author: J ohnson, J.

text:
    Holliger v. Bates.

      Mortgage — Foreclosure—Parties—Bights of owner of notes and junior mortgage not made party.

      Z., a mortgagee, held a mortgage, which was of record, made by R. to secure his two promissory notes, dated March 1,1878, one due in eighteen months, and one in thirty months, payable to the order of Z. April 1, 1878, Z., for a valuable consideration, sold those notes and mortgage to B. The notes were indorsed, and, with the mortgage, were delivered to B., who thereby became the sole owner of the same, and the bonafi.de purchaser of said notes before due. There was no written assignment of such mortgage, nor any notice of record showing such assignment. October 1, 1878, H., wbo held a prior mortgage, commenced an action to foreclose his mortgage, making R. and Z., but not B., parties defendant, who were duly served, Neither Z. nor R. answered; an order of sale was taken forclosing H.’s mortgage, and he became the purchaser at sheriff’s sale, received a deed, and took possession, and now seeks to quiet his title as against the second mortgage held by B. Held:

    1. Where a senior mortgagee forecloses his mortgage, and sells the property, without making a junior mortgagee a party, or giving him notice, the purchaser at such judicial sale, whether it be the senior mortgagee ora stranger, acquires his title subject to the right of redemption by the junior mortgagee, and the same rule applies where the junior mortgagee has assigned all his interest in the mortgage, and the notes secured thereby to a third person who is not a party and is without notice of such proceedings and sale.
    2. In such a case, the owner of the notes and junior mortgage, not being a party to said proceedings to foreclose and sell, is not affected thereby, and may maintain an action against such purchaser to foreclose his mortgage. Childs v. Childs> 10 Ohio St. 339; Stewart v. Johnson, 30 Ohio St. 24.
    3. The fact that B. did not take from Z. a written assignment of the junior mortgage, and have it recorded, nor obtain from R. a quit-claim deed of Ms equity of redemption, and have the same recorded, does not defeat his junior mortgage, nor estop him from foreclosing the same.
    4. The record of the junior unsatisfied mortgage to secure notes unpaid at the time of such sale, put the purchaser upon inquiry. The lien of the junior mortgage was not a secret or latent equity, and the purchaser at such sale took the title subject to the right to redeem by the holder of the junior mortgage.
    Error to the District Court of Tuscarawas county.

      This action was commence March 30, 1880, to quiet the plaintiff’s title, as against claims of the defendant, Bates, to certain described land.
    Bates for answer sets up that on March 1, 1878, one William H. Rolli was the owner of the land in controversy, and on that day executed and delivered to one John Zwald two promissory notes for $117.50 each, one due on October 1, 1879, and one October 1, 1880, with interest. And to secure the payment of the same, he executed a mortgage deed on the premises to Zwald, which was entered for record the same day.
    That about April 1, 1878, Zwald, for a valuable consideration, indorsed the notes, and delivered the same, together with the mortgage, to him, Bates, and that he is still the owner of the notes and mortgage, whereby he is entitled to a lien on the premises. He also avers that the notes are still outstanding, and wholly unpaid, and the mortgage is in full force and unsatisfied. The reply, which is by way of confession and avoidance, is as follows:
    “And now comes the said Nicholas Holliger, plaintiff, and for reply to the answer of the said Albert Bates, defendant, says that he ought not to be barred of his said action, because he avers that on or about the 1st day of October, a. d. 1878, he, the said plaintiff, commenced an action in the court of common pleas within and for the said county of Tuscarawas, wherein this plaintiff' was plaintiff, and John Zwald, Catharine Zwald, William Rolli, and Oliver Knisely were defendants, to foreclose a certain mortgage, which the said plaintiff then and there held upon the premises, in the petition described, and which mortgage was a prior lien to the mortgage set forth ip defendants’ answer, executed by the said William Rolli to the said John Zwald, as therein set forth, and which mortgage of the plaintiff was past due, aud had become absolute long before the mortgage set forth in defendants’ said answer was executed and delivered; that the said John Zwald, the party to whom the notes and mortgage set forth and described in the defendants’ answer were executed and delivered, was regularly and duly made a party defendant to said action to foreclose plaintiff’s said mortgage, and was duly served with summons therein; that the mortgage of the said John Zwald conveyed to him only the equity of redemption in said premises, but had been duly' recorded in the recorder’s office of said county of Tuscarawas, as averred in the answer of said Albert Bates, and was then a lien on said premises, in plaintiff’s petition described.
    “ And the plaintiff further says that, on or about the 29th day of October, a. d. 1878, the said plaintiff’s petition came on to be heard by said court, and the said John Zwald, still failing to answer or demur to the petition of the plaintiff, the said court did find from the testimony that there was due to the plaintiff upon his said mortgage the sum of $152.36; and the said court did further adjudge, order, and decree that, in case the said defendants did not pay the said sum, 152.36, so found due, as aforesaidj within a short time named in said decree, that these said premises should be appraised, advertised, and sold by the sheriff of said county, and the proceeds of said sale applied in payment of the amount so as aforesaid found due to the plaintiff; that on the 9th day of December, a. d. 1878, the said time having expired for the payment of said sum so found due, and the defendants in said cause still neglecting and failing to pay the same, an order of sale was regularly issued to the sheriff of said county, commanding him to appraise, advertise, and sell said premises according to law, to satisfy said amount; that said sheriff proceeded upon said order, and caused said premises to be duly appraised and advertised for sale in pirrsuance of said order; and, on the 23d day of January, A. d. 1879, did sell the same, at public auction, according to law, to the said plaintiff for the sum of $150, the same being more than two-thirds of the appraisement, and the plaintiff being the highest bidder therefor; that afterward, at the January term of the said court, the said sale was by said court duly confirmed, and the said sheriff, by said coui’t, was ordered to make the said plaintiff a deed in fee simple for said premises; that said plaintiff paid the said sheriff’ the costs in said action, and a sufficient amount of the said sum so found due him was applied to pay said sum of $150, the purchase-price of said premises, in full; and, in accordance with said order of the court, the said sheriff executed and delivered to the plaintiff a deed, conveying said premises and the appurtenances thereto to the plaintiff in fee simple, and that said deed is duly recorded in the office of the recorder of said county.
    “ And the plaintiff further says, that at the time he so purchased said premises, and received said sheriff’s deed therefor, he had no notice or knowledge that said Zwald had indorsed said notes, and delivered the same, with the said mortgage, to the said defendant, but supposed the said Zwald was still the owner and holder thereof; that the said defendant wholly failed and neglected to have the said mortgage assigned to him in writing, and wholly failed and neglected to have the quit-claim deed of the said Zwald of his interest in said premises, or an assignment, or any memorandum of said transaction recorded by the recorder of said county, but that the records of said county, ■at the time the plaintiff so purchased said premises, and at the time said action was brought, showed the said Zwald to be the owner and holder of said notes and mortgage, and that no other person had any interest therein; and that plaintiff, relying upon said records, and believing that all persons'interested in said mortgage and premises had been made parties to said action, and having no knowledge whatever that said Albert Bates had any interest in or title to said notes and mortgage, he purchased said premises in good faith, and paid the purchase-price thereof.
    “ Plaintiff avers that the said Albert Bates, having neglected to have his assignment of said mortgage recorded, and having neglected to take the quit-claim deed of the said Zwald’s equity of redemption in said premises, is estopped ffrom now claiming under the same as against the plaintiff; ■that plaintiff is an innocent purchaser of said lands and tenements, and of right holds the same, freed from all pretended title, interest, claim, or demand, and of all equities of redemption of the said Albert Bates therein; and that his said title to said land should be quieted by the order, judgment, and decree of this court, and that the pretended mortgage lien of the said Albert Bates should be held and adjudged to be wholly void.
    “Wherefore, plaintiff prays that said pretended title of the said defendant may be held to be void as against the plaintiff; and for such other and further relief as to the court may seem j ust and equitable.”
    To this reply Bates demurred, on the ground that the facts therein stated did not constitute a bar to defendant’s rights under his mortgage. This demurrer was overruled, and judgment rendered for plaintiff, quieting his title. On error, this judgment was reversed by the district court; and the case is now here to review this judgment of reversal.

