author: Boynton, J.

text:
    Preston, Trustee, v. Brown.
    1. The act for the relief of occupying claimants of land operates only in cases where the defendant in possession has been evicted by a title both paramount and adverse.
    2. Where a person, in the quiet possession of land under an agreement for its purchase made with the equitable owner, is evicted by the trustee holding the legal title, he is not entitled, under said act, to compensation for lasting and valuable improvements made upon the premises. His possession, in such case, was not under an adverse title within the meaning of the statute.
    3. In an action for the recovery of real property, an order sustaining a demurrer to' a cross-petition, on the ground that the facts stated were not sufficient to constitute a defense to the action, will not preclude the court, after verdict for the plaintiff, from treating the cross-petition as properly in the case, for the purpose of awarding to the defendant compensation, in equity, for lasting and valuable improvements made upon the premises.
    4 A testator dying in 1843, devised certain real estate to a trustee, in trust, to pay over the rents and profits thereof to the wife of G., to her sole and separate use; and in case she survived, or was divorced from her husband, then to convey the estate to her, her heirs and assigns forever. In case she died the wife of G.-, the estate, at her death, to be conveyed to her children, and to the legal representatives of such of them as were then-deceased. The trustee conveyed the title to G. for life, remainder to his wife, .who jointly conveyed the same to K., upon trusts similar to those declared in the will of the testator. K., retaining the title, resigned the trust, whereupon B., a son-in-law of G. and wife, was appointed in his stead. B. and wife went into possession of sixty-seven acres of the land, being a part of the premises devised, and in good faith, and to the knowledge of K., made thereon lasting and valuable improvements, under an agreement with the wife of G., by which said parcel of land was to be conveyed to B. — fifty acres of the same by way of advancement to B.’s wife, and seventeen acres for an agreed consideration. Subsequently, in consideration of advancements made to the remaining children of G. and wife, they with the exception of one son, released to the wife of B. their contingent interest in said fifty acres. Held: 1. That B. and wife are not entitled to a conveyance of the legal title under the agreement made with the wife of G. 2. That on being evicted from the premises by the trustee of the legal title, they are entitled, in equity, to compensation for permanent improvements made upon the premises, to be charged as a lien thereon.
    Error to tbe District Court of Huron county.

      The original action was brought by the plaintiff’, as trustee of' Clarissa Gallup, to recover the possession of sixty-seven acres of land, in the occupancy of the defendants in error, Henry and Sarah Brown, who were husband and wife. The petition alleged that the plaintiff’, as such trustee, had a legal estate in the premises and was entitled to the possession thereof, and that Brown and wife unlawfully kept him out of possession.
    The defendants, by joint answer, denied that the plaintiff’ had any legal title to, or was entitled to the possession of, the premises, or that they unlawfully held possession thereof. Eor further answer and cross-petition, the defendants alleged that David M. Benedict, a brother of said Clarissa Gallup, while living, and who died in 1888, was seized, in fee simple, of divers parcels of real estate, including the premises demanded, and that, by his last will and testament, he devised to his brother, Jonas B. Benedict, then in life, one equal fourth part of all his estate, real and personal, remaining after the payment of his just debts and funeral charges, to be owned and held by said Jonas B. in his own right; that said testator also devised one equal fourth part of his remaining estate to the said Jonas B., and to his heirs and assigns forever, upon the trust and confidence that he should place all moneys, and the avails of the other personal estate so bequeathed in trust, at interest on good security, or invest the same in stocks, at his discretion, and lease or occupy the real estate devised so in trust, and annually or offcener pay the interest, dividends, rents, profits, and annual income thereof to the said Clarissa Gallup, who was then, and still is, the wife of Hallet Gallup, and which payment was to be made separate from, and independent of, all control of the said Hallet during said Clarissa’s coverture, and if the said Clarissa should survive said Hallet, or at any time be divorced from him, theii upon said divorce, or at the death of said Hallet, the said Jonas B., as trustee, was directed to pay, transfer, and convey all said moneys and estate to the said Clarissa, and to her heirs and assigns forever; hut if tlie said Hallet should survive the said Clarissa, and she should not be divorced from him, then, at her death, the said trustee should pay, transfer, and convey all said moneys and estate to the children of the said Clarissa and their legal representatives — it being the purpose and intent of the said David M. that said Hallet should, in no event, have any beneficial interest in the estate of said David M., and should receive no part of the said interest, dividends, rents, profits, or annual income, or any of the avails of said estate, but the same to be paid to the said Clarissa, and for her sole and separate disposal during coverture.
    In September, 1846, an amicable partition was made of the greater portion of the real estate devised by said David M. Benedict, and on that day Jonas B., and Hallet and Clarissa, executed to each other their respective deeds of quitclaim, said Hallet and Clarissa receiving a release of Jonas B.’s title to the premises in controversy, as well as to other lands. That at the date of said conveyance the said Hallet and Clarissa were cohabiting as husband and wife, and then had and now have the fob lowing children only, to wit: Catharine, Carroll, Maria, Sarah, Caleb, and Elizabeth.
    ' That in October, 1847, said Hallet and Clarissa conveyed said premises to William F. Kittridge, “ to hold to him, the said Kittridge and his heirs, for and during the life of the said Hallet, upon the trusts, to wit: 1st. To protect and preserve the property described, and to pay the taxes and expenses of the trust. 2d. To pay the rents of the realty and the accruing interest of the personal property to the said Clarissa, during her life, for her separate use. 3d. If the said Clarissa shall die before the said Hallet, then to pay the rents, profits, and accruing interest to the surviving children of the said Clarissa, while the trust shall last. 4th. On the death of said- Hallet, to surrender, deliver, and pay over the property he may hold, to said Clarissa, if living, and to said children if she be dead.”
    That said Kittridge never took possession of the premises, but the same remained in possession of said Clarissa until February, 1851. That prior to this date, upon a petition for that purpose, to the Court of Common Pleas of Huron county, the proceedings in partition were confirmed, and the partition, as made, was decreed to be just and equitable, and all the parties quieted in their title to the lands set off and aparted to them respectively.
    That the “ defendant, Sarah Brown, is the daughter of said Clarissa, and long before the 15th day of February, 1851, had become the wife of said Henry Brown; that said defendants were then and have long been residing in said Norwalk, where the said Clarissa was also residing. That said Clarissa was very desirous that said defendants should continue to make said Norwalk their place of residence, instead of removing therefrom, as they then contemplated doing; and as an inducement to the defendants so to continue their residence in said Norwalk, the said Clarissa, repeatedly, prior to the said 18th day of February, 1851, proposed to the defendants that she would appoint, set apart, and give over to said defendants the use, possession, and enjoyment of said premises mentioned in said petition, and so far as she was in law competent to do the same, would sell and convey to said defendants said premises, so that they might build upon, improve, and make the same their permanent home, and to the extent of fifty acres thereof, to make an advancement of the same to said Sarah Brown, regarding the same, then worth only about fifteen hundred ($1,500) dollars. That in pursuance of said proposition of said Clarissa, which was accepted by said defendants, a contract and agreement was prepared and executed by and between the said Clarissa and said Henry Brown, on the said 18th day of February, 1851, for the sale of the premises to said defendants at the price of twenty-one hundred ($2,100) dollars. Fifty acres of said premises being regarded as an advance to said Sarah Brown out of said property so left to said Clarissa and her children, and the price thereof to be deducted from said sum of twenty-one hundred ($2,100) dollars. .That a correct copy of said agreement is hereto attached, marked ‘ A,’ and made a part of this answer. That said agreement was fully approved by those of said children of said Clarissa who were then old enough to understand its purport. That said agreement was entered into by the said contracting parties in the utmost good faith, and in the belief that said Clarissa had the right to place said Brown and his wife in the exclusive possession of said premises, and the further right to sell and dispose of her contingent interest in the same.”
    The defendant further stated, that in pursuance of said agreement, they entered into possession of said premises, and made improvements thereon of the value of $10,000. That thereafter, to carry out said contract, all of said children of said Clarissa, except one, in consideration of advancements to them by said Clarissa, executed a conveyance of their interest in fifty acres of said premises to said Sarah.
    That in March, 1848, said Kittridge resigned his trust, and said Henry Brown, was appointed in his stead. That Brown continued trustee until November, 1861, when h«'i resigned, and the plaintiff was appointed. That Kittridge, not having conveyed the title to Brown, under an order of court, conveyed the same to Preston, after the latter was appointed trustee. That before the action was brought, Brown tendered to Preston the amount due for the seventeen acres of said land, which he refused to receive.
    The defendants prayed that the children of said Clarissa might be made parties defendant, and that on the “ final hearing of the case, said defendants may be quieted in the peaceable possession of said sixty-seven acres of land, and that they, or such of them as may be found entitled, may be invested with the full and complete title to said premises, and have such other relief as they may be found deserving.”
    The following is a copy of Exhibit “ A: ”
    “Articles of agreement entered into between Clarissa Gallup of the first part and Henry Brown of the second part, witnesseth that the first party agrees to sell and convey to the second party, his heirs or assigns, the following described parcel of land, to wit: Sixty-seven acres of the south-east part of lot number ninety-five, in the fourth section of the township of Norwalk, Huron county, Ohio, and being the whole of that part of said lot.number ninety-five, partitioned and quitclaimed to the first party by Jonas B. Benedict, except 13.84 acres contained withiu the limits of the corporation of the village of Norwalk. For the consideration of the sale of the above premises the second party agrees to pay -and allow the sum of twenty-one hundred dollars, and pay the same in five years from the date of this agreement with interest thereon annually, and the taxes to be assessed on said land. It'is hereby understood that first party intends that fifty acres of the above mentioned land shall be given to Sarah Brown, wife of the second party, as an advance toward her portion of the estate of David M. Benedict, deceased, by whose last will and testament the said lands were acquired. Furthermore, I, the said Clarissa Gallup, hereby manifest my desire that each aud all of my children shall ratify and confirm this my contract, aud all and each of them (excepting my daughter Sarah, aforesaid) are to execute releases or quitclaims of their respective interests in said land to said second party or his heirs and assigns, and in case of failure of any one or more of my children to execute such release or quitclaim, then I devise as my last will and testament that my administrator or executor shall pay and apply out of my estate a sufficient amount to indemnify said second party, his heirs or assigns, against any loss or damage to. be by him or them sustained in consequence of the neglect or refusal of any one or more of my children to execute such release or quitclaim, and the same to be charged to the portion of such as neglect or refuse to execute releases, in the equal division of my estate.
    “ Clarissa Gallup, [seal.]
    “ Henry Brown. [seal.]
    “ Norwalk, February 18th, 1851.”

