author: Oicev, J.

text:
    Bartholomew v. Lutheran Congregation.
    1. A congregation of the Lutheran church, connected with the district synod of Ohio, had, in 1873, the power to withdraw from that synod; and the right to exercise the power was not aifected by the pendency, in the synod, of appeals from the action of the congregation or complaints against members of the congregation.
    2. By the action of the joint vestry of the Elida and Lima congregations-of the Lutheran church, in October, 1873, followed by the action of the latter congregation in November, 1873, the connection of the latter congregation with the district synod of Ohio was completely severed.
    3. Where persons assuming to be trustees of a religious corporation take-possession of a church building, exclude the persons theretofore in possession, file a petition under section 557 of the civil code (67 Ohio L-116) to quiet their title, and obtain an injunction to prevent the persons so excluded from retaking possession, and on final hearing, upon petition, cross-petition, and evidence, it is decided that the persons so excluded are legally the trustees, they may be restored to such possession,, and an injunction may be granted in their favor restraining the plaintiffs in the action from interfering with them in the possession and control of the property.
    Error to the District Court of Allen county.
    On February 26, 1874, an action was brought in the Court of Common Pleas of Allen county, by the trustees of Zion’s English Evangelical Lutheran Congregation, of Lima, Ohio, against Alexander S. Bartholomew, Henry Boose, Samuel Boose, Ephraim Roush, and others. The object of the suit was to enjoin the defendants from molesting the plaintiffs in the control and occupation of a Lutheran church building, and to quiet the plaintiffs’ title. An answer, an amendment thereto, and a reply were filed; and after judgment had been rendered in the court of common pleas, the case was appealed to the district court, where judgment was rendered in favor of the plaintiffs below, and the defendants were perpetually enjoined, as prayed in the petitiou. A motion for a new trial was overruled, and a bill of exceptions, containing all the evidence, was taken. A petition in error was subsequently filed in this court, on leave.

      Isaiah Pillars and H. S. Prophet, for plaintiffs in error.

      Irvine § Brice and E. A. Ballard, for defendants in error.
   Oicev, J.

The principal questions discussed in the arguments of counsel were questions of fact. This opinion will contain only so much of the voluminous record as is necessary to a correct understanding of the points decided; and, as to matters of fact, we will content ourselves with stating the result of our examination, without tracing the steps by which we arrived thereat.

On December 24, 1860, U. IT. C. Mitchell and others executed a deed, in which they “ for the consideration of three hundred and fifty dollars, received to their full satisfaction, of the trustees of the English Evangelical Lutheran Church in Lima, Ohio, the grantees, do give, grant, bargain, sell, and confirm unto said grantees the following described premises, situate in the town of Lima, . . . being lot number sixty-one. ... To have and to hold the above granted and bargained premises, with the appurtenances thereunto belonging, unto said grantees and their successors in office forever.” And then follows the usual covenants of seizin, against incumbrances, and general warranty, to “ said grantees and their successors in office.” The deed was acknowledged and recorded.

The congregation was, at that time, an unincorporated religious society; but on February 1, 1862, a meeting was held and the proper steps were taken by the society for its incorporation; three trustees were elected — one for one year, one for two years, and one for three years; a certificate, showing the proceedings of the meeting, was prepared in accordance with the provisions of the statute; and that certificate was, on January 14, 1863, recorded in the office of the recorder of Allen county. A church building has been erected on the lot.

While the by-laws do not, in terms, provide for the ■election of a trustee on each Easter Monday — the day after Easter — that is a fair construction of them, and the practical construction which they have at all times received. A trustee was elected at that period in each year. On April 10, 1871, Henry Boose was elected trustee for three years; on April 6, 1872, Samuel Boose was elected for three years; and on April 14, 1873, Theodore Roush was elected' for three years. And it is not denied by any one that these three persons were the trustees of the church, clothed' with the legal title to the property, on February 26, 1874, when this suit was brought (see Williams v. Presbyterian Church, 1 Ohio St. 478), unless they were divested of such title in December, 1873, and January, 1874, in the manner ■which will now be stated.

Difference of opinion had existed among the members ■of the congregation for some time previous to the year 1873, as well as during that year and subsequently. Concerning the merits of this contention, except as it affects the trustees of the congregation, we decide nothing. But it culminated in complaints and appeals to the district, synod of Ohio, in connection with the general council of the Evangelical Lutheran Church of America, with which synod the Lima charge, consisting of the Lima and Elida congregations, was connected. It is sufficient to say of the subject-matter of these ' complaints and appeals that the moral character of neither the pastor nor of any member was involved.

In this condition of things, and before the synod had taken any action with a view to the removal of the pastor,, or any member of the Lima congregation, at a meeting of the joint vestry of the Lima and Elida congregations, held at Elida, Allen county, October 12, 1873, the following resolutions were unanimously adopted:

“ Resolved, That the Lima charge of the Evangelical Lutheran Church in Allen county, Ohio, of which Nev. A.. S. Bartholomew is pastor, hereby severs its connection with the Evangelical Lutheran District Synod of Ohio-(general council district), and that said charge hereby reunites with the old original English district of the joint synod of Ohio and adjacent states, in which joint synod we were originally organized and incorporated, according-to the incorporation laws of Ohio.
“ Resolved, That our secretary furnish Nev. Q-. W. Mack-ling, as president-of synod, with a statement of our proceedings in the above case, as soon as the congregational, vote shall have been taken, notifying him of the changes-of synodical relations.”

Following this action, a meeting of the Lima congregation was held at the church in Lima, November 2, 1873,, when the following proceedings were had : “ The minutes of the joint vestry were read, relating to the change of synodical relations of the Lima charge of the Evangelical Lutheran Church in Allen county. Explanations were made, so that all understood fully the whole matter. Whereupon, it was moved by Brother Joseph Busier, and seconded by Brother Henry Boose, that this congregation confirm the action of the joint vestry in its vote changing synodical relalions from the Evangelical Lutheran District Synod of Ohio-, (general council district), to the English District of the Joint Synod of Ohio and other states. Unanimously adopted.”

On November 21, 1873, the secretary of the joint vestry of the Lima charge, in pursuance of the foregoing resolution of the joint vestry, notified the district synod of Ohio of the withdrawal of the Lima charge from that synod.

Notwithstanding this action of the joint vestry and the-Lima congregation, the district synod of Ohio, at a meeting held December 23, 1873, adopted a resolution suspending Rev. A. S. Bartholomew, and the pastor of another-congregation, “ from the exercise of the duties of the gospel ministry, until such time as they shall individually give evidence to this body of sincere repentance and a hearty return to their just obligations toward it.” And at the-same meeting, a committee to which certain complaints of members of the Lima congregation had been referred, made-report as follows:

“Whereas, Mr. A. S. Bartholomew, formerly pastor of Lima charge, has been suspended from the ministry until he returns to his proper relations and is restored by the ministerium, and the Lima charge is thus vacant; and,, whereas, a portion of the Lima congregation, following-the evil counsel and example of Mr. Bartholomew, have-taken a position of schism and rebellion . against this synod; and, whereas, the petitioners have signified their perfect willingness to submit to the authority of synod therefore,
“1. Resolved, That the petitioners be advised to request the co-operation of the schismatic faction returning to their just relation to synod in calling a pastor.
“ 2. Resolved, That if they refuse, then the petitioners, be recognized as the Evangelical Lutheran congregation at Lima, and be advised to perfect the organization and invite the missionary president to co-operate with them in-securing a pastor, and, until this is accomplished, to provide regular services for them.
“ 3. Resolved, That the congregation thus recognized be-advised to take the necessary steps to secure the possession of the church property, to which, in justice and equity, they are entitled.” And that report was unanimously adopted.

