author: Wanamaker, J.

text:
    Klaustermeyer v. The Cleveland Trust Company, Assignee.

      Equity aids enforcement of. contract, when — Presumption of performance — By one party and failure by the other — Latter cannot defend against redress by equity, when — Failure to segregate securities — Equity presumes performance — And gives equitable lien on securities, when — Assignee for creditors — Takes assigned property charged with liens, etc.

    1. In a transaction founded on contract, express or implied, there being no adequate remedy at law for its breach, equity will presume the parties to have done what under the contract and in good conscience they should have done.
    2. When one party to such contract has fully performed his part of the contract for the benefit of the other party, the second party will not be permitted to defend against the first party’s right of (redress in equity by a defense based on the second party’s own default.
    3. After such first party’s full performance of the contract, it became the second party’s duty to select, segregate and deliver to the first party as a pledge, pursuant to such contract, certain securities then in its possession; and if such second party fails so to do, for the purpose of doing justice and furnishing an adequate remedy to the first party, equity will presume the second party to have done what he ought to have done, and thereby give to the first party an equitable lien or encumbrance upon the securities wrongfully left commingled by the said second party’s said default, no rights of third parties having intervened.
    4. The assignee for the b.enefit of the creditors takes the property assigned charged with all the liens, encumbrances and liabilities against it while owned and possessed by the assignor.
    (No. 13480
    — Decided December 2, 1913.)
    Error to the Circuit Court of Cuyahoga county.
    Facts are stated in opinion.

      Messrs. Howell, Roberts & Duncan and Messrs. Ford, Snyder & Tilden, for plaintiff in error.

      Messrs. Blandin, Rice & Ginn, for defendant in error.
   Wanamaker, J.

In the early part of May, 1908, The Euclid Avenue Trust Company of Cleveland, Ohio, was a corporation engaged in the general banking business in the city of Cleveland. It became financially embarrassed; a meeting of its directors and officers was held on Sunday, May 3, 1908, among which were eight of the thirteen directors, including E. H. Klaustermeyer, plaintiff in error, R. S. Thomas, secretary and treasurer, and W. J. Gawne, Jr., assistant secretary and treasurer, F. H. Ginn, attorney for the said trust company, John S. Oram and other directors. The persons present included the active officers and managers of the trust company.

After the disapproval of' numerous plans, it was finally agreed that each director should loan the bank five thousand dollars, if possible, the same to be done within the next two or three days, and those directors who were not then indebted to the trust company, among whom were John S. Oram and this' plaintiff in error, Klaustermeyer, “should be given security for such deposit from among the collateral securities then owned by and in the possession of said trust company.”

On Monday, May 4, 1908, pursuant to said agreement, the said director Oram loaned the trust company five thousand dollars, and at the time of such loan the trust company delivered to said Oram collateral securities to guarantee the payment df said loan. Said securities were selected by W. J. Gawne, Jr., assistant secretary and treasurer of the trust company, and by him delivered to said Oram.

On Tuesday, May 5, 1908, the plaintiff in error, Klaustermeyer, borrowed five thousand dollars of The Garfield Bank at Cleveland, and in pursuance of said Sunday agreement, loaned said sum to the trust company. At the time he turned over said money to said trust company “he was in a hurry to keep a business engagement and hurriedly left the bank without receiving any collateral for his said deposit, stating to one of the bank officials that because of his hurry he would not stop to get his securities, but would get them the next time' he called at the bank.”

Neither at that time nor any time thereafter were any securities of the said trust company selected, segregated or delivered by said trust company to said Klaustermeyer for the security of said loan of five thousand dollars.

On May 8, 1908, the said trust company made an assignment for the benefit of its creditors to The Cleveland Trust Company without having selected, segregated or delivered to said Klaustermeyer any securities pursuant to said Sunday agreement.

The single question for our determination is: Did Klaustermeyer have an equitable lien on the securities in the possession of The Euclid Avenue Trust Company, which were assigned and transferred to The Cleveland Trust Company on May 8, 1908?

" Klaustermeyer first made his application in the court of insolvency of Cuyahoga county, which court denied his right to a lien, and dismissed his application.

An appeal was taken to the court of common pleas, which court allowed Klaustermeyer’s claim for a lien.

Error was then prosecuted to the circuit court, which court reversed the judgment of the court of common pleas and affirmed the judgment of the court of insolvency.

Error is now prosecuted to the supreme court to reverse the judgment of the circuit court.

It is admitted that if the trust company had selected and segregated any portion of the securities of the trust company and delivered them before assignment to said Klaustermeyer, said Klaustermeyer would then have had and held such portion as a pledge for the payment of the five-thousand-dollar loan.

But it is contended that a failure by said trust company to so select, segregate and deliver such securities to said Klaustermeyer, prevented the creation or operation of the lien because the said securities remained in the possession of the trust company.

Counsel for the trust company seem to have entirely misapprehended the very first essential of an equitable lien. 3 Pomeroy’s Equity Jurisprudence (3 ed.), Section 1233, lays down the generally accepted doctrine that it [equitable lien] is simply a right of a special nature over the thing, which constitutes a charge or an encumbrance upon the thing, so that the very thing itself may be proceeded against in an equitable action, and either sold or sequestered under the judicial decree, and its proceeds in the one case,' or its rents and profits in. the other, applied upon the demand of the creditor in whose favor the lien exists. It is the very essence of this condition that while-the lien continues the possession of the thing remains with the debtor or the person who holds the proprietary interest subject to the encumbrance.

Indeed, while possession of the property subject to the lien is generally in the creditor in common-law liens, in equity liens the possession must be in the debtor.

Counsel for the trust company further contend that, according to the same authority, Pomeroy, the agreement must deal with some particular property, either by identifying it or by so describing it that -it can be identified, and must indicate with sufficient clearness and intent that the property so identified or rendered capable of identification is to be held, given or transferred as security for the obligation; that there was a failure in this behalf and therefore no lien.'

■ The finding of fact by the common pleas court, and which was adopted by the circuit court, uses-this language:

“Those directors not indebted to the trust company and making deposits therewith, in accordance with said agreement, should be given security for such deposit, from among the collateral securities then owned by and in the possession of said trust company.”

Clearly, this identifies the fund or property which was to furnish the security and which was to be charged with a lien for the benefit of securing Klaustermeyer’s loan. But it is said that this clearly indicates that there was to be. only some part, some portion or fraction, of said securities separated from the residue before the lien would attach.

