for no other purpose.
    “That none of said real estate is leased by plaintiff, nor is any of said real estate, in any manner used, with a view to profit, nor has any of said real estate, been either leased or used, with a view to profit, during any part of the six years last past.
    “That all the money, credits and property of plaintiff, are, and always have been, appropriated solely to sustaining said association and carrying out the purposes for which said plaintiff was organized.
    “That said two tracts of real estate, herein-before described, by metes and bounds, after deducting therefrom, all the lots designated, and numbered on said recorded plat of said The Epworth Heighth Camp Grounds, are listed upon said tax duplicate for taxation as one tract of real estate, and are listed as containing together, twenty-five acres of land. But said real estate so described by metes and bounds, as aforesaid, is in fact composed of twelve different and distinct tracts of real estate, and of about six acres of drives and highways, and that a portion of said land is situate in survey No. 1767, and the balance in surveys Nos. 1545 and 2195, of the Virginia Military District; that one tract of said land, composed of about one acre of land, has situate thereon, a stable and a small frame building, which is used as a grocery in which are kept for sale, during the meetings herein described, such groceries and provisions as are pecessary for the sustenance of the persons attending said meetings; that said lots numbers 232 and 233, have situate thereon a small frame cottag'e occupied by the sexton of said camp grounds, as a dwelling-house; that said lot number 254, has situate thereon, a frame ice-house, in which ice is packed and furnished to persons attending said meeting, at cost, and sometimes at less than cost; that another tract of said land included in the real estate, situate in said survey No. 1767, and hereinbefore described by metes and bounds, contains about three acres of land, and has situate thereon, a large frame building, which is used during said meetings for sleeping apartments, and as a boarding house by persons attending said meetings and for which sleeping accommodations and boarding, a small charge is made, which, in the aggregate, has never been sufficient to maintain said building in repair, pay the insurance thereon, and the running expenses thereof; that one tract of said real estate so described by metes and bounds, as aforesaid, containing about three acres of land, lies between the Little Miami Railroad and the Little Miami river, and is vacant ground, except that it has situate thereon, a pumping’-house and pumping machinery, which is connected with water tank by underground water pipes, and is used to pump water into said tanks1 for the use of persons attending said meetings; that said water tanks are situate on lots num-' bers 247 and 248, hereinbefore mentioned, and are connected with underground distributing pipes, through which water is distributed throughout the said camp grounds, for the use of persons attending said meetings; - that persons using said water for use in their cottages are required to pay for the same, but that said charges for said water amount in the aggregate, to no more than is necessary to keep said water-works in repair and operate the same; that the balance of said real estate, hereinbefore described by metes and bounds, and listed upon said tax duplicates as land, has no buildings of any kind thereon, and is entirely unimproved, and a large portion thereof is covered by forest trees, and is used as camping grounds and for hitching horses and as places of rest and recreation by persons attending said meetings, and that the whole of said lands and lots so numbered and designated on said plat, together with the building thereon, and together with the building designated on said plat as the auditorium, and the building designated on said plat as the German auditorium, and all other buildings and lots on said camp grounds owned by the plaintiff herein, are owned and occupied and used by the plaintiff herein, exclusively for the carrying on of said meetings herein described, and for carrying out the purposes for which the said plaintiff was organized, and that the same are necessary for the proper carrying out of said purposes and said meetings; that the public at large, are admitted to all said meetings upon equal terms, without distinction or discrimination; that sometimes an admission fee is charged by plaintiff for persons attending said meetings, but that said charges are always made for all persons attending said meetings without distinction or discrimination, and for the purpose only of helping to pay the expenses of conducting said meetings, and never with a view to profit; and that no profit has ever accrued therefrom to plaintiff; that charges are also made by the plaintiff for the privileges of keeping public stables on said grounds for the accommodation of persons attending said meetings; for the privilege of keeping boarding and rooming houses on said grounds, and for the privilege of keeping a grocery on said grounds, and for other privileges on said grounds during said meetings, all for the accommodation only of such persons as may attend said meetings, but that none of said charges are made with a view to profit, but only to assist in paying the expenses of said meetings, and that all the charges made by plaintiff in connection with managing and maintaining its said grounds and conducting said meetings, are, and always have been, insufficient to pay the expenses necessarily incurred in conducting said meetings, and that the expenses of said meetings are, and have long been, largely supported by donations from charitable persons, and that plaintiff is now in debt nearly $7,000.00; and that all of the buildings, property and lands so owned and occupied by plaintiff, as aforesaid, are proper and necessary for properly conducting and managing its said meetings. That in addition to the lots and lands hereinbefore designated and described, there are two hundred and forty-five (245) lots situate upon said camp ground, as the same are known and designated upon said recorded plat, in which plaintiff has granted and conveyed to various persons the right to use such lots for the camp meeting association purposes, the same to be used by said persons only in accordance with the constitution, by-laws-and rules and regulations of the said plaintiff, and the discipline of the Methodist Episcopal Church, as the same now exists, or may hereafter be lawfully made, and the said lots to be used by said persons respectively in no other way, and for no other purpose; all of which lots in which plaintiff has granted and conveyed privileges as aforesaid, are respectively listed for taxation in the names of the respective persons to whom plaintiff has granted the aforesaid privileges; and upon which such persons pay the taxes, and the taxes upon which are not involved in this case, and upon many of said lots in which said privileges have been granted as aforesaid, the persons owning said privileges, have erected wooden cottages for their convenience in attending said meetings, but many of said last mentioned lots are still vacant and used only for camping purposes; and persons owning such interests in such lots, pay the same admission fees and other charges that other persons do who attend said meetings . on said grounds.
    “That all of the lots included in the plat of said camp grounds and designated by numbers thereon, were subdivided by plaintiff, for the purpose of assigning to per sous attending said meetings, definite portions of the camp grounds for tenting and camping' purposes during said meetings, and not for purposes of sale, nor with a view to profit, and most of the said lots are entirely unfit for building purposes, and none of said lots are held by the plaintiff with a view to profit, but only for the purpose of conducting its said meetings.
    “That all of its said real estate and the buildings and improvements thereon, except those lots in which privileges have been granted, as aforesaid are, and for more than six years last past, have been owned in fee simple, by plaintiff herein, and all of said buildings and real estate are, and for more than six years last past, have been actually occupied and used by plaintiff herein, for purely public, charitable purposes, in conducting public, religious, educational meetings and schools, and for no other purpose.
    “That none of said real estate nor any of the buildings thereon, is leased by plaintiff, nor is any of said real estate in any manner used, with a view to profit, nor has any of said real estate been either leased or used with a view to profit during any part of the six years last past.
    “That all the money, credits and property of plaintiff, are, and always have been, appropriated soleiy to sustaining said association and carrying out the purposes for which said plaintiff was organized, and that no person connected therewith, has ever derived any financial profit therefrom.
    “That prior to filing the petition herein, plaintiff made due application to defendant in writing, to have said defendant refrain from assessing the said taxes, and to have said defendant correct said tax lists and duplicates. And that the defendant is about to levy taxes against the real estate hereinbefore described, and threatens to enforce the collection of the same by process of Law, and that said defendant refuses to correct said tax lists and duplicates by striking therefrom said alleged taxes.
    “And the court further finds that all said real estate and' property, hereinbefore described, including the 245 lots, the right to use which for camp meeting purposes, plaintiff has conveyed to various persons, as aforesaid, are enclosed by a fence- and kept under the absolute control and management of plaintiff herein, for the use and purpose of accomplishing the ends for which the plaintiff was organized as aforesaid, and that all of said real estate and property is situate more than two miles from any hotel, grocery or boarding house, at which accommodations and supplies might be secured by persons attending the said meetings held on said grounds.
    “And the court further finds, that the matters stated in allegations of facts contained in the amended petition herein,1 are true.
    “And as its conclusions of law, upon the above facts, the court finds that said plaintiff is entitled to hold its said real estate and property, exempt from taxation under the laws of the state of Ohio, and that plaintiff is entitled to the relief prayed for in the said amended petition, and that it is the duty of said defendant, John W. Davis, auditor, as aforesaid, to refrain from assessing any taxes against said property. And further, that it is said defendant’s duty to proceed forthwith and correct the tax lists and tax duplicates of said county, by striking therefrom, all sums and amounts now standing charged thereon 'as taxes against said real estate or any part thereof.”

