author: McIlvaine, J.

text:
    Handy v. Insurance Company.
    1. A policy of marine insurance, which contained a stipulation that in case of loss or misfortune the insurer would contribute ratably to expenses incurred by the assured or their agents in and about the recovery of the insured cargo, was issued by a corporation of the state of Connecticut, also doing business in the state of Ohio. The cargo was sunk in waters of the state of Michigan, and labor was expended in efforts to recover it. Held, that the breach of such stipulation on the part of the insurer constitutes a cause of action' against the company, cognizable by the courts of this state.
    2. After the filing of a petition on such cause of action and the issuing of a summons, which was returned served on the defendant by delivering a true and attested copy on an agent of the defendant, the defendant filed a motion to dismiss the action “for the reason that this court has no jurisdiction of the case, it appearing from the petition on file that said defendant is a foreign insurance company, and that no part of the alleged cause of action arose in this state.” Held, that the filing of such motion was a voluntary appearance in the action and a waiver of any defect in the service of the summons.

      Error to the District Court of Cuyahoga County.
    The original action was brought in the Court of Common Pleas of Cuyahoga county, by plaintiffs in error, owners of a schooner, which, with its cargo of iron ore owned by the Saginaw Mining Company, was lost in Lake Michigan, state of Michigan, on the 17th of October, 1873, to recover from the defendant, a corporation of the state of Connecticut, on a marine insurance poliey issued to the owners of the cargo, at Marquette in the state of Michigan, contribution, for expenses incurred, in efforts to save the sunken cargo, by the owners of the schoo^ ner, to whom the owner of the cargo had assigned its rights under the following stipulation contained in the policy of insurance:
    “And in case of any loss or misfortune, it shall be lawful and necessary to and for the assured or insurer, their agents, factors, servants and assigns, to sue, labor and travel for, in and about the defense, safeguard and recovery of the said goods and merchandise, or any part thereof, without prejudice to this insurance ; nor shall the acts of the insured or insurers, in recovering, saving and preserving the property insured, in case of disaster, be considered a waiver or an acceptance of an abandonment, nor as affirming or denying any liability, under this policy, but such acts shall be considered as done for the benefit of all concerned, without prejudice to the rights of either party.
    “ To the charges whereof the said company will contribute in such proportion as the sum herein insured bears to the whole value of the property so insured ; having been paid the consideration for this insurance by the assured at and after the rate and premium as hereon indorsed.”
    A summons was issued in the case, which was returned as served on the defendant “ by delivering to C. C. Carlton, agent of said company, a true and attested copy thereof.”
    After the rule day for answer, the defendant filed a motion to dismiss the action “ for the reason that this court has no jurisdiction of the case, it appearing from the petition on file that said defendant is a foreign insurance company and that no part of the alleged cause of action arose in this state.” This motion being overruled, defendant excepted, and thereupon filed a de- . murrer to the petition, upon the ground, among others, “ that the court had no jurisdiction of the person of the defendant.” The demurrer being overruled, the defendant answered, and upon the trial, judgment was rendered for the plaintiffs.
    The defendant afterwards filed a petition in error in the district court, alleging, among other matters, that the court of common pleas had erred in overruling the motion to dismiss the action, and in overruling the demurrer to the petition.
    "Without considering other matters assigned for error, the district court reversed the judgment of the common pleas, upon the ground that the motion to dismiss for want of jurisdiction, and the demurrer alleging want of jurisdiction of the person of defendant, were improperly overruled.
    It is now sought to reverse this judgment of reversal.

      Daniel E. Williamson, for plaintiff in error:
    The motion Was not to quash or set aside the summons, but to dismiss for want of jurisdiction, because the cause of action did not arise in this state.
    The filing of this motion to dismiss was itself the entry of an appearance. Benton v. Insurance Co., 26 Ohio St. 467; Shafer v. Waldo, 7 Ohio St. 309; Evans v. Iles, 7 Ohio St. 233.
    No objection was made to the form of service, or to want of service on the proper agent.
    The jurisdiction is maintainable upon either one of two grounds, viz.: that the defendant is a foreign corporation, and that it is foreign insurance company. Insurance Co. v. French, 18 How. 404; Code, § 52; Express Co. v. Johnson, 17 Ohio St. 641.
    A foreign insurance company may be sued in this state wherever an agent may be found, without regard to the residence of the parties, the place-of the loss, or the place where the policy was issued.

      R. & E. T. Waite, and H. L. Terrell, for defendant in error:

      The question presented is this: Can a party, who does not appear to be a resident of Ohio, bring a suit, in the court of common pleas of any county in this state, against a foreign insurance company which has so far complied with the laws of our state as to be authorized to do an insurance business within the state, to recover an amount claimed to be due the plaintiff from the company, under the provisions of its policy of insurance issued in another state to a resident of that state, upon property which was never in this state, and under which a loss had occurred and been settled for without the state, and acquire jurisdiction by the mere service of the summons upon the local agent of the company in the county where the petition is filed? See section 20 of the act of April 27, 1872, as amended April 24, 1873 (Sayler’s Stat. 2975).
    The laws of Ohio are for the protection and government of its own citizens and those doing business within the state; not for residents of other states in their contracts made out of the state.
    There was no waiver. Evans v. Iles, 7 Ohio St. 233; Marsden v. Soper, 11 Ohio St. 503; Fee v. Big Sand Iron Co., 13 Ohio St. 563.
   McIlvaine, J.

No objection is made to the jurisdiction of the court of common pleas over the person of defendant on the ground that service of summons was not made upon a “ managing agent,” as authorized by section 68 of the civil code of 1853, in force at the time the action was brought: And, indeed, if no summons had been issued in the case, the voluntary appearance of the defendant for the purpose of submitting to the court the sufficiency of the petition in its statement of the cause of action, which was done by the motion to dismiss for want of jurisdiction, on the ground stated in the motion, would have constituted a waiver of the summons, as well as the service thereof. “ The voluntary appearance of the defendant is equivalent to service ” of a summons. Section 65. True, the voluntary appearance of a defendant for the sole purpose of objecting to the mode or manner of service is not within the rule of this section ; such, however, was not the purpose of the defendant in making the motion in this ease, but the motion, as expressed, involved the merits of the action as stated in the petition. The true ground of objection as raised, first by the motion, and afterwards by the demurrer, was that the defendant, upon the facts stated in the petition, was not liable to be sued in that court, for the reason that the cause of action, or any part of it, did not arise in this state, nor was the defendant a corporation of this state.

It is not claimed that courts of this state may not exercise jurisdiction over foreign corporations; but it is contended, 1st. That jurisdiction over foreign corporations can be exercised by courts of this state only in cases where the cause of action, or some part of it, arose in this state; and, 2d. That foreign insurance corporations can be sued in this state only in the county where the cause of action, or some part thereof, ■•arose.

Power to hear and determine a controversy is jurisdiction, and it is complete when both the subject matter of the controversy and the parties to it are properly before the court. In determining whether a given subject matter is within the jurisdiction of a court, regard to the parties is not involved. The subject matter of the original action was a contract alleged to have been broken by defendant. There is no question but that the court of common pleas had jurisdiction of this subject matter, without regard to the place where the contract was made or where it was violated. The point made by the defendant is, that the court, upon the facts stated in the petition, had no power to issue its process against the defendant, or even after a voluntary appearance, to proceed to render judgment against it upon the cause of action stated in the petition.

The general jurisdiction of the court of common pleas, over the person of litigants, is not confined to residents or natural persons; non-residents of the state and foreign corporations are as much subject to its jurisdiction as are residents and domestic corporations. Except in actions of a local nature, our courts are open to all who may seek relief therein, against any one who can be reached by its process. We know of no principle that will exempt a foreign corporation, which voluntarily comes into this state, from liability to answer any complaint which may be preferred against it in the courts of the state, that would not exonerate natural persons under like circumstances.