      F. Douthüt and J. H. Booth, for plaintiff in error.
    In an action to quiet title, it is not necessary that the adverse claim should relate to or affect the 'present possession or the right of possession. Rhea v. Dick, 34 Ohio St. 420.
    Bates should have taken the legal title to the conditional estate held and owned by Zwald. Had this been done by quit-claim deed, duly recorded, it would have been constructive notice to all the world that he was claiming an interest in the premises, and if not then made a party upon the foreclosure of the prior mortgage, he could well assert his interest.
    There was authority under our statutes for recording the same, if Bates had taken an assignment of the mortgage.
    The rights of Bates, if any he had, were purely equitable. No title or estate in the mortgaged premises had been conveyed to him. A legal title to lands can not, either at common law or under our statutes,’pass by the sale and delivery of a promissory note. The legal title to the conditional estate granted by the mortgage remained in Zwald as fully after the transfer of the notes and mortgage to Rates as before. True, as stated in Swartz v. Leist, 13 Ohio St. 419, Zwald may have held it as trustee for the benefit of Bates. But the trust was not apparent on the face of the mortgage deed, was evidenced by no record, and was unknown to the world, and could in no way affect the rights of bona fide purchasers.
    Zwald, holding the legal title to the conditional estate, was made a party, and the secret equity of Bates was unknown to the world. The equities of Holliger, as a bona fide purchaser in such case, are stronger than those which arise from such latent trust; Holliger is in no way in fault. He examines the record and sees that every person having any apparent interest in the premises has been made a party, even to Zwald, the secret tnistee of Bates. . But how is it with Bates ? He is not equally faultless. He negligently or confidingly permitted Zwald, the mortgagee, to retain the legal title conveyed by the mortgage and the power of control over it. Had Zwald released it and Holliger became the purchaser without knowledge of Bates’ secret and latent equity, Bates would have been estopped from setting up any claim under his notes. Bates might have insisted upon a transfer of the legal title to the mortgage held by Zwald, and had the same duly recorded, thus notifying the world of his claim. But he unwisely reposed confidence in Zwald, and he should suffer the consequences of permitting Zwald to hold such legal title. Bates has been negligent and careless, and has lost his equity in the real estate thereby. Swartz v. Leist, supra; Jones Mort., sec. 820.
    A purchaser of real estate in good faith is never bound to take notice of secret equities, liens, interests, trusts, or incumbrances which can not be discovered from an inspection of the public records, or ascertained from the parties in possession. Lewis v. Kirk, 28 Kan. 497; s. c., 42 Am. Rep. 173, 179.
    In an action to foreclose a mortgage the plaintiff is not bound to ascertain whether the defendants were in fact judgment creditors, nor trace the judgments into the hands of the assignees. He maj^make the assignees parties upon alleging assignments, or may make the assignors parties without noticing the assignments. Grant v. Ludlow, 8 Ohio St. 1, 83, 34.
    The rule that purchasers at judicial sales purchase subject to the rule of caveat emptor has no application to latent equities. Oviatt v. Brown, 14 Ohio, 285; Paine v. Mooreland, 15 Ohio, 435; Morris v. Daniels, 35 Ohio St. 406.
    J. T. O’Donnell, for defendant in error :
    The purchase by Bates of the notes secured by the mortgage, and delivery of the same, together with the mortgage to him, made him the absolute owner of the mortgage. Paine v. French, 4 Ohio, 318; 1 Bates Pl. & Pr. 18.
    The statutes do not contemplate the recording of a written assignment of a mortgage.
    Such record, if not contemplated by the statute, would not operate as notice, but would be a mere nullity. Foster v. Dugan, 8 Ohio, 87.
    Holliger, who was plaintiff, becáme the purchaser at the sheriff’s sale. A purchaser at judicial sale takes subject to the rule of caveat emptor, and must look to his title. Rorer Jud. Sales, secs. 174, 476.
    And this is especially true where the purchaser is the plaintiff in the action. Collins v. Smith, 57 Wis. 284.
    Making Zwald a party in the foreclosure suit after he had parted with his title to the mortgage, was a mere nullity. He was not a necessary party. Grant v. Ludlow, 8 Ohio St. 1; McGuffey v. Finley, 20 Ohio 474.
    The purchaser at judicial sale is to be charged with con, structive notice of the existence of a mortgage and of the continuance of its lien by its record in the proper office. Purdy v. Huntington, 42 N. Y. 334; s. c., 1 Am. Rep. 532; Jones Mort., sec. 474.
   J ohnson, J.