Now, one of the fundamental maxims of equity is, “equity regards as doné that which ought to be done.”

“The broad meaning of this maxim is that where an obligation rests upon a person to perform an act equity will treat the person .in whose favor the act should be performed as clothed with the same interest and entitled to the same rights as if the act were actually performed. It is closely connected with and probably derived from the principle of regarding intent and substance rather than form. * * * The principle also lends its force to the establishment of liens and charges which could not be sustained at law, and to working out justice by fixing rights as of the time when the obligation first accrued, rather than according to circumstances subsequently arising.” 16 Cyc., 135.

What was the obligation and when did it accrue ?

Now, under the agreement between the officials of the bank and the directors, what ought The Euclid Avenue Trust Company to have done at once upon Klaustermeyer depositing his five thousand dollars as a loan to said trust company? What did the contract, the equities of the case and the good conscience of the parties require? Nothing short of what was done when Director Oram turned in his five thousand dollars, at which time the bank immediately proceeded to select, segregate and deliver to Oram sufficient securities to secure the loan.

It is a primary principle of equity that when one party, has fully performed, the other party cannot base his defense upon his own default; that is, on his own failure to perform, and that is just what The Euclid Avenue Trust Company is endeavoring to do in this case. Their obligation was to select, segregate and deliver these securities at the time that Klaustermeyer turned over the five thousand dollars. It strains the imagination to conceive any rule of reason or right that would permit the trust company’s carelessness or default to cut off Klaustermeyer from his equitable rights.

It is a familiar rule that when funds or property belonging to one individual are wrongfully mixed or mingled with the funds of another individual, when that last individual is the one responsible for or participates in such wrongful commingling, the interest or lien is transferred from the first fund or property to the combined or commingled fund or property.

The theory is that equity will not permit the interest or lien to be cut off or lost by the wrongful act of the other party in the commingling of funds or property.

This doctrine of commingled funds is ably and fully discussed in a recent case by this court. Smith et al., Trustees, v. Fuller et al., Assignees, 86 Ohio St., 57. The fourth and fifth paragraphs of the syllabus of that case read as follows:

“A. Where a trustee deposits trust money in a bank, taking as evidence thereof a certificate of deposit certifying that he as trustee has deposited the fund payable to self on return of the certificate properly indorsed, the same not being subject to check, and no stipulation for interest made, a presumption will be indulged, in the absence of proof to the contrary, that the trustee intended to perform and not violate his duty, and that the deposit was intended as a special, and not a general, deposit.
“5. Where, in such case, the bank fails and makes an assignment for the benefit of creditors before such fund is withdrawn, and it appears that the bank, upon receiving such deposit, had mingled the trust money with its own- funds, money paid out from such fund for its own purr poses will be presumed to have been paid from its own money, and not from the trust fund. And if it be shown that at all times from the making of the deposit, to the time of the assignment by the bank, there was in its vaults money of amount and value equal to the amount so deposited, a court of equity may engraft a trust upon such money, and the trustee will become a preferred creditor to the amount of such deposit.”

In the case of Smith v. Fuller, supra, the funds should have been kept separate but were commingled. In this case they should have been placed separate but were left commingled. Equity regards the substance and not the style of things, the fact and not the form. The lien was upon the whole fund because it was wrongfully commingled in the Smith case. The lien should be upon the whole fund in this case because it was wrongfully left .commingled, when it was the duty of the trust company to separate and segregate it.

The act in.the Smith v. Fuller case, however, is an affirmative, positive, commissive act, but pray what is the distinction between such a commissive act that produces commingling of the funds and an omissive act in which the party is in default of what he promised or agreed to do, which omission has permitted and continued the commingling of the fund that should in good conscience have been separated? Equity in the former case of commission places the lien upon the whole wrongfully .commingled .fund; so equity in the case of an omission or default will place the lien upon the whole fund or property left wrongfully commingled.

It may be urged that the Smith case deals with a special deposit, which was wholly the particular and special property of a depositor, and that to protect such property it was necessary to declare a trust, but in this case there is no suggestion even of a trust. Why should we higgle over words where equity always disregards mere syllables of things in order to protect the substance? In any event an equitable interest or lien was found in certain property in order to do justice to all the parties, and there can be no complaint made •in this case that a like holding will do anything more or less than equity, both to Klaustermeyer and the trust company, and-that creditors will be in exactly the same situation as if Klaustermeyer had not loaned his five thousand dollars to the bank.

The undisputed facts of the record go farther than the finding of the fact in the court of common pleas and circuit court, to-wit: That, if affirmatively does appear from the record that Klaustermeyer, on the morning of the assignment and before the assignment-was made, demanded of-the trust company, its officers and directors, the selection, segregation and delivery of sufficient securities to protect his loan. This appears from the record at page 36:

TESTIMONY OF MR. KLAUSTERMEYER.
“Q. The day they made the assignment you were at the bank? A. Yes.
“Q. Where were you at the bank, what part of the bank were you in, what room of the bank? A. In the basement.
“Q. In the directors’ room? A. Yes, sir.
“Q. Now, did you say anything at that time, before the assignment was made, about your collateral? A. Well, I asked for the collaterals, and then Mr. Ginn told me that I couldnt get them.
“Q. Whom did you ask for your collaterals af that time, before the assignment was made? A. I asked those that were in the room there at the bank.
“Q. Were they directors- of the bank? A. Yes, directors and officers.
“Q. Was Mr.- Thomas there? A. Yes, sir.
“Q. And Mr. Ginn spoke up and told you you couldn’t get them? A. Yes, he did.
“Q. Did he say why? A. He said the assignment was made and it was too late.
• “Q. Well, the assignment at that time hadn’t been made, had it? A. Well, we had talked of it, but there was no papers gone out; they were all there.
“Q. The papers hadn’t been signed at that time, at the time you asked for your collateral, had they? A. No.”

This testimony is not contradicted by any of the officers or directors of the bank who were present on the morning of the assignment. The only other testimony in reference to this conversation is that of Mr. Ginn, who says that “he does not recall any such conversation.”

Clearly, that morning before the assignment, as Mr. Klaustermeyer testifies, he demanded his securities, and it was the duty of the bank to separate, segregate and deliver them to him by way of a pledge for the debt, as they had done in Oram’s case. That obligation rested upon the bank; the assignment simply transferred the same obligation or liability to the assignee, The Cleveland Trust Company.