      To the cross-petition the plaintiff demurred for want of facts sufficient to constitute a defense to the action. The court of common pleas sustained the demurrer and dismissed the cross-petition. From the judgment of dismissal,' the defendants appealed to the district court, where the demurrer was sustained, but without rendering a final judgment, the cause was remanded to the court of common pleas for further proceedings.
    In the court of common pleas the issue at law was next tried, resulting in a judgment for the plaintiff’. On the trial the plaintiff traced his title to the premises from David M. Benedict, through the various conveyances and proceedings set out in the cross-petition. After verdict and judgment in favor of the plaintiff, the defendants made application to the court for the valuation of improvements, and assessment of damages, under the statute for the relief of occupying claimants; and the court being of the opfinion that the defendants were entitled thereto, ordered further proceedings to be had agreeably to the provisions of the statute, to which order the plaintiffs excepted. Thereupon, a jury was impaneled to make a just and true assessment of the value of the lasting and valuable improvements made upon said premises by said defendants, and reported the assessment made at $10,000. Whereupon the plaintiff’ moved to sel the same aside, for the reason, among others, that said defendants were not entitled to the benefit of the provisions of said act. On this motion the facts stated by Brown in his cross-petition were put in evidence and considered. The motion was overruled and an exception taken. A bill of exceptions was allowed setting out all the testimony heard upon said motion, and, on petition in error to the district court, the order overruling the motion was affirmed. A petition in error is now filed by the plaintiff to reverse such judgment of affirmance and the order of the court of common pleas refusing to set aside the assessment.
    In Jan u ary, 1878, the defendants, upon leave of court, filed their petition in error in this court to reverse the order of the district court sustaining the demurrer to said cross-petition. Both petitions in error are here heard together. It appears from proceedings instituted in this court for revivor, that Hallet Gallup died in July, 1877, and Mrs. Gallup in January, 1878; and that before her death, and after the death of her husband, the trustee conveyed the trust property to her, in pursuance of the directions of the will.

      G. T. Stewart and C. H. Gallup, for plaintiff in error.
    On the question of jurisdiction, see S. & C. 883; Freeman on Judgments, 98, 417; Waldron v. Woodcock, 15 Ohio, 15 ; 12 Ohio, 207; Lessee of Adams v. Jeffries, 12 Ohio, 272; Ludlow v. Johnston, 3 Ohio, 553; Buchanan v. Ray, 2 Ohio St. 251; Pain v. Moorland, 15 Ohio, 435; Fowler v. Whitman, 2 Ohio St. 270.
    The usual presumption in favor of the validity of judgments do not apply to courts acting under the occupying claimants act. Freeman on Judgments, 417; Edmiston v. Edmiston, 2 Ohio, 251; McCleary v. McLain, 2 Ohio St. 368; 28 Howard, 59.
    One significant fact in the case, decisive against the claim of the defendants, under the statute, is, that they did not set up an adverse title in the ejectment case, but sought only to have the legal title of the plaintiff transferred to dhern, by an appeal to the equity power of the court.
    Section 1 of the statute (S. & 0. 882), says, that the occupying claimant entitled to its relief, “shall not be evicted or turned out of possession by any person or persons who shall set up and prove an adverse and better title to said lands.”

    It must be both adverse and better. In this case, the defendants had no title in law, and that claimed in equity was not adverse to, but entirely through and under, the plaintiff’s title, asking to unite with it.
    The deed from the four children does not aid the claim. They had no title when they made the deed. Reynolds v. Cordery, 4 McLean, 159; Needles v. Needles, 7 Ohio St. 432; Shepard’s Touchstone, 322-8; 1 Story’s Eq. § 188; Holt v. Lamb, 17 Ohio St. 374; Pollock v. Speedel, 17 Ohio St. 439.

      Henry Brown, for himself and wife.
   Boynton, J.

The original action was brought by the plaintiff to recover the possession of land in the occupancy of the defendants. The trial resulting in a verdict for the plaintiff, compensation for lasting and valuable improvements was awarded to the defendants, under the act for the relief of occupying claimants. 1 S. & C. 881. The first question arising, involves the validity of the action of the court in holding the defendants entitled to relief under that act. In our judgment the case was not 'one falling within the operation of its provisions. The act operates only upon the class or classes of titles enumerated in the first section. The claimant must be in quiet possession, and must show a plain and connected title in law or equity, derived from the records of some public office; or, being in quiet possession, must hold the land by deed, devise, descent, contract, bond or agreement, from and under some person claiming title in law or equity, derived from the records of some public office, or by deed duly authenticated; or must have acquired the same by sale on an execution against a pei-son having like title, or at a sale for taxes, or by an executor, administrator, or guardian, or an officer of court. § 1. The statute only applies to cases where the claimant» is occupying in good faith, under a title of a kind or character here mentioned, and is evicted by one who sets up and establishes a title both paramount and adverse. The title of the trustee in the present case was in no sense adverse to that of Mrs. Gallup, under which the defendants entered into possession. The interest of both was created at the same time and by the same instrument. The former held the legal title in trust, and was required so to hold it, until a particular event supervened, and then to convey the-' same to Mrs. Gallup, if living; and, if dead, to her child ren.

The legal estate of the trustee, and the equitable estate of Mi’s. Gallup, together with the contingent estate of her children, were parts of the same whole, and together made up the entire interest in the property. The defendants were in possession under Mrs. Gallup, and their title, if any they had, was no more adverse to that held by the trustee than her’s was.

The will required the trustee either to occupy the premises or to lease them; but he seems to have permitted Mrs. Gallup to exercise entire control over them, who, with his acquiescence and apparent consent, placed the defendants in possession. This possession was, therefore, under his title, and hence the right of the defendants, upon eviction, to compensation for permanent improvements upon the land, must be determined by the contract under which they entered. When the occupant goes into possession under the plaintiff’s title and makes improvements, the act for the relief of occupying claimants has no application.

If a vendee of land loses it for want of compliance with the terms of his purchase, and the circumstances are such as to lead a court of equity to refuse relief for improvements made, he is without remedy. The present case falls within the control of this principle. The application, therefore, for relief under the statute should have been denied.

The question next arising is, Were the defendants entitled in equity to a conveyance of the legal title, and if not, were they entitled to remuneration for improvements of a permanent character made upon the premises, in view of the facts stated in the cross-petition ? That they were not entitled to a conveyance of the premises by the trustee is perfectly obvious. The trust created by the will was en-grafted upon the legal title, and it was the duty of the trustee to retain the title until the contingency happened, upon which he was directed to convey to the cestui que trust. We need not therefore stop to inquire how far the coverture of Mrs. Gallup affected her capacity to execute, specifically, the contract to convey: or whether or not a court of equity would have compelled the conveyance. No conveyance she could have made, her husband uniting, would have carried the legal title to the grantee; and a conveyance to the defendants by the trustee would have been a breach of his duty.

The right, however, of the defendants to remuneration for improvements which added an increased value to the land, involves other considerations. It is a rule of the common law, but subject to certain exceptions, that all erections or improvements made upon real estate become a part of the freehold, and the property of its owner. Among the exceptions to the rule, are those that arise at law, under the act for the relief of occupying claimants, and under the act creating liens in favor of mechanics in certain cases; and in equity, in particular cases, -where the provisions of the statute do not apply. It also seems to be settled, that a bona fide occupant, sued by the owner of the premises for rents and profits, may, at law, recoup the value of the meliorations by him made while in the occupancy of the premises. Coulter’s case, 5 Coke, 80; Green v. Biddle, 8 Wheat. 1-82.

That this case is one, which, from its special circumstances, entitles the defendants to remuneration for improvements made upon the land, to the extent that they permanently increase its value, we entertain no doubt. It is a familiar rule, which a court of equity always enforces, that if an owner of an estate stands by and suffers another, acting in good faith and without notice of his title, to place improvements thereon, which add permanent value to the estate, such improvements will constitute a lien thereon. 2 Story’s Eq. Jur. § 1237.

The doctrine proceeds upon the principle, that one person will not be permitted, in equity, to enrich himself by the loss or at the expense of another, when the loss would have been avoided had the former acted honestly and in good faith. His silence, in such case, is tantamount to a fraudulent concealment of his title, and to the extent that the party in possession has been thereby misled into the making of improvements that he otherwise would not have made, a court of equity grants relief by charging the value of the improvements as a lien upon the estate to which they have been added. Bright v. Boyd, 1 Story, 478; Id. 2 Story, 605 ; Shine v. Gough, 1 B. & Peatt. 444; Cawdor v. Lewis, 1 Young & C. 427.