It will be seen by tbe statement of facts, that Zwald’s mortgage and notes became effective March 1,1878 ; that one note was doe October 1, 1879, and one October 1, 1880, and that long before due, they became the property of Bates by purchase from the mortgagee, Zwald, by indorsement and delivery of the notes, and by delivery of the mortgage, without such indorsement, so that Bates thereby became the legal owner and holder of the notes by purchase for a valuable consideration, before due, and the sole and absolute owner of the mortgage to secure the same by delivery without written assignment of the same. The reply of Holliger admits these facts and seeks to avoid their legal effect by setting up that he had a prior mortgage on the same premises, on which he commenced an action October 1,1878, one year before the first note held by Bates became due, and two years before the second, which mortgage was executed by Rolli, and was entered for record the day of its date. That, in said action, Rolli, the mortgagor, and John Zwald, the second mortgagee, were defendants. Zwald, though served, failed to answer or demur to the petition, and such proceedings were had that the plaintiff had a decree in his favor for the amount due on his prior note and mortgage, and an order of sale of the premises.

This decree Avas dated December 9, 1878. January 23, 1879, the sheriff, in pursuance thereof, sold-the land to the plaintiff for more than two-thirds of the appraisement, Avliich sale was confirmed and conveyance made to the plaintiff, who took possession. He avers that he had no notice or knowledge that Zwald, the second mortgagee, had sold the notes and mortgage to defendant, and supposed he aves still the owner and holder thereof. He charges negligence upon Bates in not having the assignment of the mortgage in writing entered of record, or in not taking a quit-claim deed from Zwald made to him and recorded. He says he believed that he had made all necessary parties to his action to foreclose; that he was a purchaser in good faith, having no knowledge of Bates’ interest in the titles to said notes and mortgage, and that Bates by his neglect in the premises is estopped from setting up his claim against the plaintiff, who was an innocent purchaser of the land, and holds the same free from all title, interest, or demand, and of all equities of redemption of Bates therein. "Wherefore he prays that the title and pretended interest of Bates be adjudged void, and for other and further relief.

The answer of Bates shows that by his purchase from Zwald of the second mortgage and the notes thereby secured, he acquired an interest in the premises as second mortgagee, and by the well-settled rule in Ohio was entitled to institute proceedings to foreclose his own mortgage when the notes became due, and, by making the prior mortgagee a party, to foreclose that also; and a sale made under such a decree, if the mortgagor was also a party, would confer the complete title upon the purchaser. This being the right of Bates, as sole owner of the notes and mortgage he held, the only question raised by the reply is, did the proceedings instituted by the first mortgagee, to which he was not a party, bar his right to such foreclosure ?

At the time that proceeding was instituted and consummated, the notes secured by the Zwald mortgage were not yet due; one had a year to run, and one two years. The record of mortgages made known to the plaintiff this important fact. It is not claimed by the reply that he made any effort whatever to ascertain who owned these notes and mortgage. He did not inquire of Rolli, the mortgagor, if the debt secured thereby had been paid, neither did he inquire of Zwald, the second mortgagee, if he still held the mortgage. The presumption was that this mortgage being unsatisfied of record was still outstanding, and the notes secured thereby being commercial paper, and not yet due, were liable to be transferred in the open market to a bona fide holder for value. Under these circumstances the decree in favor of the first mortgagee had no effect whatever upon the rights of Bates as the holder of the second mortgage. The sheriff’s deed passed all the lights and interests of the first mortgagee and of Rolli’s to the purchaser. It did not, however, divest any right acquired by the second mortgage. It is true Zwald was a party to that proceeding, and as to him the decree was taken by default, but he had long before that parted with all his interest in' the second mortgage to Bates, who was not a party. Plaintiff’s purchase, therefore, did not divest Bates of his equity of redemption. The plaintiff, by such purchase, acquired the whole title, subject only to the right of the second mortgagee to redeem. The principles established in Frische v. Kramer, 16 Ohio, 125; McGruffey v. Finley, 20 Ohio, 474; Childs v. Childs, 10 Ohio St. 339, and Stewart v. Johnson, 30 Ohio St. 24, settles this question, as above stated.

