author: Minshall, J.

text:
    Stewart v. Gordon et al.

      Correction of deed — Claim of mutual mistake — Proof required of mutuality of mistake — Reformation of instrument must conform to intention of both parties.

    1. In a suit to correct the description in a deed on the ground that by the mutual mistake of the parties, it includes land not intended to be sold and conveyed, the proof of the mutuality of the mistake must be clear and convincing, a mere preponderance is not sufficient.
    2. No reformation of an instrument can be made that does not conform to the intention of both parties ; the court can not by reformation make a new contract.
    3. Where the grantor is mistaken as to the side of a particular tract of land from which a given number of acres, in a rectangular form, are to be taken, but the grantee is not, the fact that the grant so made includes a house, both understood was not tp be included, is ground for a rescission of the grant, but not for a reformation of the deed.
    (Decided April 25, 1899.)
    Error to the Circuit Court of Paulding county.

      /Snook c& Wilcox, attorneys for plaintiff in error.

      W. F. Corbett, attorney for defendants in error.
   Minshall, J.

The action below was brought by the plaintiffs, Mary P. Gordon and her husband, against Joseph Stewart for the correction of a deed made by them to Stewart, April 18, 1895, on the ground that by the mutual mistake of the parties the description included land not purchased nor intended to be conveyed. The defendant denied that there was any mistake in the deed. The case was heard and decided in the common pleas court in favor of the plaintiff, and the defendant appealed to the circuit court, where it was heard upon the evidence and again decided in favor of the plaintiffs — on the filing, by leave of the court, of an amended petition, conforming, as claimed, the pleading to the facts proved. The entry of the court allowing the filing of an amended petition with its finding of facts is as follows:

“This cause coming for hearing was presented to the court on the pleadings and evidence, and the court on motion of the plaintiff, after the introduction of all the evidence in this case, granted the plaintiffs leave to forthwith amend their petition herein, to conform to the facts proved; and thereupon this cause was submitted to the court on the said amended petition, the answer of the defendant thereto, and the evidence, and was argued by counsel; and the court being fully advised in the premises, find the equities in favor of the plaintiffs.

And find that Mary P. Gordon, on the eighteenth of April, A. D. 1895, was the owner of that part of the west half of the southeast quarter of section two in township three north of range two east, in Paulding county, state of Ohio, lying north of the Maumee river.

That on or about the eighteenth day of April, A. D. 1895, the said plaintiffs, for a valuable consideration, bargained and sold the defendant the following described lands and tenements, to-wit:

The northwest quarter of the southeast quarter of said section two, and eleven acres off of the north side of that part of the southwest quarter of the southeast quarter of said section lying north of the Maumee river, exclusive of that part of said portion of said southwest quarter of said southeast quarter of said section, occupied by the residence of the plaintiff, and yard surrounding the same, and inclosed by the yard fence then surrounding’ and inclosing said residence and its surrounding grounds.

That said grounds surrounding and on which said residence of the plaintiff was situated, is more particularly described as follows, to-wit: Commencing at a point on the east line of the public highway, running north and south along the west line of said half section, as first above described, at a point about a hundred and eighty (180) feet south of the southwest corner of said northwest quarter of the southeast quarter of said section; running thence east one hundred and ninety feet; .thence south one hundred and twenty-seven feet; thence west two hundred feet, and thence north one hundred and thirty-six feet to the place of beginning-.

That in the contract and bargain of sale made by, and between the said plaintiffs and defendant, it was mutually understood and agreed that the said tract of land, on which the plaintiff’s said residence was situate should not b.e included in the land purchased of the plaintiffs by the defendant, and should not be included in the description of the real estate, included in the deed, to be made by the plaintiffs to the defendant for the lands purchased by him of them.

That the plaintiffs afterward, executed and delivered to the defendant, their deed as both they and defendant, thought and understood, conveying the lands above described.

That the defendant soon thereafter went into possession of said lands, except the said residence and grounds above described.

That by the mutual mistake of the plaintiffs and defendant, and through the mistake of the scrivener, who drew said deed, the description in said deed, was as follows, to-wit:

Situated in the township of Crane, county of Paulding, and state of Ohio, and known as being the northwest quarter of the southeast quarter of section number two town three, north, range two east, said county and state, and containing forty acres of land; also eleven acres of land described as follows:

Commencing at a point, eighty rods south of the center of section number two town three north, range two east, said county and state, which is said point of the beginning, running thence east eighty rods, thence south twenty-two rods, thence west eighty rods, thence north twenty-two rods, thence west eighty rods, thence north twenty-two rods to the place of beginning, and contains eleven acres of land, be the same more or less, and included the said tract of land, or parcel of land, on which the said residence of the plaintiffs is situate, and which by the terms of the contract of sale and purchase between the plaintiffs and defendant, was excluded from and not included in the land bargained for by the defendant and sold by the plaintiffs to the defendant.

That said deed is recorded on page 515, of volume 62 of the Deeds Records of Paulding county, Ohio.

That the plaintiffs are still the owners of the remainder of the whole tract out of which said eleven acres were to be taken.

That the plaintiffs on discovering the said mistake in the description in said deed, requested the defendant for a correction of the same, and requested a reconveyance of said residence parcel of land, and offered to convey to the defendant an additional and equal quantity adjacent to the land already conveyed to make the full eleven acres provided for in the contract between the plaintiffs and defendant, if defendant would correct said mistake, by a reconveyance of said reserved residence tract; but the defendant wholly refused, and still refuses so to do.

It is therefore ordered, adjudged and decreed by the court that the said deed of conveyance be so reformed, as to show a correct description of the said lands sold by the plaintiffs, bargained, sold and agreed to be conveyed to the defendant, and convey to the defendant, eleven acres of land of the north side of the southwest quarter of the southeast quarter of said section two aforesaid described as follows, to-wit:

Commencing at a point eighty rods south of the center of section two in township three north, range two east, in and of the state of Ohio, thence east-eighty rods, then south three hundred and ninety-four feet, thence west eleven hundred and thirty feet, thence north two hundred and fourteen feet, thence west one hundred and ninety feet, and thence north one hundred and eighty feet to the place of beginning.”

The defendant excepted to the finding of the court and made a motion for a new trial, which was overruled and judgment entered, correcting the deed according to the finding, and defendant excepted. He also took a bill'of exceptions which was made a part of the record setting forth all the evidence.

While this court is not required to weigh the evidence in a ease on error and, ordinarily will not do so, yet, where, as in this ease, relief is sought that can only be afforded upon clear and convincing proof, it will do so for the purpose of determining whether the proof was sufficient. Ford v. Osborne, 45 Ohio St., 1.