The equity is equally as strong where the improvements are added by one in possession, under an agreement to purchase, made with the equitable owner, to the knowledge and with the acquiescence of the trustee-of the legal title, and in the belief, which such purchaser is justified in entertaining, that the legal title will ultimately be conveyed to him. To permit the owner, in such case, to enjoy the improvements without making compensation therefor, would be quite as unjust as to permit one standing by and concealing his title to enjoy improvements made by another in the belief that the latter was improving his own land. The case of King’s heirs v. Thompson, 9 Pet. 204, is not materially different, in principle, from the present case, unless in the circumstance that there both parties to the contract under which possession was taken and improvements made, were sui juris. Thompson married the daughter of King, who, owning a large estate, offered to give Thompson a house and lot, if he would repair the premises so as to make them a comfortable residence; King saying he intended the property for his daughter, the wife of Thompson. Thompson accepted the offer, went into possession, and expended in repairs and improvements, four thousand dollars. Eour years after, Thompson demanded a conveyance from King, who refused, but offered to vest the title in trust for Thompson’s wife. Propositions looking to the adjustment of the matter were made, and it seems, accepted, but never carried into effect. King dying insolvent, his creditors filed a bill to subject the premises in the occupancy of Thompson to the payment of their claims against King’s estate, and the same were sold by a trustee appointed by the court. Thompson and wife filed a bill to avoid the sale, and for a specific performance against the heirs of King and the trustees of his creditors. Specific performance was denied; but the bill containing a prayer for alternative relief, the court held, that although there was not sufficient evidence to authorize a decree for title, still Thompson had, by the rules of a court of equity, a first lien for the money expended in improvements. In disposing of the question, Mr. Justice McLean said: “ If the terms of the contract were established, so that this court could decree a specific execution of it, they would pronounce such decree. But as specific performance can not be decreed, the inquiry remains, whether the complainant has a lien on the property for the money he expended in improving it? . . . This claim for improvementsby the complainant is founded upon the most equitable considerations. At the instance of George King, his father-in-law, the complainant entered into possession of this property; and under a full belief that it would be secured to him as his own, he was iriduced to expend a large sum of money in making permanent and valuable improvements. . . . And the question arises, whether this expenditure, under the circumstances of this case, does not create a lien upon the property ?” He proceeded to declare that if King wore living, he could not object to the lien, and it being very obvious that his creditors had no better or higher right than he possessed at his decease, a decree was entered directing a sale of the property, and an application of the proceeds to the payment of the plaintiff’s claim for improvements.

In Bright v. Boyd, supra, the plaintiff in possession traced his title, through intermediate conveyances, to a sale by the administrator with the will annexed of John P. Boyd, under whose will the defendant claimed title as devisee, and in virtue of which had recovered the premises in an action at law. It appeared that the administrator was duly licensed to make the sale, and had complied with all the requisites of law necessary to its validity, except that, previous to the sale, no bond, to the approval of the probate judge, had been given for the faithful discharge of his duties. In the action at law brought by the defendant to recover the premises, the court held, that the giving of the bond was an essential prerequisite to the validity of the sale; and not having 'been given, that the sale was void, and consequently that no title passed to the purchaser. The plaintiff had built a dwelling-house upon the premises, and made other improvements of a permanent character, for which, by his bill, he prayed compensation in equity. Mr. Justice Story, in a very able and elaborate opinion, held that he was entitled to such compensation, and that the value of the improvements was a lien upon the premises. On coming in of the master’s report, he said: “ I wish to be distinctly understood as affirming and maintaining the broad doctrine, as a doctrine of equity, that, so far as an innocent purchaser for a valuable consideration, without notice of any infirmity in his title, has, by his improvements and meliorations, added to the permanent value of the estate, he is entitled to a full remuneration, and that such increase of value is a lien and charge on the estate, which the absolute owner is bound to discharge before he is to be restored to his original rights in the land. This is the clear result of the Roman law; and it has the most persuasive equity, and, I may add, common sense and common justice, for its foundation.” 2 Story, 607. It will be observed, that Bright held neither the legal nor equitable title ; but being a purchaser for value, from one having apparent title, without notice of any infirmity therein, and having made the improvements upon the faith of his ownership, he was held entitled, in equity, to compensation therefor, to be charged upon the land.

From the facts in the present case, it appears that the will of David M. Benedict constituted the provisions made for Mrs. Gallup her separate estate, to be enjoyed by her independently of all control of her husband. The rents and profits were to be paid over to her from time to time during coverture, and in case she survived, or was divorced from, her husband, she became at once entitled to a conveyance of the estate by the trustee. If she died the wife of Gallup the estate was to be conveyed to her children surviving, and to the legal representatives of such of them as were then deceased. At the date of the contract between Mrs. Gallup and the defendant Henry Brown, Kit-tridge held the legal title subject to the trust.

In 1848, Brown assumed such duties of the trust as were capable of being performed without the legal title, and in 1851, made the agreement with Mrs. Gallup set out in the cross-petition, for the part of the premises therein described, and upon which the improvements in controversy were made. Subsequently, in consideration of advancements made to the children of Mrs. Gallup other than Mrs. Brown, they, with the exception of Carrol, released to Mrs. Brown all their-interest in the fifty acres. These fifty acres Mrs. Gallup designed as an advancement to Mrs. Brown. To all this Eittridge, who still held the legal title, was undoubtedly cognizant. These circumstances, in view of the intimate relations of the parties, and the confidence placed in one another, give rise, iu our judgment, to a clear equity in favor of the defendants to the value of such improvements as added a permanent value to the premises, to be charged as a lien thereon. That Mrs. Gallup was a married woman when the agreement with Brown was made, and during the period of time in which the improvements were added, does not affect Brown’s right to compensation therefor. No contract is being enforced against her. Awarding the defendants compensation for improvements' made is only allowing them to take out of the premises the value they put into them, in the full belief that the premises were to become theirs. They take nothing except what in equity and good conscience they are entitled to. The disabilities of coverture are designed to protect a married woman against improvident bargains, and to shield her from improper influences ; but they can not be made the means of enabling her to perpetrate a fraud upon others by seizing and converting to her own use, without compensation, the product of their means and labor.

The objection, that the failure of the defendants to apply to this court for a reversal of the order of the district court sustaining the demurrer to the cross-petition within three years from the time the order was made, is fatal to their right in equity to the relief sought, is not well taken. It appears, from the record that the common pleas sustained the demurrer, to the cross-petition, and ordered its dismissal. From the-judgment of dismissal, the defendants, before the trial of the issue at law, appealed to the district court, where the-demurrer was also sustained, but without a final judgment the cause appealed was remanded to the court of common pleas for further proceedings. Further proceedings were not had in the common pleas on the cross-petition until after the trial of the issue to the jury, arising under the defendant’s denial of the plaintiff’s title, when, evidently, the facts stated therein were made the grounds for grantingrelief under the occupying claimant law. The ruling of the distinct court was right. The ground of the demurrer was that the cross-petition did not state facts sufficient to constitute a defense to the plaintiff’s action. Being interposed to test that question it was properly sustained. If the. matter stated in the cross-petition constituted a defense to the action, it could have been given under the denial of the plaintiff’s title. Kyser v. Cannon, 29 Ohio St. 359. But it did not. It established no right to the legal title,, nor to the possession as against the plaintiff.

The facts stated were available only for the purpose of enabling the court to take proper action to secure to the defendants the value of their permanent accessions to the freehold, in the event the issue at law should be decided against them. Until that issue was determined it could not be ascertained whether or not any relief of that character would-be required. It was only in case the plaintiff obtained a verdict, that the facts stated in the cross-petition would be of any avail to the defendants.

That they were not available for the purpose of giving compensation for the improvements was not determined by the demurrer, nor was such the legal effect of the decision upon it. The only effect of the order was to adjudge the facts insufficient to constitute a defense to the action. It is, moreover, very doubtful whether the proceedings in error would have been barred, even had the district court dismissed the cross-petition, and were the judgment held to be final.

Married women are expressly exempted from the operation of the statute, and remain so during coverture. Code, § 528. If the right to the value of the improvements was the joint and indivisible right of Brown and wife, as alleged, the saving of the statute to Mrs. Brown would inure to the benefit of Brown, and defeat the limitation as to him. Sturges v. Longworth, 1 Ohio St. 545.

Upon sustaining the demurrer to the cross-petition the cause was sent down for further proceedings. What they were to be, or whether any would be required upon the facts stated in the cross-petition, could not be determined until the trial of the issue at law. If the plaintiffs obtained a verdict the court should have withheld judgment, or, if inadvertently given, should have enjoined its execution, until an account was taken of the value of the lasting and valuable improvements, together with taxes paid by the defendants, which, less the fair value of the use of the premises without the improvements, should have been charged as a lien thereon, and possession withheld from the plaintiffs until the account was paid.

What interest in the premises, if any, could have been sold, during the existence of the trust created by the will, we do not determine, as the point is no longer of practical importance. The trust having ended, by a conveyance of the title to Mrs. Callup, in pursuance of the direction contained in the will, upon the further hearing of the case, the premises will be liable to sale, to pay for the improvements, in the same manner as if charged with a mortgage lien.