The county in which actions are to be brought, as well as the mode of acquiring jurisdiction by notice to defendants, is regulated by statute. Among other provisions on this subject, section 52 of the code of 1853 provided that, “an action . . . against a non-resident of this state or a foreign corporation, may be brought in any county in which there may be property of, or debts owing to, said defendant, or where said defendant may be found : but if said defendant be á foreign insurance company, the action may be brought in any county where the cause, or some part thereof, arose.” The general rule here declared has no reference to actions upon causes arising in this state. No matter where the cause arose, if the subject matter be within the jurisdiction of the court. Nor is the rule confined to corporations other than insurance companies. Any foreign corporation which maybe found in this state, maybe sued in any county of this state, in any court having jurisdiction of the subject matter of the suit. And the defendant in error, having voluntarily appeared in the action in the court of common pleas, is not in position to allege that it was not found in this state and in the county where the action was brought. .

Nor is the claim of the defendant in error, that being a foreign insurance corporation under the last clause in the section above quoted, it was liable to suit in this state only in the county where the cause of action or some part of it arose. This clause was intended to give an additional remedy against ‘ foreign insurance companies doing business in this state; namely ? to make them liable to actions in-the county where the causes of action arose, although they might not have property or debts due in such county, or might not even be found in such county.

It was alleged in the petition below, that the defendant was an insurance corporation of the state of Connecticut, doing business in the state of Ohio; and much has been said in argument, in relation to section 20 of the act of April 27, 1872, regulating foreign insurance companies, ás amended April 24, 1873 (70 Ohio L. 147), and among other things it is contended by the defendant that the process authorized by said section to be acknowledged by or served upon any agent of a foreign insurance company doing business in this state, is confined to process in actions founded upon causes of action accruing in this state. "Whether this be so or not, we -deem to be immaterial in the ease before us, as we have based our conclusion that the court of common pleas had jurisdiction of the person of the defendant, not upon the fact of service of process on an agent, but upon the voluntary appearance of the defendant in the action. Judgment reversed and cause remanded to the district court for further hearing upon the petition in error.


source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    Russell v. Sunbury.
    The right to commence an action for wrongfully causing death, under “ An act requiring compensation for causing death by wrongful act, neglect or default," passed March 25, 1851 (2 8. & C. 1189), abates by the death of the wrong-doer.
    Error to the District Court of Ashtabula County.
    The question which is decisive of this case arises on a demurrer to the petition.
    Por cause of action it is alleged, that John M. Anderson died January 24,1877, by the wrongful act of William H. H. Turner, who discharged a loaded gun at him, inflicting a mortal wound; that plaintiff was appointed and qualified as his administrator'; that soon thereafter Turnér died, and defendant became his administrator; that Anderson left a wife and child, still living, dependent on him for a support; that by said wrongful act, Turner injured the estate of said Anderson to the amount of five thousand dollars, and that a claim for that sum was duly presented and disallowed by the defendant as administrator of Turner.
    The prayer is for a judgment for five thousand dollars against the estate of said Turner.

      To this there was a demurrer, on the ground that the cause of action, if any, abated by the death of Turner.
    The demurrer was overruled, issue was joined, and a trial had, which resulted in a verdict for plaintiff, followed by a judgment. The same question that arose upon the demurrer was made during the trial, on a motion for a new trial, and on error to the district court, where the judgment was affirmed.
    It is now sought to reverse these several judgments.

      Hall Brothers, for plaintiff in error.

      W. L. Chaffee, for defendant in error.
   Johnson, J.

The petition alleges that the death of Anderson was caused by Turner’s wrongful act, and that he died before this action was commenced.

Did the right to institute and prosecute this action survive against the personal representative of Turner ? This depends on a construction of the act requiring compensation for causing death by wrongful act, neglect or default (2 S. & C. 1139), and of section 398 of the code of civil procedure.

This act was passed March 25, 1851. It was an innovation upon the common law in allowing an action for damages resulting from death, and in authorizing an action in favor of the personal representative to recover such damages. The right to maintain such an action by the personal representative of the deceased, for causing his death, is authorized against the person who, or the corporation which, would have been liable if death had not ensued, whenever the death shall have been caused by the wrongful act, neglect or default of such person or corporation. The statute itself gives the test of the right to such an action. If the party injured, could, had death not ensued, have recovered for his injuries, then, when death does ensue, his personal representative may recover. The foundation of the former action is the personal injuries to himself b}r the wrongful act, neglect or default of defendant. The same injuries causing death are the foundation for the right of action in favor of his personal representative. The amount recovered is for the exclusive benefit of his widow and next of kin, re-suiting from the death. In his action the measure of damages is determined by the extent of the personal injury, enhanced, it may be, by punitive damages, while the measure of damages in the latter action, is the pecuniary injury to the widow and next of kin, the loss to them caused by his death. In each case, the action is in form ex delieto.

In the case at bar it arises from a wrongful act and not from neglect or default. It belongs to the class of actions classified at common law as injuries to the person, as distinguished from injuries to the estate. By the express terms of the statute, the person who, or the corporation which, is guilty, is made liable, and not his heirs or personal representative.

At common law, all actions in form ex delieto, for the recovery of damages, abated by the death of either party. This rule embraced injuries to person, to personal property and to real estate.

By the statute, 4 Edw. 3, c. 7, this rule was so modified as to give an action in f mor of a personal representative for injuries to personal property. This statute may be regarded as part of the common law of this state.

By statute 3 and 4 W. 4, c. 42, § 3, the common law rule was further modified by giving an action in fmor of the personal representative for injuries to real estate, and against personal representatives for injuries to real or personal property. But neither of these statutes changed the common law rule as to injuries to the person.

When the act of March 25, 1851, was enacted, the civil practice act of 1831, with amendments, was in force in Ohio, and to a certain extent changed the common law as to abatements of actions. It provided that no pending action in any court (except for libel, slander, malicious prosecution, assault, assault and battery, actions on the case for nuisance, or against justices of the peace), shall abate by the death of either or both parties. Sections 62, 64, act of 1831, Swan (ed. 1840), p. 667.

By section 74 of the same act (Ibid. 669), if any person have a right to commence and maintain an action of trespass, or trespass on the case for mesne profits, or for an injury to his estate, real or personal, or for deceit or fraud committed in the sale thereof; or if any person liable to either of said actions shall die before such action is brought, the cause of action shall survive.

By the act of 1845, the rule as to pending action was extended so as to provide that no action founded on a tort should abate by the death of the plaintiff. 43 Ohio L. 114, § 2.

In none of these statutes was any provision made to modify the common law rule that for injuries to the person arising ex delicto, the right to bring the action abated by the death of defendant.

Section 398 of the civil code is in terms the same as section 74 of the act of 1831. It provides that, in addition to the actions which survive at common law, causes of action1 for mesne profits, or for injury to real or personal estate, or for deceit or fraud shall also survive, and the action may be brought notwithstanding the death of the person entitled or liable to the same. This relates to causes of action or the right to commence and maintain actions, and not to pending actions.

Section 399 of the code relates to pending actions, and is the same in terms as section 64 of the act of 1831. As the case at bar depends upon section 398, the question is, does the act of 1851 give a right of action for injuries to the estate real or personal, within the meaning of those terms used in the section.

The damages recovered are for the pecuniary injury to the widow or next of kin, and not for injury to his estate. The legal injury for which a recovery may be had, is that done to them by causing the death of the person, standing in a certain relation to them. His personal injuries for which an action would lie, if death had not ensued, are the basis of his recovery,. while their injury, for which damages commensurate with their pecuniary loss resulting from his death is recoverable under the act of 1851, is the basis of their action. In each the liability arises from the same wrongful act, neglect or default, but in his action the amount of recovery is measured by his personal injuries, including pain and suffering, as well as loss of time, expenses of cure, and it may be, exemplary damages ; while in theirs, the amount of recovery depends on none of these things, but on their pecuniary loss resulting from his death.