      Nichols & Nichols and Parrott & Parrott, for plaintiff in error.
    In the presentation of our views, to the court -in this case, we expect to rely almost entirely on the decisions of the Supreme Court of Ohio as rendered in the case of Cincinnati College v. State, 19 Ohio, 110, and that of Library Association v. Pelton, 36 Ohio St., 253.

      The case at bar involves the construction of the 6th paragraph of section 2732 of the Revised Statutes of Ohio.
    In the case at bar, as in case of Library Association v. Pelton, 36 Ohio St., we have to deal with an institution of purely public charity.
    Can it be logically maintained that an ice-house, a grocery store, a water-works establishment, a public livery stable, a hotel and boarding-house, which are leased, and whose privileges are sold to highest bidders are conducted and can be legally determined as institutions of purely public charity?
    We repeat that it is immaterial whether the money paid for the privileges of running and operating a hotel, boarding-houses, livery stable and grocery store, is used for charitable or other purposes ; the fact remains that they are leased for profit.
    The selling of privileges with use of buildings therefor, which the sale of privileges naturally implies, clearly constitutes a lease in law, as the party purchasing said privileges has all the rights and equities of a lessee. The camp meeting association unquestionably derives a profit,, whether large or small.
    There is a wide difference between a “view to profit” and an “actual or realized profit.” The circuit court, in the fact of the contrary fact found by them, say, virtually, that because actual profit was not realized, actual profit was not intended.
    We presume it is unnecessary to call the attention of the court that it has been the invariable rule and policy of the courts of this state to strictly construe the provisions of the statutes with regard to the exemption of property from taxation. Lee,
      Treasurer, v. B. S. Sturges; Insurance Company v. Ratterman, Treasurer, 46 Ohio St., 153.
    Under the circumstances, we ask that lot No. 254, upon which is situated a frame ice-house, and that lots Nos. 247, 248, upon which the water tanks are situated; that the three-acre tract of land upon which the hotel is situated, and that the one-acre tract of land upon which is situated the grocery store and livery stable, be ordered by this court restored to the tax duplicate of Clermont county, Ohio.

      Wm. W. Prather, for defendant in error.
    Counsel for plaintiff in error misquote the statute, and maintain that in paragraph 6 of section 2732, of the Statutes, as amended May 9, 1894, in 91 Ohio Laws, 392, the exemption is limited to buildings and that it does not extend to the grounds attached thereto. But paragraph 6 exempts from taxation “all buildings belonging to institutions of purely public charity * * * together with the land actually occupied by such institutions * * * not leased or otherwise used with a view to profit.” This is perfectly apparent, not only from the wording of the statute as it now stands, but also from the wording of the Statutes of 1890, before the amendment and from the Supreme Court Reports in The Library Association v. Pelton, 36 Ohio St., 253, and Humphries v. The Little Sisters of the Poor, 29 Ohio St., 201, in which last case the court expressly says that paragraph 6 of section 2732 extends to lands as well as buildings.
    The provisions of section 2732, Revised Statutes are constitutional. Section 1 of article 12 of Constitution of 1851; Gerke v. Purcell, 25 Ohio St., 229.
    Defendant in error is an “institution of purely public charity.” Myers v. Aikens, 8 O. C. C., 228; Sowers v. Cyrenius, 39 Ohio St., 29; Miller y. Teachout, 24 Ohio St., 525; McIntyre Poor School Case, 9 Ohio, 287; Mannix v. Purcell, 46 Ohio St., 102; 2 Perry on Trusts, 687 to 701; Academy v. Philadelphia, 150 Pa. St., 565; Donohough’s Appeal, 86 Pa. St., 306; Jackson v. Phillips, 14 Allen, 556; 29 Ohio St., 201; 65 Maine, 92; 36 Ohio St., 253; 50 Md., 421.
    The property in question -and the buildings thereon belong to defendant in error. And defendant in error actually occupies said buildings and land, using the same for the purpose of carrying on the charitable work for which the institution was organized, and for that purpose alone, i. e. for public, religious, educational and other public charitable purposes, and for no other purpose. Donohough’s Appeal, 86 Pa. St., 206; Northampton Co. v. LaFayette College, 128 Pa. St., 137; Ramsey Co. v. College, 51 Minn., 437; State v. Powers, 10 Mo., Appeal Cases, 263, affirmed in 74 Mo., 476; People v. Academy, 6 Hun., 109, affirmed in 64 N. Y. Rep., 656; State v. Ross, 24 N. J. L., 498; 10 Hun., 246.
    The camp meeting association is in its nature analogous to a college; and the work carried on by defendant in error is educational as well as religious. It is not a church but a religious school, where charitable men spend their money and time for the benefit of the public, society, and the state, in teaching the truths of morality, and religion to all the people, and where they pursue the course of teaching, reading and study marked oat for the Chautauqua assemblies all over the country, and other educational work.
    The sleeping apartments and boarding-houses are nothing but dormitories. The water-works are in lieu of wells and cisterns. Electric lights simply take the place of lamps and oil. These things are strictly confined in their use to persons attending the institution, and the charges made in connection therewith are insufficient to keep them in repair and pay the expenses of maintaining them, and the charges are never made with a view to profit, and they never produce a profit, but are a continual expense, which must be supported by the association in order to carry on its work.
    Moreover these questions are all conclusively settled by the finding of facts of the circuit court, for that court found that none of said real estate was leased or otherwise used with a view to profit.
    Now these are the ultimate facts found by the circuit court and upon these their decree is based in accordance with the rule laid down in Albright v. Hawk, 52 Ohio St., 362; and Leach v. Church, 10 Ohio St., 149.
    The finding of facts should be construed so as to support the judgment, if possible; Jack et al. v. Hudnall, 25 Ohio St., 255.
   By the Court.