It is agreed by counsel before this court that no rights of third parties have intervened to in any wise affect or modify the rights of the parties in the record. That being true, it must follow that the assignee, The Cleveland Trust Company, by virtue of the assignment, took the securities of the bank charged with all the liens and encumbrances upon them while in the hands of The Euclid Avenue Trust Company before the assignment. 3 Pomeroy’s Equity Jurisprudence (3 ed.), Section 1235.

The bank got the five thousand dollars; the stockholders and creditors were enriched to that amount; they got it upon the distinct understanding that Klaustermeyer was to have securities out of the collateral then in the possession of the bank; the duty of the bank at once upon receiving the five thousand dollars was to turn over sufficient securities to protect Klaustermeyer; they failed to do that; what they ought to have done in law, equity will require them to do in effect.

“In modern times the doctrine of equitable liens has been liberally extended for the purpose of facilitating mercantile transactions, and in order that the intention of the parties to create specific charges may. be justly and effectually carried out.” Bispham’s Principles of Equity (8 ed.), Section 351.

What good conscience requires, equity should require, and while we are able to find no adjudicated case upon parallel facts, we are persuaded from the nature of the transaction, the relations and the rights of the parties, good conscience and sound morals among men in every-day business, that Klaustermeyer should have his lien for his loan.

A frequent recurrence to some old constitutional provisions will not be amiss in this case. Section 16 of the Bill of Rights of our Constitution reads:

“The courts shall be open, and every person, for an injury done him in his land, goods, person or reputation, shall have remedy by due course of law; and justice administered without denial or delay."

How shall Klaustermeyer have due course of law? The letter of the law gives him no remedy, but the essentials of equity do furnish the remedy.

It is not improbable that there are no precedents for this holding. Indeed, there are many cases that seem to support the contrary view. But is it not better to regard a principle that does regard equity rather than a precedent that denies equity?

Equity is after all only a natural and necessary evolution of principle and policy to secure justice where the law obviously fails.

If the boundaries of equity are not broad enough to furnish, the relief, it is manifest that the boundaries should be extended, as courts heretofore have not hesitated to do. If there be no precedent for this judgment, it is time that a precedent were made.

There are too many hair-splitting distinctions in phrases where there is no honest difference in principle. What is a rule of equity worth that will not protect the equities of a case and the good conscience of the parties?

If the maxim “Equity will presume to have been done what ought to have been done under the contract and in good conscience”— if this maxim were not designed to meet just such cases under our constitution and our laws as this one, what,, pray, is its purpose? When jurisprudence becomes synonymous with justice, courts will be returned to that public confidence so necessary to stable and successful government. "

As was remarked by Judge Spear at the close of the case Smith v. Fuller, supra:

“Nor is there any inequity in this conclusion. The funds of the bank in its vaults were increased by these deposits to t'he full amount thereof and nothing is asked to be taken away except what, by these deposits, was put there.”

To hold otherwise would be to permit one by his own wilful, reckless or wrongful act, by his own default and failure of a plain duty, to defeat the ends of simple justice.

The judgment of the circuit court is reversed and the judgment of the court of common pleas is affirmed, at the costs of the defendant in error.

Judgment reversed.

Nichols, C. J., Johnson, Donahue, Newman and Wilkin, concur.


source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    Grant, Assignee, v. Baldwin et al.

      Statute of limitations — Action on bond by claimant to assignee for creditors — Right of action accrues, when — Proceedings in error —Do not arrest statutes — In absence of writ of supersedeas, when.

    An assignee for the benefit of creditors paid a claim presented to him against the estate, and received from the claimant a bond with surety thereon, by the terms of which the makers bound themselves to refund any excess over the amount allowed on the claim by the probate court on final distribution of the estate. Exceptions to the allowance of this item in the account of the assignee were overruled by the probate court. On appeal to the common pleas court the exceptions were sustained, the claim referred to was disallowed and the estate ordered distributed among the remaining creditors.

      Held: The cause of action on the bond accrued on the entry of Judgment in the court of common pleas, and the running of the statute of limitations was not arrested by proceedings in error in the circuit court and in this court, in the absence of a writ of supersedeas secured according to law.
    (No. 13424
    — Decided December 2, 1913.)
    Error to the Circuit Court of Knox county.
    This was a proceeding brought by the plaintiff in error, assignee of Frank J. D’Arcey, against the defendants in error in the common pleas of Knox county.
    The petition alleges that D’Arcey made an assignment in July, 1895, to Joseph L. Baldwin for the benefit of his creditors; that Baldwin qualified and in August, 1897, resigned, when plaintiff was appointed his successor; that in November, 1895, the defendant, Stevens, pretended to have a judgment for the sum of $2584.03 against D’Arcey, which he claimed was a lien on the property of D’Arcey in the hands of Baldwin, as assignee, by virtue of an execution theretofore levied; that to induce and procure Baldwin, as assignee, to pay him the amount of said judgment out of the assets of said estate, said Stevens and Henry L. Curtis, then in life, executed and delivered to said Baldwin their bond of the date of December 16, 1895, agreeing that in consideration of said Baldwin making to them advancements on said claim, they would (in the event that the amount paid was greater than should be allowed by the probate court upon final distribution of the assets of said estate) refund to said Baldwin, as assignee, the excess of the amount paid over the amount found by the probate judge to be payable; that pursuant thereto said Baldwin advanced to said Curtis and Stevens out of the assets in his hands, as assignee, the following sums: On November 9, 1895, $236.26, on December 16, 1895, the sums of $29.09 and $1538.17, and on the 5th day of May, 1896, the sum of $123.84, making a total of $1,927.36; that on August 16, 1897, said Baldwin filed his account as such assignee in the probate court of Knox county, in which he claimed credit for said sum so paid Charles L. Stevens on his claim as aforesaid; that on October 1, 1897, exceptions were filed to said item of credit in the account of the assignee by a creditor of the assignor ; that said exceptions were heard in the probate court and appealed to the common pleas court of said county, where, on or about April 24, 1900, it was found and decreed that the said judgment of Stevens against D’Arcey had been fully paid and satisfied by D’Arcey to Henry L. Curtis, the real party in interest, and that said Baldwin was not entitled to a credit on his account therefor, and said exceptions were sustained. The petition prays for judgment for the amount so paid to Stevens with interest.
    A copy of the bond referred to and made part of the petition is as follows:
    "December 16, 1895.
    "This instrument is to certify that whereas on the ninth day of July, 1895, Frank J. D’Arcey of Mt. Vernon, Ohio, made an assignment for the benefit of his creditors to Joseph L. Baldwin, who duly qualified and is still acting as such assignee.
    “Charles L. Stevens, being one of the creditors of said D’Arcey and having an approved claim amounting to more than two thousand dollars and being desirous that the said assignee should make advancements to him out of the money of said estate now in the hands of said assignee to credit on his said claim. Now, therefore, in consideration of the foregoing premises and the payment to the said Charles L. Stevens of the sum of fifteen hundred and thirty-eight dollars and seventeen cents, by the said assignee to credit on the claim of the said Charles L. Stevens, we, Charles L. Stevens and Henry L. Curtis, undertake and bind ourselves to the said Joseph L. Baldwin, assignee, that in the event that the amount thus paid is more or greater than is allowed by the probate court upon final order of distribution that we will refund and pay over to the said Joseph L. Baldwin, assignee, the amount he has paid in excess of the amount found by the order of the probate court.