The evidence in this case fails to disclose that it was a mutual mistake; there was a mistake in this, that the plaintiff and her husband both testify that the eleven acres were to be taken off of the east side of the southwest quarter of the southeast quarter of the section named, and so as not to include the house; the defendant on the other hand testifies that it was to be taken off of the north side, whether it included the house or not. He was not certain at the time whether it included the house. Both parties agreed that whether taken from the east or north side, it was to be in the form of a rectangle. There was no treaty for anything else. The court, however, found with the defendant that it was to be from the north side, and that both parties mutually understood that it was not to include the house; and permitted the petition to be amended so as to support a finding that the eleven acres were to be taken from the north side so as not to include the house. In doing this a tract of eleven acres was described to be taken and deeded by the plaintiff from the north side to the defendant, not, however, in the form of a rectangle — this could not be done and include the required number of acres — but in an irregular form, the south line, instead of being a straight one, from east to west, is a brokén one, so drawn as to leave the house with its yard at the southwest corner, excluded. Instead of a tract of four sides he is given a tract of six sides. Was this a case for reformation? We think not. There was not a mutual mistake as to the precise land to be conveyed. The plaintiff thought it was to be taken from the east side so as not to include the house and lot; the defendant understood that it was to be taken from the north side; as to this the court found with him, but found that he understood that it was not to include the house. And then finding- that thi s could not be done so as to convey the requisite number of acres in the shape understood by both parties, decreed it to be conveyed from, a side, conforming to the understanding of one of the parties, and in a form different from the understanding of both. The doctrine on this subject is accurately stated by Bispham in his work on Equity, section 469. He says: UA person who seeks to rectify a deed on the ground of mistake must establish, in the clearest and most satisfactory manner, that the alleged intention, to which he desires it to be made conformable, continued concurrently, in the minds of all parties, down to the time of its execution; and also must be able to show exactly and precisely the form to which the deed ought to be brought.” He further adds that, “To reform a contract and enforce it in its new shape, calls for a much g-reater exercise of the power of a chancellor than simply to set the transaction aside. Reformation is a much more delicate remedy than rescission. .Hence, in order to justify a decree for a reformation in cases of pure mistake, it is necessary that the mistake should have been mutual.”

It is not competent for a court to determine the contract that should have beer made, and decree its performance. Parties must be left to make their own contracts. The most the court can do, in exercising the power of .reformation, is to clearly ascertain what the contract was, and to correct such mutual errors as have intervened in carrying it into execution. The evidence in the case would, doubtless, have warranted a rescission, had suit been brought for that purpose. It cannot, however, be given here, for ■ the plaintiffs have not asked for such relief, nor placed themselves in a position to be allowed such relief, by restoring, or offering to restore, the defendant to his former position. There was not a syllable of evidence offered by either side, that the eleven acres were to be described in the deed, as found by the court. Evidently the court thought that this should be done to prevent a failure of justice, without considering that the remedy was by rescission, instead of making a reformation that did not conform to the understanding of either party, at the time the contract was made.

Judgment reversed and petition below dismissed.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Browne, Assignee, v. Wallace, Assignee, et al.

      Appeal lies from probate to common pleas court — From judgment confirming sale of realty by assignee — Insolvency laws.

    From a judgment of a probate court, or court of insolvency, confirming a sale of real estate made by an assignee or trustee at private sale, under the insolvency laws of this state, an appeal lies to the court of common pleas.
    (Decided April 25, 1899.)
    Error to the Circuit Court of Hamilton county.
    James B. Wallace, assignee of the Norwood Park Company, instituted proceedings in the court of .insolvency in Hamilton county to sell real estate, and an order was made to sell at private sale. An offer to purchase the real estate at a certain price and upon certain terms was made to the assignee and he accepted the same, made his report to the court and the court confirmed the sale. ^Thereupon a creditor appealed from the judgment of confirmation to the court of common pleas, and in that court a motion was made and sustained to dismiss the appeal for the reason that “an appeal does nor lie from an order confirming a sale.” The creditor filed his petition in the circuit court, seeking to reverse the judgment of dismissal, but the circuit court affirmed the judgment. Thereupon the creditor filed his petition in error in this court, seeking to. reverse the judgments of both the circuit and common pleas courts.

      F. TP. Browne, for plaintiff in error.

      Charles B. Wilby and Gustavus B. Wald, for defendants in error.
   By the Court.

It was held by this court in the case of Reeves v. Skenett, 13 Ohio St., 574, that an appeal did not lie from the court of common pleas to the district court on an order confirming a sale of real estate; and in the case of Aultman v. Seiberling, 31 Ohio St., 201, this court held that an appeal does not lie from a decision of the probate court setting aside or refusing to confirm a sale made by an assignee for the benefit of creditors; but the question as to whether an appeal may be taken from a decree confirming a sale by such assignee, was expressly left open in that ease.

Section 6407, Revised Statutes, is a shade broader than the statute in force when the case of Aultman v. Seiberling, supra, was decided, and the judgment appealed from in this case is more than a simple confirmation of a sale made by an assignee. The judgment appealed from is as follows:

“This cause coming on to be heard on the report of the assignee of the private sale heretofore authorized herein to George Mathers of the assets to him assigned and upon the motion for the confirmation of said sale, and it appearing that the assignee has made and filed an affidavit according to law that said private sale was made after diligent endeavor to obtain the best price for the oropertv sold, and that the sale reported is for the highest price that he could get for the property- sold; and it appearing further that the purchase price and consideration named in the bid has been paid and given by said purchaser according to said bid; and the court being fully advised, it is now ordered that the said sale be, and it is now confirmed and' the assignee is authorized and directed to execute proper instruments of conveyance by deed and bill of sale to the said purchaser of the property so sold as may be necessary fully "to carry out and complete said sale; to all of which F. W. Browne, as assignee of the Ervin Lime Company, excepts.”

It was held in said Aultman v. Seiberling case that an appeal would not lie from an order granting authority under the assignment laws to sell at private sale; and if no appeal lies from the order to sell the real estate at private sale and no appeal from the confirmation of the report and sale, all right of appeal is cut off and section 6407 repealed as to such cases. This cannot be, and we therer fore hold that an appeal lies from the probate court and the court of insolvency to the court of common pleas, from an order decree or judgment confirming a sale of real estate at private sale by an assignee or trustee under the insolvency laws of this state.

The motion in the court of common pleas to dismiss the appeal, was upon the sole ground that “an appeal does not lie from an order confirming- a sale. ” After the case got into this court other questions were for the first time made and argued, but we have treated the case as the parties treated it below, and have not considered or decided the new questions thus attempted to be made.

The judgment of the circuit court, and of the court of common pleas, will be reversed, and the cause remanded to the common pleas for further proceeding’s according’ to law.

Judgments reversed.


text:
    Treasurer of Athens County, v. Dale, Receiver.

      County treasurer may have rule against receiver of railroad for taxes — Section 1097, Revised Statutes — State not inclitded in section 8417, Revised, Statutes.