We see no error in the judgment of the circuit court. By the sixth clause of section.2732, Revised Statutes, “All buildings belonging to institutions of purely public charity, together with the lands actually occupied by such institutions, not leased or otherwise used with a view to profit, ” are exempt from taxation. This exemption is authorized by the constitution of the state. The court found that the camp meeting association is such an institution, and holds all its lands and property purely for the same purpose. And “that none of said real estate is leased by plaintiff, nor is any of said real estate in any manner used with a view of profit, nor has any of said real estate been either leased or used for profit.” And though charges .are made for the use of certain privileges, these are not inconsistent with the finding, that none of its property is leased or used with a view to profit. None of its lands, as shown by the finding, are used for any other purpose than to provide for the convenience and comfort of those who may attend the meeting; and these are not sufficient to meet the expenses of the association, and have to be met in part by donations from those interested in the maintenance of the meeting. So that the charges are not then made with a view to profit.

The auditor relies principally, on two cases heretofore decided by this court. In the case of Cincinnati College v. The State, 19 Ohio, 110, after a fire, the buildings of the college were restored, and were constructed with special reference to a renting of a part of them for secular purposes, such as stores for the carrying on of ordinary business, and. were so rented for profit only, not to uses that would be ancillary to the necessary uses and purposes of the college, such as dormitories and the like. Such parts of the buildings so constructed and rented, were held subject to taxation; and the same distinction exists in the case of Library Association v. Pelton, 36 Ohio St., 253.

Judgment affirmed.


author: Spear, J.

text:
    Raymond v. The T., St. L. & K. C. R. R. Company et al.

      Pleading — Effect of filing amended petition changing cause from an equitable to a legal action — Suit for possession of land, one for jury, notwithstanding prayer for injunction, etc., and same not appealable — Section 5779, Revised Statutes.

    1. Under our system of pleading, a plaintiff may ‘be permitted to substitute an amended petition in place of the original which may have the effect to change the form of action from an equitable to a legal action, the basis and the ultimate object of the action remaining the same. And if such change is made, the court, in determining the issues to be tried, will look wholly to the amended pleadings, disregarding the original, and the cause will thereafter be treated as a suit at law, and will proceed to trial and judgment as though it had been commenced as a legal action.
    2. The character of the new pleading in this respect will not be determined wholly by its title, although the title of “amended petition” should not be ignored. If the amended petition appears to have been filed not by way of addition merely, to the original petition, but appears also to contain a full embodiment of the plaintiff’s case, being on its face a statement of an entire cause of action, and, in substance, a substitute for the original, the filing of it by plaintiff will be regarded as implying an abandonment of the case made in the original petition, and as selecting this as the pleading on which he founds his suit, and the only petition which the court is to consider in determining the issues to be tried.
    3. Whether a case is one in equity or at law, does not depend upon the understanding of counsel, or of the trial court, nor upon the form of the judgment rendered, but upon the nature of the action as shown by the pleadings.
    4. A petition against a railroad company by one out of possession of real estate, which alleges title and right to possession of the land in plaintiff, and charges a wrongful entry and possession by defendant, and prays that the defendant may show his interest therein, that it may be adjudged null and void, and that judgment for the possession of the property may be awarded plaintiff, and defendant .enjoined from interfering therewith until compensation is made, states a case for the recovery of specific real property, notwithstanding the petition also contains allegations of threatened irreparable damage, as a ground for relief by perpetual injunction, and of a dispute as to boundary lines, as a ground for action by the court in settlement of such dispute, and of a dispute as to title, as a ground for asking that plaintiff’s title be quieted. Such action, being one in which either party may demand a jury, is not appealable.
    5. The nature of such action is not changed by an answer which pleads an estoppel merely as an equitable defense.
    6. Allegations of new matter of an equitable nature in the reply, do not change the nature of the action itself.
    7. Section 5779, Revised Statutes, gives a right of action to quiet title to one out of possession who claims an estate or interest in remainder or reversion in real property. It does not give such right to one out of possession who claims the entire estate.
    (Decided December 14, 1897.)
    Error to the Circuit Court of Lucas county.
    The plaintiff’s action was commenced in the court of common pleas, April 22, 1892, by the filing of a petition alleging in substance, that the plaintiff was, and has been for more than twenty-one years, the owner of, and in undisputed possession of certain lots in the city of Toledo; that the defendant company, and the other defendants, its officers, with full knowledge of plaintiff’s ownership and possession, had entered upon said land and placed stakes, etc., thereon, and were proposing to forcibly and unlawfully enter upon and take possession of the lands under some pretended claim of title, which, if pursued, will cast a cloud upon the title of plaintiff, and do him irreparable injury. An injunction was asked restraining the defendants from entering upon the lands, and that, if there be any dispute as to the true boundary line that the same may be determined by direction of the court, and that plaintiff have all proper relief.
    An injunction was allowed on this petition.

      Two amendments followed more particularly defining the boundaries.
    May 25, 1894, an answer was filed taking issue as to the ownership of the land and as to possession, and setting up new matter by way of defense.
    A reply followed denying the averments of new matter.
    November 3, 1894, a supplemental petition was filed, making Samuel R. Galloway, receiver, a party, and on the same date an amendment to the reply, further replying to the answer, was filed.
    At the May term, 1895, leave was granted plaintiff on his application, to file an amended and supplemental petition, and to make R. B. F. Pierce, receiver, a party, and on June 3, 1895, a pleading entitled “Amended and Supplemental Petition” was filed, a synopsis of which is given in the opinion.
    October 10, following, was filed the answer of the company to the amended and supplemental petition filed June 3, 1895, in which it alleged in substance: 1. That it was an Ohio corporation owning a line of railway from Toledo tó East St. Louis, Illinois; that it was the owner of certain yards and tracks in Toledo; that said Pierce was the duly appointed, qualified and acting receiver, under appointment from the circuit court of the United States; that as .such he was in possession and control of and operating said railroad; that'at and about the time of the commencement of the action and subsequent thereto, the defendant company was in possession of the land claimed by plaintiff, and had theretofore constructed a fence thereon; that since the twenty-third day of January, 1895, said Pierce, receiver, had been, and still was, in the possession of said land; and the defendant denied each and every other allegation in the amended and supplemental petition contained. 2. Adverse possession for twenty-one years. 3. That the company and its grantors, being in possession, had made valuable improvements thereon for railroad purposes with full knowledge and consent of the then owner, who made no protest or objection, which conduct was acted upon by the company, and it would be greatly injured by allowing plaintiff now to establish any right or title to, or interest in said land. 4. Statute of limitation of twenty-one years. And asked to be hence dismissed with its costs.
    A reply to this answer was filed on the day of trial.
    At the October term, the plaintiff, having been granted leave to file iastanter his reply to this answer, and the reply (as above stated) having been filed, the cause thereupon came on to be heard and was submitted upon the pleadings and the evidence. And the court, being fully advised in the premises, and having heard the arguments of counsel, found for the defendants. It then ordered, adjudged and decreed, that the petition and the amended and supplemental petitions of plaintiff be dismissed, and that defendants go hence without day, and recover costs. Thereupon notice of appeal was given, amount of bond fixed, and bond duly given.
    In the circuit court the defendants interposed a motion to dismiss the appeal on the ground that the cause is not appealable. The circuit court sustained the motion, and dismissed the cause and the appeal. Reversal of this order of dismissal is now asked.