      “In witness whereof we have hereunto set our hands on the day and year above written.
    “(Signed.) Chas. L. Stevens,
    “Henry L. Curtis.”
    The answer of defendants is substantially a general denial, and by way of second defense that an executor was appointed on the Sth of April, 1897, for Curtis, who had deceased; that the executor immediatley gave notice of his appointment as required by law, but was exempted by the will of Curtis from giving bond, and that the plaintiff’s cause of action, if he ever had one, accrued not later than the 24th day of April, 1900, and was barred by the statute of limitations at the time the suit was brought, which was in November, 1901;
    The common pleas court rendered a judgment in favor of the plaintiff. This judgment was reversed by the circuit court on the ground, as stated in the entry of that court, “That at the time of the bringing of this suit in the court of common pleas by the defendant in error against the plaintiff in error, said claim set out in said petition was barred by the statute of limitations as to the estate of Henry L. Curtis, and plaintiff in error could not be held to answer to said suit.”
    This proceeding is brought to reverse the judgment of the circuit court and affirm that of the common pleas.

      Messrs. Owen & Carr and Mr. Hugh Neal, for plaintiff in error.

      Messrs. Waight & Moore and Mr. Henry C. Devin, - for defendants in error.
   Johnson, J.

So far as the estate of Henry L. Curtis,- deceased, is concerned, its liability in this case must arise, if at all, out of the obligations of the bond signed by him. Neither he nor his estate sustained any other relation to the controversy than was created by his becoming surety for Stevens on the bond.

On the trial of the cause in.the common pleas court, the records of the probate court on the exceptions to the account of Baldwin, as assignee, and of the common pleas court originally on appeal from the judgment of the probate court upon said exceptions, were offered in evidence. From the entry made by the court of common pleas it appears that on March 30, 1900, that court found that the judgment of Stevens against D’Arcey was paid and that the exceptions of the creditors of D’Arcey to the account of Baldwin, assignee, should be sustained. The case was then taken on error to the circuit court where the judgment of the common pleas court was sustained. A petition in error was filed in this court, which was dismissed on May 7, 1901, for failure to file printed record.

When did the caus.e of action against the estate of Henry L. Curtis, deceased, on the bond signed by him accrue? The court of common pleas entered its judgment sustaining the exceptions of the creditors of D’Arcey to the account of Bald- ' win, assignee, on March 30, 1900. The court directed that no part of the claim of said Stevens should be paid out. of the assets in the hands of the assignee. That judgment has remained unreversed and was the conclusive determination of the controversy involved in the original proceedings. There was no supersedeas bond filed when the cause was taken to the circuit court by Stevens and Curtis, nor when brought to this court on error. Therefore, on the entry of the judgment in the court of common pleas the right of action, against Stevens and Curtis on their bond accrued. The judgment of the court of common pleas on the exceptions to the account of Baldwin determined the rights of the parties as of that date, and Baldwin, the assignee, could have at once brought suit upon his indemnity bond.

The executor of Curtis was appointed April 5, 1897, and notice of his appointment at once given. Section 6113, Revised Statutes, as then in force, provided that no executor after having given notice of his appointment should be held to answer to the suit of any creditor of the deceased, unless it be commenced within four years from the time of his giving bond “excepting in the cases hereinafter mentioned; provided, however, that any creditor whose cause of action shall accrue or shall have accrued after the expiration of four years from the time that the executor or administrator of such estate shall give or shall have given bond according to law, and before such estate is fully administered, may commence and prosecute such action at any time within one year after the accruing of such cause of action, and before such estate shall have been fully administered; and no cause of action against any executor or administrator shall be adjudged barred, by lapse of time, until the expiration of one year from the time of the accruing thereof.” The will having exempted the executors from giving bond, the statute began to run from the time of the appointment of the executors and the giving of notice. Delaplane v. Smith, 38 Ohio St., 413. The executor having been appointed and having given notice April 5, 1897, the four-year limitation expired April 4, 1901. As we have seen, the cause of action against the estate of Curtis accrued March 30, 1900, more than one year prior to the expiration of the four-year limitation. The assignee of D’Arcey was, therefore, entitled to bring his action .against the estate of Curtis at any time prior to April 5, 1901. The suit was actually begun in November, 1901, and was barred by the statute.

We have considered the other assignments of error, but find no error in the record, and the judgment will be, affirmed.

Judgment affirmed,

Nichols, C. J., Shauck, Donahue and Newman, JJ., concur.


author: By the Court.

text:
    Sears v. Stinehelfer.

      Will contest — Under Section 12080, General Code, grantee of devisee■ — Necessary party to action, when.

    Where the devisee of real estate transfers it after the probate of the will by which it was devised, the grantee is an interested person within the meaning of Section 12080, General Code, and is a necessary party to an action subsequently brought to contest the validity of the will.
    (No. 14071

    — Decided December 9, 1913.)

    Error to the Court of Appeals of Crawford county.
    Facts stated in opinion.

      Mr. R. V. Sears and Mr. Benjamin Meek, for plaintiff in error.

      Messrs. Finley & Gallinger and Mr. L. C. Feighner, for defendant in error.
   By the Court.