¥e refer to these cases, especially the last two, which are directly in point. They leave no room for controversy. The plaintiff, however, seeks to avoid their force upon two grounds: first, that Bates, as assignee of the second mortgage, took no written assignment of the mortgage, and failed to have such assignment noted on the margin of the record of his mortgage so that plaintiff might know the fact; second, nor did he take from the mortgagor a quitclaim deed to the title and have the same recorded.

The claim is, that by reason of such neglect, and by reason of plaintiff being a bona fide purchaser at a judicial sale, this equity of redemption, which was a secret equity, is barred, though the decree of the court as to him is a nullity.

Conceding that a written assignment of the mortgage may, under the statute, be recorded and thus be notice to others, yet the statute does not require it, and a failure to have it done can not divest the assignee of his rights and equities. Again, neither Zwald nor Bates had any right to demand of Rolli a quit-claim deed which would surrender the mortgagoi'’s equity of redemption. Therefore, the failure to get one and have it recorded could not estop them or either of them from enforcing their second mortgage.

It is said, however, that the plaintiff was a purchaser at a judicial sale and is in possession under the legal title, and that his equities are stronger than those of Bates, whose equities are secret. It is a inisnomer to call Bates’ equity-secret. It was of record as the law required, and was notice to all the world of the outstanding notes not yet due and presumptively unpaid.

No effort had been made by the plaintiff to ascertain the ownership of these notes, nor did the decree under which plaintiff purchased in any way notice or effect them.

Again, it is said that the rule of caveat emptor does not apply as to latent equities.

Assuming, without deciding that this is true, it has no application to the case at bar. Here, by an inspection of the mortgage record, or by an inquiry of Rolli, the mortgagor in possession, or of Zwald, the second mortgagee, the facts could readily have been known.

The second mortgage being of record, as the law required, was not a latent or secret equity, but a lien of record, and the purchaser at a judicial sale took his title subject to the same, in whosever hands it might be.

Judgment affirmed.


source: Caselaw Access Project

author: Eollett, J.

license: Public Domain

text:
    City of Warren v. Davis.

      Revised Statutes, sec. 2326 — "Damages"—Construction of word.

    The words “ damages arising from any cause,” as used in section 2326 of the Revised Statutes, have the same meaning that the word “ damages ” has in the original section, 66 Ohio L., 247, ? 575 ; and both expressions apply only to the same causes of action, and are limited to the damages of the subject-matter, and they do not include damages for personal injuries.
    Error to the District Court of Trumbull county.

      David J. Davis brought an action to recover damages for injuries to his person caused by his falling into an unguarded pit in the road-bed of Pine street, a public highway of the city of Warren, while he was walking along the street on the night of Eebruary 28,1881.
    In the petition there was no allegation that Davis, before commencing his suit, filed a claim for damages with the clerk of the city of Warren. A general demurrer to the petition was filed by which it was claimed “ that the allegations and facts stated in said petition do not constitute a cause of action against said defendant.”
    This demurrer was overruled, to which the- city of Warren excepted; and then it filed an answer in which it did not set up as a defense the failure to file a claim for such damages with the clerk of the city. On the trial it seems that no notice was take of the failure to file the claim with such clerk, and Davis recovered a judgment which on proceedings in error, was affirmed by the district court, and the city of Warren now seeks to reverse that judgment.

      Jones $ Gillmer, for plaintiff in error.

      Thayer $ Gilson, for defendant in error.
   Eollett, J.

In this report we shall examine but one question; was it necessary that Davis should have filed his claim for damages with the clerk of the city of Warren, and that he should have so alleged in his petition ? It is claimed that this is required by section 2326 of Revised Statutes, which is as follows :

“No person who claims ■ damages, arising from any cause, shall commence a suit therefor against the corporation until he files a claim for the same with the clerk of the corporation, and sixty days elapse thereafter, to enable the corporation to take such steps 'as it may deem proper to settle or adjust the claim; but this provision shall not apply to an application for an injunction, or other proceeding to which it may he necessary for such applicant to resort in case of urgent necessity.”

The original section before revision was as follows (66 Ohio L. 247, § 575):

“No claimant for damages shall commence any suit until he shall have filed a claim therefor with the clerk of the corporation, and sixty days shall have elapsed thereafter, to enable such corporation to appoint assessors to assess such damages, return the same to the proper officers, and sufficient further time shall have elapsed, not exceeding twenty days after the return of such appraisal, to enable the corporation to pay the assessment.”

This section is a small part of the statutes that provide how cities may make or improve public buildings, public places, and public streets, alleys, and highways; and that provide how damages for the same may be claimed, allowed, and adjusted; and that provide how such cities may obtain funds to pay for the same.

No one claims that the original section applied to damages for personal injuries, as in this ease. It was limited to damages for such improvements as therein are provided for. Has the section as revised any more extended application ?

The statute providing for that revision (72 Ohio L. 87), gave the commissioners power only “ to revise and consolidate the general statute laws of the state, which may be in force at the time such commissioners shall make their report.”

Had this language been less guarded, the settled law of this state is expressed in The State ex rel. v. Commissioners of Shelby County, 36 Ohio St. 326, where this court held: “ Where an act of the legislature, or several acts in pari materia, have undergone revision, the same construction will prevail as before revision, unless the language of the new act plainly requires a change of construction, to conform to the manifest intent of the legislature.” And it was said, “neither an alteration in phraseology nor the omission or addition of words in the latter statute necessarily requires a change of construction.” “ The intent to give to the new act a different effect from the old, should be clearly manifested.” See also Bish. Wr. L., § 98; Ash v. Ash, 9 Ohio St. 387; Van Camp v. Board of Education, 9 Ohio St. 418; Conger v. Barker, 11 Ohio St. 1, 13.