      Hurd, Brumback & Thatcher and Erwin P. Raymond, for plaintiff in error.
    The allegations of the amended and supplemental petition in general make the case one in which the equitable remedy sought is declarative and restorative. 1 Pomeroy, Eq. Juris., section 112.
    It will be remembered that plaintiff complains of various lots in the city being continuously entered upon by the defendant under a claim of title, which plaintiff claims it is estopped from asserting; and the action therefore is “to restrain the assertion of doubtful rights in a manner productive of irreparable injury, and to prevent vexatious, oppressive and repeated litigation. ” Culver v. Rogers, 33 Ohio St., 537; Story, Eq. Juris., section 928; Lembeck v. Nye, 47 Ohio St., 336.
    A trespass upon several distinct tracts of land may be enjoined in a single suit. Ohio Oil Co. v. Toledo F. & S. R. Co., 4 C. C. Rep., 210.
    If plaintiff should commence his action under section 6448-6450, Revised Statutes, and defendant should come into the probate court and claim title, grave questions would arise as to what authority the probate court would have to try the title of the real estate. It would fairly seem that such questions should be determined by a proceeding in equity and trial by the court (as here attempted) rather than in a trial by jury.
    Equity will take jurisdiction to prevent irreparable damage about to be done to the property of the plaintiff against his protest. Goodin v. Cin. & Whitewater Canal Co., 18 Ohio St., 169; Platt v. Pennsylvania Co., 43 Ohio St., 228.
    A property owner has his remedy in equity by injunction until compensation is paid for his property, provided he acts promptly and is not guilty of any laches by standing by and allowing the occupation of his premises without protest. Railroad Co. v. Robbins, 35 Ohio St., 531; Longworth v. Cincinnati, 48 Ohio St., 637; Culver v. Rogers, 33 Ohio St., 537; Gay v. New Orleans Pac. Ry. Co., 32 La. Ann., 277; Payne v. Kan. & A. Val. R. Co., 46 Fed., 546; Beach on Mod. Eq. Juris., section 721; Pomeroy’s Eq, Juris., page 387; Bispham’s Prin. of Eq., 53; Buckner v. Mear, 26 Ohio St., 514.
    Equity having- once acquired jurisdiction may retain it to give such full relief as will finally dispose of the controversy. Miller v. Stepper, 32 Mich., 194; Wallace v. Wallace, 63 Mich., 326.
    The amended and -supplemental petition further alleges that defendant railroad company is in the hands of a receiver under and by virtue of the orders of the United States circuit court. This allegation may well be considered as an averment of the insolvency of the railroad company.
    Where a trespasser is insolvent that alone will be ground for granting an injunction, though the injury might not otherwise be irreparable. Beach on Mod. Eq. Juris., section 722; Hillman v. Hurley, 82 Ky., 626; Thornton v. Roll, 118 Ill., 250.
    Under the original petition in the case there is no doubt but that a case was made under the statute to quiet title. Section 5779, Revised Statutes ; 2 Bates’ Pleading, 660.
    Aside from statute an action to quiet title or remove a cloud from title is purely one in equity. Pomeroy Eq. Juris., sections 138, 1395, 1398.
    After the action was begun, section 5779, Revised Statutes, was amended April 21,1893. 90 O. L., 226.
    The language of this amendment is somewhat ambiguous as to whether it covers any case brought by a person out of possession who has or claims an estate in the property.
    We believe the purpose of the legislature in this amendment was to give the right to a person to maintain such an action having any estate in real property, although out of possession. Pomeroy Eq. Juris., section 1396, and cases cited.
    We insist the action is one entirely equitable in character; but even regarding it as one in equity with incidental relief that could be obtained at law, it is appealable.
    The prayer alone does not determine whether an action is appealable, but it depends as well, upon the case made or facts stated in the petition. Reed v. Reed, 25 Ohio St., 422; Corry v. Gaynor, 21 Ohio St., 277.
    Where a petition makes out a case for equitable relief and incidental thereto a case for other relief that could be obtained at law, it will be regarded as an equity proceeding, and therefore appealable. Brown v. Kuhn, 40 Ohio St., 468; Rowland v. Entrekin, 27 Ohio St., 47; Ellsworth v. Holcomb, 28 Ohio St., 66; Alsdorf v. Reed, 45 Ohio St., 653; Massie v. Stradford, 27 Ohio St., 597.
    Where a separate defense in an answer makes out a case for equitable relief, which, if granted, would be a bar to an action at law asserted in the petition, the action will be appealable. Bugh v. Sturgeon, 41 Ohio St., 402; Dodgeworth v. Hoppel, 33 Ohio St., 16.
    Where an action was brought to enjoin waste, and also for an accounting for waste committed to which was added a claim to recover the possession of the land, Held, not a case for the jury and appealable. Jenks v. Langdon, 21 Ohio St., 362.

      Statutory rights of suit have the same right of appeal as any other, though the statute authorizing the suit is silent. Knoup v. Pickway Bank,1 Ohio St., 603. An action to quiet title is appealable. Miller v. Cincinnati, 5 C. C., 583.
    It is true that a controversy over a boundary line does not alone entitle a party to resort to equity. But it is also true that a court of equity will take cognizance of a case where there is something in the nature of his title or in the circumstances of the case, that brings it under an acknowledged head of equity jurisprudence. Wolf v. Scarborough, 2 Ohio St., 368; Bispham Prin. Eq., section 503; Story Eq. Juris., chap. II; Deveney v. Gallagher, 5 C. E. Green, 33; York v. Pilkington, 1 Atk., 330; Bute v. Glamorganshire Canal Co., 1 Phillips, 681.