In May, 1906, L. L. Walker died owning 240 acres of land in Crawford county. His widow, three children and one grandchild survived him and were his only heirs at law. Elizabeth J. Sears is one of the children. During the same month a paper purporting to be his last will and testament was duly admitted to probate by the probate court of that county. By this will he devised to his widow all his property, real and personal, among which was a farm of 240 acres. The widow duly elected to take under the will and in November, 1907, sold to the defendant in error 40 acres of the land. In December following the plaintiff in error, as one of the heirs at law of the deceased, began an action in the common pleas court of the county against the widow and other heirs at law to contest said purported last will of her father. In the month of May following an issue was made up and tried by a jury, which found that the paper writing was not the last will of Mr. Walker and judgment was entered on that verdict. The defendant in error, although he had become the owner of the 40 acres referred to prior to the commencement of the suit to contest the will, was not made a party to that case.

Subsequently the defendant in error filed his petition in the common pleas court in the'case referred to. In this petition he sets up the facts above stated and that since he purchased the 40 acres referred to he has been in possession thereof. He alleged that the judgment setting aside the will was obtained irregularly and by fraud, averring substantially that the widow and other heirs colluded in the proceeding to set aside the will; that the widow refused to offer any testimony in support of its validity and consented that it should be set aside, although there was ample evidence by which it could have been shown on the trial that the paper was the valid last will of the deceased; that in suffering the will to be set aside by default the widow was guilty of fraud against him; that he was the owner of the 40 acres of land and “has a right to be heard and offer evidence to maintain said will and that the setting aside of said will in the manner above set forth was a fraud upon the rights of this complainant.”

The petitioner further alleged that the plaintiff in error claimed to be a part owner of the 40 acres of land purchased by him from the widow by virtue of said will having been set aside and had brought suit against him to recover the rents and profits of said land from the time he went in posr session. Other facts were averred in this peti-r tion, showing that a partition proceeding had been brought by the plaintiff in error in this case, praying for partition of the premises of which Mr. Walker died seized, including the 40 acres conveyed to the petitioner; that the court of common pleas denied partition; that on appeal the circuit court also denied partition and found that the grandson, a certain mortgagee and the petitioner, were, at the time of the commencement of the action to contest the validity of the will, necessary parties to that action; that in a proceeding in error in this court, a judgment was entered, and after-wards on- the petition of the defendant in error here, which showed substantially the facts that have been hereinbefore set out, this court modified its previous judgment and remanded the case for further proceedings according to law.

The petitioner prayed that all persons should be duly served with summons and that the court open up, vacate and set aside the judgment setting aside said will and that an issue be made up whether or not said paper writing is the valid last will and testament of said Walker. To this petition a demurrer was interposed by Elizabeth J. Sears, which was sustained by the commmon pleas court and final judgment entered. On proceedings in error the court of appeals reversed this judgment, and this proceeding is brought here to reverse the judgment of the court of appeals and affirm that of the common pleas.

Stinehelfer was a necessary party to the proceeding to contest the will. Section 12080, General Code, provides “All the devisees, legatees, and heirs of the testator, and other interested persons, including the executor or administrator, must be made parties to the action.”

In Bloor v. Platt, 78 Ohio St., 46, it is held that a judgment creditor of an heir, who has obtained a lien by levy on property, which in the absence of a will would be the property of the debtor heir by descent, is a person interested in a will or codicil, within the meaning of - Section 5858, Revised Statutes, and therefore has legal capacity td prosecute an action to contest the validity of an alleged will disposing of such property to a person other than such heir. The court say: “Construing all these enactments together it seems clear to us that the expressions, ‘any person interested/ ‘a person interested in a will or codicil’ and ‘other interested persons’ are equivalent and may include persons other than the devisees, legatees, heirs, executors and administrators of the testator.”

A fortiori Stinehelfer, who had acquired his 40 acres by direct conveyance from the sole devisee and was in possession of it prior to the beginning of the suit to contest the will, was a necessary party. From the judgment of this court in the partition suit referred to, Sears v. Walker, 85 Ohio St., 490, the court must have concluded that the judgment setting aside the last will and testament of Walker was not binding in so far as it affected the rights and interests of Stinehelfer and the other parties interested in said estate who were not parties to the proceeding to set aside the will but Was and is binding on the parties to that suit. Inasmuch as Stinehelfer has never had his day in court and never had an opportunity to defend his rights under the will to which he was entitled, the common pleas court erred in denying him that privilege in the case brought to set aside the will.

If Stinehelfer is able to make it appear that the paper was the valid last will of the decedent, he is entitled to the opportunity of doing so.

Judgment of the court of appeals will be affirmed.

Nichols, C. J., Shaucic, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    Croneis Brothers v. The Toledo Computing Scale Company.

      Negotiable instruments — Conditional sales contract — Contravenes Section 4155-1 et seq., Revised Statutes — Payee cannot maintain action, when — Waiver.
    Where notes are executed and delivered contemporaneously with the execution and pursuant to the terms of a contract for the conditional sale of personal property, which contains provisions in contravention of Section 41SS-1 et seq., Revised Statutes, the payee of the notes cannot maintain an action thereon in the absence of conduct on the part of the maker amounting to a waiver of his right to defend against them.
    (No. 13604
    — Decided December 9, 1913.)
    Error to the Circuit Court of Crawford county.

      Mr. William C. Beer, for plaintiffs in error.

      Mr. W. C. McCullough, for defendant in error.
   By the Court.

The defendant in error made a written contract with the plaintiffs in error for the sale to them of a pair of scales. It was a conditional sales contract, and contemporaneously with its execution plaintiffs in error executed and delivered to the company their ten promissory notes in the sum of $7.50 each, due in one, two, three, four, five, six, seven, eight, nine and ten months from date. The scales were shipped to the plaintiffs in error, and shortly thereafter they were returned to the defendant in error and the contract repudiated. The company refused to accept the return of the scales and brought suit on the notes before a justice of the peace, where judgment was rendered for the defendant. On appeal to the common pleas court, the company in its petition set up the notes in ten separate causes of action. Croneis Brothers answered denying any liability on the notes, set out the contract and averred that it was void because in violation of Sections 4155-1 et seq., Revised Statutes. By its reply the defendant in error admitted the execution of the contract and asserted its binding force and effect as well as the validity of the notes. The plaintiffs in error then filed a motion for judgment on the pleadings, which was sustained by the court of common pleas. On error the circuit court reversed this judgment, and these proceedings are brought to reverse the judgment of the circuit court and affirm the judgment of the court of common pleas.

. The contract referred to contains the following language.