    Under section 1097, Revised Statutes, a treasurer oí á county may have a rule against the receiver of a railroad for the payment of taxes due and unpaid. The state is not included in section 3417, Revised Statutes, and, for this reason and the superiority of its claim, is not affected thereby.
    (Decided April 25, 1899.)
    Error to the Circuit'Court of Athens county.
    Under favor of section 1097, Revised Statutes, the treasurer of Athens county, on April 13, 1898,. filed with the clerk of the court of common pleas of said county the following application:
    “The plaintiff says that on the fourteenth day of August, 1894, by the consideration of the common pleas court of Washington county, Ohio, the defendant, Theodore D. Dale, was appointed receiver for The Toledo and Ohio Central Extension Railroad Company; that said Theodore D. Dale thereupon qualified, and has ever since said date and is now such receiver for said Railroad Company; that he caused the property of said Railroad Company for the year of 1897 then in his possession as such receiver to be listed in the name of said Company for the purposes of taxation in Athens county, Ohio, for said year; that the taxes charged against said property by him for said year, stands upon the duplicate in the Treasurer’s office of Athens county, Ohio, in the name of said Railroad Company; but the said Treasurer avers that the taxes for said year are a proper charge and debt of the said Theodore D. Dale as receiver of the aforesaid Railroad Company.
    The said Treasurer says that there stands charged in the manner aforesaid, against the said Theodore D. Dale, as receiver for The Toledo and Ohio Central Extension Railroad Company upon the duplicate in his hands and upon the duplicate on which he is now engaged in collecting the taxes for the current year 1897, the sum of $1,626.84 taxes; that the same are delinquent, due and unpaid together with five per cent, penalty thereon allowed by law to said Treasurer as a compensation for collecting the same, and that the said Theodore D. Dale as such receiver is indebted to said Treasurer in the sum of $1,708.18, taxes and penalty for the year of 1897.
    Wherefore plaintiff asks that the defendant show cause why he should not pay said taxes and penalty amounting to the sum of $1,708.18, and the costs of this proceeding, and that the said rule so entered may have the force and effect of a judgment at law, and that the same may be enforced by execution issuing from this court against the said Theodore D. Dale as receiver as aforesaid, and for all other relief to which plaintiff may be entitled in equity.
    A. E. Price,
    Attorney for plaintiff.”
    The Receiver by his attorneys entered his appearance, and thereupon filed his answer which is as follows:
    “And now comes said defendant, Theodore D. Dale, Receiver of The Toledo and Ohio Central Extension Railroad Company, and for answer to the application of said plaintiff herein, and showing cause why the rule asked by plaintiff to be entered against him herein should not be made, says:
    Said Theodore D. Dale, Receiver, says that the reason, and the sole reason, why said taxes set out in said application have not been paid, is the fact that said defendant has not at any time had, and does not now have, any money, or means, or resources, with which to pay the same; that all of said taxes have at all times been admitted and recognized by defendant, and by said court of common pleas of Washington county, as valid claims against said defendant as such Receiver, and against said Railroad Company, and as having a first lien upon all the property of said Company, and upon all the property in the hands of this Receiver, prior and superior to any and all other liens thereon, and entitled to payment out of the proceeds of any sale of said property, or any part thereof, before the payment of any other claim or claims; that in and by the order of said court of common pleas of November 10, 1893, appointing Elias Summerfield, the predecessor Receiver of defendant, Receiver of said Railroad Company, said court ordered said Receiver “to run the entire line of railroad of said Railroad Company, with its branches and appurtenances, and to keep the said railroad and equipment in repair, to keep up to a proper standard of efficiency all means of transportation of said railroad;” that in the order of said court, made August 4, 1894, removing said Summerfield as said Receiver and appointing said Dale as said receiver, said court ordered that said Dale should be appointed such Receiver “with all the powers, rights and duties heretofore granted to and imposed upon the said E. Summerfield as receiver under said order of November 10,1893;” that acting under said orders, and in obedience to the instructions of said common pleas court, said E. Summerfield during his receivership and said T. D. Dale since, have run and operated the railroad of said The Toledo and Ohio Central Extension Railroad Company, and the same is still so run and operated by this defendant as such Receiver; that the first and foremost duty of said receivers, to the state of Ohio, to the general public, and to all parties concerned, has been and still is, the running and operation of said railroad as a common carrier of passengers, and goods, and all .moneys which heretofore have come, which, now may be, or which may hereafter come, into the hands of said defendant and his predecessor Receiver or of any Receiver of said Company, must be first applied to the payment of the expenses of so running and operating said railroad, which expenses must be paid in cash, as the persons to whom the debts incurred in such running and operation are due are not able to, and will not wait for their money, or extend credit, and will cease to do the work, and will cease to furnish materials and supplies, required for such running and operation, unless their claims for previous work, materials and supplies, are paid, and if the same are not paid no others could be found to do such work, or furnish such materials or supplies; that the moneys which have been received by and come into the hands of said receivers have not been sufficient to even pay the expenses of running and operating said railroad, and this defendant has been compelled to and has, under the orders of said court, borrowed large sums of money to pay said expenses of running and operation, which money so borrowed is still ■largely unpaid; that this defendant, and any Receiver, of said Company, could not have paid said taxes, and cannot now pay the same, except by ceasing to run and operate said railroad, which would not only be a violation of the duties of said receiver, but would be greatly to the injury of said Athens county, its citizens and taxpayers, who are greatly benefited bjr'the running- and operation of said railroad; that within a few weeks said court of common pleas of Washington county, will order a sale of said railroad, and of the property in the hands of this defendant as such receiver, and that such order of sale will provide, fully and effectively, for the payment in cash by any purchaser of a sufficient sum of money with which to pay, and with which there will be paid, all taxes upon the property of said railroad company and upon the property in the hands of this defendant as such Receiver, including all taxes due and payable to said plaintiff, and all taxes set out in said application; that should this court grant the order and rule prayed for by plaintiff, and the same be enforced by execution, it would require this defendant to stop the running and operation of the line of railroad of said company in the hands of this defendant as such Receiver, a large part of which railroad is in said Athens county, and serves the citizens of the same, and such stopping of operation would be a serious injury to said Athens county, and to its citizens and taxpayers, whereas, within a short time, under decree of foreclosure and sale of the property of said Railroad Company which will soon be entered by said common pleas court of Washington county, in said action in which this defendant and his predecessor Receiver were appointed, the payment of all said taxes claimed by plaintiff will be fully provided for, and will be paid plaintiff out of the proceeds of such sale, without stopping the running and operation of said railroad; that this defendant, at the present time, has no money, or means, or resources, with which to pay said taxes, but will make payments upon the same as rapidly as he can do so without stopping the operation and running of said railroad.
    Wherefore said Theodore D. Dale, Receiver as aforesaid, prays that the prayer of said application, and each and every part thereof, may be denied; that it may be adjudged by the court that this defendant has shown cause, and sufficient cause, why he should not pay said taxes; that'no rule be entered against defendant for the payment of said taxes, or any part thereof; and further that .this defendant as such Receiver may be fully protected in his rights, and that this proceeding be dismissed. Nye & Follett,
    Attorneys for T. D. Dale, Receiver.”
    On a hearing in the common pleas judgment was rendered in favor of the Treasurer, from which the Receiver appealed to the circuit court. The case was there heard upon the application and answer, the latter being taken as true. The court held that the answer showed sufficient cause why a ■ rule should not be made on the Receiver as asked, and dismissed the application. The Treasurer seeks in this proceeding to have the judgment reversed and a rule made on the receiver for the payment of the taxes.

      A. E. Brice, for plaintiff in error.

      Nye <& Follett, for defendant in error.
   By the Court.

The court is of the opinion that the Treasurer, on the facts stated in his application, had a right to a rule on the Receiver for the payment of the taxes and penalty as prayed for; and that the answer does not show a sufficient reason for denying it.

The averments of the answer at most only show that it is not convenient for the Receiver to pay the taxes, and run and operate the road — it would require greater economy in expenditures, not that it would be absolutely impossible to operate the road, and do so. The right of the state to the receipt of its taxes is paramount to that of all others; without the protection of the state and its laws, the road could not be run and operated, and the property would be of little, if any value; so that it is apparently of as much importance to the road, that the taxes due the state, on which all rights of property depend, should be paid without delay, as that wages, salaries and other expenses of running and operating it, should be paid. It is the duty of the receiver of the property of a railroad to pay all taxes levied upon it, as much as to purchase and pay for ties or anything else needed in its operation. He has the right to take credit for their payment in his account, and no creditor can complain. The state is not included in section 3417, Revised Statutes, and for this reason, and the fact of the superiority of its claim, is not affected thereby.

The averment that there would be a decree for the sale of the road in a few weeks in the common pleas of Washington county, and the taxes ordered paid, is immaterial. There is no certainty in the fact averred. The receiver has no control of the making of a decree. It may or may not be sold as averred. And the fact, admitted at the argument, that no sale has been made, and that the matter is still in litigation, illustrates the immateriality of the averment. The right of the state to receive the taxes due it cannot he indefinitely postponed in this way!

Judgment reversed and rule entered for the Treasurer.


author: Si-iauck, J.

text:
    Rathmell, Executor, v. Shirey et al, Trustee.

      Deed, in escrow — To be delivered, to grantee on death of grantor— Title does not vest at date of first delivery — Rights of grantor's creditors.