The law assumes that there is such a pecuniary loss to the widow and next of kin, and awards to them damages therefor.

The petition alleges that defendant, by his wrongful act, injured the estate of Anderson, but as the act gives the remedy not to his estate, but to his widow and next of kin, this cannot be so. The personal representative is only a trustee for them, to recover and distribute the damages they are entitled to recover. The clause “or for an injury to the real and personal estate,” found in section 398, and in the act of 1831, is borrowed from the classification known to the common law, to distinguish such injuries and rights of action from those to the personal or real estate.

We find the same terms in the act of 3 & 4 W. 4, ch. 42. By that act injuries to the personal or real estate, survive against the representative of the defendant. It recites the fact that there is no remedy for injuries to real estate of a deceased person committed in his life-time, nor for certain wrongs done by a person deceased, in his life-time, to another, in resj>eet to his property, real or personal, and among other things provides for an action against the personal representative of a deceased wrongdoer in respect to injuries to such property. 1 Ch. Plead. 79.

In using this phrase “injury to the real or personal estate,” the legislature is presumed to have used it in its well established sense, as distinguishing torts to property from injuries to person.

We conclude therefore, that section 398 of the code does not prevent the abatement of a right of action for damages to the person. As the right of action given by the statute is for the pecuniary loss to the widow and next of kin, the legal injury is the one sustained by them, and not by him or by his estate. It is not an injury to their estate. It is based upon the relation the deceased bore to them, and on his duty to provide for and support them. If there is no one occupying the relation of widow or nest of kin no right of action accrues.

It fllows that the injury caused to them by the death, is a personal injory to them and not an injury to their estate.

"We have been referred to the case of Yerton v. Wiswall (16 How. Pr. 8), as an authority to the effect, that the New York statute similar to ours, creates a property interest in the life of deceased, which survives under the New York statutes.

That case arose out of negligence in the performance of an implied contract, and not, as in this case, from a wrongful acwliich was purely ex delicto. Again, the New York statute as to survivorship is different in terms.

But with the view of the judge who delivered the opinion, holding that their statute gave a vested property interest to the widow and next of kin in the life, or rather in the deáth, of deceased, we do not concur. To so hold is a confounding of legal terms and distinctions.

Death gives this right of action under the statute, while at common law death terminated the right of the party injured.

The statute gives a right to maintain an action for loss occasioned by death. It does not vest in the widow and next of kin a property interest in the deceased. To say that the remedy is in its nature ex contractu when the act is a naked trespass, or that the injury is to the estate of the deceased or of their estate is to confound the well settled distinction between injuries to the person and injuries to the estate.

"Whatever may be the rule, where the death is caused by neglect or default while the defendant is in the performance of a contract, express or implied, we hold that in this case, when the death is caused solely by the wrongful act of defendant’s intestate, the right to commence and maintain the action, abated by the death of Turner.

The demurrer to the petition should have been sustained and the action dismissed.

Judgment accordingly.


author: White, J.

text:
    Nesbit v. Worts et al.
    1. Where an indemnity mortgage is conditioned to save the mortgagee harmless, and to pay the note on which the mortgagee is surety, the protection of the mortgage extends to a liability incurred by the mortgagee jointly with the mortgagor, for money borrowed to pay the first note, and with which such note was paid.
    2. The affidavit on an indemnity mortgage, under section 2 of the act relating to chattel mortgages, as amended May-7, 1869 (66 O. L. 345), must show that the mortgage was taken in good faith, to make it valid against creditors. A statement that the claim on which the mortgagee is surety is just and unpaid, is not sufficient.
    Error to the District Court of Lucas County.
    The plaintiff in error, Andrew Nesbit, in an action of replevin in the court of common pleas, recovered judgment for the possession of certain personal property under a chattel mortgage executed to him by Matthew Rooney. The defendants in error, Worts & Co., attaching creditors of the mortgaged property, in whose favor judgment had been rendered against Rooney, and Patrick W. Keegan, who held a second mortgage on the same property, filed answers in the nature of cross petitions, setting up them respective liens, and praying an account against the plaintiff of the proceeds of the sale of said mortgaged property.
    A copy of the condition and affidavit of the plaintiff’s mortgage is as follows:
    “The condition of the above conveyance is such, that whereas the said Nesbit has become liable as indorser for said Rooney, in the sum of $300, on a certain promissory note given to the Second National Bank of Toledo, Ohio, and whereas said Rooney is indebted to said Nesbit for money borrowed in certain other sums, and $50 indorsed for to William Rooney by said Nesbit:
    “Now if said Matthew Rooney shall save said Nesbit harmless, and shall well and truly pay said sum of money as the same shall fall due, then this conveyance to be void, otherwise in force.”

      “ The State of Ohio, Lucas Count/y, ss. Personally appeared before me, Alman Hall, a notary public of said county, Andrew Nesbit, wbo being by me duly sworn according to law, deposes and says that he is the mortgagee above mentioned that the above mortgage is Iona fide, and that the claim secured by said mortgage as therein set forth, -amounts to six hundred dollars, and that the same is just and wholly unpaid.-
    “Andrew Nesbit.
    “ Sworn to and subscribed before me this 16th day of April, A. d. 1875.
    “Adman Hadd,
    “ Notary Public in and for said county.”
    The following is a copy of the condition and affidavit of the Keegan mortgage:
    ' “ The condition of the above conveyance is such, that whereas the said Patrick W. Keegan has heretofore indorsed a certain promissory note given by said Rooney to Sckumaker & Egley for $160.75, and the said Rooney is indebted to the said, Keegan in the sum of forty dollars, due as follows, to wit: on the 7th day of November, 1875,
    “Now, if the said M. Rooney shall pay said note at maturity, and save said Keegan harmless, and shall also well and truly pay said sum of money as the same shall fall due, then this conveyance to be void; otherwise in force.
    “ State of Ohio, Lucas County. Personally appeared before me, Patrick "W. Keegan, who being duly sworn according to law, deposes and says that the claim described in and secured by said mortgage as therein set forth, amounts to two hundred dollars and — cents, and that the same is just and wholly unpaid.
    “ Patrick W. Keegan.
    “ Sworn to and subscribed before me, this 28th day of October, a.d. 1875.
    “ Byron F. Ritchie,
    “ Notary Public, Lucas county, Ohio.”

      Both of said mortgages were duly filed for "record, and the levying of the attachment of Worts & Co. was subsequent thereto.
    On the trial it appeared that the $300 note to the Second National Bank which the Nesbit mortgage was given to secure was paid by Rooney, except the *$100. At the instance of Nesbit the remaining $100, with which the balance of the note was paid,- was borrowed from Keeler, Holcomb & Co., under an arrangement made by Nesbit, for which Rooney and Nesbit gave their joint judgment note. In this note Rooney and Nesbit were described as principal debtors, but Nesbit was in fact surety.
    It also appeared that the mortgagee, Nesbit, having sold the mortgaged property, from the proceeds paid the $100 note, and the balance due him on the mortgage; and likewise paid to Keegan the amount due him on his mortgage, including the note on which he was indorser for Rooney to Schumaker & Egley, and the balance he brought into court to be disposed of as the court should order.
    The court adjudged both moiigages valid, and in effect confirmed the payments made by Nesbit, and ordered the balance to be paid over to Worts & Co.
    The order of distribution is excepted to by Worts & Co. only in respect to the payment of the $100 note to Keeler, Holcomb &Co. under the Nesbit mortgage, and the payment of the $160 note to Schumaker & Egley, under the Keegan mortgage.
    On petition in error, filed by Worts & Co. in the district court, the judgment of the court of common pleas was reversed.
    The only errors assigned in the district court were the payment of the $100 to Keeler, Holcomb & Co., and the $160 on the note to Schumaker & Egley.
    The object of the present petition in error is to obtain the reversal of the judgment of the district court.