Judgment, under the statute, for the relief of occupying claimants reversed, and cause remanded for further proceedings.


source: Caselaw Access Project

author: Gilmore, C. J.

license: Public Domain

text:
    The Enterprise Insurance Co. of Cincinnati v. Parisot.
    1. A policy required immediate notice, and proof of loss within thirty days. The notice was given, and a protest made out on the day the loss occurred, which was afterward handed to the insurer’s adjuster when he came to investigate the loss, who made the objection that it did not state the cause of the loss, but went on and made a full investigation, after which he told the insured that he did not think the insurer would pay, as he had shown no cause of loss, and that it must have been from unseaworthiness of the boat or negligence; but promised that after he made his report he would write and inform him whether the insurer would pay; and he reported all the facts, whereupon the insurer decided that it was not liable, and so informed the agents through whom the insurance was affected, without stating the ground of the decision, and the adjuster did not write to the insured as he had promised. Held, that whether there had been a waiver of proof of loss by the insurer, was properly left to the jury, under appropriate instructions.
    2. Where a vessel is lost by a peril insured against, the insurer will be liable, although the loss might have been avoided by the exercise of proper care on the part of' those in charge of the vessel at the time of the loss.
    Error to the Superior Court of Cincinnati.
    The action was brought in the court below on a policy of insurance issued by the plaintiff in error to the defendant in error on the steamboat Calum-et, which was totally lost by sinking, while lying up unused at Glass Bayou, near Vicksburg, on the 26th of July, 1871, during the life of the policy. The insurance was against the perils “ of the seas, lakes, rivers, canals, fires, and jettisons that shall come to the damage of said vessel, or any part thereof.”
    Among other conditions in the policy is this: “It is also agreed, that in all cases of loss or damage the assured shall furnish to said company the proofs of the same, within thirty days from the date thereof; . . . and no loss shall be paid unless the assured shall give immediate no tice, in case of accident or loss to this company.”
    It is averred in the petition, that the Calumet was lost “ by the perils of the river,” and also, “ that the said defendant” (plaintiff in error), “shortly after the loss as aforesaid, and before proofs of loss could be made out, notified the plaintiff (defendant in error) that they would not pay said claim or any pai’t thereof.”
    Another condition in the policy is this : “And the assured also agrees that the steamboat aforesaid is, and shall be, at all times during the continuance of this policy, tight and sound, and her seams properly caulked, and sufficiently found in tackle and appurtenances thereto, and completely provided with master, officers, and crew, and in all other things and means necessary for the safe navigation thereof.”
    The averments of the petition are denied in an affirmative form, by setting out in the answer the conditions of the policy above quoted, and averring a failure on the part of the assured to comply with the requirements of either of them.
    , On the trial, a bill of exceptions was taken by the defendant below, embodying all the evidence, which is very voluminous. Some portions of it that throw light on the points to which it relates are quoted, and the conclusions of fact drawn from other portions of it are stated in the opinion.
    The charge of the court, in reference to the waiver of proofs of loss by the insurer, and also in reference to the mere negligence of the watchman, or those having charge of the boat at the time she sunk, being a peril insured against, were excepted to by the defendant below ; and so much of the charge upon these points as is necessary to an understanding of it, is also given in the opinion.
    There was a verdict for the plaintiff below. The defendant moved for a new trial, but the motion was overruled and judgment entered on the verdict.
    This proceeding is instituted by the plaintiff in error, to obtain a reversal of the judgment. The errors assigned are: 1. That the court erred in its charge to the jury; 2. That the verdict is contrary to the law and the evidence; and, 3. That the court erred in overruling the motion for & new trial.

      John F. Follett and W. G. Cochran, for plaintiff in error:
    As to a waiver of proof of loss, see Columbian Ins. Co. v. Lawrence, 2 Pet. 53; Smith v. Insurance Co., 1 Allen, 297; O’Rielly v. Insurance Co., 60 N. Y. 174; Kernan v. Insurance Co., 12 Iowa, 127; Myers v. Insurance Co., 17 Iowa, 178; Insurance Co. v. Frick, 29 Ohio St. 452.
    Eor what is meant by proof of loss, see 2 Parsons on Ins. 473, 476 ; Walsh v. Insurance Co., 32 N. Y. 427, 442; May on Insurance, §§ 460-474; Blossom v. Lycoming Ins. Co., 64 N. Y. 162 ; Underwood v. Farmers' J. S. Ins. Co., 57 N. Y. 502; Lycoming Ins. Co. v. Beaty, 66 Penn. St. 9; Harris v. Phoenix Ins. Co., 35 Conn. 310; Patrick v. Ins. Co., 43 N. H. 621; Cornell v. Milwaukee M. & F. Ins. Co., 18 Wis. 387; Trask v. State Ins. Co., 29 Penn. St. 198; Inman v. West. Ins. Co., 12 Wend. 452; Smith v. Haverhill Mut. F. Ins. Co., 1 Allen, 297, 300; Campbell v. Charter Oak F. & M. Ins. Co., 10 Allen, 213; Davis v. Davis, 49 Me. 282; 2 Arnold on Insurance, *1200; Insurance Co. v. Tennet, 41 Penn. St. 161; Irving v. Insurance Co., 1 Bosw. 507.
    Negligence yer se is not a peril insured against. 3 Kent, •300; Arnold on Insurance (4 London ed.), pt. 3, ch. 1, 664, 667-669, 691; Tanner v. Bennett, Ry. & M. 182 ; 1 Parson on Marine Insurance, 380, 381, 549, 534; 1 Phillips on Insurance, §§ 1049, 1057; Marshall on Insurance, 376 ; Sherwood v. Insurance Co., 14 How. 352, and cases there cited; Lodwicks v. Insurance Co., 5 Ohio 433, 486; Howell v. Insurance Co., 7 Ohio (pt. 1), 276; Fulton v. Insurance Co., 7 Ohio (pt. 2), 27; Perrin v. Insurance Co., 11 Ohio, 146; Insurance Co. v. Lawrence, 10 Peters, 517 ; Waters v. Insurance Co., 11 Peters, 213.

      Paxton & Warrington, for defendant in error:
    There was a waiver of proof of loss. Bliss on Life Insurance, 426 ; May on Insurance, 573; Flanders, 593 ; Norwich and N. Y. Trans. Co. v. Insurance Co., 34 Conn. 561; Insurance Co. v. Stein, 5 Bush, 652; La Societe v. Morris, 24 La. Ann. 347; Dean v. Ætna Ins. Co., 2 Hun. (N. Y.) 358; Martin v. Fishing Ins. Co., 20 Pick. 389; Schunk v. Mercer Co. Ins. Co., 24 N. J. 447 ; Attegre v. Maryland Ins. Co., 6 H. & J. 408; Masters v. Westchester Ins. Co., 25 Wend. 379; Francis v. Ocean Ins. Co., 6 Cow. 404; Tayloe v. Merchants’ Ins. Co., 9 How. 390; O’Neil v. Buffalo Ins. Co., 3 N. Y. 122 ; Graves v. Washington Ins. Co., 12 Allen, 391: 6 Blatch. 241; 12 Wall. (S. C.) 194; Waters v. M. L. Ins. Co., 11 Pet. 213 ; People’s Ins. Co. v. Strahle, 2 C. S. C. R. 186 ; see also Hartford Protection Co. v. Harmer, 2 Ohio St. 452.
    Mere negligence and proper want of care on the part of the watchman and those having care of the boat, is a peril insured against. Busk v. Assurance Co., 2 B. & Ald. 73; Walker v. Maitland, 5 B. & Ald. 171; Henderson v. Insurance Co., 10 Rob. (La. Ann.) 164; Dixon v. Sadler, 5 M. & W. 405; Redman v. Wilson, 14 M. & W. 476; Columbia Ins. Co., 10 Peters, 507 ; Waters v. Insurance Co., 11 Peters, 213; Protection Ins. Co., 11 Ohio, 147; Insurance Co. v. Sherlock, 25 Ohio St. 33; Hynds v. Insurance Co., 16 Barb. 119; Johnson v. Insurance Co., 4 Allen, 388; 1 Phillips on Insurance, 1049, 1096; Angell on Insurance, 125; Shaw v. Roberts, 6 Ad. & El. 75; Huckins v. Insurance Co., 11 Fost. (N. H.) 238; Chandler v. Insurance Co., 3 Cush. 328; Gore v. Insurance Co., 48 N. H. 41.
   Gilmore, C. J.

There are two objections urged against the charge of the court. The first is as to the proofs of loss, ‘and the alleged waiver thereof by the insurer; and the second is as to mere negligence of the watchman and those having charge of the boat, being a peril insured against.

The boat was lost by sinking, on the 26th of July, 1871. At this time she was lying up, unused, in Glass Bayou (a fit place), half a mile from Vicksburg. Captain Parisot, the owner, was also the owner of a number of other steamboats, and largely engaged in the business of' running them. He was absent on a trip up the Yazoo river at the time of the loss, and had no personal knowledge on the subject. On the day the boat sunk, Mr. Jones, who had charge of Parisot’s business at Vicksburg, notified Howe & Carroll, of St. Louis, the agents through whom the insurance was effected, of the loss, and in due time received word through them, that the insurance company would send its adjuster to Vicksburg /to investigate the matter.

On the day the boat sunk, James Hill, one of the watchmen on the Calumet, and Peter Donohoe, a watchman on the Roma Wheeler, which was lying up close to the former when she sunk, made protest of the loss under oath before-a notary, public. On the 16th of August, three weeks after the loss, Captain Palmer, who is a marine adjuster by profession, arrived at Vicksburg, to investigate the loss in behalf of the insurance companies interested. He was shown the protest above spoken of, and took a copy of it. He made but one objection to it, which was that it failed to state the cause of loss. Notwithstanding this defect, he and Captain Parisot, who, in the meantime had returned, proceeded to investigate the matter together. They went to where the wreck lay, and examined it, and made inquiries of all whom they met as to the circumstances attending the sinking, but failed to ascertain the cause of the loss. They did not see Hill, one of the protestors, for he had, in the meantime, been paid off and left for parts unknown, and Donohoe says they did not see or inquire of him.

In his testimony on the trial, Captain Palmer said: “ Captain Parisot and I read the protest over together at the wharf-hoat; I told him that the protest stated no cause for the loss; he asked me what the companies would do under the circumstances; I told him I did not think they would pay, as he had shown no cause for the loss, and it must have been from unseaworthiness or negligence, against which the companies did not insure; he said he thought the companies ought to pay, as he was an old customer of theirs, and had paid out a good deal of money on insurance; I told Mm that I would write and inform Mm whether the companies would pay.”