    An instrument for the conveyance of lands without substantia valuable consideration, deposited with a third person as an escrow to be by him delivered to the grantee on the death of the grantor, does not, by relation, vest the title in the grantee at the date of the first delivery to the prejudice of persons who thereafter, without knowledge of the instrument, extend credit to the grantor.
    (Decided April 25, 1899.)
    Error to the Circuit Court of Franklin county.
    The cause was tried in the circuit court upon appeal from the court of common pleas. The plaintiff in error prayed for a decree-of the court setting aside a deed for one hundred acres of land made by his testator to the defendant, Thomas Rathmell, in trust for the defendant William C. Shirey and others, and an order for its sale for the payment of debts of his testator, alleging in his petition and amendments thereto the insufficiency of the assets of the testator to pay his debts; that the instrument in question was signed by the testator contemporaneously with the execution of his will and upon no consideration except that expressed, to-wit, love and affection for his son William and one dollar; that said instrument was not then, nor ever in the lifetime of the testator delivered to said trustee, but was delivered as an escrow to one Zeno C. Payne to be by him placed on record and delivered to said trustee after the death of said testator, the testator remaining in possession and control of the premises and paying-taxes thereon until his death, a portion of his debts being contracted after the signing of said instrument and credit being extended to him on account of his apparent ownership of said premises, and that said deed delivered to said trustee after the death of the plaintiff’s testator was fraudulently made and that it hinders, delays and defrauds his creditors. The answer admitted the insufficiency of the assets of the testator’s estate to pay his debts. On denial by the defendants of tbe plain biffs’ allegations as to the fraudulent character and effect of the instrument the cause was tried in the circuit court where upon request the conclusions of fact and law were separately stated as follows:
    That on the fourth day of December, 1891, Lewis Shirey, then in full life, was seized of 160 acres of land i'n Hamilton township, Franklin county, Ohio, upon 60 acres of which there was a mortgage incumbrance of $1,500; that on said December 4, 1891, said Shirey executed a trust deed to Tnomas Rathmell for the remaining 100 acres thereof for the use of his son, William C. Shirey, for life, remainder to the children of William O. Shirey. That on the same day he executed his will disposing of 60 acres, the remainder of his land; the same being charged with the mortgage incumbrance aforesaid to his daughter, Margaret Thompson. That at the time of the execution of said deed, to-wit, December 4, 1891, he delivered the same to one Zeno C. Payne, his attorney, who made the following indorsement thereon in said Shirey’s presence, to-wit: “Deposited with me in escrow to be placed on record at the death of the grantor and delivered to the grantee therein named, Z. C. Payne.” At the time of said endorsement said Shirey instructed sai d Payne to place this deed on record at the time of his death and deliver the same to the' grantee therein named. That at the time of the execution of said deed and will in addition to the mortgage incumbrance of $1,500, Shirey was indebted to divers persons' in the sum of $500, which, in addition to the $1,500 mortgage incumbrance, remained unpaid at the time of his death, which occurred in February in 1895. Shirey *remained in possession and control of said realty, and paid the taxes thereon during his life time, and contracted subsequently to the execution of said deed other debts to the amount of about $1,325, said indebtedness of $1,325 remaining unpaid at the time of his death.
    Shirey died February, in 1895, leaving defendant, Crissie Shirey, his widow, and said son and daughter surviving him. Said trust deed was, immediately upon Shirey’s death, placed on record in the recorder’s office of Franklin county, Ohio, and then handed to Thomas Rathmell, the grantee therein named, who, immediately upon Shirey’s death and in execution of the trust created by said trust deed, entered into and took possession as such trustee of said 100 acres of land, and is now and has. been continuously since the death of said Lewis Shirey in possession thereof. That said 60 acres of land devised to Margaret Thompson by said will have bepn sold bv plaintiff and the proceeds of said sale are not more than sufficient to pay said mortgage indebtedness of $1,500 with interest, widow’s dower in said 60 acres and costs of sale. No provision for the widow was made either in the deed of trust or in the will. At the time of the execution of said deed the grantor, Shirey, did not retain property clearly and beyond doubt sufficient to pay his existing indebtedness; and of which indebtedness about $700 (being unsecured debts) is and remains unpaid, and that unless said 100 acres of land or some part thereof, be sold, the general creditors of said Lewis Shirey will receive nothing on their claim, as cost of administration, costs of last sickness and funeral and the mortgage indebtedness of $1,500 with interest, and widow’s dower and allowance, having consumed the proceeds of said 60 acres of land and all the personal estate of said Lewis Shirey. That said Lewis Shirey in the execution of said deed acted in perfect good faith and without any intentional fraud. That said Lewis Shirey when contracting said debts subsequent to the execution of said trust deed was guilty óf no misrepresentations whatever, credit having’ been extended to him without any inquiry or investigation by the persons so lending him credit as to how much land or property he then owned, said creditors having knowledge that said Shirey was in the possession and control of 160 acres of land and without knowledge that he made said trust deed. UpoD the foregoing facts the court finds the law to be as follows, to-wit:

      First- — That said trust deed passed the title to said grantee, Thomas Rathmell, trustee, as of the date of its first delivery, to-wit, December 4, 1893, subject to the dower estate of Crissie Shirey.

      Second — There was no intentional fraud in the execution and delivery of said deed, and that the same is valid as to the deb Is of Lewis Shirey created after December 4, 1891.

      Thwd — That said conveyance is void as against the debts existing at the time of its execution.

      Fourth — That plaintiff is entitled to sell so much of said 100 acres of land as may be necessary to pay the outstanding debts of Lewis Shirey existing December 4, 1891, with the accrued interest thereon. To each and all of which findings of fact so made by the court as aforesaid, and each and every conclusion of law thereon the plaintiff excepts.
    A bill of exceptions was taken embodying all of the evidence, and this petition in error prays for the reversal of the judgment of the circuit court because its findings of fact are not supported by the evidence and because its conclusions of law were not justified by the facts found.