Does the language of the revised section show any such legislative intent, and plainly require a change in the application of the word damages, so as to extend it from the damages resulting from the several improvements in that statute provided for, to damages resulting from any and all other matters connected with municipal government ?

The original section is, “ no claimant for damages shall commence any suit,” etc.; and the revised section is, “ no person who claims damages, arising from any cause, shall commence a suit therefor against the corporation,” etc.

It seems clear that the words “ claimant for ” and the words “ person who claims,” may designate only the same plaintiff. And it seems equally clear that the original section implies the same defendant as is expressed in the revision by the words “ therefor against the corporation.” In the revision these added words express the sense a little more fully.

It must bo admitted that the words any suit ” in the original section, though unlimited in form, are limited by the subject-matter to a suit for damages arising from such subject-matter.

So the word “ damages,” in the original section, would be general if not limited by the subject-matter. Thoi’e may be many causes of damages arising therefrom ; and it seems equally clear that the words “damages, arising from any cause,” as used in the revision, are limited by the same subject-matter to causes of damages arising from the improvements and repairs provided for by the statute of which that section is a part. No other matters of damage are mentioned. The revised section does not show a manifest legislative intent that plainly requires a changed or extended meaning of the word “damages,” as used in the original section. Section 2326 does not require this claim for damages to be presented and filed with the clerk of the corporation, and the amended petition need not show that the claim had been so filed. The court did not err in overruling the demurrer to the amended petition.

We have examined all the assigned errors, and find no error.

The judgment of the court below is affirmed.


author: Owen, J.

text:
    Perry County v. Railroad Company.

      Proper parties in ‘action for injury by railroad to county bridge •within municipal corporation — Limitation of action.

    1. The board of commissioners of a county is the proper party to bring an action to reimburse the county far expense incurred by such board in rebuilding a bridge upon a county road within the limits of a village, which bridge -had been so far wrongfully injured by a railroad company in the construction of its railroad across such county road, as to require the construction of a new bridge. Railroad Co. v. Commissioners, 35 Ohio St. 1, distinguished.
    2. The statute of limitations does not begin to run against such cause of action until the complete restoration of such bridge by the commissioners to its former condition of usefulness and safety; and does not interpose a bar to recovery within six years after such restoration.
    Error to the District Court of Perry county.
    On October 24,1882, the plaintiff, the board of commissioners of Perry county, filed its petition in the court of common pleas of that county against the defendant, the Newark, Somerset and Straitsville Railroad Company, in which it was alleged (with other necessary formal averments) that, prior to the year 1871, it became necessary to build and it did build a bridge upon a county road within the village of Somerset, in that county, at the county expense, which, bridge remained, from its construction, the property and under the control and supervision of the county. That the defendant, in the construction of its railroad aci’oss such county road and within such village, without lawful authority excavated and cut and carried away earth and rock from under such bridge, destroying its foundation, leaving no support for it, so that it became unfit for public travel, and made it necessary to construct an entirely new bridge of a greater length than the original one. That the defendant failed and refused to restore such bridge, or construct such new bridge, whereby it became necessary for the plaintiff to, and it did, about the month of March, 1878, at the expense of such county, construct a new bridge in lieu of the first at the necessary cost of $3,000, and paid for the same out of the bridge funds of the county, and has ever since kept up and maintained it. That the damages by reason of these facts are $3,000, for which judgment is asked.
    The defendant demurred to this petition, on the grounds, substantially, that (1) the facts alleged did not entitle the plaintiff to recover against the defendant; and (2) that the supposed cause of action did not accrue within four, six, or ten years prior to the commencement of the action. The court of common pleas sustained the demurrer, and dismissed the plaintiff’s action. The district court affirmed this judgment, and the present proceeding is prosecuted to reverse these judgments.

      John Ferguson and James F. Conly, for plaintiff in error.

      Charles U. Kibler, for defendant in error.
   Owen, J.

1. The contention of the defendant is that whatever claim for damages accrued against it by reason of the injury complained of must be prosecuted by the village of Somerset. To sustain this position section 2640, Revised Statutes, is relied upon. This provides that: “ The council (of each municipal corporation) shall have the care, supervision, and control, of all public highways, streets, avenues, alleys, sidewalks, public grounds, and bridges, within the corporation, and shall cause the same to be kept open and in repair, and free from nuisance.”

On the strength of this provision it was held in Railroad Co. v. Commissioners, 35 Ohio St. 1, that: Where an obstruction is created in a state or county road, and the corporation limits of a municipal corporation are extended over a part of the road so obstructed, the county commissioners can not maintain an action for the obstruction of that part of the highway which is within the limits of the corporation.” The highway involved in this decision was within the city of Youngstown (a city of the second class), in Mahoning county. The reason chiefly relied upon in the opinion of Okey, J., to support the conclusion announced is that: “ Under the act of 1873 (now section 863, Revised Statutes, infra), the damages recovered must be appropriated by the commissioners in repairing the road or removing the obstruction; but as the control of highways in the corporation is confided to the corporate authorities, the commissioners could not apply such moneys within the corporate limits.”

In the case at bar, the money had already been expended by the commissioners in repairing the injury, and the action was to reimburse the county therefor.

An enactment, since incorporated into section 2824 (Revised Statutes), provided that, in all cities of the first and second class, one-half the proportion of the bridge fund collected upon property within such cities — in all eases where city conned hall demand it — shall be paid into the city treasury, and shall be expended by such city for the purpose of building and repairing bridges.