Mr. Hartwell, president of the insurance company, in Ms testimony, says : “ He (Captain Palmer) reported just about what he testified to on the stand. He spent all the time that was necessary to find out the facts of the loss. We decided on Ms report, and in the absence of further proof, that we were not liable for the loss. We did not correspond with Captain Parisot directly. He never addressed a letter directly to the company; all the correspondence was done through his agents, Howe & Carroll, of St. Louis. Think we informed them that the company would not pay the loss, soon after Captain Palmer’s return.”

Captain Palmer admits, iu his testimony, that he did not, after he had laid the matter before the company, write to Captain Parisot, as he had promised to do.

Captain Parisot, in his deposition, says: “After Mr. Palmer’s visit, I wrote again to the agents (Howe & Carroll), and stated all the facts, as near as I could. They answered that they (the insurance company) would 'do nothing for me.”

On the trial, the plaintiff below relied for recovery, solely on the ground that the loss had been caused by a sudden storm of wind that occurred between three and five o’clock on the morning the boat sunk. This was not stated as the cause of loss in the protest, and the question was whether proof of this proximate cause of loss had been waived by the company.

The court, in its charge, fairly stated the case, and left the question of fact to the jury, and it was found in the affirmative.

It is objected that this finding is against the evidence.

We do not think so. The requirement of preliminary proofs of loss is a formal condition, inserted in the policy solely for the benefit of the insurer. That such proofs may be waived, in whole or in part, is well settled as a legal proposition. The waiver may be by the direct action of the insurer, or by his general agent, by virtue of his authority. Post v. Ætna. Ins. Co., 43 Barb. 351; Phillips v. Protection Ins. Co., 14 Mo. 220. The waiver may be express, or it may be inferred from the denial of obligation by the insured, exclusively for other reasons. Owen v. Farmers’ Joint Stock Ins. Co., 57 Barb. 518 ; Beatty v. Lycoming County Mut. Ins. Co., 16 P. F. Smith, 9.

Objections to the preliminary proofs as to loss will be considered waived if not made when the proofs are presented, and the insured is informed by the underwriter that the claim is rejected entirely on other grounds. Globe Ins. Co. v. Boyle, 21 Ohio St. 119.

The conduct of the adjuster, who was the agent of the insurer, when he visited Vicksburg, was susceptible of two constructions, either or both of which - the jury may have found in a way favorable to the insured. It may have found that, iu the opinion of the adjuster’, the loss had been occasioned by the unseaworthiness of the boat, and that, for this reason, the insurer would not pay; or the jury may have found, from what was said between the adjuster and the insured, that it was understood between them that the adjuster would submit the sufficiency of the protest to the insurer, and if it refused to pay on the ground that it did not state a cause of loss, he would write to the insured and advise him of the fact, iu time to enable him to extend the protest within the thirty days. If the refusal to pay was placed on the latter ground, it was the duty of the insurer, even in the absence of an express promise to do so, to have pointed out the defect, and advised the insured that it refused to pay on that ground. Common fairness and candor would have required this. Wyman v. People’s Fquit. Ins. Co., 1 Allen, 301; Peacock v. The New York Life Ins. Co., 20 N. Y. 293. And a failure to do so is a waiver of the right to require such proofs on the trial. Walker v. Metropolitan Ins. Co., 56 Maine, 371. If this is the law in the absence of an express promise to write and advise the insured, it would have been practicing a deception upon him not to write and advise him, after promising to do so, as was done by the adjuster, acting in behalf of the .insurer, if it placed its refusal to pay on the defect in the protest; and, as it ought not to be presumed that the insurer intended to mislead or deceive the insured, the failure to so write and advise him may have been found by the jury to have been a waiver of the defect in the protest. But, in addition, the jury may have found from this, in connection with the testimony of the president of the insurance company, that it decided not to pay on the ground that the loss was occasioned by the unseaworthiness of the boat, and if the refusal to pay was placed on this ground, it was a waiver of the defect in the protest. Protection Ins. Co. v. Harmer, 2 Ohio St. 452. The legal effect of the finding of the jury on this point, was, to render the condition of the policy requiring proof of loss inoperative.

In the second place, it is claimed that the court erred in charging that mere negligence of the watchman and those having care of the boat was a peril insured against.

The clause in the charge that is complained of is this: If she was in such seaworthy condition, and sufficiently manned for such a boat so lying up, and the loss was occasioned by the mere negligence and want of proper care of her watchman and those having the care of her, the plaintiff will be entitled to recover, if he has proved all other necessary facts, for such negligence is a peril insured against.”

The court had previously charged that, where a boat sinks without any known cause, the law presumes that such sinking is caused by unseaworthiness of the boat, and that, if the loss arose from ordinary wear and tear, or from unseaworthiness, or from encountering an ordinary peril of the river, the plaintiff could not recover, for, as to these, he was his own insurer; that the burden was on the plaintiff to prove, by a preponderance of evidence, that the boat -was seaworthy within the requirements for .such boats; that she was tight and sound, and her seams properly caulked, and sufficiently found in tackle and appurtenances thereto, and completely manned and duly provided in all things and means necessary for the safety of the vessel; and that such a state of things had to be maintained by the plaintiff during the continuance of the risk. Then comes the clause above quoted, which was immediately followed by this language:

“ But if the negligence consisted in allowing the boat to become unseaworthy, and she was lost thereby, there can be no recovery.
“ The boat need not have been sufficiently seaworthy to perform a voyage, but it must have been for her preservation under all ordinary circumstances while tied up during such period of non-user, and if she encountered a peril insured against which she would have safely resisted if seaworthy, but in consequence of being unseaworthy was sunk by encountering a peril insured against, then the plaintiff can not recover.
“And further, if the boat was seaworthy when laid up, hut thereafter her seams were suffered to become open by exposure, which the plaintiff failed to have properly caulked, and she was not in a safe and seaworthy condition requisite for her safety when tied up, then the plaintiff can not recover.
“ The boat must have been kept in such condition as to be reasonably sufficient to withstand the ordinary perils attending a boat so laid up at that time and place. If she was not so kept, the plaintiff can not recover, no matter what peril she may have encountered. If she was, and encountered wind or waves, by which she broke her spars, was driven against the bank and careened so as to be thrown on her side so as to take in water at her seams which were far enough above the water line so as not to endanger her safety while lying up under ordinary circumstances, and sunk in consequence thereof, then the plaintiff can recover if he had provided and kept at the boat a force of men sufficient to take care of the boat under ordinary perils, whether all such men were directly in his employ and pay or not.”

The clause in the charge, that is complained of, lays down the law correctly on that point, and when taken in connection with the other parts of the charge, could not have misled the jury. If all the “other material facts” required by the charge — all of which were controverted— had been proved by a preponderance of testimony, and the boat was lost by reason of encountering a storm of wind, the plaintiff was entitled to recover, notwithstanding, as was proved, one of the watchmen was asleep, and the other was on a neighboring boat, at the time the storm occurred, and that their negligence, in this respect, may have occasioned the loss.

“ In an action on a policy of insurance, it is no defense to show that the loss was occasioned by negligence in the agents .of the insured.” Perrin’s Adm’r v. Protection Insurance Co., 11 Ohio, 146.

In Busk v. The Royal Exchange Assurance Co., 2 B. & Ald. 73, the question for the opinion of the court was, whether the defendants were exempted from their liability for the loss, on the ground of its having been occasioned by the negligence of the mate. The act committed by the mate was lighting a fire in the cabin, and in the evening leaving the.ship, going on board of another lying contiguous, and remaining there all night.

In this case it was held that where the assured.had once provided a sufficient crew, the negligent absence of all the crew at the time of the loss was no breach of the implied warranty that the ship should be properly manned.

This doctrine is followed and approved in Walker v. Maitland, 5 B. & Ald. 171.

In this case the mate in charge of the vessel went to sleep., leaving the charge of the watch to one of the seamen, another having the helm; and soon after the mate went to sleep the whole of the watch on duty went to sleep. The vessel, being left to the mercy of the waves, ran ashore and was beaten to pieces.

In the case of Henderson v. The Western Marine and Fire Insurance Co., 10 Rob. (L. A.), 164, it was held that the underwriters are answerable for any loss occasioned by tbe negligence of those in charge of the property insured.

These authorities fully sustain the clause in the charge here complained of. It was, in effect, saying that where a vessel is lost, by one of the perils insured against, the insurer will be liable, although the loss might have been avoided by the exercise of proper care of those in charge of the vessel at the time of the loss.

It is urged that the verdict is against the evidence, and that, on this ground, the court erred in overruling the motion fora new trial. Aside from the waiver of the proof of loss, which has been disposed of, the questions of fact that were most severely contested on the trial, were whether the proximate cause of the loss of the boat was a storm of wind, as contended by the plaintiff, or by the unseaworthiness of the boat and negligence of the watchmen, as contended by the-defendant. Tbe depositions of many witnesses were taken at Vicksburg, which were read, and other witnesses orally examined, on both sides, on these controverted points. The testimony was conflicting. The fact that the action was not brought for some eighteen months after the loss-occurred, and the further fact that the defendant did not hear that it was claimed that the loss was occasioned by a storm, until after the action was brought, caused the latter to doubt the good faith of the plaintiff in bringing the action, and this question was contested, on both sides, with much earnestness. It is sufficient to say that, after a careful ctinsideration of the evidence, we are unable to say that the verdict is contrary to it.

Judgment affirmed.


author: "White, J. Okey, J.

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    Brooks v. The State.
    1. On a charge of larceny it is not necessary to the conviction of the accused that he should, at the time of taking the property, have known, or have had reason to believe he knew, the particular person who owned it, or that he should have had the means of identifying him insianter.