      Brown & Geddes and Clarence Brown, for defendants in error.
    The original petition, filed April 22,1892, alleges that the defendants had unlawfully and forcibly entered upon the premises of plaintiff, and were about to enter upon and take possession of the same, under a pretended claim of title. The relief sought was:

      ■First — To enjoin defendants from entering and committing trespass upon lands owned by and in the possession of plaintiff; and

      Second — If there should be any dispute as to the boundary lines between plaintiff’s land and the canal bed (which is not alleged to be owned by the defendant) then to determine such boundary lines.
    The prayer of the amendment to the petition, was that plaintiff be adjudged to be the owner of said lots as aforesaid described and of the sizes and dimensions as shown on the Gower map in Lucas county records, and that his title be quieted.
    There was an amendment to the petition and amended petition, and a supplemental petition.
    The answer of the defendants to the pleadings was:

      First — A general denial.

      Second■ — Adverse possession for more than twenty-one years.

      Third — Estoppel, upon the ground that, having no knowledge that plaintiff claimed any right in the premises, the defendant, being in possession thereof, made valuable improvements thereon, with the knowledge and acquiescence of the owner, who knew, or had reason to know, that his acquiescence would be acted upon; and

      Fourth — Statute of limitations — ten years.
    The reply was a general denial, except that plaintiff admitted that he knew of his own title to the premises.
    The amendment to the reply, alleged that whatever right the defendant had or claimed to have, was under and by virtue of title derived from the city of Toledo, and denied that defendant thereby obtained any right to the premises claimed by plaintiff.
    Nor is it the fact that “no question was raised by the defendant below but that the case was one in equity.” On the contrary, the defendant has contended throughout that the action was not and could not be, with the allegations as to possession, one to quiet title, but was one to recover specific real property.
    It is true the cause was tried to the court without the intervention of a jury; but the trial by jury was waived, both parties submitting the case to the court upon the pleadings, the evidence and the arguments of counsel. Such admission is a waiver of the right to trial by a jury. Bonewitz v. Bonewitz, 50 Ohio St., 372.

    The question in this case is a simple one. Is this a civil action of which the court of common pleas had original jurisdiction and in which the right to demand a jury existed? If so, it was not appealable. Sections 5130, 5226, Revised Statutes.
    What is the character of this action? It is clearly to recover possession of real estate — the statutory action of ejectment. The title of. the parties is in controversy. The possessory right of each depends upon his title. No right can be determined in the case without first, and of necessity, passing upon the title. No relief can be granted to either party that does not depend upon the upholding of his title.
    The averments of the amended and supplemental petition clearly show the action to be in ejectment. The allegations material to this question are:
    1. The plaintiff claims to have an estate in, and to be the owner in fee simple of, the property in controversy.
    2. That the defendants claiming title to a portion of the same premises are unlawfully in possession thereof.
    3. Plaintiff prays that possession of said property may be awarded to him and the defendants enjoined from interfering therewith.
    The general and well recognized rule is that an injunction will be refused against a defendant in possession until the plaintiff’s title is established at law. 10 American & English Encyclopedia of Law, 806; 1 High on Injunctions, section 629; Stevens v. Erie R. R. Co., 6 C. E. Green, 259.

      But a single act is complained of, namely, the construction of a fence; but such a single act does not justify the interference of a court of equity, the relief at law being ample. Consequently rhe erection of a fence of wood upon part of a lot does not, per se, furnish sufficient claim to the aid of a court of equity by injunction. Herr v. Bierbower, 3 Md. Ch. Dec., 456.
    And the same doctrine is applicable, also, to the removal of a fence. Minnig’s Appeal, 82 Pa. St., 373; Jordan v. Lanier, 73 N. C., 90.
    A mere trespass will not be restrained by injunction. Ross v. Page, 6 Ohio St., 166; 1 High on Inj., sections 697-701.
    Where adequate relief may be had in the usual course of procedure at law, equity will not interpose by the extraordinary remedy of injunction. Spofford v. Bangor & B. R. R. Co., 66 Me., 51.
    Nor can the suit be maintained as a bill to establish. boundaries. Wolf v. Scarborough, 2 Ohio St., 362; 3 Pomeroy’s Eq. Jur., sections 1384-5.
    Nor can the suit be maintained as an action to quiet title by a person out of possession.
    This action is not appealable. In this case there is an issue of fact as to the title to the premises. Hall v. Bell, 54 Ohio St., 228.
    The title being in dispute and plaintiff being in possession, the gist of the. action is for the recovery of specific real property. Smith v. Anderson, 20 Ohio St., 76.
    The mere fact that a petition contains allegations which seem to invoke some of the equity powers of the court, will not necessarily change the character of the action. The purpose of the pleader, even, does not control. The legal effect of the acts pleaded determines the scope of the action. Chapman v. Lee, 45 Ohio St., 356.
    And although there may be joined in this action several causes of action, some of which are equitable, if either of them contains an issue of fact, upon which either party has a right to a trial by a jury, there can be no appeal, though one or more of the causes would be such as would otherwise authorize an appeal. Ladd v. James, 10 Ohio St., 438; Brundridge v. Goodlove, 30 Ohio St., 374; Bugh v. Sturgeon, 41 Ohio St., 402; Gill v. Pelkey, 54 Ohio St., 348.
   Spear, J.

The question whether the cause was or not appealable, depends upon whether the case in the court of common pleas was one in which a jury trial could of right been demanded. This depends upon the character of the case which was actually tried. It is conceded that upon the original pleadings, and the issues made as they stood prior to the filing of the amended and supplemental petition, June 3, 1895, the cause was one in equity, and triable to the court alone. It is contended by plaintiff in error, that the nature of the action was not changed at any stage of the controversy, but remained an action to establish a boundary line; to prevent multiplicity of suits; to prevent irreparable damage about to be done by an insolvent defendant to property of plaintiff against his protest; and to quiet title and remove a cloud from title, and so was a case in equity to the end; that this is abundantly shown by the pleadings, taken together, and the judgment rendered, and was so understood by all the parties and by the trial court, and that this is made clearly apparent by the reply filed Oct. 16, 1895, and the action of the court at the trial. Section 79, Revised Statutes, is cited as authorizing a proceeding to quiet title as here prayed. And it is true that the last reply avers, that “the main question at issue between plaintiff and defendant, is the boundary line of what is known as the bed of the Miami and Erie canal, so called.” Also, that since the commencement of the action, the company has been from time to time encroaching on the lots of plaintiff, to his great and irreparable injury, and that the action among other things, is to prevent vexatious and repeated litigation. And the reply does pray, “in addition to his prayer in the amended and supplemental petition, that the court will establish and fix the boundary line of the said Miami and Erie canal bed, and decree that the premises in question belong to this plaintiff.” It is true, also, that the cause was tried to the court without formal waiver of a jury, and that the court, in its journal entry, does adjudge and decree that the petition, as well as the amended and supplemental petition of the plaintiff, be dismissed, all which gives color to the claimed understanding. But the ultimate question is not, what was the understanding of counsel, or even of the trial court, as to the character of the issues joined, nor yet the form of the judgment rendered, but what, in law, was the nature of the action, and what the character of the issues, as shown by the pleadings which control the case. And this leads to an inquiry respecting the effect upon the case made in the original pleadings by the filing of the amended and supplemental petition of June 3,1895, and as to the case presented by that pleading.