“Should there be any failure to meet payments or to execute notes for deferred payments, it is agreed that the full amount of purchase price shall at once become due and payable. Should there be any default in the payment of any note it is agreed' that all the remaining notes shall at once become due and payable, anything in the notes to the contrary notwithstanding. In default of any payment you, or your agent, 'may take possession of and remove said scale without legal process; and in such case, all payments theretofore made by me under this order shall be deemed and considered as having been made for the use of said scale during the time the same remained in my possession, . and shall be retained and kept by said company as such payment. In the event of the re fusal to accept said scales zvhen tendered, it is agreed that the sum first above mentioned, less any previous actual cash payments, shall at once become due and payable as liquidated damages, and not as a penalty.”

The question presented is whether or not this contract and the notes given in consideration thereof are enforcible. Pertinent parts of the statute are as follows: “Whenever such property * * * is so sold or leased, rented, hired or delivered it shall be unlawful for the persons who so sold, leased, rented, hired, delivered or his assigns or the agent or servant of either their agent or servant to take possession of said property, without tendering or refunding to the purchaser, lessee, renter, or hirer thereof or any party receiving the same from the vendor, the sum or sums of money so paid after deducting therefrom a reasonable compensation for the use of such property, which shall in no case exceed 50 pep cent, of the amount so paid, anything in the contract to the contrary notwithstanding, and whether such condition be expressed, in such contract or not, unless such property has been broken, or actually damaged, and then a reasonable compensation for such breakage or damage shall be allowed. Provided, that the vendor shall not be required to tender or refund any part of the amount so paid unless said amount so paid to the vendor exceeds 25 per cent, of the contract price of the property.”

A penalty is provided by statute for the violation of the provisions of the above act. It will be observed that the portion of the contract above quoted provides for the doing of things which are in direct conflict with the statute. The contract is an entirety. One of its considerations is the promise to permit the doing of the illegal things referred to. The notes sued on were provided for and were executed and delivered pursuant to its terms. The sole consideration for these notes was the contract for the sale of the scales, and these, under that instrument, could be retaken on default of payment of any note, without the return of any part of any payments made. Plaintiffs in error, having at once repudiated the contract in its entirety and refused to accept the scales •or in any way recognize the binding force of the instrument, cannot be said to have waived any of their rights to defend against it. The court will not make a new contract for the parties by striking out the terms which are in contravention of law and assume that the parties would have made it without such terms. It contemplated and required the acquiescence by plaintiffs in error in the illegal part of the contract as much as the legal ■part. The fact that the defendant in error did not undertake to enforce the illegal parts, at least while attempting to reduce the notes to judgment, does not strengthen its position.

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

Nichols, C. J., Shauck, Johnson, Donahue, Newman and Wilkin, JJ., concur.


author: Wilkin, J.

text:
    Pfisterer v. The Toledo, Bowling Green & Southern Traction Company.

      Corporations — Action to enforce judgment — Conveyance of property by defendant in personal injury case — Plaintiff a subsequent creditor and transfer will not be set aside, when — Proof necessary to set aside conveyance — Question of fraudulent transfer to defeat creditors’ rights.

    1. An incorporated company made a conveyance of all its property, including its franchise. At the time of the conveyance, the plaintiff had a valid cause of action against it for personal injury caused by its negligence, upon which he brought his action, after the conveyance, and recovered judgment for $1250. Held: He is a subsequent creditor, and in a suit by him to subject the property thus transferred into the hands of the purchaser to the payment of his judgment, the transfer will be set aside only upon proof of the grantor company’s actual intent to defraud its creditors. (Evans et al. v. Lewis, 30 Ohio St., 11, approved and followed.)
    2. Especially where the purchaser has paid valuable and adequate consideration (viz., $239,250 and some stock in another company for property alleged to be worth $300,000), there must be clear and satisfactory proof of fraudulent intent on his part.
    3. 'Where the vendee is a natural person who purchases for himself and others associated with him, and he and his associates afterwards form an incorporated company; and after the.pur- ' - chase price is actually paid to the vendor company’s treasurer, the latter company, at the request of the vendee, makes the deed of conveyance directly to the new incorporated company; and some of the stockholders of the vendor company take stock in the new company, as well as some money, for the transfer to the purchaser of their certificates of stock in the vendor company, which are destroyed; and the treasurer of the vendor company distributes to its stockholders the balance of the money so paid to him, after having paid to its acknowledged and listed creditors $70,000, to discharge their claims, leaving-unpaid only the plaintiff’s unlisted and unliquidated claim finally adjudicated to be $1250. Held: These circumstances are not sufficient to establish a constructive fraudulent purpose of the new company to defeat the vendor’s creditors, and thereby avoid the conveyance.
    (No. 14160
    — Decided December 19, 1913.)