    2. Lost property which has not been abandoned by the owner, is the subject of larceny by the finder.
    3. The finder is not hound to make search for the owner. His belief, or grounds of belief, in regard to finding the owner, is not to be determined by the degree of diligence that he may be able to use to accomplish that purpose; but by the circumstances apparent to him at the time of finding the property.
    4. Where, at the time of finding the property, he has reasonable ground to , believe, from the nature of the property, or the circumstances under which it is found, that, if he does not conceal but deals honestly with it, the owner will appear or be ascertained, he will be guilty of larceny, if at the time of taking the property into his possession, he intends to steal it.
    Error to the Court of ^Common Pleas of Trumbull ■county.
    The plaintiff in error, George Brooks, at the February term, 1879, of the Court of Common Pleas of Trumbull ■county, was convicted of larceny in stealing $200 in bank bills, tbe property of Charles B. Newton. It appears from the evidence, that Newton resided at Newton Falls, in the ■county of Trumbull, and that, on the 24th of October, 1878, he came to the city of "Warren in a buggy to attend to some business. He fastened his horse to a hitching post on Market street. On his way home, in the forenoon of the same day, he discovered that he had lost the package of bank bills in question. He made search for it in various places where he had been, but failed to find it. He looked where he hitched his horse on Market street, but he states that he did not look there very carefully, as there was a team of horses hitched there at the time. Notice of the loss was published in the two newspapers printed in Warren, and in one printed in Leavittsburgh, which also had a circulation in Warren.
    On Wednesday, the 20th of November following, the defendant, who resided in Warren, while working on Market street, near the post at which Newton hitched his horse, found the roll or package of bank bills. The package was found “ five or six feet from the hitching post.” He was, at the time, working in company with several other laborers. At the time he found the money one of these laborers was within ten feet and another within twenty feet of him, but he did not let any of them know that he had found the money. He states, in his testimony, that he put it in his pocket as soon as he found it. Just after finding the package, he picked up a one dollar bill, which he did show to them. This bill was wet and muddy, and he sold it to one of them for twenty-five cents, saying if none of them' bought it he' would keep it himself. He testifies the reason he sold it was that he did not want them to know at the time that he had found the other money. This bill was shown to several persons at the time, and was put on the hitching post to dry. Within a half hour after finding the money, at the time of stopping for dinner, he quit work, and, at his request, was paid off. He spent part of the money, the same day, for a pair of boots, and for other purposes, and let a Mrs. Lease have fifty dollars of it the same day, with which to purchase furniture for his wife, •and for other purposes. Mrs. Lease saw him have the money at his house the afternoon of the same day. At the time of receiving the money she told him that she did not want to take the money if it was stolen or was counterfeit. He told her he received it from an uncle, and, a' another time, on being asked by her about it, said, “ what if I found it?”
    Evidence was also given that the defendant, with his wife, shortly afterward left Warren, and that he attempted to secrete himself before he left. The evidence did not .show that the defendant saw any of the notices of the loss of the money published in the newspapers, or that he had any notice of the loss by Newton at the time it was found. Much other evidence was given, but the foregoing is sufficient to show the character of the legal questions raised.
    The evidence being closed, the defendant’s counsel asked the court to instruct the jury as follows : “ To render the finder of lost property guilty of larceny, he must know who the owner is at the time he acquires possession, or have the means of identifying him instanter, or have reason to believe that he knows who the owner is.” This instruction was refused.
    The defendant’s counsel also, among other things, asked the court to instruct the jury as follows : “ That it is not enough to render the finder of lost property guilty of larceny, that he has the general means of discovering the owner by honest diligence. In order to convict the finder of lost property of larceny, the jury must be satisfied that the taking of the property was with a felonious intent. It is not sufficient that, after finding .The money, it was converted to the owner’s use with a felonious intent.” This instruction was refused in the form asked; but, in the general charge, the court instructed the jury on the subject as follows: “ But though the money was actually lost, and the defendant found it, and at the time of finding supposed it to be lost, and appropriated it with intent to take entire dominion over it, yet really believing that the owner could not be found, that was not larceny and he can not be convicted. The intent to steal must have existed at the time of the taking. . . . It is not enough that he had the general means of discovering the owner by honest diligence. He was not bound to inquire on the streets or at the printing offices for the owner, though if at the time of the taking he knew he had reasonable means of ascertaining that fact, that might be taken as showing a belief that the owner of the money could be found. In order to convict, it must be shown that the taking of the property was. with felonious intent, that is with intent to steal, under the definition I have given you; and it is not sufficient that afterward, after finding the money, it was converted to his-own use with felonious intent. The intent must have existed at the time of the finding.”
    To the refusal to charge as asked exceptions were taken..

      L. F. Hunter, for plaintiff in error.

      Isaiah Pillars, attorney-general, for the state.
   "White, J.

We find no ground in the record for reversing the judgment.

The first instruction asked was properly refused. It was-not necessary to the conviction of the accused that he-should, at the time of taking possession of the property, have known, or have had reason to believe he knew, the particular person who owned it, or have had the means of identifying him instanter. The charge asked was liable to this construction, and there was no error in its refusal.

The second instruction asked was substantially given in the general charge.

Larcen} may be committed of property that is casually lost as well as of that which is not. The title to the property, and its constructive possession, still remains in the owner; and the finder, if he takes possession of it for his own use, and not for the benefit of the owner, would be-guilty of trespass, unless tlie circumstances were such as to-show that it had been abandoned by the owner.

The question is, under what circumstances does such property become the subject of larceny by the finder ?

In Baker v. The State, 29 Ohio St. 184, the rule stated by Baron Park, in Thurborn’s case, was adopted. It was there laid down, that “ when a person finds goods that have actually been lost, and takes possession with intent to appropriate them to his own use, really believing, at the time, or having good ground to believe, that the owner can •be found,- it is larceny.”

It must not be understood from the rule, as thus stated, that the finder is bound to use diligence or to take pains in making search for the owner. His belief, or grounds of belief, in regard to finding the owner, is not to be determined by the degree of diligence that he might be able to use to ¡accomplish that purpose, but by the circumstances apparent to him at the time of finding the property. If the property has not been abandoned by the owner, it is the subject of larceny by the finder, when, at the time he finds it, he has reasonable ground to believe, from the nature of the property, or the circumstances under which it is found, that if he does not conceal but deals honestly with it, the owner will appear or be ascertained. But before the finder can be guilty of larceny, the intent to steal the property must have existed at the time he took it into his possession.

There are cases in conflict with the foregoing view; but we believe it correct in principle, and well supported by authority. The Queen v. Glyde, 1 L. R. (C. C.) 139; Moore's case, Leigh & Cave’s C. C. 1; Regina v. Knight, 12 Cox, 102; Commonwealth v. Titus, 116 Mass. 43; Ransom v. The State, 22 Conn. 153; 2 Russ. Crimes, 9 Am. ed. (4 Eng.) 179, 180, and note there found to Thurborn’s case.

The case was fairly submitted to the jury ; and from an examination of the evidence, we find no ground for interfering with the action of the court below in refusing a new trial.

Judgment affirmed^.

Okey, J.

I do not think the plaintiff was properly convicted. A scavenger, while in the performance of his duties in cleaning the streets, picked up from the mud and water in the gutter, a roll of money, consisting of bank bills of the denominations of five, ten, and twenty dollars, and amounting, in the aggregate, to two hundred dollars. It had lain there several weeks, and the owner had ceased to make search for it. The evidence fails to show that the plaintiff had any information of a loss previous to the finding, and in his testimony he denied such notice. There was no max'k on the money to indicate the owner, nor was there any thing in the attending circumstances pointing to ■one owner more than another. He put the money in his pocket, without calling the attention of his fellow-workmen to the discovery, and afterward, on the same day, commenced applying it to his own use.

No doubt the plaintiff was morally bound to take steps to find the owner. An honest man would not thus appropriate money, before he had made the finding public, and endeavored to find the owner. But in violating the moral obligation, I do not think the plaintiff' incurred ■criminal liability.

Baker’s case, 29 Ohio St. 184, was correctly decided. It is stated in the opinion, not only that when he took the goods he intended to appropriate them to his own use, hut that he had reasonable ground for believing that Alden was the owner. A passage from Regina v. Thurborn, 1 Den. C. C. 387, is cited in that case as containing a correct statement of the law. But a careful examination of Regina v. Thurborn will show that the court which rendered the decision would not have sustained this conviction; aud that case has been repeatedly followed in England and this country. R. v. Preston, 2 Den. C. C. 351; R. v. West, 6 Cox, 415 ; R. v. Dixon, 7 Cox, 35; R. v. Christopher, 5 Jurist, N. S., 24; R. v. Glyde, 11 Cox, 103; R. v. Knight, 12 Cox, 102; Tanner v. Com. 14 Grat. 635 ; People v. Cogdell, 1 Hill (N. Y.), 94; Lane v. The People, 5 Gilman, 305; The State v. Conway, 18 Mo. 321; 2 Lead. Or. Cas. 31; Bailey v. State, 52 Ind. 462.

The obligation, stated in the syllabus, that the finder must deal “ honestly ” with the money, is too indefinite; and the opinion contains no satisfactory explanation of it. This leaves both law and fact to the jury, without any rule to guide them. "What one jury might think was honest •dealing, another jury might think was the reverse. The ■adverb properly or rightfully would have been as certain.