On January 10,1874, a meeting was held at Lima by certain members of the congregation, stated in the minutes to be “ above sixty members,” to take action in pursuance of the foregoing proceedings of the synod of Ohio. Notice of the meeting had been given in newspapers of the city. A chairman and secretary were appointed, and the following, among other, resolutions were adopted and proceedings had:

Resolved, That the constitution and by-laws of Zion’s Evangelical Lutheran congregation of Lima, Allen county, Ohio, be amended in so far as they relate to the election, qualfication, and term of office of trustees: that the following shall be, and shall be taken to be, the rule and law of said congregation, viz.: There shall be three trustees, one of whom shall be elected each year, and shall hold his office for three years, unless sooner removed', as hereinafter provided : provided, that in case of vacancy in the office of trustee, the congregation, at any general meeting, shall hold an election and fill the vacancy. The office of such trustees, or either of them, may be declared vacant at any general meeting, and the vacancy or vacancies thereby created be at once filled by election, and thereupon the office of such former trustee or trustees shall cease and determine.” . . .
“Whereas, Two of the trustees of this church, viz.: Samuel Boose and Henry Boose, have been declared in a state of schism and rebellion by the action of the district synod, with which this congregation is and has always been connected ; and by their abandonment of the organization with which this church is and has always been connected, have vacated their offices as trustees :
■ “ Resolved, That the Zion’s English Evangelical Lutheran Congregation of Lima, Ohio, hereby declares the terms of office of said trustees ended, their places vacant, and that an election to fill the vacancies be had at this congregational meeting. The congregation next proceeded to elect two trustees to serve until the annual election on Eas-er Monday. Bros. Henry Reel and G-. W. Overmeyer, having received the highest number of votes, were declared elected.”

AVithin a few weeks after that meeting, the persons composing it, including Henry Reel and G. W. Overmeyer, took possession of the church building and property, and employed another pastor; and immediately thereafter, on February 26, 1874, they commenced this suit, as stated in the beginning of this report, in the name of the “ trustees of Zion’s English Evangelical Lutheran Congregation of Lima,” and obtained an injunction against any interference with them by A. S. Bartholomew, Henry Boose, Samuel Boose and the others named as defendants. They aver that the defendants are disturbing them in their possession, and threatening to remove them by force from the church building, and that they are remediless except by the aid of a court of equity.

We do not find it necessary to decide -whether the appeals and complaints to the district synod of Ohio, above-referred to, were sufficiently comprehensive to give that synod jurisdiction to depose, or authorize others to depose, persons holding official relations toward the Lima congregation ; nor do we decide whether the relation between the Lima congregation and that synod was at any time such that the synod could, by any proceeding, however regular-in form, either depose, or authorize others to depose, such officers ; for, on the fullest consideration, we are of opinion that before that synod had attempted to exercise such power, the Lima congregation, by and under authority of the-proceedings already recited, had withdrawn from it, and was no longer subject to its power or jurisdiction. The power to withdraw clearly existed, according to a fair construction of the constitution and rules of the congregation and the governing bodies; the pendency of the appeals and complaints in the synod — assuming that they were then « pending — could not affect the right to exercise such power; nor was the withdrawal in any way affected by the subsequent appearance of Rev. A. S. Bartholomew before the synod to present his protest against its action. It follows, therefore, that the action of the district synod of Ohio, on December 23, 1873, so far as it related to the Lima congregation, and the proceedings at the meeting held in Lima, January 10, 1874, were simply void.

While we all unite in holding that the plaintiffs below made no case for an injunction, that the district court erred in decreeing in their favor, and hence that the judgment must be reversed, the question remains as to the further judgment which should be rendered. The defendants below, in their answer, ask, “ That until the final hearing of this cause, said George W. Overmeyerand Henry Reel, and all others acting for them and by virtue of their pretended authority as trustees of said Zion’s English Evangelical Lutheran Congregation of Lima, be enjoined from in any way using or occupying said church building, or in any way interfering with the use and occupation of the same by the defendants; and upon the final hearing of this action, that said injunction be made perpetual.’ This answer may be treated ás a cross-petition. Klonne v. Bradstreet, 7 Ohio St. 322.

Finding the proceedings of the meeting of January 10, 1874, to be void, the election of Reel and Overmeyer, at that time, and the election of their successors and the successor of either of them, are mere nullities. If that is true — and so we find it to be — it is not denied by any one that Henry Boose, Samuel Boose, and Theodore Roush were, at the commencement of this suit, on February 26, 1874, the legal trustees of the congregation, clothed with the title to the property. Hence, it necessarily follows that they and their successors, if there be successors, are still legally the trustees. As it is unnecessary, in adjudicating as to the right of the defendants below, to find auy fact which was not necessarily and fully found in determining as to the rights of the plaintiffs below, on the petition to quiet the title and restrain the defendants, we are unable to perceive any reason why an order should not be made, in this case, on the cross-petition, restoring Henry Boose, Samuel Boose and Theodore Roush, and their successors, to the possession and control of the property, for the use and benefit of the congregation, and enjoining Reel and Overmeyer, and their successors, from interfering with such possession and control. To hold otherwise is not to end the litigation, as we think may properly be done, but to lay .a foundation for other suits. Hullman v. Honcomp, 5 Ohio St. 237, does not conflict with such power of the court. When regard is had to the manner in which the question arose, that case, it will be seen, is clearly distinguishable from this. The ground for the exercise of such jurisdiction in this ease is based, we think, not only upon statutory provisions, but on reason and authority. 54 Ohio Laws, 91; 4 Curwen, 2922; 67 Ohio Laws, 116; Rev. Stats. §§ 5071, 5779; Trustees, etc., v. Hoessli, 13 Wis. 348; Lutheran Congregation v. Gristgan, 34 Wis. 328; Hale v. Everett, 53 N. H. 9, s. c. 16 Am. Rep. 82; 1 Story’s Eq. Jur. § 65; Bispham’s Eq. § 465.

We have said that the property is tobe controlled and managed for the use and benefit of the congregation. We do not undertake to determine the persons who are or should be regarded as members of the congregation. But the trust should be administered in no narrow or illiberal spirit. On the contrary, it should be administered for the benefit of all the members of “ Zion’s English Evangelical Lutheran Congregation of Lima, Ohio,” to the end that peace and unity may be restored.

Judgment of the district court reversed, and plaintiffs below enjoined, as above stated.


source: Caselaw Access Project

author: McIlvaine, C. J.