      Frank Rathmell and F. Berry Jewett, for plaintiff in error.
    At the time of the execution of the deed the following memorandum was placed on it: ‘ ‘Deposited with me in escrow to be placed on record at the death of the grantor and delivered to the grantee therein named. Z. C. Payne.”
    Shirey further expressed his purpose and intention of this deed by designating it as an escrow in his will.
    This uncontradicted testimony agrees with the circumstances and Shirey’s conduct makes it clear that he intended the deed as an escrow and not a deed present. This fact is disclosed by the record and should have been found as one of the material facts in the case.
    All the creditor witnesses testify that their credit was extended on the belief that he was the owner of 160 acres; that they had no knowledge of any secret deed and would not have given credit with that knowledge.
    The finding of the court states this fact only in part while it • states that credit was extended on the knowledge that Shirey was in possession and control of 160 acres, and without the knowledge that he had made a trust deed. It omits the fact, as the bill discloses, that they believed him the owner of 160 acres and would not have extended credit with the knowledge that he had made such a deed. Sturgeon v. Hall, Assignee, 8 O. C. C., 269; 4 Circ. Dec., 457 ; Levi v. Daniels, 22 Ohio St., 38.
    The deed that Shirey executed and placed in the hands of Payne to be recorded at his death and delivered to the grantee, was an escrow, and not a deed present. Sixth Am. Eng. Ency., 857; Devlin on Deeds, p. 312.
    Material distinction has been drawn by the courts and law writers between escrow and deeds present. This distinction they say generally depends on the words and purposes expressed and the circumstances in the case. The intention to deliver a paper not to take effect presently but at a future time, will largely control in determining whether it be an escrow or a deed present. Tiedeman on Real Prop., section 815; 34 N. Y., 92.
    If the deed be expressly delivered as an escrow, to be delivered at a future time, it is not a present conveyance. 6 Am. Eng. Ency., page 865; 3 Washburn on Real Prop., 5th ed., page 320; Stone v. Duvall, 77 Ill., 475; The State Bank v. Evan Evans, 3 Green (N. Y.), 155.
    The term escrow evinces more clearly and distinctly than any other the actual intention of the parties. Clark v. Gifford, 10 Wend (N. Y.), 310. Such, a conveyance does not take effect until the time of the second delivery. No title passes until the event happens upon which it is to be delivered. 2 Mass., 455; Devlin on Deeds; 6 Am. Eng. Ency., page 870; Jackson v. Catlin, 2 Johns (N. Y.), 248; Blair v. St. Louis Ry. Co., 24 Fed. Rep., 539.
    The fiction of relation back to the first delivery is allowed in cases of necessity to give the deed validity, if the fiction be not required for such purpose, it is not admitted, and the deed operates according to the truth of the ease from the second delivery. 4 Kent Com., page 454.
    The court erred in holding such a deed valid as to debts created after its execution, December 4, 1891.
    Such a deed will not be enforced to the prejudice of the rights of creditors. 5 Ohio, 127; Rice on L. R. Prop., 392; Devlin on Deeds, section 283a; Rosseau v. Bleau, 131 N. Y., 177; Platt v. Platt, 105 N. Y., 488.
    The lands of the decedent are charged with his debts; no circuity of conveyance, no collusion or arrangement among the holders of the estate, will free the land from the burden of the debts of the ancestor. 6 Ohio, 227; 8 Ohio, 217; 29 Ohio St., 230; 32 Ohio St., 358.
    In Crooks v. Crooks, 34 Ohio St., 610, the court expressly states that such deed (namely, a deed delivered to a third person to be by him delivered to the grantee at the grantor’s death, without reserving to himself any control over the instrument), that such deed will not be enforced in equity to the prejudice of the rights of creditors. Wait on Fraudulent Conveyances, section 101; 16 Ohio, 438; 8 Am. Eng. Ency., pages 753-759; 21 Ohio St., 295; 2 Ohio St., 374; Bump on Fraudulent Conveyances, 315, 316.
    Such a deed set aside for prior creditors, subsequent creditors will participate. A voluntary conveyance may be impeached by a subsequent creditor on the ground that it was made in fraud of existing creditors; but to do so he must show either that actual fraud was intended or that there were debts still outstanding which he (the grantor) owed at the time he made it. Toney v. McGehee, 38 Ark., 427; Wait on Fraudulent Conveyances, section 97; Clafflin v. Mess, 30 N. J. Eq., 211; 1st Storey Eq. Jur., section 361; Pope v. Wilson, 7 Ala., 390; Smith v. Greer, 3 Hamp. (Tenn.), 118. Subsequent creditors prorate with antecedent creditors. Wait on Fraudulent Conveyances, section 104; Hoke v. Henderson, 3 Dev., 312; Silverman v. Greaser, 21 W. Va., 553; 8 Am. & Eng. Ency., pages 735-759.

      John J. Grosbie, for defendants in error.
    Shirey was not seized of the one hundred acres at the time of his death. The circuit court found, as a conclusion of law, “That said trust deed passed the title to said grantee, Thomas Rathmell, trustee, as of the date of its first delivery, to-wit: December 4, 1891, subject to the dower estate of Crissie Shirey. ”
    Does the record fairly tend to support this conclusion? If so, this court will not weigh the evidence on this point. Fortman v. Goepper, 14 Ohio St., 562; Turner v. Turner, 17 Ohio St., 449.
    However, we are confident that the evidence not only tends to support this conclusion, but that it clearly and unquestionably warrants it.

      Shirey in his will, says: “Having disposed of one hundred acres of my land by deed of even date herewith,” etc. Here is Shirey’s most solemn declaration as to what he had done with the one hundred acres. He has conveyed it — disposed of it by deed. This alone ought to be conclusive.
    If Shirey did not want this trust instrument to take effect until his death, why did he execute a deed at all? Why did he not devise it to Rathmell? The fact that he did not include the one hundred acres in his will, made on the same day, certainly warrants the inference, that he wished the deed to take effect before his death.
    It is true in the will occurs the word “escrow,” but in the same paragraph will be found the word “deed” occurring twice. But the terms used by Mr. Shirey on December 4, 1891, should not alone determine his intent on that occasion.
    The instrument was delivered to Payne to be recorded after the death of Shirey — to await the mere lapse of time. Devlin on Deeds, section 319; Prutzman v. Baker, 30 Wisc., 651; Foster v. Mansfield, 3 Metc., 412; Hathaway v. Payne, 34 N. Y., 92.
    Payne became on December 4, 1891, trustee of the grantee in said trust deed. Ruggles v. Lawson, 13 Johnson, 285; Ball v. Forman, 37 Ohio St., 139.
    Shirey, on delivering the deed to Payne, reserved no control over it.
    Therefore at that moment the title to the one hundred acres of land passed from Lewis Shirey forever. Ball v. Foreman, 37 Ohio St., 132. The following cases are also directly in point: Mitchell v. Ryan, 3 Ohio St., 377; Black v. Hoyt, 33 Ohio St., 203; Crooks v. Crooks, 34 Ohio St., 610; Wheelwright v. Wheelwright, 2 Mass., 452.

      It is not even intimated by any party, witness or lawyer interested in this ease that Lewis Shirey when he made this trust deed intended to defraud anybody. The record shows that when he executed the deed, besides personal property, he retained real estate (being- the sixty acres) valued at from $3,900 to $4,500. That is to say, he retained at least $4,000 in property to pay debts amounting to but $2,000. This does not look like the conduct of a man with an intent to defraud creditors.
    We submit the creditors of Lewis Shirey, who became such after December 4, 189 L, cannot successfully assail this deed, whether it be valid as against Shirey’s creditors of December 4, 1891, or not, and because, among other reasons, there was no actual intent on the part of Lewis Shirey to defraud any of his creditors whatsoever. It may truthfully be said this is admitted by all. Bump on Fraudulent Conveyances, section 292; Crumbaugh v. Kugler, 2 Ohio St., 374; Evans v. Lewis, 30 Ohio St., 11; McCall, Adm’r, v. Pixley, 48 Ohio St., 385; Webb’s Adm’r v. Roff, 9 Ohio St., 431; 2 Pomeroy’s Eq. Juris., 973 and notes.
    Section 6139 Bates’ Annotated Statutes of Ohio, authorize an executor to recover possession of and sell only lands that have been conveyed with intent to defraud. The circuit court has found there was no intent to defraud any creditor. In fact, neither the petition in this case nor any of the amendments thereto aver that there was an intent to defraud, and therefore states no cause of action under this section. This executor has no right to sell these lands unless it can be found in some statute, and he cannot expect relief under any statute unless by averments in his pleadings he shows himself entitled to such relief.
   Si-iauck, J.

The case presented permits us to assume, without deciding, that in view of the facts found by the circuit court there was such a delivery of the deed as wohld give it effect as against the heirs at law of the grantors, 'and that as to them .the deed would, by relation, take effect at the date when the instrument was delivered as an escrow. We have to determine whether it was effective to pass the title to the grantee discharged of debts of the grantor contracted between December, 1891, when the instrument was delivered as an escrow and February, 1895, when upon his death if was delivered to the grantee, as was held by the circuit court.