      Byron E. Ritchie and T. J. McDonnell, for plaintiff in error:
    The affidavits are sufficient, because the object and purpose of the statute are subserved in them, and they comply with the spirit and intent of the statute. Herman on Chattel Mortgages, 178; Patterson v. Gilles, 64 Barb. 563; 8 Bosworth (N. Y.) 396.

      Lockwood & Everett, for defendant in error :
    The affidavit of the mortgagee is defective because it does not state that the instrument was taken in good faith to secure the mortgagee against liability as surety. Haynes v. Tiffany, 25 Ohio St. 549.
   White, J.

The first question is whether Nesbit’s mortgage operated to protect him against his liability on the liundred-dollar note to Keeler, Holcomb & Co. If it did so operate, he was justified in paying the note out of the proceeds of the sale of the mortgaged property.

The primary object of the mortgage, as respects the note held by the Second National Bank, was not to secure the bank, but to secure Nesbit against his liability for Rooney. If Nesbit had been released from such liability, by the bank or otherwise, the mortgage would have been discharged to that extent. The bank, it is true, was paid, but the liability of Nesbit for Rooney was not discharged. There was a mere exchange or substitution of the liability to Keeler, Holcomb & Co. for that to the bank. The liability incurred by Nesbit to Keeler, Holcomb & Co. was not an independent transaction, but the direct consequence of his liability to the bank, his liability to the former being incurred solely for the purpose of raising the money with which to discharge his liability to the bank. We are of opinion therefore that, under the mortgage, he was entitled to be protected against the new liability thus incurred. At the time of the commencement of the suit, and the recovery of the possession of the property, the time had not arrived for the filing, by the mortgagee, of a new statement showing his interest in the mortgage after the payment of the $200 to the bank by Rooney.

The next question is, whether the affidavit of Nesbit on the mortgage is sufficient to cover his liability as indorser to the bank.

It was held in Gardner v. Parmalee (31 Ohio St. 551), that the affidavit need not be in any particular form; that if it contains the requisite facts, the form in which they are stated is immaterial. And it was also held that where the affidavit refers to matters contained in the mortgage, the matters thus referred to are to be regarded' as part of the affidavit. ■ Under the authority of that case we think the affidavit is sufficient to cover such liability.

The affidavit states that the mortgage is bona fide and that the claim secured by the mortgage, as therevn set forth, is just and wholly unpaid. This, taken in connection with the mortgage, is a sufficient statement, we think, of Nesbit’s liability as accommodation indorser for Rooney to the bank, and of his claim to indemnity against any loss resulting therefrom, and that the mortgage was taken in good t faith to secure such indemnity.

The remaining question is, whether the affidavit on Keegan’s mortgage is sufficient to cover his liability as accommodation indorser to Schmuaker & Egley.

This affidavit is good under the first clause of séction 2 of the act relating to chattel mortgages as amended May 7, 1869 (66 Ohio L. 345), which provides for the case where the mortgage is given “ to secure the payment of money only.” In such case the affidavit is required to contain a true statement, in dollars and cents, of the amount of his claim, and that it is just and unpaid.” But under the second clause of the section, which provides for the case of mortgages given to indemnify the mortgagee against any liability as surety for the mortgagor, the affidavit is required to state, in addition to the other requisites, that the mortgage was taken in good faith.”

The affidavit now in question, unlike the affidavit on the Nesbit mortgage, contains no statement in regard to the good faith or bonafides of the mortgage. Nor does it seem to us that in an indemnity mortgage taken under the second clause of the section, the statement of the amount justly due on the claim can be regarded as a compliance with the statute. The claim due the creditor may be just; and yet the mortgage given to the surety may be collusive and fraudulent. In so far, therefore, as Keegan’s mortgage is intended to indemnify him against his liability as indorser it must be held invalid as against the attaching creditors. Haynes v. Tiffany, 25 Ohio St. 549.

Judgment of the district court reversed, and that of the court of common pleas modified to conform to this opinion.


author: Okey, C. J.

text:
    Williams v. Englebrecht.
    In an action by the mortgagee against the mortgagor, under the statute (Civil Code, §558; Rev. Stats. §5781), to recover possession of the lands mortgaged, the fact that such mortgage was given to compound a felony is not available as a defense.
    Error to the District Court of Scioto County.
    On July 14, 1874, John D. Williams commenced an action in the court of common pleas of Scioto county, against Charlotte Englebrecht and others, under the civil code, § 558; Rev. Stats. § 5781. The object of the suit was to recover possession of certain real estate in that county, the plaintiff alleging in his petition that he had a legal estate in the premises therein described, was entitled to the possession thereof, and that the defendants unlawfully kept him out of possession. There was an answer to the petition and reply to the answer.
    The facts are as follows: In 1866, Williams loaned $2,500, to Ludwig Englebrecht, who gave him a note for the amount, payable one year after date, which note was signed by Ludwig Englebrecht as principal and purported to be signed by Frederick Englebrecht, his father, as surety. When the note became due, December 20, 1867, Ludwig obtained a renewal of the loan for one year. To effect such renewal, he paid the interest on the note, and delivered to Williams a new note for the same amount, also executed by himself as principal and purporting to be executed by his father as surety, and also delivered to Williams an instrument purporting to be a mortgage on the premises sought to be recovered in this case, to secure the payment of the last mentioned note, which instrument, in the form of a mortgage, purported to have been executed and acknowledged in due form by Frederick Englebrecht and his wife Charlotte, one of the defendants, the premises being owned by said Frederick in fee. In fact, however, the name of Frederick Englebrecht was signed to the notes and the pretended mortgage without his knowledge or consent, and the name of Charlotte Englebrecht was signed to the pretended mortgage without her knowledge or consent, and in placing such signatures on the notes and mortgage, Ludwig Englebrecht committed forgeries. He also fraudulently procured the pretended mortgage to be attested by two witnesses, and the acknowledgment to be signed by a notary public of Scioto county. Williams believed the notes and mortgage to be genuine when he so received them, and so believed until March, 1868, when he first learned that the forgeries had been committed. He then insisted that a genuine note and a genuine mortgage on the premises should be executed, but Frederick Englebrecht refused to execute such note, and he and his wife refused to execute such mortgage, until Williams assured them that unless that was done he would immediately prosecute their son Ludwig for the forgeries. Thereupon, March 23, 1868, Ludwig and Frederick Englebrecht executed and delivered to Williams a promissory note for $2,500, dated December 20, 1867, payable four years after date, with interest, and Frederick and Charlotte Englebrecht executed, acknowledged and delivered to Williams, in due form, a mortgage on said premises, in which mortgage they say that we, “ in consideration of $2,500 to us in hand paid by John D. Williams, .... do hereby grant, bargain, sell and convey to said John D. Williams, his heirs and assigns forever, the following described real estate.” Here follows a description of the property in the same form as set forth in the petition, the usual covenants of seizin, against incumbrances, and of general warranty, a recital of the terms of the last mentioned promissory note, and a condition that “if the said Frederick Englebrecht and L. Englebrecht, or either of-them, shall pay said note when the same becomes due, with the interest thereon, then these presents shall be void.”
    Ludwig Englebrecht died before the note became due. Ered erick Englebrecht was living on the premises above mentioned at the time he executed such mortgage. He was the owner of the premises in fee simple and continued to reside thereon until he died intestate, his death also occurring before the note became due, and the defendants, his widow and heirs at law, have resided on the premises ever since his death.
    A jury was waived and the cause' was submitted to the court of common pleas on the pleadings and the above facts, which court found in favor of the defendants ; the district court affirmed the judgment; and this petition in error was filed by "Williams to obtain a reversal of those judgments.