license: Public Domain

text:
    Francis B. Denny et al. v. Levin T. McCabe.
    1. The provision in section 17 of the act of March 14, 1853, regulating descents and distribution of estates (S.& O. 504), that “nothing in this act shall be so construed as to effect the right which any person may have to an estate by the curtesy or in dower in any estate of any deceased persons; and surviving husbands, whether there has been issue born during the coverture or not, shall be entitled to the estates of their deceased wives by the curtesy,” does not affect or modify the rights or interests of a husband in the lands of his wife during the lifetime of the wife. '
    2. By the same section as amended March 1, 1869 (66 Ohio Laws, 21), a surviving husband, without issue born during coverture, is not entitled to-courtesy in the lands of his deceased wife, as against her issues or their legal representatives by a former husband, unless such lands were acquired by deed of gift from the surviving husband or by devise or deed of gift from his ancestors.
    Error. Reserved by the District Court of Preble county.
    Tlie original action was commenced in the court of common pleas by plaintiffs in error against defendant in error to recover the possession of divers lots and parcels of land, and also for the recovery of mesne rents and profits. The several lots and parcels of land described in the petition are also mentioned in the second defense set up in the defend-, ant’s answer, which is as follows:
    Second defense. — And for a second defense to said plaintiffs’ petition, defendant says that, on the 13th day of December, 1832, he was lawfully married to one Polly Holliday, and that he and the said Polly lived and cohabited together, as husband and wife, until the 22d day of June, 1873, when she died iutestate, never having bad any issue born alive by said defendant, but leaving the said Erancis B. Denny and Levina C. Minor, her only children and heirs at law, and who were such children and heirs by a former husband of said Polly. And defendant further says that his said late wife, Polly McCabe, became seized in fee simple of all the real estate described in said petition, except said lots Nos. 399, 529 and 388, in Eaton, by deeds of conveyance to her in her life time and during her said coverture with this defendant, at the times following, to-wit: Of said first described piece (undivided half of lot No. 101, in said town of Eaton), on the 31st day of December, 1844 ; of said second described piece (parts of in-lots Nos. 151, 152 and 153, in said town of Eaton), on the 7th day of May, 1853; of said third described piece (south half of lot 337, in said town of Eaton), on the 5th day of January, 1861; of said fourth described piece (out-lot No. 27 and part of out-lot No. 22, in said town of Eaton), on the 13th day of May, 1861; of said fifth described piece (lots Nos. 372 and 373, in said town of Eaton), on the 5th day of March, 1862; of said sixth described piece (part of the northwest quarter of section three, township seven, range two, east, in Preble county, Ohio), on the 20th day of April, 1863 ; of said seventh described piece (lot No. 436, in said town of Eaton), on the 25th day of February, 1867.
    Defendant further says that, at the commencement of this suit, he had and still has a legal estate for and during the term of his life in all of said real estate (except said lots Nos. 399, 529 and 388, which were purchased by said Polly after 1869, in said town of Eaton,) as tenant by the curtesy, by virtue of his said marriage with said Polly Holliday, since deceased,; and the said Francis B. Denny and Levina C. Minor had at the commencement of this suit and still have only a remainder in said premises, and they will not become entitled to the possession thereof until after the death of this defendant.
    After a demun'er to this defense had been overruled, the plaintiffs replied and the cause was submitted to the court, upon certain admissions and testimony, whereupon the court found the facts stated in the said second defense to be true, together with the additional fact that neither of the lots or parcels of land came to the wife of defendant by deed of gift from the defendant or any of his ancestors.

      Upon this state of facts the court rendered judgment in favor of plaintiffs for each parcel which had been conveyed to the defendant’s.wife prior to the 1st of July, 1853, or subsequent to the 1st of July, 1869, and for the defendant for the several parcels which had been conveyed to her between those dates. The plaintiffs also recovered $726.48 as mesne rents and profits.
    Thereupon each party moved for a new trial, which mo- . tions being overruled, each party excepted.
    The plaintiffs filed their petition in error in the district court to reverse so much of the judgment- as was in favor of the defendant, and the defendant filed his cross-petition to reverse the judgment in favor of plaintiffs as to those parcels of land that were acquired by his deceased wife prior to July 1, 1863.
    In the district court the cause was reserved for decision in this court.

      Foos Fisher and W. J. Gilmore, for plaintiffs in error.

      Thomas Milli/dn and Robert Miller, for defendant in error.
   McIlvaine, C. J.

By the rules of the common law relating to the rights and interests of a husband to and in the lands of his wife (which obtain in this state except in so far as .they have been modified by statute), the husband, by virtue of the marriage, is entitled, during covei’ture, to the possession and control of the real estate of his wife. ■In strictness, this right is not an estate by the curtesy, •though, sometimes called curtesy expectant, but a mere possession by him in the right of the wife. In the case before us, this marital right of the defendant in error is not of the least significance, as it was fully enjoyed by him during the whole period of coverture, which was the limit of the duration of the right.

When, however, issue of the marriage is born alive, capable of inheriting the lands of the wife, an estate in the husband begins and vests in his own right by the curtesy initiate; which estate, upon the death of the wife, remains in tbe surviving husband as an estate for his life by the curtesy consummate.

Such was the state of our law previous to July 1, 1853, when the act of March 14, 1853, regulating descents, took effect. By tbe 17th section of this act (S. & C. 504), it was provided, that “Nothing in this act shall be so construed as to affect the right which any person may have to any estate by the curtesy or in dower, in any estate of any deceased persons ; and surviving husbands, whether there has been issue born during the coverture or not, shall be entitled to the estate of their deceased wives by the curtesy.”

Be must be observed that this section does not purport, during the life of the Avife, to affect the marital rights of the husband or his estate by the curtesy initiate. The provision relates solely to rights in the estates of “ deceased persons.” It is the curtesy of “ surviving husbands ” which is made to inure to them “ whether there has been issue born alive during the coverture or not.” What effect this statute had, by construction, upon the estate by the curtesy initiate, if any, avg need not now inquire, as in the case before us, there was no issue born during coverture.' If this statute had remained in force until the death of defendant’s wife, unquestionably an estate by the curtesy Avould have vested in him, at that time, notwithstanding there had been no issue of the marriage.

But, on the 1st of July, 1869, while his wife was still living, and before any right had vested in the husband under this section, it was repealed by the act of March 1, 1869 (66 Ohio Laws, 21), and the following provisions substituted, by Avay of amendment, to-wit:

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

.By this amendment, it is quite clear that the defendant was not entitled, upon the death of his wife in 1873, to curtesy in lands acquired by his wife subsequent to the date of the amendment. This is admitted by him in his answer disclaiming title to those parcels acquired by her after July 1, 1869. But it is contended by defendant that the act of 1869 can operate only on subsequently acquired lands. The contention is, that as to property acquired by her previously, to that date, an interest or estate had become vested in him, which, under the constitution, the legislature could not divest. In other word's, it is claimed that by the act of 1853, which eliminated, from an estate by the curtesy, the prerequisite “ birth of issue” an estate immediately vested in the husband, in all respects like unto curtesy initiate, by the mere facts of marriage and seizin of the wife. This we have already shown was- not the effect of the act, which left the rights of a husband in the lands of his wife, while living, and before the birth of issue, as they were at common law, and operated only to enlarge the rights of “ surviving husbands.”

The defendant having had no issue born during coverture, and having fully enjoyed his marital rights in the lands of his wife during the whole period of coverture, the áct of 1869 must determine his rights as to all the lands of which his wife was seized during coverture.

"Whether the acts- of April 3,1861, concerning- the rights and liabilities of married women, and the amendment thereof on March 23, 1866, which converted the general property of married women into separate estates and gave to them the control thereof during coverture, saving only “ the estate by the curtesy of any husband in the real property of his wife after her decease,” did not totally extinguish all right of curtesy initiate as well as the right of possession in the husband during coverture, we need not consider, as independently of these .statutes we find the defendant was not entitled to curtesy in any of the lands of which his wife died seized.