That a plaintiff may substitute an amended petition in the place of the original, and change the form of action from an equitable action to a legal action, where the general identity of the transaction is maintained and the claim not substantially changed, admits of no question; nor is there doubt that if such change is made, the court, in determining the issues to be tried, will look wholly to the amended pleadings, disregarding the original, and the cause will thereafter be treated as a suit at law solely, and will proceed to trial and judgment as though it had been' commenced as a legal action.

The effect of the pleading filed June 3, 1895, upon the issues theretofore raised in the case, would not be conclusively determined by its title of “amended and supplemental petition,” nor by the expression “for amended and supplemental petition herein,” to be found in the first line, although such title and such statement should not be overlooked in ascertaining its effect, but if the new pleading appears to have been filed not by way of addition merely, to the original petition, and if it appears also to contain a full statement of the plaintiff’s case, being on its face a statement of an entire cause of action, and in substance a substitute for the original, the filing of it by the plaintiff will be regarded as implying an abandonment by him of the case made in the original petition and any additions thereto, and as selecting this as the pleading on which he founds his suit, and the only petition which the court is to consider in determining the issues to be tried. Such, we think, is the scope of this pleading, as must be apparent to any legal mind on an inspection of it.

What, then, is the character of the case which this pleading makes?

It starts with the- introductory phrase “for amended and supplemental petition herein” then follows a description of the defendant company, and an averment that it is the owner of a line of railway from Toledo to St. Louis, and now is, and for a long time heretofore has been, the owner of certain yards and tracks. operated by it in connection with its said line of railway in Toledo, and that one Pierce, is receiver, now in possession operating the road. It then avers that plaintiff claims an estate in, and is the owner in fee simple of four lots in the Port Lawrence division of Toledo, as laid out and platted, and in size as shown by the Gower & Walker maps of Toledo; that for a long time the defendant company, its predecessors and grantors, acquiesced in his ownership and possession “until up to about the time of the commencement of this action,” at which time the defendant company, well knowing of the rights and ownership of plaintiff, unlawfully and forcibly entered upon the lots, against the protest of plaintiff, and took possession of, and fenced in a large portion thereof5 and laid its railroad tracks thereon, without making any compensation to plaintiff, to-wit: a strip fifteen to thirty-five feet in width, next adjoining-the property of the company, being formerly the canal bed of the Miami and Erie canal, and the company and the receiver continue to hold possession, interfering with plaintiff’s rights and casting a cloud upon his title, to his great and irreparable damage. Then follows an averment that defendant’s only title is by virbueof a claimed purchase of the canal bed which is only eighty-eight and- one-half feet wide, although the defendant, at the commencement of the action claimed, and now claims, a greater width, and under said claim has forcibly entered upon and taken the said portion of plaintiff’s lots without compensation, and that the defendant’s claim is adverse to plaintiff’s rights. The prayer is that the defendants show their interest in the property; that it may be adjudged null and void; that judgment for the possession of said property may be awarded to the plaintiff, and defendant enjoined from interfering therewith until compensation has been made, and for other proper relief.

It must be manifest that the reference to the Gower & Walker map, and the statement of the company’s knowledge of and acquiescence in plaintiff’s ownership and possession, and of its title, and the width of the old canal bed, are but statements of evidence, and cannot aid the petition, and that the averment as to the possession of the company casting a cloud upon the plaintiff’s title to his irreparable damage, and that its claim is adverse to plaintiff’s rights, are simply legal conclusions. It is to be noted, also, as a significant fact, that while there is abundant claim of ownership in plaintiff, there is not a clear allegation of possession in him anywhere in the pleading. The allegation that defendant acquiesced in the ownership and possession of plaintiff “until up to about the time of the commencement-of the action, at which time the railroad company entered upon and took possession of, and fenced in a large portion thereof, and laid its tracks thereon,” if intended as a claim of possession in plaintiff at the time, is at best a dubious and equivocal averment, for the term “until up to about” would naturally imply a time preceding the date given. And it would seem that the draftsman could hardly have intended to aver possession in plaintiff at the commencement of the action, especially when it is remembered that a preliminary injunction was allowed at the filing of the first petition, and that there is no claim in this petition that the company acquired possession, or enlarged its possession, in violation of the court’s order. It follows, we think, conclusively, that at the commencement of the action, the company was in possession of the strip in controversy, and that the primary object sought, as shown by this petition, was to procure the judgment of a court ousting it from that possession. This construction is aided by the fact that the receiver is, by supplementary pleading, made a party. No allegation, save as to possession, is made against him, nor was he for any other matter than possession, a necessary party, having acquired whatever right he had during’ the pendency of the action.

Thus we have a case of a plaintiff out of possession making claim to title and possession of land, and praying a court to adjudge his title good and award him possession; in other words, praying to recover the land. All other relief sought is ancillary to this; it is relief which, if a proper case is made by the evidence, may follow, but cannot precede, judgment of possession. That is, the case made in the pleading is for possession of land, and then equitable relief to prevent the company interfering with that possession until compensation shall be made. The real and primary question was one of title. That settled in favor of the plaintiff, all other claims would follow and be determined as matters of relief in aid of the recovery, while, if settled against the plaintiff, his whole contention would fail. It seems to us that it would be an unnecessary waste of space to stop to demonstrate that this action, as made by the amended and supplemental petition, is, as matter of primary relief, neither a bill for an injunction to restrain, a continuing trespass, nor a bill to establish a boundary line between adjoining proprietors, nor an action to prevent a multiplicity of suits. Nor could it be maintained as an action to quiet title under section 5779, Revised Statutes. That section authorizes the bringing of an action “by a' person out of possession, having or claiming to have, an estate or interest in remainder or reversion in real property, against any person who claims to have an estate or interest therein, adverse to him, for the purpose of determining the interests of the parties therein.” The plaintiff does not claim to have an interest in remainder or reversion; he claims to have title to the entire estate, present as well as prospective.

Nor can it be reasonably claimed that the plaintiff’s case is changed, or in any way aided, by the answer. That pleading, besides general denial and plea of the statute of limitations, sets up an equitable defense by way of estoppel. But it is common knowledge that this may be done under our statutes, sections 5071 and 5782. It seems equally well settled that, unless a new, affirmative case is made by the defendant which requires a trial in advance of a trial on the plaintiff’s cause of action, and, if found in favor of the defendant, would wholly supersede plaintiff’s claim, the trial of the case made by the plaintiff is not affected. The equitable plea in this answer is a defense merely. If found in favor of the company, the effect would be simply to defeat a recovery. See Smith v. Anderson, 20 Ohio St., 76; Buckner v. Mear, 26 Ohio St., 514. Nor do the allegations of the reply change or aid the plaintiff’s ease in chief. For that we look to the petition, not to the reply. New matter therein set up for the first time cannot avail.