      W. A. Hutchins and J. W. Hannon, for plaintiff in error.

      F. C. Searl, and Moore & Newman, for defendants in error
   Okey, C. J.

In 1826, Charles Roll and Peter Roll, his father, executed to Henry Raguet two promissory notes, each for the sum of five hundred dollars, and Peter Roll executed to Raguet mortgages on a parcel of real estate in Hamilton county to secure their payment. The notes and mortgages were given to compromise or compound a larceny said to have been committed by Charles Roll. The reports of the cases prosecuted on those instruments are very instructive on the question here presented. Iii an action brought on one of the notes against Charles Roll and Peter Roll, it was held that Raguet could not recover, the contract being executory and the parties in pari delicto. Roll v. Raguet, 4 Ohio, 400. The same result was arrived at, for the same reason, in a proceeding by scire facias, prosecuted by Raguet against Peter Roll on one of the mortgages. Raguet v. Roll, 7 Ohio, 1 pt. 76. The same result would have followed in any suit in chancery for an account of the amount due on the mortgages and a sale of the premises. McQuade v. Rosecrans, 36 Ohio St. 442. And see acc. Spalding v. Bank of Muskingum, 12 Ohio, 544, 548; Goudy v. Gebhart, 1 Ohio St. 262 ; Hoss v. Layton, 3 Ohio St., 352, 357; Cooper v. Rowley, 29 Ohio St. 547, 549. Raguet then prosecuted an action of ejectment against Peter Roll, basing his right to recover on the mortgages, the conditions in which had been broken, and Roll relied for his defense on the fact that the mortgages had been given to compound a felony. The court, however, while approving the decisions in the above mentioned cases between the parties, held that in the action of ejectment, such defense was not available to Roll. Grimke, J., in delivering the opinion, said: “Amortgage is in reality a conditional fee, which isas large an estate as a fee simple, though it may not be so durable. And the case comes within the principle, that when a conveyance has actually been executed on an unlawful consideration, the court will not merely not annul it, they will permit it to be enforced.” Raguet v. Roll, 7 Ohio, 2 pt. 70. But this is not inconsistent with the statement in Harkrader v. Leiby, 4 Ohio St. 602, 612, repeated in other cases, that “ a mortgage is now treated in both courts (law and equity) as a mere security for the debt, and the mortgagee is permitted to use the legal title only for the purpose of making effectual such security.” And see Hill v. West, 8 Ohio, 222 ; Mc Arthur v. Franklin, 16 Ohio St., 206. Hence, it is a good defense to ejectment on a mortgage that the debt has been paid. This principle is further illustrated in the fourth suit to which Roll and Raguet were parties. That was a bill in chancery in which the question presented was whether Roll had the right to redeem, and it was held that he had such right, and the court approve the decisions in the three preceding cases between the parties. Cowles v. Raguet, 14 Ohio, 38. But it, was further held that a court of equity will not set aside or restrain the enforcement of a deed of real estate the consideraron of which is wholly founded on an illegal agreement between the parties (Moore v. Adams, 8 Ohio, 373 ; Thomas v. Cronise, 16 Ohio, 54); though where, by threats of prosecution for a crime of which he was wholly innocent, a person was induced to execute a note and mortgage, it was held that equity would grant relief, and restrain the collection of the note or the enforcement of the mortgage. James v. Roberts, 18 Ohio, 548.

An examination of these eases will show very clearly, that under the law as it existed before the adoption of the code of civil procedure of 1853, there was no such defense to an action of ejectment based on a mortgage like this; nor could a bill in chancery, founded on such facts, be entertained to restain such action or quiet the title of the mortgagor. As against such mortgage the only relief in the courts available to the mortgagor or his heirs, on the facts here stated, was a bill to re-. deem. It is urged, however, that the rule is now very different, and that by reason of the blending of legal and equitable actions and defenses, under the code of civil procedure, the defense of illegality is equally available to the defendant whether - an action is brought upon the note, or upon the mortgage to obtain a sale of the property, or for the recovery of the possession of the land under the mortgage. True, the rights of parties, with respect to a few matters, are changed by the code, as, for instance, the acknowledgment of a debt sufficient to take a case out of the statute of limitations, must now be in writing; and the practical effect of permitting, in a proper case, the determination of the rights of the parties, legal and- equitable, in the same suit, enables a person sometimes to secure rights which'under the former practice would have been lost. But, with the exception of the express changes referred to, the rights of parties are unaffected by the code. This view is well expressed in Dixon v. Caldwell, 15 Ohio St. 412, 415, where it was said: “ The distinction between legal and equitable rights exists in the subjects to which they relate, and is not affected by the form or mode of procedure that may be prescribed for their enforcement. The code abolished the distinction between actions at law and suits in equity, and substituted in their place one form of action ; yet, the rights and liabilities of parties, legal and equitable, as distinguished from the mode of procedure, remain the same since, as before, the adoption of the codeWhite, J. As the heirs of the mortgagor could, in a case like this, have maintained a bill, under the former practice, to redeem, they may, of course, obtain the same relief in this case by cross-petition.’ Rev. Stats. § 5071. This is not a change of the rights of the parties. But, as we have seen, a bill in chancery could not have been entertained to restrain an action of ejectment on a mortgage like this, and hence the heirs of the mortgagor cannot maintain a cross-petition for such relief in this case. To hold otherwise is to affirm that the code has effected most material changes in the rights of parties, without any words to indicate a purpose to make such change.

No claim is made that the question before us is affected by the provision of the statute (Rev. Stat. § 5316) requiring a sale to be ordered when a mortgage is foreclosed; nor could such claim be properly made. The object of that provision will sufficiently appear in Anonymous, 1 Ohio, 235 ; Higgins v. West, 5 Ohio, 551; Morgan v. Burnet, 18 Ohio, 535.

In rendering a judgment of reversal in this case, we perform a disagreeable duty; but it is a duty, nevertheless. If it will tend to a better administration of justice to permit, in cases of this sort, such defense as was offered by the defendants, the law upon the subject must be changed by the legislature and not by this court.

Judgment reversed.


author: By the Court.

text:
    Glick v. Crist.
    A payment by a principal debtor which will take a case out of the statute of limitations as to him, will have the same effect as to his surety, who is present for the purpose of seeing that the payment is made and credited, and makes no statement that any limitation shall be placed on the effect of such act.
    Error to the District Court of Fairfield County.
    On December 23, 1873, Manasseh Click, as administrator of Jacob W. Alspach, brought suit in the court of common picas of Fairfield county, against Samuel Crist. The action was upon a joint and several promissory note for $153.61, dated December 10, 1853, due one day after date, payable to the order of said Jacob W. Alspach, and executed by Peter Brown as principal debtor, and Charles Brown and said Samuel Crist as Ms sureties. Crist pleaded the statute of limitations of fifteen years, and the sole question in the case is whether the action is barred. The facts are as follows : There are two credits, one of $215, dated May 2, 1862, and the other of $10, dated September 2, 1871, indorsed on the note, and said sums were actually received by Alspach, on the days stated, and then credited on the note. As to the first credit, the proof is that Peter Brown, who was in the army, sent to said Challes Brown $215, and directed that it be paid to Alspach. Charles Brown took the money to Crist’s house, informing Crist that Peter Brown had sent it. They then went together to Alspach’s house, 'where Charles Brown informed Alspach that Peter Brown had sent the money, and thereupon Charles, in the presence of Crist, paid the money to Alspach, who credited it on the note. On a subsequent day Crist remarked to another person that they (Crist and Charles Brown) had paid to Alspach the money which Peter Brown had sent; and that Alspach was getting uneasy about the note, but that he (Crist) was good enough and would stand by it. The other payment was made by Peter Brown. At his request Crist accompanied him to make the payment, and was present when the money was handed to Alspach and credited on the note. Crist made no objection to either payment, nor did he make any statement to indicate any limitation as to the effect which should be given to the payments. The court of common pleas, to which the cause was submitted on the petition, answer, reply and testimony, held that the action was not barred by the statute of limitations, and rendered judgment in favor of the plaintiff for $731.92, but the judgment was reversed in the district court, and this petition in error was prosecuted by the administrator to obtain a reversal of the judgment of the district court.