The judgment below in favor of defendant as to all lands acquired-by his wife between July 1,1853, and July 1,1869, is reversed; in all other respects it is affirmed, and cause remanded to court of common pleas.


author: Boynton, J. Johnson, J.

text:
    Olds v. Tucker et al.
    Where the compensation of an attorney for professional services in securing a fund in the hands of a receiver for distribution is, by the rules governing courts of equity, a proper charge upon 'the fund, application for such compensation out of the fund should be made in the action .in which the receiver was appointed.
    Error to the District Court of Morrow county.
    The plaintiffs brought their action against the defendants, Nathan Tucker, Robert P. Halliday, the fir.m of Rowland & Talmage, and William C. Manson, receiver, to recover out of the funds in the hands of said receiver belonging to said Tucker the sum of $145. They alleged that as attorneys at law they brought an action for said Tucker against David L. Swingiey for the settlement of partnership accounts between said Tucker and Swingiey, prosecuting the case through the courts of common pleas, district, and Supreme Court. That said Manson was appointed receiver to collect the accounts, and now has in his hands about $600 belonging to said Tucker.
    The petition further alleged that “said Nathan Tucker promised and agreed to and with the said plaintiffs, that if they would wait for their pay and fees for such labor, as such attorneys in said action, until the final judgment and decree of the court therein, and until the accounts in said action were reduced to money, that then these plaintiffs should have their fees for such labor out of the money which would be adjudged to the said Nathan Tucker as his share and proportion of said firm accounts in said action ; all of which said plaintiffs then promised and agreed to do, and that in pursuance of said agreement, no part of the fees for such services, as aforesaid, has been paid to these plaintiffs, nor have they sought or attempted to secure the same, and that they have so acted and labored aud waited, as aforesaid, upon the faith and credit of said agreement. That said Nathan Tucker, since the commencement of said action for him, as aforesaid, and since his said agree-' ment with’these plaintiffs, has become insolvent, and has no property subject to execution. That after said services were so rendered by said plaintiffs, as aforesaid, for said Nathan Tucker, and after the final decree of said court in said action, the said Nathan Tucker, by certain written oi’ders, pretended and attempted to transfer all of the moneys secured to him by said decree, and which is yet in the hands of said receiver, to said defendants, Robert P. Halliday, and certain of the same funds to said defendants, the firm of Rowland & Talmage, which is composed of Lewis H. Rowland and M. Burr Talmage. That the said defendants, each and all of them, at the time said transfers were made, well knew of the services of said plaintiffs in said action for said Nathan Tucker, as aforesaid,' and that said transfers were so made to secure claims which were contracted upon the personal faith and credit of said Nathan Tucker, and not upon the faith and credit of the said fund in the'hands of said receiver. That said William 0. Mauson refuses to pay any of said parties or to apply said money, so in his hands, as aforesaid, anywhere without an order of the court as to how the same shall be applied. Wherefore plaintiffs pray for an order that said receiver be required to pay over to the plaintiffs out of said fund decreed to Tucker the sum of $145 and costs.”
    To this petition Halliday demurred and his demurrer was sustained and the petition dismissed. On error the district court affirmed the judgment.
    This petition is prosecuted to reverse said judgment.
    ■ Olds § Dickey, for plaintiffs in error.

      T. H. Dcdrymple, for defendants in error.
   Boynton, J.

The relief sought in the present case is against the receiver. He is in possession of the fund which is the. subject of the controversy, and which the plaintiffs claim belongs to them in virtue of their agreement with Tucker. The court of common pleas sustained a demurrer to the petition and dismissed the action for want of the statement of sufficient facts to entitle the plaintiffs to the relief prayed for, and the district court affirmed the judgment. Granting the facts stated in the petition to be sufficient to warrant the court in ordering a reasonable compensation tobe paid to the plaintiffs out of the fund iu the hands of the receiver, it is evident that the plaintiffs have misconceived the form of the remedy. The equity of the plaintiffs in the fond decreed to Tucker, which the court might have charged upon such fund, in the action iu which the services were rendered, does not lay the foundation for au independent action against the receiver. The plaintiffs have no such fixed interest in the fund, or lien upon it, as would enable them to follow it into the hands of distributees, but they sustain such a relation to it by reason of the services rendered in securing it, that a court of equity, in the exercise of its power over the fund, would be fully warranted in directing a reasonable compensation to be paid out of it. Cases not infrequently arise, in equity, where the court would be as fully warranted in decreeing compensation to be made out of the fund to be distributed to the attorneys through whose services the same was secured, as to a receiver by whom it has been preserved.

The facts stated in the petition would seem, within the principle adjudged in well considered cases, to fully justify the court in making the compensation to the plaintiffs a charge upon Tucker’s share of the fund in the hands of the receiver. Ex parte Plitt, 2 Wall. Jr. 453.

The interest of Halliday, and of Rowland & Talmage, in the fund, was acquired after final decree. There right, therefore, rises no higher than that of Tucker. They stand in his shoes, and take only such part of the fund as he would have received, had no assignment of his interest been made.

But the compensation of the plaintiffs should be worked out by application to the court holding the fund, and in which the services were rendered. The fund is in the custody of the law, aud under the exclusive control of the court appointing the receiver, any unauthorized interference with which would constitute contempt. 2 Story’s Eq. Jur. § 829.

No principle is better settled, than that a right asserted against a receiver, to property rightfully in his hands, where the right to .sue in an independent action is not given by statute, must be worked out, either in the action in which the receiver was appointed, or in an independent action brought only upon leave of the court by which the apr pointment was made. Randfield v. Randfield, 3 De Gex, F. & J. 766; Russell v. The East Anglican Railway Company, 3 Mac. & G. 104; Hill v. Parker, 111 Mass. 508. Without such leave such .action can not be brought.

If an action against a receiver could be brought without leave, it might be brought in any county of the state where the defendant could be summoned, the prosecution of the action in which the receiver was appointed suspended, and the distribution of the fund delayed, until the final determination of the action against the receiver in a court of last resort. A court of equity having control of the fund never permits any interference therewith which would lead to such result. The plaintiffs should have made an application to the court whose receiver held the fund for an order for their compensation therefrom.

Judgment affirmed.

Johnson, J.

While I agree with the syllabus, and to the general propositions contained in the opinion, I object to disposing of the case upon the grounds stated.

The question submitted by the demurrer and ably argued by counsel, was, do the facts stated in the petition give the plaintiffs a right in equity to payment of reasonable counsel fees out of the funds in the hands of the receiver ?

If this question was answered affirmatively, the judgments below should be reversed; and if in the negative, they should be affirmed.

This court answers it substantially in the affirmative,.and yet affirms the judgment of the court below which answered it in the negative. The ground of this affirmance is, that plaintiffs had mistaken their remedy, and could not, without leave, bring this independent action. From this action I respectfully dissent.

I agree that a receiver can not be sued in an independent action, without leave of the court appointing him, except expressly authorized by statute to do so ; and that the general rule is, that claims against him must be worked out in the action in which such receiver was appointed, or by an action brought by leave of the court in which the case is pending, wherein the receiver is acting or was appointed.

There is nothing in this record to show that such leave was not granted. After judgment it will be presumed that such was the fact.

But let us assume that such leave was not granted. This action was brought in the court in which the action was peuding, wherein the receiver was appointed. If there was any contempt of that court it did not choose to notice it. If there was any want of previous leave to sue, it was cured by that court in hearing and deciding the case upon its merits without objection. Neither did the receiver, against whom the remedy is sought; nor did Tucker, whose money was the subject of litigation; nor Hailiday, the only litigating claimant to this fund; nor counsel, who have filed an able printed argument, make the objection, now first, raised sua sponte by this court, that plaintiffs have mistaken their remedy.

This was a preliminary objection that should have been taken in the court -where the action was brought. It was not made there; neither do counsel make it here. It is true that under the general demurrer the question might have been made, but we may rightfully assume that it was not, as the printed argument is solely upon the merits of the case.

As was said by Chancellor Kent in Underhill v. Van Cortlandt, 2 John Ch. 369-70: “It would be an "abuse of justice, if the defendants were to be permitted to protract a litigation to this extent, and with the expense that has attended this suit, and then at the final hearing interpose with this preliminary objection.” The present suit was brought over five years ago, and now the plaintiffs are sent out of court to begin anew, because the form of the remedy was mistaken, or because leave was not first obtained.