This enactment is not cited to show the village of Somerset to have been destitute of a bridge fund (for it was authorized to make a levy for bridge purposes, section 2683 Revised Statutes, but for the reason that an enactment siuce incorporated into section 4938,Revised Statutes, provided that: .

“ The commissioners of the several counties shall cause to be constructed and kept in repair ... all necessary bridges in villages and cities not having a right to demand and receive a part of the bridge fund . . . on all county . . . roads . . . running into or through any such village or city.”

It will be seen from this, that the village of Somerset, not being entitled to demand or receive any part of the county bridge fund, comes squarely withiu the requirement that the commissioners shall cause to be constructed, and kept in repair, all necessary bridges on all county roads within such villages. Section 863, Revised Statutes, provides that: “Where a bridge on any state or county road the property of, or under the control or supervision of, any county, is injured or destroyed ... by any corporation . . . such corporation shall be subject to . . . damages ; and the board of commissioners of the proper county is authorized to sue . . . and the money so recovered . . . shall be appropriated by the commissioners thereof to repairing such bridge ... or to reimburse the county for expenditure in that behalf . . . and the statute of limitations shall not run in favor of any person or corporation committing any acts, injuries, or obstructions concerning any such road or public highway.”

The action below was evidently brought under the authority of this section.

It will be observed, that if such bridge is either the property or under the control of the county, the commissioners are authorized to bring suit for its destruction, or to reimburse the .county for expenses incurred in its restoration.

The bridge in question, in the case at bar, was unquestionably the property of the county. It was so far destroyed by the defendant as to make it necessary that an entire new bridge be constructed in its stead; and, in view of the provisions cited above, we are not prepared to hold that the provisions of section 2640, supra, purporting to invest the councils of municipal corporations with the care, supervision, and control of bridges within the corporations, and the duty of keeping them in repair, were designed to extend to the construction, by villages, of new bridges which are destined, on completion, to become and remain the property of the counties in which such villages are respectively situated.

The ownership of such a bridge by the county ; its duty to rebuild it when destroyed; and the duty of the municipality in which it is situated to supervise and control it, or even to keep it in repair, are not so far inconsistent as to call upon us to declare a repeal, by implication, of any of these apparently conflicting provisions in order to hold, as we do, that the plaintiff is entitled to recover of the defendant the necessary cost of rebuilding the bridge, which, by the wrongful acts of the latter, was so far destroyed as to create a necessity for a new bridge in its place. Nor do we find it necessary, in reaching this conclusion, to overrule or materially qualify Railroad Co. v. Commissioners, 35 Ohio St. 1. That ease is, for the reasons already given, clearly distinguishable from the case at bar.

2. The plea of the statute of limitations which the demurrer interposed to the petition is untenable. From the time the injuries complained of were committed, and, at least, to the time the commissioners made full restoration, the duty of the defendant to restore the bridge to its former condition of usefulness and safety, was a continuing and subsisting obligation, and each day’s failure to make full restoration was a fresh breach of such obligation; and lapse of time can not avail to interpose a bar to recovery. Railroad Co. v. Commissioners, 31 Ohio St. 338. The injury was committed in 1871. Full restoration was made by the commissioners in March, 1878. The action below was commenced in October, 1882. When the commissioners had fully restored the bridge, it became the duty of the defendant to reimburse the county in that behalf; and whether we treat this obligation as a liabiliy created by statute (section 863, supra) ; whether the necessary performance by the commissioners of a duty imposed by law upon the defendant, which the latter refused to perform, raised an implication of a promise by the latter to repay the expense so incurred; or whether the rule of limitation prescribed by the section last cited be held to extend to an action for the construction of the bridge in question, the result is the same — lapse of time does not avail to bar recovery.

The court of common pleas erred in sustaining the demurrer to the petition and dismissing the plaintiff’s action. The district court erred in affirming this judgment.

These judgments are reversed; the demurrer is overruled, and the cause remanded for further proceedings.


author: By the Court.

text:
    Watterson v. Bradley.

      Municipal corporations — Assessments—Liability of property not bounding or abutting upon improvement.

    Error to the District Court of Cuyahoga county.

      Kain, Sherwood $ Bunts and A. T. Brinsmade, for plaintiff in error.

      James Fitch and J. F. Ensign, for defendant in error.
   By the Court.

Under an ordinance for that purpose, the city of Cleveland improved Kinsman street, between certain points, by grading, draining and paving the same. This improvement included the construction of a culvert for drainage, and the cost of the improvement, which included the cost of the culvert, was assessed upon the lots bounding and abutting thereon.

After it was completed, and the assessment was made, the culvert broke down and became useless for the use intended. The city then by another ordinance provided for the construction of a new culvert at another point on the street, in place of the old one, the cost of which to be assessed upon property bounding and abutting on Kinsman street, within the termini of the original improvement, and which had been assessed therefor, but not bounding or abutting upon the culvert.

Held: That this additional assessment for the cost of the new culvert was not authorized by law. Spangler v. Cleveland, 35 Ohio St. 469, approved and followed.

Judgment affirmed.


author: By the Court.'

text:
    The State v. Josephs.

      Revised Statutes, Sea. 7356 — Practice—Reviewing judgment of circuit court reversing common pleas in criminal case.

    Motion for leave to file petition in error to reverse the judgment of the Circuit Court of Scioto county by which a judgment of conviction for felony by the court of common pleas was reversed.

      Theodore K. Funk, prosecuting attorney, and Noale J. Fever, for the motion.

      Harper, Searl $ Milner, contra.

   By the Court.'

Section 7356 of the Revised Statutes does not authorize this court to review a judgment of the circuit court reversing a judgment of conviction rendered in the court of common pleas in a criminal case.