It results that the ease tried in the court of common pleas was an action for the recovery of specific real property. Section 5130, Revised Statutes, requires that causes of this nature- shall be tried by a jury unless a jury trial be waived. In such action no right of appeal exists, for, under section 5226, the right to appeal is limited to actions in which the right to demand a jury did not exist; and the tacit waiver of the right to demand a jury, and submission to the court, cannot change the character of the action. That, as we have already found, is to be determined by the nature of the action itself.

There was no error in dismissing the appeal.

Judgment affirmed.


author: Bradbury, J.

text:
    Collins, Executor, v. Millen, et al. Spencer, Admr., v. Holmes, Executor, et al.

      Revision of statute — Addition of qualifying clause to a section of statute — Construction of revised statute — Section 6408, Revised Statute.

    1. Where, in the course of a general revision of the statutes of a state, a clause is added to a section thereof, the plain and obvious effect of which clause, according to its ordinary meaning, is to qualify the former operation of such section, this effect should not be denied, on the ground, simply, that the clause was added in the course of the revision; on the contrary, the new section should receive the construction required by the natural import of the language it contains.
    2. Where one who is a party in a fiduciary capacity to an action or proceeding, appeals from a judgment therein, affecting adversely his own pecuniary interests, he is required by section 6408, Revised Statutes, to give an appeal bond.
    (Decided December 14, 1897.)
    Error to the Circuit Court of Greene county.

      The errors complained of in these two actions, were rulings of the court of common pleas, dismissing the appeals, taken by the plaintiffs respectively, from judgments of the probate court sustaining exceptions to their respective-accounts. The facts will appear in the opinion of the court.

      Little & Spencer, for plaintiffs in error.

      R. L. Gowdy; T. L. Magruder; C. H. Kyle and H. C. Armstrong, for defendants in error.
   Bradbury, J.

Both actions originated in exceptions filed to the respective accounts of the plaintiffs in error in the probate court of Greene county.

In the first of the two, Collins, Executor, v. Millen et al., Mr. Collins, as executor of Catharine Collins, filed in the probate court, an account of his transaction in the usual form, charging himself with the receipt of certain moneys, and claiming credit for certain expenditures and payments made on behalf of his trust. To this account, Eli Millen and others, who were creditors of deceasd, filed exceptions, alleging that the executor had failed to charge himself with certain moneys belonging to the estate, which he had received, and had taken credit for payments improperly made. Upon the hearing- of these exceptions, they were in part sustained. The executor feeling aggrieved by the action of the probate court in this regard, gave notice of his intention to appeal the case to the court of common pleas. So far as the record discloses, the appeal was in all respects perfected by him, except that he gave no bond. A transcript of the journal entries in the probate court, together with the original' papers, was filed in the court of common pleas; whereupon the exceptors, Millen and others, now defendants in error, filed in the court of common pleas, a motion to dismiss the appeal, for the reason that the appellant, the executor, had not given an appeal bond. This motion was sustained and the appeal dismissed by the court of common pleas, for the reason assigned in the motion. The circuit court, on error, affirmed the judgment of the court of common pleas, whereupon the executor instituted in this court proceedings to reverse the judgment of both the circuit court and the court of common pleas. The question raised in the second case, is, in all essential respects, similar, and its determination rests upon the identical priuciples that control the first case, so that it will not be farther noticed.

The only question presented by the record for determination here, is, whether the court of common pleas erred in dismissing the appeal from the probate court.

The right of appeal is statutory, and we must look to the statutes to ascertain if it has been lawfully exercised. The party who seeks to exercise this right, must comply with whatever terms the statutes of the state impose upon him as conditions to its enjoyment. The right, doubtless, is remedial in its nature; it is a proceeding in a civil action, given by our Code of Civil Procedure, and falls within the letter and spirit of section 4948, Revised Statutes, which commands a liberal construction of the provisions of our Civil Code.

This court has heretofore recognized these liberal principles in a number of cases respecting steps necessary to perfect an appeal, and has been especially liberal in sanctioning amendments made to cure defects in the methods that parties have pursued in exercising this right of appeal. Negley v. Jeffers, 28 Ohio St., 90; Irwin v. Bank of Bellefontaine, 6 Ohio St., 81; Saterlee v. Stevens, 11 Ohio, 420; Johnson v. Johnson, 31 Ohio St., 131; Watts v. Shewell, 31 Ohio St., 331; Reid v. Quigley, 16 Ohio, 445; Church v. Nelson, 35 Ohio St., 638; Creighton v. Hardin, 10 Ohio St., 579; Bentley v. Dorcas, 11 Ohio St., 398; Propeller Ogontz v. Wick, 12 Ohio St., 333.

We bring with us to the consideration of the question involved in the case before the court, the same liberal views that our predecessors held, and announced in the foregoing as well as other similar cases, touching the question of perfecting appeals, that, by inadvertence, had been irregularly taken.

We recognize, however, that the courts can dispense with no condition prescribed by statute, as necessary to perfect an appeal, and that the only field open to the display of liberality in this connection is, in the construction of the statutes that prescribe these conditions.

The appeal in question, was taken from a judgment of the probate court rendered in the course of settling, an account of the plaintiff in error, as an executor, and the steps required to perfect it, are prescribed by section 6408, Revised Statutes, which reads as follows: “Section 6408. The person desiring to take an appeal, as provided in the preceding section, shall, within twenty days after the making of the order, decision, or decree, from which he desires to appeal, give a written undertaking * * * but when the person appealing from .any judgment or order in any court, or before any tribunal, is a party in a fiduciary capacity, in which he has given bond in this state, for the faithful discharge of his duties, and appeals in the interest of the trust, he shall not be required to give bond, but shall be allowed to appeal, by giving written notice to the court of - his intention to appeal within the time limited for giving bond.”

By this statute three conditions must exist before one desiring to take an appeal from a judgment of a probate court rendered in a proceeding to settle the account of an executor, can perfect his appeal without giving an appeal bond.

1. He must be ‘ ‘a party in a fiduciary capacity. ’ ’ The plaintiff in error being an executor, and his accounts as such the subject of investigation in the probate court, was, of course, before that court in a fiduciary capacity.

2. He must have given bond in this state for the faithful discharg’e of his duties. That it is conceded plaintiff in error had done.

3. The appeal must be “in the interest of the trust.” The contention before us is confined to a construction of the phrase “in the interest of the trust.”