When the court has jurisdiction of the subject-matter as the court below had, it was competent for the parties to have submitted the question in writing, without any pleadings, and without regard to forms, and had the judgment of the court on the merits. Civil Code, § 495. It was equally competent for these parties to waive the objection that plaintiff's had mistaken their remedy, or that the suit was brought without leave, and the argument on file, as well as the record, show they have done so. At this stage of the case it should be disposed of on its merits.

These views are supported by numerous decided cases. See Culver v. Rodgers, 33 Ohio St. 537 and cases cited; Miller v. Longacre, 26 Ohio St. 298; Nicholson v. Pim, 5 Ohio St. 25; Rees v. Smith, l Ohio, 124.


author: Johnson, J.

text:
    Messenger v. Bliss.
    1. By the proviso of the act of 1872 (f.9 Ohio L. 174) the appointment, by the probate court, of a guardian for an imbecile, is to be regarded only as prince facie evidence of imbecility. The fact as to such imbecility may be inquired into by the alleged imbecile in an action brought by him, to enjoin the guardian from interfering with the control and management of his property.
    2. In the revision of this statute (75 Ohio L. 927, § 49) this proviso was omitted, but the act of 1872 was not in terms repealed. This omission, though the act of 1872 be regarded as repealed by implication, does not give an appointment made under the original act, a more conclusive effect than it had before such revision.
    Error to the District Court of Portage county.
    The action ivas brought in the count of common pleas, by Bliss, to enjoin Messenger from acting as his guardian, and from any further control, interference, or management of his property. The petition also prays for general relief.
    The answer takes issue with the petition, and, on appeal to the district court, a special finding of facts was had, upon which that court rendered judgment for the plaintiff; to reverse which,.this action is prosecuted.
    The special findings present the legal questions, and areas follows:
    “ This cause came on to be heard on the petition, answer, record, exhibits, and testimony produced in open court, and was argued by counsel. On consideration whereof, the court, on application by defendant, find the following statement of facts: On the 8th day of November, 1877, Worcester Bliss was then, and fora long time prior had been a resident of Windham, in Portage county, Ohio, and over eighty years of age; on evidence produced, to the satisfaction of the probate court of said county, on a hearing had in said court, he was found and adjudged to be an imbecile, and the defendant, William A. Messenger, was appointed a guardian over the person and property of said Bliss; and said Messenger appeared and gave legal bond for the faithful performance of said trust, which was approved by said probate court, and letters of guardianship were duly issued to said Messenger, who entered upon the duties imposed by said appointment, and still continues to act as such guardian.
    “That said hearing and appointment were entirely without notice to said Bliss, and he was not present himself, or by attorney, and did not know of said hearing or appointment for some days thereafter. That on the 16th day of November, 1877, the said Worcester Bliss, by his attorney, appeared in the said probate court and tiled his motion to set aside said adjudication and appointment of a guardian in his absence, for the reason that ‘ the grounds set forth by the applicants for said appointment were not true.
    “ That a full hearing was had in said court, on notice to all the parties, said Bliss and his counsel being present, and said motion for removal was overruled, and said guardianship was ordered to be continued, and said Bliss gave notice of his intention to appeal to the Court of Common Pleas of Portage county.
    “ Said Bliss also tendered his bill of exceptions in said probate court, which was .signed, filed, and ordered to be made part of the record.
    “ That said motion was duly appealed to said common pleas court, and there dismissed on the ground that it was not appealable. Said Bliss also took said case to the court of common pleas on error, and was duly heard therein, and the judgment of said probate court was affirmed.
    “ The court further find, that on the 28d day of November, 1878, the said Worcester Bliss again filed his motion in said probate court that said court should order that said guardianship terminate, on the ground that said Bliss had no notice of said application for appointment on the 8th day of November, 1877, and also on the further ground, that at the time of said application said Bliss was not an imbecile, and was then of sound mind, and that no reason existed for the appointment of said Messenger as guardian for said Bliss; and also that said Bliss is now fully competent to transact his own business and preserve his property, and no reason now exists for the continuation of said guardianship. Said motion was duly and fully heard in said probate court, and on the 22d day of April, 1879, said motion was dismissed, said Bliss found, by said probate court, still to be an imbecile, and said guardianship continued.
    “ On the 28th day of December, 1878, said Bliss filed his petition in this case against said Messenger, in the court of common pleas of said county, the object and prayer of which will appear in. this record.
    “ On consideration whereof, the court find that for the reason that said Bliss had no notice of said hearing and proceeding for the appointment of said guardian on the 8th day of November, 1877, the said appointment was void, and of no legal force or effect whatever. That said Messenger is not now, and never has been, the legal guardian of said Worcester Bliss.
    “ The court further find, that at the time of said appointment said Worcester Bliss was not an imbecile, nor has he, at any time since, been an imbecile, and that he has not squandered any of his property.
    “It is therefore ordered, adjudged, and decreed that said appointment of said Messenger as guardian for said Bliss by said probate court be taken and held for naught, and said William A. Messenger be forever enjoined and restrained from further acting as such guardian, and that he also be perpetually enjoined and restrained from further controlling, managing, or in any way interfering with the property or rights of said Bliss; and that said Messenger pay the costs of this proceeding, for which judgment is hereby rendered against him, and execution awarded. To all of which said defendant excepts, and thereupon said defendant filed his motion for a new trial and rehearing, which was overruled by the court, and a new trial and rehearing refused, to which defendant also excepts; and it is ordered and adjudged by the court that defendant pay the costs of this suit, to which he also excepts, and this cause is remanded to the court of common picas, for the purpose of carrying this decree into execution.”
    To reverse this judgment, the errors assigned 'are: In holding that Messenger was not the legal guardian, and in holding his appointment void upou the facts stated, and in granting the relief asked.

      Nichols § Stuart, for plaintiff in error.

      P. B. Conant, for defendant in error.
   Johnson, J.

The statute under which the appointment was made is as follows: “ That the authority to appoint guardians conferred in section forty-one of the ‘ act to provide for a uniform government and better regulation of lunatic asylums of this slate, and the caro of idiots and the insane,’ passed April 7, 1856, shall be construed to extend to and authorize the appointment of guardians for imbeciles in the manner and under the restrictions and limitations provided therein ; provided that such appointment shall be regarded only as prima facie evidence of imbecility.” 69 Ohio L. 174.

By section 41, above referred to (1 S. & C. 847), the probate judge, upon satisfactory proof that a resident of the county is an idiot or lunatic, and that it is necessary in order to preserve his property, shall appoint a guardian, who, by virtue of his appointment, shall also be the guardian of his minor children, unless the court shall appoint another.

By section 45 of the same act, all laws relating to guardians of minors, and pointing out their duties, rights, and liabilities in force for the time being, are made applicable to guardians of idiots and lunatics.

By section 51, whenever the probate judge shall be satisfied that a lunatic is restored to reason, or that letters have been improperly issued, he may terminate such guardianship

The act of 1872 extends the power of appointment of guardians for idiots and lunatics to imbeciles, to be exercised in the same manner and under the same limitations and restrictions as provided by section 41 for the former.

To authorize its exercise, it must appear to the satisfaction of the probate judge :

1. That he is an imbecile.

2. That he is a resident of the county having a legal settlement in some township thereof; and,

8. That such appointment is necessary for the preservation of his property.

When made, the appointment is declared to be only prima fade evidence of imbecility.

Notice the mandatory character of this proviso: Such appointment shall be regarded only as prima fade evidence of imbecility.”