      M. A. Daugherty and J. S. Brasee, for plaintiff in error:
    The action was not barred. Angell on Lim. 294; Marienthal v. Mosler, 16 Ohio St. 566; Courson v. Courson, 19 Ohio St. 151; Hance v. Hair, 25 Ohio St. 319 ; Vose v. Woodford, 29 Ohio St. 215; Bevan v. Gelking, 3 Gale & D. 59; Whipple v. Stevens, 2 Foster (N. H.) 219; Huntington v. Ballou, 2 Lansing, 120; First Nat. Bank v. Ballou, 49 N. Y. 155. And see Leake on Con. 991-1000.

      Martin & McNeill, for defendant in error.
   By the Court.

By the statute (Civil Code, § 24; R. S. § 4992), when payment is made 'upon a demand founded on contract, an action may be brought thereon within the time limited, after such payment. In this case the limitation was fifteen years (Civil Code, § 13; R. S. § 4980), and each payment, as to Peter Brown, prevented the running of the statute for the period of fifteen years from the time of such payment. It is said, however, that the same result did not follow as to Crist. But we think otherwise. Crist, when the payments were made, stood by consenting, and there is no reason for saying that the payments had not the same effect as to him that they had as to Peter Brown. The views expressed by Crompton, J., in Jackson v. Wooley, 8 Ell. & Bl. 778, and by Ross, J., in Bailey v. Corliss, 51 Vt. 366, in apparent conflict with the conclusion at which wre have arrived, aré founded on statutes different in terms from that above cited. In holding that the judgment of the district court should be reversed, and that of the court of common pleas affirmed, our decision is not in conflict with any of the cases decided in this court, and referred to by counsel for plaintiff in error, but is supported by them.

Judgment reversed.


text:
    Simmerson v. Tennery.
    An action by an assignee of the claim of a married woman, against her husband, for moneys belonging to her and converted by the husband to his own use, is not barred by the limitations of chapter 3 of the code of 1853, (2 8. & C. 947,) where less than six years have intervened between such assignment and the commencement of the action.
    Error to the District Court of Sandusky County.

      The action was originally brought December 23, 1873, in the court of common pleas, by the defendant in error, Emeretta Tennery, against her father, Joseph Simmerson, now deceased. He having died during the pendency of the action, it was revived against his administrator, Alonzo Simmerson, the present plaintiff in error.
    The petition of plaintiff alleged that Rhoda Simmerson, her mother, and wife of Joseph, died about October, 1871, leaving a will whereby she devised to her daughter, the plaintiff, her interest in a lot of land in Clyde, Sandusky county, together with all her claims or rights of action against her husband. It further alleged that in March, 1863, this lot was purchased by Joseph and Rhoda jointly for $520, the conveyance being to them as tenants in common of equal shares, Rhoda paying $200 of the purchase-money out of her own separate moneys.
    That, at this time Rhoda owned a certain'promissory note for $100, which Joseph collected, and applied $70 of the proceeds toward paying the purchase-money, and appropriated the balance to his own use. The deferred payments were secured by a purchase-money mortgage on the premises. To meet the deferred payments, when the same became due, Joseph and Rhoda sold a portion of the lot for $450, out of which the balance of purchase-money ($250) was paid; the rest was appropriated by Joseph to his own use. The petition prayed judgment for the sums claimed to be due, with interest, and for an account.
    The answer, among other matters of defense, alleged that the plaintiff’s cause of action had not accrued to her within six years prior to bringing suit. This the reply denied.
    The court of common pleas, without passing upon any other issues, held that the plaintiff’s cause of action was barred by the statute of limitations, and rendered judgment in favor of defendants.
    This judgment was reversed in the district court.

      B. Meek & J. M. Rhodes, for plaintiff in error, cited Ong v. Sumner, 1 Cin. Sup. C. Rep. 424.

      John M. Lemmon. of Lemmon, Finch & Lemmon, for de fendant in error,
    cited Weisner v. Zaun, 39 Wis. 188 ; Burke v. Beveridge, 15 Minn. 205 ; Bauman v. Grubbs, 26 Ind. 419; Dunham v. Sage, 52 N. Y. 229; Morrison v. Noeman, 47 Ill. 477; Michart v. Wyatt, 21 Ala. 813 ; State v. Trautman, 72 N. C. 551; Wilson v. Wilson, 36 Cal. 447.
   By the Court.

The district court did not err in reversing the judgment of the court of common pleas. The plaintiff’s devisor was within the saving clause of the statute (Code, § 19 ; 2 S. & C. 949), during her coverture.

Judgment affirmed.


author: Longworth, J.

text:
    Loomis v. Building Association.
    L. recovered a judgment in the common pleas court against R. for $247.48, in an action for money only. R. obtained a second trial under tbe statute. R. then gave a mortgage to a building association. Afterward, upon second trial, L. recovered a judgment against R. for $251.80, damages, and $185.98, costs, and levied execution upon the mortgaged premises. In an action by the building association to foreclose the mortgage, marshall liens, and distribute proceeds:

      Held: 1. That the lien of L., to the extent of the original judgment, with interest from the first day of the term at which it was rendered, was the first in order of priority.
    2. That the mortgage was’second in order of priority.
    3. That the lien of the second judgment, to the-extent that it exceeded in amount the first judgment with interest, was the last in order of priority.
    Error to the District Court of Scioto County.
    At the October term of the court of common pleas of Scioto county, beginning October 3, 1870, Caroline Loomis, the plaintiff in error, obtained a judgment against Eliza Redinger, one of the defendants below, for the sum of $200 damages and $47.48 costs of suit, in an action then pending in said court, wherein the plaintiff in error was plaintiff and the above named Eliza Redinger was defendant. Thereupon the defendant in that action, Mrs. Redinger, gave notice of her demand for a second trial, which was granted, bond given and the case continued. At tlie time said judgment was rendered against Mrs. Redinger she wí\s the owner of certain real estate in said county, and which is described in the petition of the Second German Building Association, plaintiff in the court below and defendant in error in this court. On May 10, 1872, a mortgage was given by Mrs. Redinger to the Second German Building Association, and which was the same day filed and recorded.
    The case of Loomis v. Redinger was continued from time to time until the June term, 1874, commencing June 1,1874. It was tried at that term and a judgment was rendered in favor of Mi’s. Loomis for the sum of $251.80, and 135.98, costs accruing since the first trial, and including the costs of the second trial. Then executions were issued for the judgment and the costs at the following named dates, to wit: September 4, 1874, and July 14, 1875, and were levied on the premises described in the petition of the Second German Building Association, then the property of Mrs. Redinger. These increased costs, as shown by the agreed statement of facts, amounted to the sum of $110.30, and were the costs of issuing the executions, levying on the premises, advertising them for sale, &c. On January 12,1876, Eliza Redinger ceased paying her dues to the Building Association, and it brought suit to foreclose its mortgage on the premises, and made the plaintiff in error a defendant to that action.
    Mrs. Loomis filed her answer and cross-petition, setting forth the amount of her claim, her lien, judgment, interest and costs, and asking that it be adjudged to be prior to that of the building association. The premises were sold on April 14, 1877, on an order of sale issued in favor of the building association, and on the order of distribution the common pleas held that Mrs. Loomis had a lien on the premises prior to that of the building association for the judgment of $251.80, being the amount rendered on the second trial, the costs of the first trial, the costs of the second trial and the increased costs.
    The building association thereupon appealed the case to the district court, and the same was heard at the April term, 1878, on the agreed statement of facts and the pleadings in the case The district court held ;