Gilmore, C. J., concurs in the dissenting opinion.


author: Okey, J.

text:
    Hiltabiddle v. The State.
    1. The section in the code of criminal procedure (74 Ohio L. 349, 2 31), dispensing with proof of emissio seminis, has no relation to capacity; and’ hence, it does not so enlarge the meaning of the statutory provision in relation to rape (74 Ohio L. 2 9), as to include persons not theretofore-amenable to that provision.
    2. If it appear, on the trial of one charged with rape, that he is a boy under- " fourteen years of age, the burden is on the state to prove capacity to-commit the crime; and if the court enumerate certain facts which are • of no determinate value, and say to the jury that if they are proved the burden is on the accused to show want of capacity, it is error.
    Error to the Court of Common Pleas of Ricbland county.
    In an indictment in the Court of Common Pleas of Rich-land county, it was charged that John Hiltabiddle, on July 4, 1878, at the county of Richland, assaulted the prosecutrix, and committed a rape upon her.
    On the trial at the March term, 1879, it was proved that at the time stated in the indictment, the prosecutrix was eight years and four months, and the plaintiff in error thirteen years and nine months of age.
    The assault and penetration, rupturing the hymen, were proved.
    The verdict ivas guilty; a motion for a new trial was overruled; and it was ordered that the defendant be taken to the reform farm of Ohio, “ and there to be kept until he arrives at full age, unless sooner reformed.”
    A bill of exceptions, setting forth the evidence and the charge given and refused, was made part of the record.
    The mother of the prosecutrix testified that she examined the child’s clothing, very soon after the outrage was committed, and that there “ was a stain on the back and front part of her panties — on the seat and partly in the front— right where the panties come up to her privates. It was yellowish and mixed with blood.”

      Dr. Craig (28 years in practice) testified that “ a boy of •defendant’s age might have an emission, but that it might not be seminal fluid. Whether it would be seminal fluid ■or mucous could only be told by the microscope.”
    Dr. Patterson (22 years in practice) testified : “ Puberty ordinarily arrives at fourteen. They have sexual desire before this. Maybe an emission when there is the absence •of spermatozoa.”
    Dr. Irvin (18 years in practice) examined the plaintiff in error during the trial, and testified : “ I made an examination of his sexual organs, and found his organs those of an infant. Do n’t think he can emit semen now. Do n’t think hie could on the fourth of last July. Do n’t think it was possible for him to have emitted semen on the fourth of last July. He has no hair under his arms. He is not above, but rather under the common run of boys at his age. Boys in this climate, in this part of Ohio, rarely reach puberty until they are between fourteen and fifteen years of .age. Not frequent that boys reach puberty in this part of •Ohio before they are fifteen years of age.”
    The plaintiff in error testified that he never had an emission of any sort.
    This is all the evidence to the point in controversy.
    The court charged the jury, among other things, as follows : “ To constitute carnal knowledge, there must be both penetration and emission. Both of these elements are necessary in the crime of rape. I am requested to instruct you, that if you find from the evidence, that the defendant was under the age of fourteen years at the time of the alleged rape, it is a presumption of law that he is incapable of committing the crime. This is true, and this presumption arises from human experience, and the result ascertained, that an infant under that age is ordinarily incapable of committing this crime; that the sexual organs of the male are ordinarily not sufficiently developed at that age to accomplish penetration and emission of seminal fluid. But "this presumption becomes weaker and weaker as the male approaches the age of fourteen years, and as soon as he arrives at that age, the presumption changes, and the probability and the presumption then is, that such male is capable of' committing the crime, and has arrived at the condition of puberty. ... I say to you, as matter of law, that if' you find the defendant, incited by sexual desire thereto, had sexual connection with the prosecuting witness, forcibly and against her will; that at the time he was of the age of' fourteen years, less three months and two days only ; that the sexual organs of the defendant were then so developed that in and by such sexual intercourse, he accomplished the rupture of the hymen of the prosecuting witness by penetration; and that there was then and there sexual emission on his part — at or about the time stated in the indictment — this is sufficient to constitute the offense, and in that case you should find the defendant guilty, unless the-defense satisfies you that the fluid there emitted was not germinal and did not contain seed.”
    Exception was taken to the charge at the time, and the-plaintiff in error relies for grounds of reversal on the error-in the charge.

      S. E. Pink and D. Eirlam, for plaintiff in error.

      Isaiah Pillars, attorney-general, and John G. Burns, prosecuting attorney, for the state.
   Okey, J.

Sir Matthew Hale truly observes, that “ rapéis a most detestable crime.” Where the injured party is a child, the outrage is most revolting. The mind is led, unconsciously, to the consideration of what the punishment ought to be, rather than to the inquiry which it is our duty to make. But our duty is simply to ascertain whether the plaintiff in error has been legally convicted of the felony of rape. Until 1815, that crime was punishable in this-state with death ; and, although the penalty is at present-less than death, we must observe the same rules as formerly in ascertaining whether the crime has been committed.

Whatever doubt existed on the question, it was settled’ in Blackburn v. The State, 22 Ohio St. 102, that emissio sem~ inis is an essential ingredient in the crime of rape. In consequence of that decision, the legislature, in 1874, passed a statute on the subject. 71 Ohio L. 14. In 1877, that act was incorporated into the code of criminal procedure, in the following form : “ Carnal knowledge or sexual intercourse shall be deemed complete upon proof of penetration only.” 74 Ohio L. 349, § 31.

Similar provision had been made in England more than half a century previous to that time (9 G. 4, chap. 31; 24 and 25 Viet. chap. 100), and the same thing had been done in New York, Michigan, Iowa, Arkansas, and doubtless in other states. These statutes, it had been perfectly well settled, did not increase the class of persons who might be convicted of rape, but simply made penetration conclusive evidence of emission. R. v. Groombridge, 7 C. & P. 582 ; R. v. Philips, 8 C. & P. 736; R. v. Jordan, R. v. Brimilow, 9 C. & P. 118, 366 ; R. v. Read, 1 Den. 377; 3 Greenleaf’s-Ev. §§ 210, 215. Moreover, the provision should be strictly construed in favor of one accused of crime, and hence, the fair construction is, that it does not enlarge the meaning of the statute defining the crime of rape (74 Ohio L. 245, § 9), so as to extend it to one having no capacity to emit semen.

In England, a boy under fourteen years of age can not, in contemplation of law, be guilty of the crime of rape, or of an assault with intent to commit it. It may not be entirely clear why the presumption in a case of this character —unlike that which pertains to crimes, in general, committed by persons under that age — should be conclusive ; hut such is the fact. In Williams v. The State, 14 Ohio, 222, it was held the presumption exists here, but that it may be rebutted. The ground of the decision is, that by reason of difference in climate, and other causes, puberty is arrived at earlier, here than in England. “ In our state,” said Read, J., “we know that many infants under fourteen are capable of being guilty, but that a majority are not capable under that age.” Undoubtedly the common law is only in force in this state so far as its principles are adapted to our condition; and it is also true, that the age at which puberty is reached is dependent not only on race and the habits of the people, but also on climate. In England, as well as in Ohio, males, in many eases, arrive at puberty before they attain the age of fourteen years, as will appear from the cases already cited. If a range of mountains occupied the place of our great northern lakes and their connecting rivers, we might have the semi-tropical climate of the same latitude in Spain, Portugal, and Italy, in which puberty is attained by boys, in neatly all cases, before they arrive at the age of fourteen years; but our climate is very different; and, in my opinion, there is no appreciable difference in the age at which a boy in Ohio and one in the higher latitude of England undergoes the change in question. Still, the rule that the presumption of incapacity may be rebutted, as determined in Williams’ case, has stood as the law of this state for many years, and we are not willing to disturb'it. But here we are asked, not only to adhere to Williams v. The State, but to go a step further, and, on evidence of the most unsatisfactory' character, east on the accused the burden of proof of his incapacity. The answer to this claim is found in the principle asserted in Williams v. Roberts, 5 Ohio, 35-44, where it was said that, while the court may feel bound by the authority of a former decision, it may be unwilling to extend it. And see 14 Ohio, 236 ; 11 Ohio St. 289.

The rule laid down in Williams v. The State has not been generally followed elsewhere, but it was substantially approved in one case in New York (The People v. Randolph, 2 Park. 174), where the facts were quite similar. In reversing the conviction, the court said — what seems quite pertinent here — that “the prisoner was proved to have been of an age when the law presumes him to be incapable of committing the crime, and it. was the duty of the prosecution not only to meet, but to repel, this presumption by clear proof of his capacity.”

Recurring to the case presented in the record, it is quite clear that the learned judge, in the court below, overlooked the' statute dispensing with the proof of emission. This is not strange, in view of the confused condition of our statute law, from which, I hope, we are about to have relief. This oversight does not, of itself, call for a reversal, although, in consequence of it, the attention of the jury was directed rather to the capacity of the accused, as exhibited in the actual occurrence, than to his capacity in point of fact. But the vice in the charge is the statement that penetration, rupture of the hymen, and the discharge of any sort of “ sexual fluid,” would cast on the accused the burden of proof, to show that such fluid was not seminal. The proof of penetration and rupture of the hymen was not prima facie evidence, as it would have been in case of a boy over fourteen years of age, that the accused had arrived at puberty. The direct proof of emission was slight. But, however cogent the evidence may have been, it was for the jury. In some cases it is proper to say to a jury what their verdict must be, if they find particular facts to be proved (as in Walker v. Stetson, 14 Ohio St. 89); but, on an issue like that involved in this case, a court is not authorized to enumerate facts of no determinate value, and say, that, if they are proved, a prima facie ease for conviction is made. State v. Learnard, 41 Vt. 585 ; Railroad Co. v. Lawrence, 13 Ohio St. 66.

We are satisfied the proper course, in this case, was to have said to the jury, in substance, that if they found the accused had sexual intercourse with the child, in the manner stated in the indictment, but that ho was, at the time, under fourteen years of age, the burden was on the state to show that he was capable of emitting semen ; and that the weight which should be given to the evidence, tending to prove or disprove such capacity, was for the consideration of the jury.

Of course, if an assault was proved, but not the rape, the prisoner might have been convicted of the assault.

Eor error in the particular stated, the judgment must be reversed, and cause remanded for a new trial.

Judgment reversed.