No such limitation is imposed, in case of the appointment of guardians of minors, idiots, or lunatics.

We must give force and effect to this proviso. It can neither be ignored nor construed away.

If we say that such an appointment is equally conclusive, or has the same force and effect as that of a minor, idiot, or lunatic, we treat the act of 1872 as if it contained no proviso. If we construe an appointment made under it to be conclusive in all cases where not directly attacked, we construe it away. This proviso is mandatory, and as broad as words can make it. It is a command to all courts and persons to regard such an appointment as prima fade evidence only of the fact of imbecility. In whatever court or cause this fact becomes material to the issue, such appointment can only be regarded as prima fade evidence of imbecility.

If, as claimed by plaintiff in error, such an appointment is conclusive on the alleged imbecile, except in a direct proceeding to reverse or set aside, then these words have no meaning, for that is the most that can be claimed of any judicial proceeding.

There are cogent reasons of public policy in support of this construction.

That infirmity of mind, termed imbecility, as' distinguished from idiocy or lunacy, is usually incident to extreme age, and is generally tbe result of a gradual decay of tbe mental faculties.

When the mind becomes so weak as to render the person incapable of managing and preserving his property, this power is conferred upon the probate'court.

The lino which marks the boundary between capacity and imbecility is difficult to defiue.

To adjudge a citizen in his old age, who had acquired property needing preservation, incapable of continuing to exercise his natural right to manage the same, and to have the custody and control of his minor children, and make that judgment conclusive, would be to deprive him, without due process of law, of his most sacred rights.

By giving to this proviso full effect, such an appointment is only prima, facie evidence of imbecility, and the question is open for the determination of the actual fact in any court where the question becomes material.

This view of the statute renders it unnecessary to consider the force and effect of such appointments by probate courts, in case of minors, idiots, and lunatics, or of judgments generally of that court.

It is urged that the appointment in this case is void, because made without notice to Bliss. The construction we give to this statute is to the effect that if due notice had been given, the appointment would not be conclusive, but might be controverted. Hence the effect of the want of such notice becomes immaterial.'

II. The act of 1872 was incorporated with said section 41 into section 49, chapter 3, 75 Ohio L. 927, and in its new form, with the original proviso omitted, became part of the Revised Statutes, section 6302.

By seetiou 7437, clause 842, this act of 1872 was expressly repealed.

It is claimed that the act of 1878, which was in force ■when this case was tried, repealed the act of 1872, by implication, and therefore the statute of 1878, which did not contain this proviso, governed in determining the effect to-be given to the appointment made when the proviso was in force.

In other words, the claim is, the appointment, which when made was only prima facie evidence of imbecility,, becomes, by a revision of the statutes upon the subject,, which omits the proviso, conclusive evidence of that fact,, unless the appointment is directly impeached by proceedings to reverse or set the same aside.

The argument is, that it is competent for the legislature-to change the rules of evidence, and that by omitting this proviso, the common-law rule as to the conclusiveness of records as evidence, attached to this record, which, when made, was inconclusive; that it converted a record which was only prima facie evidence of imbecility into one that-concluded all parties.

This argument is ingenious, but unsound. The appointment, when made, was, in its nature, temporary, for the preservation of property. The statute reserved to the owner the right to show that he was not an imbecile, and thereby to restore himself to the rightful custody and management of his property.

The power with which the guardian was clothed was subject to this valuable personal right, which has been regarded of so high a nature as to find protection in the bill of rights. A repeal of the proviso could not, in the-nature of things, clothe the guardian with a better title than he had when appointed.

In such a case, where manifest injustice would be done, courts will construe even remedial statutes as prospective-only in their operation, unless the intent to make them retroactive is clearly expressed. A fortiori, is this rule applicable in case of a repeal by implication.

So far, I have assumed that the act of 1878 did, by implication, repeal the proviso, but this may well be doubted.. The re-enactment, in 1878, of the act of 1872, omitting the proviso, without an express repeal of the latter act, did. not ¡necessarily repeal the proviso. It was not so inconsistent with the new act but that both might well stand.

Speaking for myself only, I think that the district court might properly have regarded the act of 1878, with the proviso of the act of 1872 attached, as the law then in force. Since then the act of 1872 has been expressly repealed, but that repeal does not affect this case.

III. With this construction of the statute, and upon the facts found, is the plaintiff entitled to the relief granted ?

The district court found that he was not and had not been imbecile. We have seen this question was open to inquiry, and that court has found as a fact that the probate judge erred in finding otherwise. He doubtless acted in good faith, and upon evidence satisfactory to his mind. His authority to appoint did not depend upon the fact of imbecility, but upon his being satisfied that such was the fact.

Aside from the question made by counsel, that the failure to give notice rendered the appointment void, it would clearly be voidable only when the probate judge was satisfied upon a hearing that Bliss was an imbecile, even though in fact he was not.

What, then, is the proper mode of obtaining relief against such an erroneous judgment ?

This inquiry is confined to such an appointment, made under the act of 1872. '

It is neither necessary nor proper to consider generally the effect of such orders made by probate judges in the appointment of guardians of minors, idiots, and lunatics, or •of executors and administrator’s.

By section 51 of the act of Í856 (1 S. & C. 849), power is given the probate judge to terminate such guardianships, when any lunatic is restored to reason, or where letters have been improperly issued.

Bliss sought to have his guardian’s letters revoked on the latter ground, but his motion was overruled. From this he appealed, but his appeal was dismissed, because there was no appeal in such a case.

If we are correct in holding that such an appointment is only prima facie evidence of imbecility, and that that question is open to inquiry in any competent court when the fact is material to the issue, it follows that Bliss may ■controvert the finding of the probate judge in any action he, as a man of sound mind, has the right to prosecute or to defend.

That finding and order is only prima facie proof of a fact, which may be overcome by his showing the fact to be ■otherwise.

This being so, it only remains to consider whether he has made a case for equitable relief.

It is admitted by the pleadings that Bliss was the owner ■of a farm, with farm implements and stock; that Messen•ger has taken possession of all real and personal property .against his will, and excluded him from the control of his affairs, and utterly refused to give up said property.

We have then a case of two claimants to the custody ■and control of this property ; the one in possession under ■color of authority; the other the real owner and entitled to the custody and control, demanding to be allowed to manage his own affairs.

The ■ letters of guardianship, upon their face, make a prima facie justification only of these continuous acts of interference with the lawful custody and management by Bliss of his own property.

Under this colorable authority defendant refuses to plaintiff' the right to the possession and management of his property, and assumes to act as his legal guardian.

The fact is, as established by the district court, that plaintiff has the right to manage and control his own affairs.

Will equity interfere and declare said guardianship unauthorized, and enjoin the guardian from further interference ?

The right to exercise such a fiduciary relation as that of guardian over a miuor, idiot, or lunatic, is one falling within the cognizance of a court of equity. The question is here directly presented : Does this trust relation exist ? Equity has the same power to declare its non-existence, where exercised under color of authority, as its existence. The appointment not being conclusive of the relation, and the answer claiming to exercise all the powers of a guardian, we think it was competent for the court below, in this direct proceeding, to determine the fact.

By so doing, a multiplicity of suits is avoided, and the alleged imbecile is restored to his rightful status.

It is proper to add' that, in our judgment, the question whether this appointment can be collaterally impeached does not arise, as this is an action directly attacking the order of appointment. The ground upon which this attack is sustained is, that by the express terras of the statute, such order is only prima facie evidence of imbecility, and therefore does not preclude the alleged imbecile from controverting the order in any case it becomes material that he should do so.