Delivery being essential to the efficacy of a deed, it is obvious that the title does not actually pass until that which was an escrow becomes a deed by virtue of its delivery as such, or at least, until the satisfaction of the conditions prescribed for its final delivery. Accordingly the general rule is that the title does not pass until the second delivery, or until the conditions prescribed therefor are satisfied. It would not be practicable to cite all the cases in which the general rule is so stated. Many of them are' collected by Mr. Devlin in a note to section 328 of his work on deeds. To this rule there is a well-recognized exception. The rule and the exception are thus stated by Chancellor Kent: “Generally an escrow takes effect from the second delivery and is to be considered as the deed of the party from that time; but this general rule does not apply when justice requires a resort to fiction. The relation back to the first delivery, so as to give the deed effect from that time, is allowed in cases of necessity, to avoid injury to the operation of the deed from events happening between the first and second delivery * * *. But if the fiction be not required for any such purpose, it is not admitted and the deed operates according to the truth of the case, from the second delivery. It is a general principle of law that in all cases where it becomes necessary for the purposes of justice that thé true time when any legal proceeding took place should be ascertained, the fiction of law introduced for the sake of justice is not to prevail against the fact.” 4 Com., 454.

Whatever terms may be employed in stating the exception, the relation back to the first delivery is always to accomplish, and never to defeat, justice. Bearing in mind the purpose of! this exception and the fact that the deed before us.was without any substantial consideration, it is quite apparent that the conclusion of the circuit court that the relation back should be allowed to cut off the claims of those who gave credit to the testator between the first and second deliveries, and without knowledge of the instrument, is erroneous. That conclusion derives no support from Crooks v. Crooks, 34 Ohio St., 610, or Ball v. Foreman, 37 Ohio St., 132, where the title was held to pass as of the date of the first delivery for purposes clearly within the exception as above stated.

The judgment of the circuit court will be so modified as to order the plaintiff in error to sell so much of the land in controversy as may be necessary for the payment of all the debts of the testator.

Judgment accordingly.


author: Bradbury, C. J.

text:
    Robbins et al., Partners, v. Klein, Lichtenstader & Company et al.

      Payee holder of note — Obtains order from maker for payment from fund deposited with another — Parol evidence to show order related to note — Inference as to consent of drawee to order — Rights of drawer's creditors against fund so draivn upon.

    1. Where the holder of a note who is also its payee, obtains from the maker an order for its payment "out of a fund which the latter has deposited with another, such order neither describing the note nor naming nor designating the holder, parol evidence is admissible in an action between different claimants of the fund to show that the note in question at the time the order was drawn and delivered was the only one that the payee then held against the drawer of the order, and when that circumstance is established it should be regarded as’ a sufficient identification of the note for the payment of which the order was drawn.
    2. If in such case the consent of the person in whose hands the fund was deposited is necessary to the validity of the order, such consent should be inferred where the note and order attached together were, without objection, received by him and retained in his possession until after other claimants of the fund had acquired an interest in or lien against the same. In such case the right acquired by virtue of the order is paramount to the lien of a creditor who, after the order has been received by the custodian of the fund, brings an action to subject the fund to the payment of the debt.
    (Decided April 25, 1899.)
    Error to the Circuit Court of Logan county.
    This action was brought in the court of common pleas of Logan county to determine the respective rights of the several claimants to a fund in the hands of The Citizens’ Bank, of DeGraff, Ohio. After trial of the cause in the court of common pleas it was taken to the circuit court on appeal and there tried again. The circuit court denied to the plaintiffs in error the relief they demanded, whereupon the evidence was embodied in a bill of’ exceptions and the cause brought to. this court for review. Such facts as may be necessary to understand the decision of the court will be stated in the opinion.

      Powell da Minahan and Ilowenstine, Huston d¡ Miller, for plaintiff in error.

      Andrew B. Huston, for sureties on replevin bond.

      J. H. M. Laughlin, for Klein, Liehtenstader & Co.

      W. S. Plum, for Liebenthal & Block.
   Bradbury, C. J.

There is no substantial dispute about any fact material to the determination of the respective rights of the parties. The record discloses that William J. Gessner, a merchant at DeGraff, Ohio, in the year 1894, had occasion to institute an action of replevin and in order to indemnify his sureties on the bond he was required to give in the action, assigned to them, a certificate of deposit held by him against The Citizens’ Bank, of DeGraff, Ohio, for $2,124. Gessner was at the time indebted to a number of wholesale merchants for goods purchased of them, and to secure or pay them gave from time to time orders on this fund, which orders were of course subject to the prior right of the sureties to appropriate the fund for their own indemnity pursuant to the purposes for which the fund had been assigned to them. Gessner having- prevailed in the replevin action, the fund was no longer needed for their indemnity, and the claims of the sureties terminated. In the meantime certain creditors of Gessner had reduced their claims against him to judgment. Thereupon a number of them commenced separate and independent actions against Gessner, the Citizens’ Bank, of DeGraff, and others, to subject the fund in question to the payment of the respective judg ments. The several actions were consolidated and the persons to whom Gessner had given orders were made parties and set forth their respective claims by cross-petitions. Among these cross-petitioners was the firm of Edwin B. Robbins & Company, plaintiffs in error. By their cross-petition they disclosed that on February 20, 1894, Gessner executed and delivered to them a promissory note, due four months after date, for $461.91, and that on the fourteenth day of November following (1894) Gessner gave them an order on the bank for its payment. The note and order read as follows:

DeGraff, O., Nov. 14, 1894.

To W. E. Harris, Cashier Citizens’ Bank, DeGraff,

Ohio:

You will please take up my note which may come to your bank, including interest thereon, and pay same out of funds now held by you securing my bondsmen in suit now going on in common pleas court against Chas. W. Krotz et al., when said suit is settled favorable to me releasing my bondsmen.

(Signed,) William J. Gessner.

Exhibit B.

$460.91 DeGraff, O., Feb. 20, 1894.

Four months after date we or either of us promse to pay to the order of E. B. Robbins & Co. four nundred and sixty dollars and ninety-one cents for value received, to bear 8 per cent, interest from date until paid. If the interest is not annually paid, to become as principal and bear the same rate of interest, negotiable a,nd payable without defalcation or discount.

June 20-23. (Signed,) W. J. Gessner,

J. M. Gessner.

Endorsed:

April 4, ’94. Paid two 16-100 dollars . . $ 2.16

February 7. Paid sixty dollars....... 60.00'.

$62.16

Pay Citizens’ Bank, DeGraff, O., for collection.

(Signed,) E. B. Robbins & Co.

On November 16, 1894, two days, after the order was made, Robbins & Co., sent both"the order and the note in question enclosed in a letter to the bank. The bank duly received the letter, order and note, filed the note and order away and retained them until after the actions to reach the deposit had been commenced by the judgment creditors, after which they were returned to Robbins & Co.

When the deposit in question was made the bank became a debtor to Mr. Gessner, the depositor, to the amount of the sum deposited, subject of course, to the rights of the sureties on the replevin bond. And the question to be determined is whether the order involved is sufficient to transfer enough of this debt (or fund) to pay the note which accompanied the order.

The judgment creditors contend first, that the order made to E. B. Robbins & Co. is too indefinite to have any valid operation, and second, that a creditor cannot assign a part of a debt without the consent of the debtor, and that the bank in this case did not consent to the assignment to Robbins & Co. of the share of the fund now claimed by them. The second ground will be first considered.