Boynton, J., dissented from the judgment of reversal.


text:
    Darling v. Williams, Administrator.
    1. Homicide is not excusable on the ground of self-defense, although the slayer believes, in good faith, that he is in imminent danger of death, or great bodily harm, and that his only means of escape from such danger consists in taking the life of the assailant, unless there were reasonable grounds for such belief.
    2. In an action under the act of March 25,1851, requiring compensation for causing death by wrongful act, neglect, or default, evidence having been given tending to show that the deceased commenced the affray in which he lost his life, the defendant prayed an instruction to the jury, that if the wrong or fault of the deceased contributed to the injury resulting in his death, no recovery could be had in the action. Held, that the instruction prayed for was properly refused.
    Error to the District Court of Van Wert county.
    George C. Williams, as administrator of the estate of Orlando Meals, brought an action against the plaintiff in error, Squire Darling, under the act of March 25, 1851 (2 S. & C. 1139), for causing the death of Meals.
    The petition alleged, among other things, that death was caused by malicious stabbing, and that Meals left a wife and five children. Prayer for judgment in the sum of $10,000.
    The answer denied that the defendant caused the injury, and, secondly, alleged that whatever injury the defendant below inflicted on the deceased was done in self-defense.
    The matter set up in justification was denied by the reply. A tidal was had, resulting in a verdict, for the plaintiff below, in the sum of $3,000.
    On the coming in of the verdict the defendant moved for a new trial on the following grounds :
    1. Because the court erred in its charge to the jury.-
    2. Because the court erred in refusing to charge as requested by the defendant.
    3. Because the verdict is contrary to the law of the case.

      4. Because said vei’diet is contrary to the weight of evidence.
    The motion was overruled, judgment entered, and an exception taken.
    From the bill of exceptions setting out all the testimony and the chai’ge of the court, it appears that evidence was given by the plaintiff below, tending to show, that on the 11th of June, 1874, while the deceased was engaged in driving a calf belonging to him out of the defendant’s barn-yard, a hog belonging to the defendant escaped into the public highway, which the deceased undertook to drive hack; and while engaged in so doing, the defendant went out to the barn-yard gate, and after some angry words passed between the two, the defendant moved towrnrd the deceased with clenched fists, whereupon, the deceased knocked him down. The defendant got up, moved toward the deceased again, and was again knocked down. Whereupon, the defendant drew a pocket-knife and stabbed the deceased, inflicting a fatal wound from which he died in less than an hour.
    Testimony was given by the defendant and his wife, the latter witnessing the transaction, tending to show that the deceased was the assailant, and that he approached the defendant and knocked him down three times, and that after the defendant got up the third time he started for his house, and that the deceased being immediately behind him striking and kicking him, he, to save himself from further serious bodily harm, drew his knife, and struck back at the deceased, inflicting the fatal wound. At the conclusion of the testimony the defendant prayed for the following instructions to the jury: That if, from all the circumstances attending the causing the death of the intestate, Orlando Meals, the jury shall find that the said Orlando Meals was at fault, and guilty of negligence, directly contributing to the injury which caused his death, then the plaintiff is not entitled to recover, and the defendant is entitled to your verdict.

      The court declined so to charge, to which the defendant excepted.
    After reading to the jury the statutes under which the action was brought, the court, among other things, gave the following instructions:
    “ It is to be observed, first, that this case is to be tried in the same manner, and is to be governed by the same principles of law, as if the said Meals had not died of the injuries, and had commenced an action for the recovery of ■damages for these injuries; or, in other words, that this action can be sustained under such state of facts, and under such state of facts only, as would have entitled Orlando Meals (had he lived) to have maintained an action, and recover damages for the injuries which caused his death.
    “ If, for instance, Meals had been wounded, and had not died of his wounds, and had brought an action against Darling, for damages, if it appeared that Meals had made the first assault, and this defendant had repelled it by force, ■employing no more force than was necessary to protect himself, the plaintiff, Meals, could not recover; but if the ■defendant, Darling, went unnecessarily beyond this, and employed force entirely disproportionate to the attack, such as to show wantonness, malice, or revenge, he himself would become a wrong-doer, and would be liable for injuries inflicted beyond what was reasonable and necessary.”
    To the instruction that the plaintiff could recover if the deceased made the first assault, the defendant excepted. '
    The court further charged “it seems now to be well settled that, to justify the taking of the life of the assailant when attacked, there must appear to the satisfaction of the jury : First. That the defendant, if assaulted without any wrong or fault on his part, honestly and truly believes that he is in imminent danger of his death, or of great bodily harm; and if, secondly, he has just and reasonable cause to apprehend such danger, which he can not avoid without taking the life of his adversary, he is excusable.” To which the defendant excepted.

      The court, at the defendant’s request, further charged as follows :
    “ That every person has the right to defend himself against attacks, or threatened attacks, of such character as would endanger his life or limb, or to do him great or serious bodily injury, even to the taking of the life of the assailant; and where a person apprehends that another is about to do him great bodily harm, and has reasonable grounds for believing the danger imminent, he may safely act upon such apprehension, and even kill the assailant, if that be necessary, to avoid the apprehended danger.
    “ That the necessity which permits, in law, the taking, of life in self-defense, may be either apparent or real. It is real when there is actual danger to life, or great bodily harm ; it is apparent when the circumstances, at the time of taking life, to a reasonable mind, indicate the presence-of actual danger to life, or great bodily harm, though there-is, in fact, none.”
    On petition to the district court, the following errors-were assigned:
    1. That said court erred in its charge to the jury.
    2. That the said court erred in refusing to charge the jury as requested by the said plaintiff in error.
    8. That the said court erred in overruling the motion to-set aside the verdict and grant a new trial.
    The judgment was there affirmed, and it is now sought to-reverse it.

      Swan & Moore and Isaiah Pillars, for plaintiff in error :
    If defendant honestly believed that he was in danger of his death, and in self-defense took the life of his assailant, he was justifiable. Maher v. People, 24 Ill. 241; Campbell v. People, 16 Ill. 17 ; Shorter v. People, 2 N. Y. 195.
    The English doctrine, that a party assailed must flee as-far as he can, is not the law in this country. State v. Kennedy, 7 Nevada, 374; Copeland v. State, 7 Humphries (Tenn.), 429; Commonwealth v. Selfridge, H. & T. 1; Pond v. People, 8 Mich. 150 ; Meredith v. Commonwealth, 18 B. Mon. 49.

      Sutton & Thomas and J. L. H. Long, for defendants in error:
    Even if Meals had made the first assault, and Darling, in repelling the attack, employed force entirely disproportioned to the attack, or used such weapons as to show wantonness, malice, or revenge on-his part, the killing would be wrongful, and the plaintiff entitled to recover. 1 Hilliard on Torts (3 ed.), 184, 188; Hilliard on Remedies for Torts, 454 ; 3 Ohio St. 172 ; Martz v. State, 26 Ohio St. 162.
    As to the law in a case of contributory injury. See 1 Eastman P. C. 236, 320; People v. Doe, 1 Mich. 451; 1 Hill, 377 ; Commonwealth v. Drew, 4 Mass. 301.
   Boynton, J.

It is first contended by counsel for the plaintiff, that the court erred in charging the jury, that in order to justify the taking of the life of the assailant, it must appear that the accused honestly and truly believed that he was in imminent danger of death or of great bodily harm, and that he had just and reasonable cause to apprehend such danger. The proposition asserted in argument is, that an honest belief in the existence of the danger, whether well founded or not, is all that is required to justify the assailed in taking the life of the assailant; or as expressed in the request which the court declined to give, whether or not the party attacked has reasonable ground to apprehend danger to life, or great bodily harm, from the attack of the assailant, he alone is the judge. This q>osition is entirely untenable. One person can justify the taking of the life of another in self-defense only where, in the proper exercise of his faculties, he believes, in good faith, and upon sufficient or reasonable grounds of belief, that he is in imminent danger of death, or grievous bodily harm. Marts v. The State, 26 Ohio St. 162. It is not, however, necessary that the danger should prove real, or in fact exist, for, whether real or apparent, if the circumstances are such as to induce a belief, reasonable and well grounded, that life is in peril, or that grievous bodily harm is impending, the party threatened with the danger may act upon appearanees and slay bis assailant. But there must be a reasonable ground for his belief in the danger threatened, arising out of the circumstances in -which he is placed, otherwise the act of taking the life of the assailant is entirely without justification.

It is next contended, that the court erred in refusing to charge the jury, that, if the fault, or wrong, or negligence of the deceased contributed to the injury that resulted in his death, the action would not lie, and consequently, that there could be no recovery. This claim is so entirely unfounded, that little need be said in disposing of it. "Where death results from an injury caused by negligence, no recovery can be had, where the injury, but for the negligence of the deceased, would not have resulted. The statute expressly requires the wrongful act, neglect, or default to have been such, that the party injured could have maintained the action, if death had not ensued. 2 S. & C. § 1139. The case, however, is not one of negligence. The petition made a case of intentional killing. The defendant denied the charge, and alleged that 'all he did was done in defense of his person against an attack of the deceased. This allegation the plaintiff denied. Upon these issues the case went to trial. There was no pretense that the defendant’s liability arose from negligence. The injury was the outgrowth of a fight or affray. Had the deceased survived, and brought an action for the injury, it would have been an action for an assault and battery. In such action the law governing cases of negligence would have been entirely inapplicable. The party first assaulted is entitled to recover for the injury inflicted upon him by the assailant, and the assailing party may recover for the injury to him resulting from excess of force or beating where the bounds of self-defense have been overstepped. Dole v. Erskine, 35 N. H. 503; Cooley on Torts, 165. The case is clearly within the statute, and the court was clearly right in rejecting the prayer of the defendant.

The remaining objection relates to the sufficiency of the evidence to support the verdict. "We have carefully examined it, and are satisfied that the verdict ought not to be disturbed.

Judgment affirmed.