      Error to the Court of Appeals of Lucas county..
    September 16, 1900, plaintiff instituted an action for damages for personal injuries against The Toledo, Bowling Green & Fremont Railway Company in the common pleas court of Lucas county. May 31, 1901, the service of summons was quashed. A new petition for the same cause of action was filed September 25, 1901. The first action was dismissed without prejudice, but not till January 6, 1902. Judgment was rendered for the plaintiff in the second action for $1,250 December 23, 1903. This judgment was affirmed by this court October 18, 1905. No execution was ever issued.
    The capital stock of this railway company, which for brevity we will call the Fremont Company, was $159,000. James A. Huston was president, R. E. Hamblin, secretary, and C. C. Schenck, treasurer. About April 1, 1901, George B. Kerper, of Cincinnati, for himself and others associated with him, negotiated with Schenck for an option for 30 days on the capital stock at $150 per share. April 27, 1901, $30,000 was paid upon the option. Kerper was a controlling stockholder and the chief officer of The Findlay Street Railway Company. His plan was to consolidate the two roads by building a connecting link and thus form a continuous line. To this end, on April 3, 1901, he organized The Toledo, Bowling Green & Southern Traction Company, with a capital of $1,500,-000, to take over both roads, and on April 25 he contracted with the latter company to convey both roads to it for its mortgage bonds, of the par value of $1,075,000, and all its capital stock (less 25 shares already issued). May 7 he paid to Schenck, treasurer of the Fremont Company, $186,750. All but three shareholders (who held $5,000 each) had filed their stock with Schenck and Huston, the president, for delivery to the purchaser. They delivered over to the purchaser the stock held by them. The holdings of the other three shareholders were transferred through a Mr. Tracy, as attorney for the holders, about the same time and were also delivered, and all the stock was cancelled.
    May 18, 1901, the stockholders of, the Fremont Company authorized the transfer of the property to the Traction Company, and a deed was executed on June 15, 1901, containing the following recital: “Resolved further, that the board of directors be and they hereby are authorized and instructed to receive from said The Toledo, Bowling Green & Southern Traction Company in exchange for said property and of the right, title, interest, property and estate of the stockholders therein as represented by their shares of stock' equivalent shares of stock in The Toledo, Bowling Green & Southern Traction Company and the mortgage bonds of said company, and that the shareholders receive said shares of stock and bonds in exchange and payment for their shares of stock in The Toledo, Bowling Green & Fremont Railway Company.”
    The money which was paid for the stock of the Fremont Company was raised upon the bonds of the Traction' Company. In the contract of sale there was a' stipulation that the Fremont Company had no debts, but that four or five suits were pending, which the Traction Company agreed to settle and did settle. Pfisterer’s suit was not one of them. About that time his first suit was quashed,- and the second suit was not begun till about four months later.
    The plaintiff in error alleges that the value of the property was $300,000. The money consideration paid upon the transfer of the stock, as appears at one place in the record, was $239,250. It appears that $70,000 of this money was paid to creditors and the balance distributed to the stockholders. The consideration expressed in the deed is “the sum of ten thousand ($10,000) dollars and the exchange of stock certificates to be paid. by The Toledo, Bowling Green & Southern Traction Company.” Mr. Kerper’s attention being drawn to this, he testified: “It is not correct; it was all cash. We paid cash for the property.”
    The record book of the Traction Company, in the minutes of a directors’ meeting on April 25, 1901', shows that “pursuant to notice for bids, George B. Kerper, Jr., submitted to the board his proposition and bid for the acquisition and purchase of The Toledo, Bowling Green & Fremont Railroad, and the Findlay Street Railroad, and conveyance of title to The Toledo, Bowling Green & Southern Traction Company. Also the acquisition of the right of way from Trombley in Wood county to Mortimer in Hancock county, and the construction thereon of an electric road with all suitable turnouts so as to connect the tracks of the Toledo, Bowling Green & Fremont Company with the tracks of the Findlay Street Railway Company. * * * Also to thoroughly equip the entire line from Findlay to Perrysburg, * * * and offered and agreed to receive in full compensation thereof at the face value, the bonds of The Toledo, Bowling Green & Southern Traction Company to the amount of $1,075,000 and certificates or shares of the capital stock of the company to the amount of $1,500,-000 less twenty-five shares already issued.” A formal resolution was passed accepting this bid and authorizing the president and secretary to enter into contract with Mr. Kerper “for the acquisition of the roads named and the completion of the road ready for full operation from Toledo to Findlay.” Another entry on the books shows, under date of August 15, 1901, “Capital stock. *. * * To George B. Kerper, Jr. For 14,475 shares of stock issued to him as per certificates. Nos. 16 to 74, inclusive.”
    The plaintiff contends that the conveyance was without consideration except that the Traction Company exchanged an equal amount of its capital stock for all the stock of the Fremont Company; that said companies were then consolidated and merged .under the laws of Ohio, and that by reason thereof the Traction Company became lia- ' ble for the payment of all of the obligations of the Fremont Company, including the amount due to the plaintiff, and assumed for valuable consideration to pay all indebtedness of the Fremont Company. The basis of this contention is the usual proposition of law, as stated in his brief: “As- - sets of a corporation being a trust fund for the benefit of creditors may be followed into the hands of a purchasing corporation, when not purchased in the usual course of business, under a device which protects the stockholders, but leaves the company insolvent.”
    The defendant denies that the directors of The Fremont Railway Company authorized its president and secretary to convey its property to the Traction Company; that it did convey its property to the Traction Company without consideration; that the Traction Company exchanged its certificates of stock for an equal amount of the Fremont Company’s stock; that the latter company had a right of way from Perrysburg to Trombley; that the purchase of the Fremont and Findlay properties by the Traction Company operated as a merger or consolidation of said companies; that the Traction Company became liable for any debts or obligations of the Fremont Company; that it had any knowledge at the time it purchased the Fremont railway property of any claim of the plaintiff; that the Fremont Company was insolvent; that the conveyance of the Fremont property was for the purpose of any one to defraud its creditors; and it avers that when said conveyance was made all debts and obligations of the Fremont Company were satisfied; that the Traction Company had no notice or knowledge that plaintiff was a creditor or making any claim against the Fremont Company until long after it purchased the property of said company; that the purchase price was fully paid by the defendant to the Fremont Company and not to its stockholders individually, and thereupon its stock certificates held by it were fully cancelled and it passed out of existence as a corporation, and that the said purchase was in good faith, without fraud upon the Fremont Company, its stockholders or any of its creditors.
    The defendant bases its defense upon the following proposition taken from its brief: “Where a solvent corporation makes a real sale of all of its assets in consideration of the payment either of money or of stock to its stockholders, such sale will be valid as against even the existing creditors of the selling corporation, in the absence of fraud participated in by the purchaser, and in such event the creditors of the selling corporation may follow the proceeds of its property into the hands of its stockholders, but cannot follow the property into the hands of the purchaser.”
    The minute statement of the details of the transaction would be a tedious repetition of much of the testimony, which is vague and uncertain on many points which the statements of the briefs of counsel do not clear up, but leave in “confusion worse confounded.” The transaction seems to have been, first, an option sale to George B. Kerper of all but twenty-five shares of the Fremont Company stock. Then he organized the Traction Company and negotiated for a sale to it of the Fremont property for its bonds and shares of its stock. He raised money on the bonds to pay for the Fremont stock, and procured a resolution of the stockholders of the Fremont Company to convey its property, not to him, but directly to the Traction Company, which was done. The Fremont stock was destroyed and some of the Fremont shareholders got stock in the new company. How, when, in what method or order, these changes took place counsel have not shown, us and we cannot figure out from the transcript.

      Mr. R. S. Holbrook; Mr. C. R. Banker and Mr. G. B. Keppel, for plaintiff in error.

      Messrs. King, Tracy, Chapman & Welles, for defendant in error.
   Wilkin, J.

It is apparent from the foregoing statement of facts and of the altercation between the parties that the contention narrows down to two questions of fact, namely: (1) Whether the plaintiff was a creditor of the Fremont Company at the time of the sale of its property to George B. Kerper and his associates; (2) Whether the sale was a bona fide transaction for a valuable consideration, or a mere collusivé transfer of title to a reorganization of the vendor company in fraud of its creditors, or a consolidation of the Fremont railway with the Findlay street railway by a merger of those two companies into a consolidated company under a new name known as the Traction Company.