Doubtless it was at one time the established doctrine, at least at law, that a creditor had no right to split his debt and assign a part of it unless tbe debtor consented to the transaction. This court, however, held quite recently (P. C. C. & St. L. Ry. Co. v. Volkert, 58 Ohio St., 362) that whatever the rule at law may have been, or now is, in equity an assignment of a part of a debt will be upheld without regard to the consent of the debtor. But whether that rule prevails or not is immaterial to the question here, for when in due course of mail the bank received the note and order involved, and filed them away without objection, it should be held to have thereby consented to the assignment. It was a matter of very slight concern to the bank whether it paid the amount of the deposit by a single act to the depositor in person, or whether it was paid at different times to a number of persons to whom parts of it had been assigned, while to the several assignees it might be a matter of the highest concern. Under such circumstances justice and fair dealing require that the consent of the debtor should be inferred from very slight circumstances. No other purpose than to have the note in question' paid out of the fund in the hands of the bank could have actuated Robbins & Co. to procure the order and afterwards send it to the bank together with the note. That purpose the bank must have perceived when the note and order were received by it. With the knowledge of this purpose the bank without objection received the note and order and filed them away. If the bank had not intended to consent to that division of the debt which was necessary to pay the note, its duty was to promptly return the note and order to Robbins & Co. The omission of the bank to pursue this course, together with its action in receiving and retaining the note and order and filing them away, are not circumstances that bear only slightly on the question. On the contrary, they possess a cogency not only amply sufficient to establish the consent of the bank to a division of the fund and payment of the order, but makes any other inference irrational. Therefore, if the order was sufficient in substance to have a valid operation, the right of Robbins & Co. under it should be regarded as complete from the date it was received and filed by the bank. This brings us to a consideration of the order itself.

An inspection of that instrument will show its informality and ambiguity. True it is properly addressed to the cashier of the bank that held the fund in custody, and it clearly discloses the fund out of which it directs payment to be made and that the payment is to be made by the bank, the custodian of the fund. But it contains no description of the note that is to be paid, nor does it name or even designate its holder. The word “note” employed in the order of course means a promissory note. The words of the order, however, in as far as they direct payment could be applied to any promissory note that had been executed by Mr. Gessner, whatever its amount or whomsoever might be its holder, and therefore if it should appear that Mr. Gessner had executed several notes to the same or different parties, no one simply by an inspection of the order could tell which one of the several notes was to be paid or to whom payment was to be made. In these two respects the order in indefinite. This indefiniteness must be removed and the particular note the parties had in view ascertained by evidence de hors the order.

It is a maxim of the law that “that is certain which may be made certain.” If only one note had been made by Mr. Gessner, upon producing that note and showing it to be the only one he had executed, all uncertainty respecting the note the parties had in view would disappear, for if only one such note ever existed of course the parties must have referred to it. This method of identification was pursued at the trial in the court below. Parol evidence was introduced showing that Gessner had executed and delivered to E. B. Robbins & Co. the promissory note upon which the claim of plaintiff in error was founded, and that it was the only one they held against Gessner when the order in question was executed and delivered to them. This being the case, it was the only note to which the order could apply, and a convincing if not irresistible inference arises that Gessner intended to assign to Robbins & Co. enough of the fund in question to pay it. Therefore, as between Gessner and E. B. Robbins & Co. it would seem that the identity of the note was established, and the note being ascertained the amount intended to be assigned was whatever should be due thereon. In case the parties disagreed about this it would have to be ascertained by the judgment of a court, and when thus established it would in the eye of the law be made certain.

We think, therefore, that the order was sufficiently definite to transfer to Robbins & Co. enough of the fund to pay the amount due thereon. Possibly if the assignment could only have been accomplished by an instrument in writing, reasons might be found to question the conclusions reached.by the court.' We know, however, of no rule of law that requires a written instrument to effect the transfer of a debt by assignment, although that method may be both usual and prudent. Many eases are found in the books that uphold the assignment of a debt or even a part thereof, although not witnessed by any written instrument whatever, or accompanied by a delivery of the possession of the instrument which witnesses the debt. Only a limited number of these cases will be cited: In Chamberlin et al. v. Gilman, 10 Colo., 94, it was held that a parol assignment by a boarding house keeper of his claim against a railroad company for money due him for board of its employes, was valid. Tibbits, Assignee, v. George, 5 Ad. & El., 107, held valid a parol assignment of a right to dividends f rom a bankrupt’s estate. In Heath et al. v. Hall & Porter, 4 Taunt, 326, Lord Mansfield held that a parol assignment of a debt was valid in equity. In Barthol v. Blakin et al., 34 Iowa, 452, it was held that a note and mortgage could be assigned “verbally.” In Clark & Clark v. Gillespie et al., 70 Texas, 513, the court held that a verbal transfer by a contractor of money due him for building a house was valid. In that case only a part of the money due was assigned. In Harris County v. Campbell, 68 Texas, 27, it was held that an assignment of part of a chose in action vas valid in equity. In Noyes v. Brown et al., 33 Vt., 431, a verbal assignment of a fund was held good. In Chapman v. Plummer et al., 36 Wis., 262, a parol assignment of a claim for rent was held valid.

The order being valid it transferred to E. B. Robbins & Co. enough of the fund to pay the note they held. Conceding that it did not become operative until the consent of the bank was obtained, that consent we have shown was given whe'n the bank received and filed away the note and order and that was done a number of days before the judgment creditors began their actions to subiecr, the fund to their judgments. These judgment creditors of Gessner had no lien on the fund in controversy until after their actions to subject it to the payment of their judgments were begun. Miers and Coulson v. The Zanesville and Maysville Turnpike Co., 13 Ohio, 197; Bowry d Sons v. Odell & Bro., 4 Ohio St., 623; Douglass v. Huston et al., 6 Ohio, 156. Consequently their liens were younger and inferior to the lien acquired by'E. B. Robbins & Co., under the order in controversy, and in the-distribution of the fund should have been postponed to it.

By reason of certain indebtedness incurred by Gessner to the bank, there only remained of the fund for distribution the sum of $1,082.80. There is some uncertainty respecting the order of priority which should have obtained between the claims of the plaintiff in error and Liebenthal & Block, but as the fund is sufficient to pay both claims in full the question is not material, and therefore, the judgment of the circuit court in as far as it gave to the claim of Liebenthal & Block priority will not be disturbed. The circuit court found the judgment of W. H. West, James Kernan and U. G* Hahn to be entitled to share in the fund equally, and next after the claim of Liebenthal & Block. The third lien was given to the judgment of Tremain & Sullivan, which exhausted the fund, leaving wholly unpaid the claims of the plaintiff in error, and Klein, Lichtenstader & Co.- acquiesced in this disposition of the fund and the judgment, of the circuit court in as far as it affected their rights is not before this court. ° The right of the other parties can be determined without reference to their claim.

According to the conclusion reached by this court- the decree of the circuit court postponing the lien of the plaintiff in error to that of the judgment creditors, acquired by their actions, was erroneous. The priority of their claim was next after that of Liebenthal & Block. After these two claims were paid the balance of the fund should have been awarded pro rata to the judgments of W. H. West and James Kernan ,and U. G. Hahn, and there not being enough to pay these three judgments, the judgments of Tremain & Sullivan will be left unprovided for.

Judgment reversed.


author: By the Court. Minshall, J.

text:
    The State ex rel. The Attorney General v. Beal. The State ex rel. The Attorney General v. Canary.

      Prosecuting attorney and infirmary director — Beginning of official term — Invalidity of acts of April 19, 1898, and April $6, 1898— Constitutional law.