Motion overruled.


author: Johnson, J.

text:
    The State ex rel. Cook v. Ottinger, Clerk.
    Mandamus— What final judgment in — Error.
    1. The refusal by the circuit court, to allow a peremptory mandamus, after a hearing upon issue joined, is a final judgment reviewable on error. State ex rel. v. Cappeller, 37 Ohio St. 121, distinguished.
    2. When the parlies by agreement dispense with a return or answer, and other formal pleadings authorized by statute, and submit the case upon the petition, and an agreed statement of facts in lieu of such pleading, and the case is heard as an application for a peremptory mandamus, and a judgment is rendered thereon dismissing the petition, this is a final judgment, reviewablc on error.
    3. While that judgment is in full force and unreversed, this court will not, in the exercise of its original jurisdiction again hear and determine the case upon its merits. The proper remedy is by proceedings in error.
    Mandamus.
    Thi^ is an action commenced in this court to compel the clerk of Richland county to certify a certain action therein ponding to Knox county, because the judges in the subdivision of which Richland is a part are disqualified from hearing the case.
    It is agreed by counsel to waive the issuance and service of an alternative writ, and that the case is to be heard upon issue joined on an application for a peremptory writ.
    Several answers have been filed aud issue joined thereon. The third answer and the reply thereto raises the question upon which the case is disposed of. Hence, the other defenses need not be noticed. The third answer is in substance that prior to the commencement of this action the relators filed a like petition in the circuit court of Richland county against this defendant, setting forth substantially the same facts, to obtain the same relief; that in that action the case was heard upon an agreed statement of facts, and was finally determined by the circuit court, and a final judgment and order made therein upon all issues of law and fact involved in the present case.
    A copy of the judgment of the circuit court is made a part of the answer. It shows that the case was there heard upon an agreed statement of facts, which were to be considered of the same effect as if set forth in an answer to an alternative writ, aud that the circuit court should proceed as upon an alternative writ and answer thereto. Upon the issue thus made up, “ the court being fully advised in the premises, do find that the relators are not entitled to the relief prayed for in said petition, and said petition is disallowed and dismissed.”
    The reply admits the proceedings in the circuit court, but denies that the judgment in that case is a bar to the proceedings in this.

      Dirlam ¡¡¡¡ Ley man, for the relator.

      Estep, Dickey § Squire and Jenner, Tracy $ Láser, for defendant. .
   Johnson, J.

The sole question presented by the foregoing statement is, whether the proceedings in the circuit court, wherein the same case was heard upon an agreed statement of facts, which, by agreement between counsel, was to bo taken as a return to an alternative writ, and wherein a final judgment was rendered refusing a 'per~ emptory writ, are a bar to this action.

The circuit court has concurrent jurisdiction with this court in mandamus. Its judgment upon issue joined or upon agreed statement of facts, substituted for a return to the writ, is as binding, until reversed or set aside, as that of this court. It is a final judgment, to reverse which error may be prosecuted to this court.

A proceeding in error furnishes a plain and adequate remedy in the ordinary course of the law.

Section 6744 of the Revised Statutes, which is but a codification of pre-existing law, prohibits this court from issuing a writ where such plain and adequate remedy exists.

Sections 6741 to 6759 of the Revised Statutes, relating to mandamus, provide for the pleadings, and that they may be construed and amended as in civil actions. They provide for like pleadings, proceedings, and judgment. In this proceeding the common law practice is superseded by statute. It is well settled that where the statute provides for a traverse of a return to an alternative writ, as it does in Ohio, by a reply to the answer or by demurrer, the judgment thereon is a final judgment upon the merits, which may be reviewed upon error, or by appeal, as the statute prescribes.

It is a mistake to assume that the case iu the circuit court, in its legal aspects, stood as an application upon the petition only, or rested upon the facts set forth therein; or that no issue of any kind was taken upon them. The record shows that in that case it was agreed in open court that, as a matter of fact, the respondent had, prior to the hearing, certified the case to Wayne county, which is in the third subdivision of the sixth judicial district, adjoining the second subdivision of said sixth district, of which Rich-land county is a part.

These facts present the same legal question as in the case at bar; it was also agreed that it should be considered so far as competent as though set forth in an answer to an alternative writ.

The facts being agreed upon, a question of law was presented, upon which plaintiff’s claim for a peremptory writ depended, the same as though these facts were set forth in a formal answer, and the relators had demurred thereto. It is wholly unlike the case of The State ex rel. Schmidt v. Cappeller, 37 Ohio St. 121.

It was there held that the refusal to allow an alternative writ of mandamus is not reviewáble on error, and that the remedy of the relator is by an application to this court after such refusal by the district court.

Such refusal to take jurisdiction of the case- is in no sense a final judgment. Therefore this court held that error did not lie for such refusal. High Ex. Rem., sec. 512.

Neither does the case of the People ex rel. v. The President and Trustees, 13 Wend. 130, sustain the relators’ view. In that case the relators had obtained an alternative writ from the supreme court to compel the officers of the village of Brooklyntofile a report regarding the opening of a street. A return was made to such writ.. The relators, instead of pleading or demurring thereto, applied by motion for a peremptory writ. This was denied, and the relators proseeuted error to reverse this judgment. The court sustained an objection that error did not lie in such a case. It is held that if a plea or demurrer had been interposed, and judgment rendered thereon, error would lie; and People v. Champion, 16 John. 65, is cited to support this view; but where no plea or demurrer, authorized by statute, is filed to the return, and the relators rely upon a “ mere motion,” the case was not heard upon its merits, and, therefore, error did not lie in their behalf.