      That Mrs. Loomis had a lien on the premises prior to that of the building association, for the sum of $200, and $4U48 costs, being the amount of the judgment and costs of the first trial, and that the interest on the $200 and the costs accruing between the first and second trials and the increased costs for issuing execution, &c., on the judgment, also the costs of the second trial, were not prior to the mortgage lien of the building association, for the reason that the mortgage was filed prior to the time the second trial took place and the increased costs were made. To x-eview this judgment, the present proceeding in error was instituted.
    N. W. Evans and Duncan Livingstone, for plaintiff in error.

      H. W. Farnham, for defendant in error.
   Longworth, J.

The district court was cleax-ly right in holding that the costs made between the first and second trials, and the increased costs for issuing and levying execution and advertising, were a lien upon the lands of the judgment debtoi’, subsequent in order of pxdox’ity to the mortgage lien of the building association. As to the costs made betweeix the fix-st and second trials they were not adjudged against either party until the rendition of the second judgment, of which they formed a component part. As to the costs accruing after the second judgment they wex*e wholly unconnected with the former judgment and wex’e incurred upon final process.

A judgment lien is a creature of the statute, and does not exist except by its authority. By the provisions of the Code, such lien attaches upon the debtor’s lands and tenements on the first day of the term at which such judgment is rendered; in no case does it ante-date the term. A pending action may, it is tnxe, affect the title to land from the time of its commencement ; but this is wholly disconnected with the subject of which we are speaking; such cases are in the nature of proceedings in rem and directly affect the defendant’s title to or interest in the land. With no propriety can such pending action, or the judgment rendered therein, be called a Hen upon the land in dispute.

The judgment of Mrs. Loomis was for money only, and could not affect the land otherwise than in being a charge upon it as provided by statute.

The statute concerning second trials (2 S. & C. 1160) declares : “ In all cases where the party against whom a judgment is,rendered obtains a second trial under the act to which this is amendatory and supplementary, the lien of the opposite party so obtaining such second trial, created by said judgment, shall not be by the obtaining of such second trial removed or vacated, but the real estate of said party so obtaining such second trial, shall be bound in the same manner as if said second trial had not been demanded, until the final determination of the case.”

It cannot be claimed that the lien of the first judgment is preserved only “until the final determination of the ease,” and that it then becomes merged in the lien of the final judgment, since, inasmuch as it could not be asserted until the final determination of the case, if such final determination removed the Hen, it would be an unavailable and valueless thing, and the statute reserving it an absurdity.

On the other hand it is equally unreasonable to assert that the lien of the second judgment, when rendered, relates back to the term of the first judgment. The statute does not so provide in terms; nor would it seem reasonable to suppose that the legislature intended to give to an action for the recovery of money only, when a second trial has been obtained, the effect of a Hs pendens binding the lands of the defendant to answer any judgment which may be rendered in the future; an effect which no other action for the recovery of money has.

The statute regulating the lien of a judgment vacated by an appeal to the district court, is worded substantially like that under discussion, and, under it, this court has held that the lien of a judgment so vacated has precedence of a lien attaching during the pendency of the suit in the district court. Moore v. Rittenhouse, 15 Ohio S. 310.

If upon the second trial tire defendant recovers judgment, or if the plaintiff recovers a judgment less in amount than that formerly obtained, this will operate as a satisfaction, complete os pro tanto, but it cannot be said that it affects the lien as such.

We are, therefore, clearly of opinion that the district court was right in deciding that the lien of the first judgment had precedence of the mortgage. We are equally clear, however, that the court was wrong in holding that the interest on the judgment was postponed to the mortgage lien.

The right of the judgment creditor to interest is derived from the judgment itself. It is part and parcel of it, as much as the principal sum therein adjudged to be due him, and the lien of the judgment covers both.

Freeman in his work on Ju.-tgments, says :—“ The lien of the judgment includes all amounts tor which execution may properly issue. In the absence ot anj statutory provision, interest could only be recovered by an action on the judgment, and was therefore no lien until it merged into the second judgment. But in all cases where the statute has provided for the collection of interest by execution, it is as much a lien as the principal recovered.”' Freeman on Judgments, marg. p. 341.

This we take to be a correct statement of the law.

We think that the judgment of the district court should be so far modified as to allow to plaintiff in error, as the first lien upon the land in dispute, the amount of her first judgment ($200 damages and $47.48 costs), with interest thereon from the first day of the term when rendered. In other respects the decree should be affirmed.

Judgment accordingly.


text:
    Bell v. McConnell.
    The double agency of a real estate broker, who assumes to act for both parties to an exchange of lands, involves, prima facie, inconsistent duties ; and he cannot recover compensation from either party, even upon an express promise, until it is clearly shown that each principal had full knowledge of all the circumstances connected with his employment by tbe other which would naturally affect his action, and had assented to the double employment. But when such knowledge and consent are shown, he may recover from either party.
    Error to the District Court of Mahoning County.
    The original action was brought by Arthur B. McConnell, a real, estate broker, to recover certain commissions claimed to have been earned in making an exchange for the defendants, William Bell and others, now plaintiffs in error, of certain real estate, to wit, certain city lots, with one Augustus Neal, for certain other real estate, upon terms satisfactory to the defendants, upon an express agreement for commissions at the rate of three per cent, of the value of the property exchanged.
    The defendants, by answer, among other things, alleged that, before the alleged employment by the defendants, the plaintiff had been employed by said Neal to sell or exchange a certain farm of said Neal, to wit, the same property given in exchange to defendants, upon such terms as- might be approved, for an agreed compensation at the rate of four per cent, of the value thereof; and that, at the time said exchange was effected, said Neal had no knowledge or information of the alleged employment of the plaintiff by defendants.
    The plaintiff, by reply, alleged, in effect, that said Neal, at the time said exchange was negotiated, had knowledge of his employment by the defendants.
    On the trial testimony was offered by each party tending to prove the issue in accordance with the respective allegations ; and thereupon the plaintiff requested the court to charge the jury as follows:
    “That if the jury find from the evidence that said defendants employed said plaintiff to act as their agent in the exchange of the property mentioned and described in the petition for the farm of Mr. Neal, located in said township of Boardman, or employed him to aid and assist in such exchange, and agreed to pay him three per cent, commission on said property, and at the same ■ time knew that said plaintiff was the agent of said Neal for the sale or exchange of said farm, and that he was acting as his agent, and that said defendant assented thereto and agreed to pay said commission, and that said Neal knew that said plaintiff was acting agent of said defendant in said exchange, and assented thereto, and agreed to pay said plaintiff the commission stipulated in the written contract of agency, said plaintiff would be entitled to recover in this case,” but the court refused to charge the jury as above requested, and did charge as, follows:
    “ That if you find that Neal employed plaintiff to sell or exchange his farm in Boardman for cash or property, and agreed to pay him for such services, and if, while so employed, defendant Bell and others, employed plaintiff to find a purchaser for their (defendants’) city property, or one who would exchange country property for it, and if plaintiff’s duty was simply to bring the buyer and seller together, and for that service defendants agreed to pay plaintiff a fixed amount, and if plaintiff performed that service the defendants are bound in law tó pay said amount so fixed, even though plaintiff was acting as agent for the party—in this case Neal—so introduced.
    “ But I say to you, if the contract between plaintiff and defendants was, that plaintiff should sell for, or assist the defendants in selling or exchanging their property, and did so sell or exchange defendants’ property, or assist them in selling it to, or exchanging it with said Neal, while he was also acting for Neal, or assisting him in the same sale or exchange, under a contract with said Neal for pay on the part of said Neal for such service so rendered him, then plaintiff is not entitled to your verdict in this case, even though both Bells and Neal were aware of, and assented to said plaintiff’s employment and acts in the premises.”
    Exceptions were taken to the refusal to charge as requested and to the charge given.
    Yerdict and judgment were rendered for the plaintiff. On petition in error the judgment of the court of common pleas was reversed, and this proceeding is prosecuted to reverse the judgment of reversal.