. Finally, it is urged that the appearance of Bliss before the probate court, with motions to set aside said appointment, was an appearance in the case, and a "waiver of any defect in making such appointment without notice.

In our view, an appointment, after due notice, is only prima facie evidence of imbecility.

No subsequent proceedings before the probate court to set aside the appointment can give the original appointment a greater force than the statute gives it.

Judgment affirmed,.


author: Boynton, J.

text:
    Bailey v. Hughes.
    The plaintiff and defendant were the owners of adjoining farms, between which there was a disputed boundary line. The plaintiff alleged, by his petition, that he was the owner in fee and in possession of his said farm, describing the same, and that the same was bounded on the north by a designated line, up to which he was in possession, and that the defendant claimed to own a parcel of said land lying immediately south thereof. The defendant demurred to the petition for want of sufficient facts to constitute a cause of action. Held, that under the facts stated, the action was well brought under section 557 of the code of civil procedure.
    Error to tbe District Court of Pike county.
    The action below was brought by tbe plaintiff against tbe defendant, to quiet his title to a small strip of land lying near tbe line dividing tbe farm of the plaintiff from that of the defendant. He alleged, by bis petition, that he was the owner in fee simple and in possession of said strip, and that the defendant set up an adverse ownership to the same. The tract of land comprising the two farms at an early date was owned in common by several persons, by whom it was amicably divided into two parts by a line commencing at a gum stump, “ running thence north eighty-nine degrees, west five hundred and seventy rods to two red oaks and a sugar tree standing on the east bank of the Scioto river.” The north division of said tract was denominated the “Vanmeter farm,” and the south division the “ Harness farm.” The Vanmeter farm was purchased by the defendant Hughes about 1860, and the Harness tract was purchased by the plaintiff in 1865. The plaintiff alleged, by his petition, that for the greater part of thirty years prior to his purchase of the Harness tract, an old division fence stood on said dividing line, up to which, on each side, said lands were cultivated by their respective occupants. He then, among other things, alleged that, ■“ until said Hughes purchased the said Vanmeter tract, there was no controversy whatever as to said fence being the true-division line between said two tracts. That in 1861, and shortly after the said Hughes purchased the said Vanmeter tract, he removed said division fence from where it had stood for so many years, and built a new fence along a line-which he claimed as the true division line between the two tracts. Said new line, upon which said fence was built, commenced at a point on the bank of the Scioto river between two or three rods below, or south of where said old fence had stood, and ran from there acz-oss the bottom land,, approaching the old line gradually until it struck and finally crossed the line where said old fence had stood. When the plaintiff made his said purchase and took possession of the said Harness tract, he found the said Hughes-in possession of said lands down to said new fence, and claiming that to be the true division line between the said two tracts.
    “Plaintiff thereupon commenced in this couz-t an action against the said defendant Hughes to recover possession of said lands lying between where the said Hughes had built said new line fence and the line where the said old division fence had stood. And such proceedings were had in such action that, upon the final trial thereof at the April term,. 1870, of this court, the said Hughes succeeded in establishing to the satisfaction of the court and jury that said new fence had been built along and upon a line which had been run, staked off, and agreed upon as the true division line between the said Vanmeter and Harness ti-acts, by and between the said Hughes and the owner-s at the time of the said Harness tract, and that said parties had, up to and until the plaintiff became the purchaser of the said Harness tz’act, held, occupied, cultivated up to, and acquiesced in and treated said new fence as the true division line between said two tracts, and that by reason thereof the plaintiff’ failed in his said action. He avez-s, that by virtue-of said adjudication, the line upon which said new fence-was built wrns established as the true division line between the said tracts now owned by him and Hughes, respectively,. and he has accordingly acquiesced in and treated that as the true line, and has continued ever since he became the owner of said tract to hold and cultivate up to said line. He was not aware when he became the purchaser of said Harness tract that said new line had been agreed upon between the áaid Hughes and those under whom the plaintiff holds, and believing that where the old fence stood was the division line between the two tracts, he commenced and prosecuted said action, but since said trial is willing and now here offers to abide by said new fence as the true dividing line, and occupy and hold up to the same.
    “ He avers, however, that the said Hughes refuses to be bound by said line, as agreed upon by him and the Harness heirs, but threatens to take possession and occupy lands below, and south of said line, where said new fence stood. He avers further, that a dispute has arisen between the plaintiff and defendant as to where said new fence stood, or rather where said agreed line was staked off. Defendant now claims and insists that the lino where said new fence stood, or rather where said new line was run, is about two rods, at certain points along the line, south of where said fence was in fact established, and is continually encroaching upon the lands of the plaintiff, and disturbing, and threatening to disturb, his peaceable and quiet possession thereof. He says that said line, upon which said new fence was built, -was run and staked out by one-• Percy, who is now deceased. That the fence built originally upon said line, so run out and staked off, lias been washed away by high waters until there is nothing but an imaginary line of division between the lands of the plaintiff and defendant. Plaintiff says he is in possession of the lands up to where said new fence stood, and not north of that. That the lands along said line, south of the turnpike road, are valuable for agricultural purposes. Plaintiff' avers that he has plowed the ground and planted corn on his side of said line and up to the same, and that the defendant, in the absence of the plaintiff', crosses said line and plows up a portion of the ground and the com so planted by tbe plaintiff. • In consequence of said acts of the defendant, and his threats to persist in the same, the plaintiff avers that he is disturbed in the possession of a portion of his said land, and in the quiet enjoyment thereof.”
    Prayer to be quieted in his title and possession, and for alternative relief. A demurrer to the petition was sustained by the district court, and the petition dismissed. This action of the district court is assigned for error.

      O. F. Moore, with whom was George F>. Cole, for plaintiff in error.

      W. A. Hutchins, for defendant in error.
   Boynton, J.

The order of the court sustaining the demurrer to the petition, and its judgment dismissing the action, were erroneous. It is very obvious that the plaintiff, among other things, sought to set out such facts as would lead a court of equity to take jurisdiction and adjust a disputed boundary line between the two farms. But assuming the facts stated to be insufficient to warrant the court in giving such relief, it still appears, we think, from a fair construction of the language of the petition, that the plaintiff is in possession of the parcel of land in dispute, alleging title thereto in himself, and that the defendant sets up and claims an adverse estate or interest therein.

The petition states, that ever since the plaintiff -became the owner of said Harness tract, he has continued to hold and cultivate up to the agreed new line, and that the new line commenced at a point on the Scioto river, between two and three rods below or south of where the old fence stood —the old fence, before its removal or destruction, standing on the old line — and ran from there across the bottom lauds, approaching the old line gradually, until it struck, and finally crossed, the line where tbe old fence stood. Taking the allegations as a whole, it sufficiently appears, that the plaintiff alleged title and possession in himself up ■to the point where he claimed the new line to be, and that the defendant asserted a claim to land south of that line, so in the plaintiff’s possession.

This, under section 557 of the civil code (67 Ohio L. 116), was sufficient to entitle the plaintiff to an inquiry into the facts alleged, if they were controverted, and if not, to a judgment quieting his title against the adverse claim of the defendant. It is not, however, surprising that the court below fell into an error in endeavoring to ascertain the ground upon which the plaintiff sought to recover. The petition is very inartificially drawn, undertaking, as it does, to state several grounds of recovery as one cause of action, and not only stating them confusedly, but intermingling matters of evidence with matters of fact. Such pleading is calculated to embarrass the court in determining the issue, and often leads to prolonged litigation, and unnecessary expense. Had the court, of its own motion, required the plaintiff to state separately his several causes of action, its order would have been perfectly proper, and the delay already undergone would probably have been avoided.