Plaintiff in error contends, that it should be taken to mean, “in respect of the trust, ” or “concerning the trust, ’ ’ and has no reference whatever, to pecuniary or beneficial considerations. So that an appeal should be deemed in the interest of the trust, if it is taken in respect to a matter concerning such trust, although the judgment appealed from was advantageous to the trust estate and increased the trust fund by charging the trustee with an enlarged liabiltity — a liability greater than rested upon him according to his notion. In support of this contention, we are cited to the history of the statutory provision dispensing with appeal bonds by executors, administrators, assignees in insolvency, etc. An inspection of the annual volumes of our statutes, shows that from quite an early period, appeals were allowed to be taken by executors and administrators, who had given bond with sureties in this state, without requiring of them appeal bonds, and this too, without reference to the question, whether the judgment appealed from favorably or unfavorably, affected the estate. 29 Ohio Laws, 78, section 109; 24 Ohio Laws, 131, section 26; 14 Ohio Laws, 166, section 50; S. & C., 612 (vol. 1); S. & C., 1218; 52 Ohio Laws, 105, section 6.

Counsel contend that this policy was inaugurated in this state, at least, as early as 1816, (14 Ohio Laws, 166, section 50) and continued up to the general revision of the statutes, completed in the year 1888, (75 Ohio Laws, 597) when the clause in question was added by the revising commission; and they further contend, that a change of phraseology in a statute occurring in that way, should not be deemed to change its former meaning.

This court, in a number of instances, has had before it the question of the effect to be given to a change of phraseology introduced into a statute by a revision. The doctrine it has established in respect to this matter, is that in the absence of a clear legislative intention to the contrary, a mere change of phraseology thus made, should not change the construction already placed upon the statute, or, the ■ construction it should receive xf the language had not been thus changed. Stannard v. Case, 40 Ohio St., 211; In Ash v. Ash, 9 Ohio St., 387, Sutliff, J., says:

“It is a well established rule, that in putting a construction upon a revised statute, the mere change of the phraseology does not work a change in the established interpretation of the former statute, unless it evidently appears that such a change was intended by the legislature.” The learned judge, citing in support of this proposition: Taylor v. Delancy, 2d. Caine’s Cases, 143; Yates' Case, 4 Johns., 359; Douglass v. Howland, 24 Wend., 45; Gaffney v. Colvill, 6 Hill, 574; Duramus v. Harrison & Whitman, 26 Ala., 326; Mooers v. Bunker, 9 Foster, 431. See also Tyler v. Winslow, 15 Ohio St., 368; State ex rel. v. Commissioners of Shelby County, 36 Ohio St., 326, 330; State ex rel. Baumgardner v. Stockley, 45 Ohio St., 308-9; Allen v. Russell, 39 Ohio St., 336, 337; Hamilton v. Steamboat R. B. Hamilton, 16 Ohio St., 428; State ex rel, Manix v. Auditor of Darke County, 43 Ohio St., 311; State v. Stout, 49 Ohio St., 284. The distinction, however, between a mere change of phraseology and the introduction of an entire clause into a statute, the apparent effect of which is to clearly qualify the former statute, is wide and clear.

Whatever the rule may be as to a mere change of phraseology thus accomplished, the mere circumstances that an entire and clearly qualifying clause has been brought into a statute in the course of a general revision of the statutes of a state, or in a revision of those upon some particular subject, affords but slight, if any ground, for treating it as surplusage. Notwithstanding that its insertion in the statute may have been the act primarily, of the commission appointed to make the revision, yet, its subsequent enactment into a law, should be regarded as the deliberate act of the general assembly. One of the objects sought through a revision of statutes, is in all instances doubtless, simplicity of language. The statute of 1875, (72 Ohio Laws, 87,) providing for a revision of the statutes of this state, expressly authorized the commissioners among other things, “bring together all the statutes and. parts of statutes relating to the same matter, * * * making alterations to reconcile contradictions, supply omissions, and amend imperfections in the original acts, so as to reduce the general statutes into as concise and comprehensive a form as is consistent with a clear expression of the will of the general assembly, rejecting all equivocal and ambiguous words and circuitous and tautological phraseology. ” * * * This authority was broad enough to warrant changes of phraseology, and in fact, expressly authorized it, but the power to alter the meaning of statutes by the insertion of qualifying clauses does not appear. The statutes as revised by the commission appointed for that purpose, were, when reported to the general assembly, passed by that body with such amendments as it chose to make. It is quite reasonable to infer, as we have before shown that this court has done, that mere changes of phraseology made by the commission and adopted by the general assembly, do not change the meaning previously borne by old statutes, unless the difference between the language, of the two statutes evinces an intent to do so. But it seems quite clear to us, that where a new clause has been added to a statute during the course of its revision, which plainly changues and qualifies its former meaning, and the clause is retained by the general assembly when it re-enacts the statute, its operation upon the construction of the statute should not be affected on this account. The whole statute, as thus qualified, should be given that meaning which the words ordinarily bear when employed in that connection and upon that subject. Bringing these views to the consideration of the question before us, we find, that previously to the adoption of the Revised Statutes in 1878, the statutes permitted an executor, etc., without giving an appeal bond, to take an appeal from a judgment affecting the estate, provided he had given bond in this state with sureties. In the Revised Statutes, as thus adopted, this right of appeal was restricted to cases where the appeal was for the pecuniary benefit of the estate or trust, if the language of the added clause is given its ordinary meaning. The added clause is as follows: “And appeals in the interest of the trust.” So that the section 6408, Revised Statutes, now reads as respects this matter of appealing- without bond: “When the person appealing * * * is a party in a fiduciary capacity, in which he has given bond within the state * * * and appeals in the interest of the trust f the added words being italicized. This clause, according to the ordinary meaning of the words when employed in the connection here found, plainly, limits the right of one, who is a party in a fiduciary capacity, to appeal without giving bond to cases where the appeal is taken; for the benefit of the trust. To say that, as counsel for plaintiff in error contend that this should be construed as if the word “interest” meant in “respect of” would be to give no effect at all to the new clause, and also to do violence to the plain sense of the words employed. However strongly the inclination of a court might tend towards a liberal construction of a statute, that principle alone, would not justify, a disregard of the plain and usual meaning of words or clauses found in a statute.

Where exceptions have been filed to an account of an executor or other trustee, he is, at once, in respect of the matters to which the exceptions extend, placed in an attitude of hostility to the trust estate. As to such matters, the estate is in fact represented by the exceptors; they seek to add to it while his pecuniary interests tend to direct his efforts to its diminution. If they prevail in the contest, the funds of the estate are increased; if, on the contrary, he is successful, these funds are diminished. In respect to such controversies the legislature may be presumed to have considered the real attitude borne by the parties, rather than their nominal relation thereto, and, therefore, to have purposely added the clause under consideration to prevent an executor, or other fiduciary party, who, for the time being, and in respect of the matter in hand, should be interested adversely to his trust estate from using a bond to injure an estate where it had been given for its protection and to require of him an independent bond in case he wished to protract a controversy carried on by him adversely to the estate, and for his own pecuniary benefit.

Judgment affirmed.