      R. B. Murray, for plaintiff in error,
    cited Farnsworth v. Hammer, 1 Allen, 494; Walker v. Osgood, 98 Mass. 348;
      Rice v. Wood, 113 Mass. 133 ; Morrison v. Thompson, L. R. 9 Q. B. 480; Lynch v. Fallon, 11 V. R. I. 311; Raisin v. Clark, 41 Md. 158 ; Hollman v. Loomis, 41 Conn. 381; Rowe v. Stephens, 53 N. Y. 621; 16 Gray, 398; 7 Lansing, 177; 63 N. Y. 97.

      George F. Arrel, for defendant in error.
   McIlvaine, J.

This ease presents the single question. Can a real estate broker, who assumes to aid both contracting parties in making an exchange of real estate, recover compensation for his services from either, upon an express promise to pay, in a case where each principal had full knowledge of and assented to the double employment %

It has been decided (Rupp v. Sampson, 16 Gray, 398, and Siegel v. Gould, 7 Lans. 177), and is not doubted, that such broker may recover from both or either where his employment was merely to bring the parties together; and it is equally clear, both upon principle and authority, that in case of such double employment he can recover from neither, where his employment by either is concealed from or not assented to by the other. Several reasons may be given for this rule. In law, as in morals, it may be stated that, as a principle, no servant can serve two masters, for either he will hate the one and love the other, or else he will hold to the one and despise the other. Luke, 16, 13. Unless the principal contracts for less, the agent is bound to serve him with all his skill, judgment and discretion. The agent cannot divide this duty and give part to another. Therefore, by engaging with the second, he forfeits his right to compensation from the one who first employed him. By the second engagement, the agent, if he does not in fact disable himself from rendering to the, first employer the full quantum of service contracted for, at' least tempts himself not to do so. And for the same reason, he cannot recover from the second employer, who is ignorant of the first engagement. And if the second employer has knowledge of the first engagement, then both he and the agent are guilty of the wrong committed against the first employer, and the law will not enforce an executory contract entered into in fraud of the rights of the first employer. It is no answer, to say, tha, the second employer having knowledge of the first employment should be held liable on his promise, because he could not be defrauded in the transaction. The contract itself is void as against public policy and good morals, and both parties thereto being in pari delicto, the law will leave them as it finds them. Ex dolo malo non oritur actio.

The non-liability of the second employer having knowledge of the first employment has been maintained in the following cases: Farnsworth v. Hemmer, 1 Allen, 494; Walker v. Osgood, 98 Mass. 348; Smith v. Townsend, 109 Mass. 500 ; Rice v. Wood, 113 Mass. 133; Bollman v. Loomis, 41 Conn., 581; Everhart v. Searle, 71 Pa. St. 256 ; Morrison v. Thompson, 9 Q. B. (L. R.) 480. But in each of these cases it is strongly intimated, if not distinctly announced, that a recovery may be had by such agent, when he acted with the knowledge and consent of both principals. In Lynch v. Fallon, 11 R. I. 311, the same general doctrine is held, and it it said, that a broker acting at once for both vendor and purchaser, assumes a double agency disapproved of by law, and which, if exercised without the full knowledge and free con sent of both parties, is not to be tolerated. The same, in Meyer v. Hanchett, 43 Wis. 246, wherein the question w-hether sucl double agency is consistent with public policy, though exer cised with the consent of both parties, is left undecided, but it is decided that mere knowledge of such double agency, without actual consent on the part of the principals, will not entitle the agent to commissions.

The validity of such contracts of double agency, where ail the principals were fully advised and consented to the double employment, was more directly before the courts, and affirmed in the following cases: 35 N. Y. Super. Ct. 189; Rowe v. Stevens, 53 N. Y. 621; Alexander v. N. W. C. University, 57 Ind. 466; Joslin v. Cowee, 56 N. Y. 626; Adams Mining Co. v. Senter, 26 Mich. 73; Fitzsimmons v. Southwestern Ex. Co., 40 Geo. 330; Rolling Stock Co. v. Railroad, 34 Ohio St. 450; Pugsley v. Murray, 4 E. D. Smith, 245. See also note by Bennett to Lynch v. Fallon, 16 Am. L. Reg. 333.

Raisin v. Clark, 41 Md. 158, holds the contrary doctrine, if knowledge and consent on the part of the first employer is to be regarded as fully proved. Other cases bearing more or less directly on the point might be cited; but enough are given to show a want of harmony in the decisions ; yet we think the decided current of authority is in favor of the validity of such contracts where the consent of both principals to such double agency is clearly proved.

We admit that all such transactions should be regarded with suspicion ; but where full knowledge and consent of all parties interested are clearly shown we know of no public policy, or principle of sound morality, which can be said to be violated. It seems to us rather that public policy requires that contracts, faÍ7-ly entered into by parties competent to contract, should be enforced where no public law has been violated, and no corrupt purpose or end is sought to be accomplished. True, such agent may not be able to serve each of his principals with all his skill and energy. He may not be able to obtain for his vendor principal the highest price which could be obtained, or for the purchaser the lowest price for which it could be purchased. But he can render to each a service entirely free from falsehood and fraud ; a fair and valuable service in which his best judgment and his soundest discretion are fully and freely exercised. And in such case, such service is all that either of his principals contracted for. Undoubtedly, if two persons desire to negotiate an exchange or a bargain and sale of property, they may agree to delegate to a third person the power to fix the terms, and no suspicion of a violated public policy would arise. It may be said that such third person is an arbitrator chosen to settle differences between his employers, an agency or office greatly favored in the law. And so it is. But what is the distinction between that employment, and the one in the present case, which should cause the law to favor the former and abhor the latter ? I can see none.

True, in the case put, the contracting parties deal directly with each other, and in the ease at bar their minds meet through the medium of a third person in whose judgment and discretion they mutually repose confidence. His judgment and discretion are invoked by each to aid in fixing the terms of a contract between them. And after the terms are thus adjusted through the aid of their mutual agent, and ratified by the parties, in the free exercise of their own volitions, to hold that the relation between such agent and either of his principals is in violation" of a sound public policy supposed to rest on some moral abstraction, would be a refinement in legal ethics too subtle for my comprehension.

Of course, to relieve such double agent from suspicion that inconsistent duties have been assumed, which prima facie will be presumed, it is necessary that it should appear that knowledge of every circumstance connected with his employment by ■either should be communicated to the other, in so far as the same would naturally affect his action; but when that is done, and ■free assent is given by each principal to the double relation of the agent, the right of such agent to compensation cannot be denied on any just principle of morals or of law.

The refusal of the court of common pleas to charge as requested, and the second proposition given, if not plainly in conflict with the views above expressed, were at least so susceptible of such construction, that the jury may have been misled. Hence, we think the district court did not err in reversing the judgment.

Judgment of district' eourt affirmed.

Lonowosth, J., dissented.