Judgment reversed and cause remanded.


author: Okey, J.-

text:
    Price v. The State.
    1. An indictment in which it is averred that P. assaulted and purposely-wounded B., with the intent to kill him, of which wound B. died, sufficiently charges that P. purposely killed B.
    2. A court of common pleas, held by a single judge, has power, under the act of 1875 (75 Ohio L. 47, § 8), to appoint an attorney to assist the prosecuting attorney in the trial of any case pending in such court; and the rule is not different in Hamilton county, although the prosecuting attorney and an assistant prosecuting attorney appointed under section 9 of the same act, be present and participate in such trial.
    8. The court should not appoint an attorney, under said section 8, to assist in the trial of one charged with crime, merely because the prosecuting attorney, the injured person, or his friends, request that such appointment be made, nor unless, in the opinion of the court, the public interest requires such appointment; but, where such appointment has been made, it will be presumed, in the absence of any showing to the contrary, that it was properly made.
    Motion for leave to file a petition in error to reverse .the judgment of the Court of Common Pleas of Hamilton county.
    On June 17, 1879, an indictment was returned to the Court of Common Pleas of Hamilton county, indorsed a true bill, in which indictment it is charged as follows :
    “ That George Price, on the 30th day of May, in the year 1879, with force and arms, at the couuty of Hamilton aforesaid, in and upon one Yillie Black, then and there being, did unlawfully, willfully, purposely, and feloniously, and of deliberate and premeditated malice, make an assault in a menacing manner, with intent then and there him, the said Yillie Black, unlawfully, willfully, purposely, and feloniously, and of deliberate and premeditated malice, to kill and murder; and that the said George Price, a certain pistol then and there charged with gunpowder and one leaden bullet, which said pistol, he, the said George Price, then and there in his hand had and held, then and there unlawfully, willfully, purposely, feloniously, and of deliberate and premeditated malice, did discharge and shoot off, with the intent aforesaid ; and that the said George Price, with the leaden bullet aforesaid, out of the pistol aforesaid, by force of the gunpowder aforesaid, by the said George Price then and there discharged and shot off as aforesaid, him, the said Yillie Black, in and upon the back of him, the said Yillie Black, then and there unlawfully, willfully, purposely, feloniously, and of deliberate and premeditated malice, did strike, penetrate, and wound, with the intent aforesaid, thereby then and there giving to him, the said Yillie Black, with the leaden bullet aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid, by the said George Price, in and upon the back of him, the said Yillie Black, one mortal wound of the depth of three inches and of the breadth of half an inch, of which said mortal wound, he, the said Viilie Black, from the said 30th day of May,, in the year aforesaid, until the 3d day of June, in the year aforesaid, in the city of Covington, in the county of Kenton, State of Kentucky, did languish, and languishing did live, on which said 3d day of June, in the year aforesaid, the said Viilie Black, in the city of Covington, in the county of Kenton, State of Kentucky, of the said mortal wound,, died. And so the jurors aforesaid, upon their oaths and affirmations aforesaid, do say, that the said George Brice, him, the said Viilie Black, in the manner and by the means aforefaid, unlawfully, willfully, purposely, feloniously, and of deliberate and premeditated malice, did kill and murder,, contrary to the form of the statute,” etc.
    The indictment was found under the act of 1877 (74 Ohio-L. 244, § 1; Rev. Stat. § 6808), which provides that, “ whoever purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate any rape, arson, robbery, or burglary, kills another, is guilty of murder in the first degree,, and shall suffer death.”
    The defendant pleaded not guilty, and at his request the court appointed E. A. Guthrie and Walter Granger as hi.s counsel.
    The trial commenced December 8th, and progressed, from day to day, until December 17,1879, when a verdict was rendered finding the prisoner guilty of murder in the-first degree, and he was thereupon sentenced to be executed on May 28, 1880.
    In January, 1879, the judges of the Court of Common Bleas of Hamilton county, in joint session, appointed Miller Outcalt assistant prosecuting attorney for that county. The statute relating to assistants of prosecuting attorneys, passed in 1877, was so amended in 1878 (75 Ohio L. 47), as to read as follows:
    “ Sec. 8. The court of common pleas or district court may, whenever it is of the opinion that the public interest ■requires it, appoint an attorney to assist the prosecuting attorney in the trial of any case pending in such, court, and the county commissioners shall pay such assistant such ■compensation for his services as the court approves, and to them seems just and proper.”
    Section 9. “ In counties containing a population greater than one hundred thousand, the judges of the court of common pleas may appoint an assistant prosecuting attorney, at a yearly salary, not exceeding fifteen hundred dollars, to be fixed by the judges making such appointment; and said judges of the court of common pleas may, from time to time, appoint such special assistants, to aid the prosecuting attorney, as in their opinion the public business may require, which special assistants shall be paid out of the treasury of the county, on the warrant of the county auditor, such sum as the court may approve and order.” R. S. §§ 7196, 7197.
    Section 9 applies to Hamilton county.
    After the trial had commenced, Charles H. Blackburn was, on motion of S. H. Drew, prosecuting attorney, appointed by Judge Longworth, who presided at the trial, to assist in the trial of the case. To this the prisoner excepted. Blackburn assisted Drew and Outcalt in the examination of witnesses and argument to the jury.

      E. A. Guthrie, in support of the motion.

      George K. Nash, Attorney-General, and S. H. Drew, Prosecuti ng Attorney, contra.

   Okey, J.-

The questions presented have received that consideration which was demanded in view of the sentence in the court below. No part of the evidence or charge to the jury is before us. The reversal is sought upon two grounds.

It is objected, that the indictment contains no averment that the prisoner killed Black purposely. But it is charged that, with intent to kill him, the prisoner gave him a wound of which he died. As stated by Mcllvaino, C. J., in Rufer v. The State, 25 Ohio St. 464, 468, “It is sufficient that the facts constituting the crime be stated with certainty to a certain intent in general.” And as held in Loeffner v. The State, 10 Ohio St. 598, “ the intent or purpose to kill, which constitutes an essential element in the crime of murder, under the statute of this state, and an averment of which is necessary in an indictment for murder, need not be averred in the identical words of the statute.” We hold this indictment to be sufficient, and in so holding we are fully supported by the principle upon which Rufer’s and Loeffner’s cases were decided.

It is said that the court erred in appointing Charles H. Blackburn to assist in the prosecution. Where such appointment is made in the absence of statutory provision, the objection finds some support from Meister v. The People, 31 Mich. 99, and cases there cited; see also Wilson v. The State, 16 Indiana, 392; though the weight of authority seems to favor the existence of inherent power in the court to appoint such assistant. Dukes v. The State, 11 Indiana, 557; Tesh. v. Com., 4 Dana, 522; The State v. Bartlett, 55 Maine, 200; Staggs v. The State, 3 Humph. 372; Gillespie’s case, 3 Yerg. 325; Jarnagin v. The State, 10 Yerg. 529; Hopper v. Com., 6 Grat. 684. But here we are relieved of all difficulty on the subject, for section 8 of the act of 1878, already quoted, applies to all counties in the state; a single judge in Hamilton county has the same power tO' hold court and make such appointment that is possessed by common pleas judges in other parts of the state; and this appointment may fairly be regarded as having been made under that section.

• We are unwilling to say that the prosecuting attorney, the injured person, or his friends, may require the coui’t to make such appointment. On the contrary, the appointment should not be made in any case unless the due administration of justice requires it. But where the record is silent on the subject, we will presume that such appointment was properly made, as we will also presume, in the absence of any showing to the contrary, that the prosecution was conducted in a proper and not oppressive manner

Motion overruled.