    The act of April 19, 1898, “To amend section 1267 of the Revised Statutes” (93 O. L., 125) postponing the beginning of the official terms of prosecuting attorneys from the first Monday in January to the first Monday in September, and the provision of the first section of the act of April 26, 1898, (93 O. L., 261) to effect a like postponement as to the office of infirmary director, are void, being in violation of the tenth article of the constitution, which requires that county officers shall be elected, and not within the authority to provide for the filling of vacancies conferred upon the general assembly by the twenty-seventh section of the second article. {State ex rel. v. Heffner, 59 Ohio St., 363, followed and approved.)
    (Decided April 25, 1899.)
    In Quo Warranto.
    In The State ex rel. v. Luther Beal the petition charges that the defendant usurps and intrudes into the office of infirmary director of Butler county in violation of the constitution and laws of the state. In his answer the defendant pleads title' to the office for the term beginning on the first Monday in January, 1899, and ending on the first Monday of September, 1889, by virtue of his appointment by the commissioners of the county, there being a vacancy in the office resulting from the operation of the act “To revise and improve the statutes of Ohio in relation to the care of the poor” (93 O. L., 261), amending- section 957 and the following sections of the Revised Statutes, and deferring the commencement of the official term of the infirmary director from the first Monday in January to the first Monday in September. The case is submitted on demurrer to the answer.
    In The State ex rel. v. John Canary the petition charges that the defendant usurps and intrudes into the office of prosecuting attorney of Wood county. In his answer the defendant pleads title by virtue of his appointment to fill a vacancy in the office resulting- from the operation of the act “To amend section 1267 of the Revised Statutes of Ohio” (93 O. L., 125), the amendment contemplated in the terms of the act being the deferring of the beginning of the official term, of the person elected to the office of prosecuting- attorney from the first Monday in January to the first Monday in September. The case is submitted on demurrer to the answer.

      F. S. Monnett, attorney general, and C. C. Blanhnev, for the Relator.

      M. 0. Burns, for Luther Beal.

      John W. Canary and James (& BeverstooJc, for John W. Canary.
   By the Court.

The titles of both defendants depend upon the validity of the legislative acts to postpone from, the first Monday in January to the first Monday in September the beginning of the official terms of the persons elected to the offices which the defendants claim by appointment to fill vacancies for the interim which the legislature so attempted to create.

There was not in either of the acts referred to, or in any other statute in force at the time of their passage, any provision for the election of a prosecuting attorney or an infirmary director for the interim contemplated. The acts are therefore void according to the views defined in the first and second propositions of. the syllabus in State ex rel. v. Heffner, 59 Ohio St., 368, which involves the same sections of the constitution that are pertinent to the statutes now under consideration. It follows that there was no vacancy to be filled by appointment and that the persons elected to these offices at the November election in 1898 are entitled to enter upon them.

Demurrers sustained and judgments of ouster.

Minshall, J.

(dissenting): This suit (State v. Canary) was brought in quo warranto by the attorney-general to test the right of the respondent to hold the office of prosecuting attorney of Wood county, by the appointment of the court of common pleas. The questions arise on a demurrer to the answer. From this it appears that, at the November election of 1896, Arthur B. Murphy was elected prosecuting’ attorney of the county for a full term, who, on the first Monday in January, 1897, qualified and served as such until June 24, 1898, when he died. Thereupon the respondent, a member of the bar of Wood county, was appointed by the court of common pleas to fill the vacancy so created, who qualified and entered upon the duties of the office. That at the November election of 1898, Elmer G. McClelland was elected for a full term; but, supposing that his term did not begin until the first Monday in September, did not qualify until January 21, 1899, when he did so, and demanded the office. The respondent claims that the act of April 19, 1898, amending section 1267, Revised Statutes, and by which the commencement of the term of prosecuting attorney is changed from the first Monday in January to the first Monday in September, is a valid law. He further states that no candidate was nominated or elected at the November election of 1898, in Wood county, to fill the interim in the office of prosecuting attorney, resulting from the amendment of the statute; and that on the eighteenth day of February, 1899, he was again appointed by the same authority, to fill the vacancy caused by the death of Murphy, and the interval from the first Monday in January to the first Monday in-September, 1899, caused by the amendment of the statute, qualified as required by law, and entered upon and continues to fill the office.

Two questions present themselves: . 1. Cou] 1 the interim created by the amendment of th e statute have been filled by the people at the last November election? 2. Did the failure of the people to so fill it, create a vacancy in the office that could be filled by appointment? If the respondent is entitled to an affirmative answer on each of these questions, he is entitled to retain the office until next September.

1. As to the first question: It will be observed that the amendment does not undertake to provide for the filling of the interim arising from changing the commencement of the term. It simply makes the change, leaving the interim to be filled in whatever mode is proper; and, if there is a proper one, it will not be maintained that the amendment is invalid from a failure to indicate it. Every one is presumed to know the law; and a valid statute cannot be affected by the indifference or neglect of the people. In State v. Brennan, 49 Ohio St., 33, the law was held invalid because it created a county office, and required that it should be filled by appointment, thus depriving the people of their paramount right to fill it by election; which, if a mode existed by which the interim could have been filled by election, is not so here; otherwise no change could be made by the general assembly in the commencement of the terms of an office, which would be not only an unwarranted limitation on its power, but lead to an absurd result; for certainly, the power that may fix the time at which the terms of an office shall begin, may change it, unless there is a limitation placed on the exercise of the power, which is not the case here. The question then arises, was there any existing means by which the people of the county could have filled this interim at the last November election? We think there was. The amendment took effect April 18, 1898. The interim to be filled was apparent; and, as a matter of law, the only way it could be filled, in the first instance, was by election; and the time for doing so was ample. It was as much a term to be filled by the people at the following November election, as was that of the term for three years beginning in September, 1899. The provisions of our general' statute on the subject of elections are ample to enable the people to elect, in any case where by the constitution they have the right to elect. In other words, given an office, or term, which should be filled by election, and the provisions exist under which it may be so filled. It is the duty of the sheriff of the county to give notice -by proclamation of all offices to be filled at any general election, section 2977, Revised Statutes ; and if he refuse or neglect to make proclama1 tion for the filling of any office, he may at the suit of any elector, be compelled by mandamus to do so. State v. Brown, 38 Ohio St., 344. So that it is apparent, that there was no impediment in the way of the people filling’ this interim by election* had they seen fit to do so. Nominations could have been made for the short term and nominees placed on the official ballot, the same as in the case of the long or full term. The amendment then is not invalid for the reason that it contains no provision for filling the interim in the office, arising from the change made by it in the commencement of the term. The neglect of the people to fill the interim by election cannot affect the validity of the statute creating it. If valid when adopted it has remained so. Its validity cannot be affected by subsequent events, in no way resulting from its provisions. The law then being’ a valid' one, the second question, whether the failure of the people to elect created a vacancy that could be filled by appointment, remains to be considered.

2. The power to provide for the filling of vacancies is conferred by the constitution on the legist lature, section 27, article 2; and, in the exercise of this power, the filling of vacancies in the office of prosecuting attorney is conferred on the court of common pleas in the county where the vacancy occurs. Section 1270, Revised Statutes. We are, however, all quite agreed -that the legislature could not have provided that this interim should, in the first instance, be filled by appointment. This would have violated the paramount right of the people to fill it. Vacancies that may be filled by appointment, are such as result from the happening of events, the time of which cannot reasonably be foreseen and provided for by election. This interim was not, in this sense, unforeseen — it was apparent from the change made in the commencement of the term; and could only be filled, in the first instance, by election. But the neglect of the people to exercise the right of election, cannot be termed a foreseen event at the time the law was enacted. It is one of these unforeseen, or, in the language used in State v. Heffner, 59 Ohio St., 368, “fortuitous” events, which creates a vacancy that may be filled by appointment, as much so, as if it had occurred by death, resignation, removal or any other contingency. If the amendatory act had expressly provided that the interim should be filled by election, at the next proper election, and the people had failed to elect, no one, I apprehend, would question the right of the common pleas to have filled the vacancy thus created, until, it could be filled by election; otherwise the office would remain vacant until the first Monday of September, 1899. This would be intolerable; and, as it is something that may, and has happened in other cases, when, it does happen, it is such an unforeseen event as invokes the power of appointment for the removal of the public inconvenience that must otherwise ensue. The respondent then, I think, shows a title to the office and a right to hold it until the first Monday in September next, by the appointment of the court of common pleas of the county; and the demurrer to his answer should be overruled, and the petition dismissed.