It is unnecessary to consume time and space with a commentary on the facts. It is sufficient 'to say that this case was heard twice in each of the courts below. It comes to this court upon error to the judgment of the court of appeals rendered January 18, 1913.

One of the errors alleged in the court of appeals ■was that the common pleas court on a second trial refused “to follow the opinion and judgment of the circuit court of Lucas county, Ohio, rendered and entered on substantially the same evidence, in the former proceedings in error herein.” The court of appeals reversed the judgment of the common pleas court for the reason that the decision and judgment of the latter court is against the weight of the evidence. And the plaintiff assigns here as one ground of error that the court of appeals has no power to reverse for that reason, the circuit court having once reversed for that reason.

An excerpt from the unanimous opinion of the court, rendered by Wildman, J., will exhibit the view which that court took of the case:

“Both the circuit court and the judge of the common pleas court, to whom the cause was submitted without a jury, seem in accord as to the good faith of the transaction, so far as the Traction Company is concerned, and there is not much attempt to charge the Fremont Company with such actual fraud. The trial judge, however, as we gather from his opinion, which has been transcribed and filed with the briefs of counsel, takes the view that by virtue of Section 8618 of the General Code, the transaction between the companieswas a conveyance constructively in fraud of creditors of the grantor, the Fremont Company. * * * While it was not embodied in an entry making separate statements of fact and law, we feel justified in considering it as an expression of the ground upon which the judgment was rendered. * * *
“The question which addresses itself to us is whether Pfisterer at the time of the conveyance by the Fremont Company to the Traction Company, was a 'creditor’ within the meaning of .that part of the statute of frauds embodied in the section of the General Code relied upon by the trial court and to which reference has already been made. * * * The current of authorities is unbroken that, as to subsequent creditors, transfers will be set aside only upon proof of actual intent to defraud. In the case of Evans et al. v. Lezuis, 30 Ohio St., 11, the third paragraph of the syllabus is as follows: 'One having a valid cause of action, sounding in tort, against said grantor, at the time of such conveyance, upon which an action was subsequently brought and judgment recovered, is to be regarded as a subsequent creditor.’ * * *
“In White v. Gates, 42 Ohio St., 109, the case of Evans v. Lewis was cited approvingly with the statement .that the fact that an action was pending for damages at the time of the sale and transfer of the property was immaterial. The case .of Evans v. Lezvis was again followed in Stuard v. Porter, 79 Ohio St., 6. The circuit court of this county has also had occasion to pass upon the question with the same holdiñg. Detwiler v. Louison, 10 C. D., 95, 97.
“That the conveyance might be attacked, if made with the intent to defraud subsequent creditors is, of course, true, but to establish such intent the burden is upon the party asserting it, and it is not apparent in the case at bar that that burden has been sustained. * * * Indeed, it is clearly indicated by the record that all existing creditors, whose claims amounted in the aggregate to some $70,000.00, including some claims then in litigation, were taken care of in the transaction. There is no suggestion that the Traction Company participated in any fraudulent intent, even if it existed in the minds of the Fremont Company or the persons arranging the transfer. * * * It. is almost inconceivable that such a transfer as that of the entire assets of the Fremont Company, amounting to over $200,000.00 in value, would be made for the purpose of avoiding payment of this one comparatively small claim. In our view of this case, it is of no moment that the transfer was made by a corporation instead of an individual. Numerous authorities might be cited in support of this opinion, but it is hardly necessary. Attention may, however, be called to the case of Graham v. Railroad Company, 102 U. S., 148, and especially the" discussion of the question by Mr. Justice Bradley, pages 153, 160 and 161. The closing words which are especially pertinent to this point are as follows: ‘We see no reason why the disposal by a corporation of any of its property should be questioned by subsequent creditors of the corporation, any more than a like disposal by an individual of his property should be so. The same principles of law apply to each.’ * * ■ *
“As the character of the plaintiff’s claim and the facts bearing upon the question which we have considered in this opinion are undisputed, the judgment will be entered, in this court which should have been entered in the court of common pleas, dismissing the action of the plaintiff below.”

We concur in this opinion of the court of appeals. While it does not say in exact words that there is no evidence in support of the plaintiff’s contention, the language of the opinion seems to import as much. The finding in its journal entry is “that the judgment and decree entered by the court of common pleas * * * is not sustained by sufficient evidence, and is against the weight of the evidence,” which is precisely the finding made by the circuit court upon its review of the first trial. The record of the second trial shows a persistent effort of the plaintiff’s counsel to bring to light details of the transaction and of the relations of the parties, from which collusion and fraud could be inferred; but the testimony and the documents thus brought upon the record can hardly be said to give rise to such inference, and hence do not have the force and the value of proof of the fraud alleged. Nor do we think that the probative effect of the facts established by the testimony and the documents tends to establish constructive fraud; that is to say, a transaction not inspired by an actual evil purpose to deceive but tending nevertheless to mislead innocent persons and to beguile them of their rights, contrary to good public policy. Hence, we might say there is no proof to sustain this branch of the plaintiff’s case. Such is the impression the facts make upon the mind of this court.

However that may be, the plaintiff has utterly failed to make any proof that he was a creditor of the vendor company at the time of the sale, and therefore he has established no title to maintain this suit as a prior creditor. Nor has he made any proof of actual fraud which would entitle him to maintain the action as a subsequent creditor. His evidence proves conclusively that he was not a creditor when the sale was made, and failing entirely to produce evidence of intentional design by the vendor or the vendee to defraud creditors, he has established no grounds for the remedy which he seeks. This puts an end to his contention. It is, therefore, not necessary to consider the other proposition which he makes, namely, that the court of appeals had no power to reverse the case the second time on the weight of the evidence, contrary to Section 11577, General Code.

The court of appeals having, as stated in its opinion, based its judgment on the plaintiff’s total failure to prove his title to maintain the suit, its judgment, both to reverse and to dismiss, was right in both aspects. Even though its journal entry does not accurately or fully state the grounds, if the judgment is right on any ground, it must be affirmed.

Judgment affirmed.

Shauck, Donahue and Newman, JJ., concur.

Johnson and Wanamaker, JJ., dissent.

Nichols, C. J., not participating.