At common law a writ of error as now could only be prosecuted to reverse a final judgment. In mandamus, prior to certain acts of parliament, if a ease was disposed of in a summary manner, without plea or demurrer, it was not deemed a final judgment, and hence error would not lie. But by statute, 6 and 7 Viet., chap. 67, authority was given to the relator to demur to the return, so that the decision of the court could be reviewed by a court of error. It was provided that when such demurrer was filed, like proceedings should be had thereupon, as upon a demurrer to pleadings in personal actions. By the second section of that act, it is also provided, “ for any party to the record in any of such eases, who shall think himself aggrieved by such judgment, to sue out and prosecute a writ of error, for the purpose of reversing the same, in such manner and to such court or courts as a party to any personal action in the said court may now sue out and prosecute a writ of error upon the judgment in such action.” Appendix B, High Ex. Rem. 652. This act of parliament is substantially the same as our Ohio statute, which allows a demurrer or reply to the return, and where an issue is thus made up and a finaljudgment rendered thereon, error will lie.

We hold, therefore, that under the statutes of this state, where an issue is made up as prescribed by law, presenting the question whether a peremptory writ shall be allowed, and a final decision upon the merits, whether such issue be of fact or law, is determined, it is a final judgment, to review which error will lie. We hold further that upon the agreed facts before the circuit court, which took the place of formal pleadings, an issue of law was presented as upon a demurrer to the return. This agreed statement was substituted, by consent of parties, in place of a formal answer and demurrer thereto. The judgment thereon, dismissing the petition, was a final judgment, binding upon the parties and upon all the courts of this state until reversed or set aside.

Any other solution of this question would present an anomaly in judicial proceedings. The circuit court had acquired jurisdiction of the person and subject-matter. Its judgment is binding upon the parties. Where two conrts have concurrent jurisdiction the one whose jurisdiction first attaches acquires by comity the right to proceed to final j udgment. If, afterit has acquired jurisdiction, the other can take like jurisdiction and proceed tofinaljudgment,it mayrender an opposite judgment, and thus the officer may be called on to obey two judgments in direct conflict with each other. It is true this court is superior to the circuit court as an appellate court, but in the case at bar it is not acting as such, but only as a court of coiacurrent and original jurisdiction, In this action it could not reverse or set aside the judgment of the circuit court. That can only be done by proceedings in error.

Peremptory writ refused.


text:
    Gano v. Fisk.

      Gifts causa mortis — Delivery—Promissory notes — Assets of estate.

    1. -Gifts ccuysa mortis have tlio nature of a legacy, and tlie policy of our law does not favor them while there is provision, by the statute of wills and the law of descents, for the transmission of all property rights.
    2. G. was a man of advanced age, having a wife and daughters by a first wife, and, by the present wife, a son, with whom he boarded; his property consisted partly, of a farm and stock thereon, but mostly of promissory notes of various amóunts; before his last sickness he had,expressed a desire “ that his children should have his notes and his son should haves liis farm; ” on the morning of the day of his death, and in the presence of a daughter’s husband, herself and a sister, G., called the daughter and said to her: “ My notes are in a little box on the bureau there; I want you to take them and divide them equally among you children.” He told her to get the key to the b'ox, and shg got the key and tried it in the box, and gave the key to her husband for safe-keeping. After his death intestate, she took the box and did not divide'tke notes, but returned them to the administrator, and they were appraised and held as part of the estate. In an action by the daughters, claiming for themselves and the son, the notes and their proceeds, as against the administrator and the widow. Meld: 1. These facts do not show such a delivery as constitutes a valid gift causa mortis. 2. These notes and their proceeds are assets of the estate, and the widow is entitled to hqf proper part thereof.
    Error to the District Court of Morrow county.
    Samuel Gano died intestate June 11,1880. His property consisted of one hundred and forty-one acres of land in Morrow county, a few hundred dollars’ worth of live stock and farming implements, etc., and about $7,000.00 in promissory notes. There were thirty-eight notes, of various amounts, from $5.00 to $750.00, and interest, and bearing divers dates, from August 7, 1867, to July 20, 1830, as set forth. He left surviving him his widow, Elizabeth A. Gano, the plaintiff in error; Chloe J. Eisk, who intermarried with I. J. Eisk, the administrator; Caroline O. Pearson, who intermarried with B. J. Pearson; and Sarah A. Coomer, who intermarried with C. D. Coomer, children of his first wife; and Erank ~W. Gauo by his second wife and present widow.
    On June 14,1880,1. J. Eisk was appointed administrator of decedent’s estate, and entered upon the discharge of his •trust. Appraisers wore appointed, and on July 9,1880, the personal property of the deceased, including the notes, was duly appraised as assets of his estate. The administrator collected a large part of the notes. On November 23,1881, the children of the first wife filed a petition in the court of common pleas of Morrow county against I. J. Eisk, as administrator of Samuel Gano, Elizabeth A. Gano, the widow, and Erank W. Gano, setting up ownership in themselves and Prank W. Gano to all the promissory notes; and they asked that on the final hearing of the cause I. J. Pisk be by the court ordered to deliver up to. the plaintiffs and Prank W. Gano all the notes and claims that remain uncollected, and also to deliver in like manner all the moneys that have been by him collected on the same, and that the notes and claims, with the money collected on the same, may be adjudged by the court to be the money and-property of the plaintiffs and Prank W. Gano, or that they may have judgment for the same and for such other further and different relief as is equitable in the premises.
    To the petition the administrator answered “ that he can not deny the statements and allegations in the plaintiff’s petition; that he has collected a portion of the claims, and now holds the same, and those claims that are uncollected are also in his hands ; that he is ready and willing to pay the moneys so collected and to deliver the claims as the court shall direct, and he asks that the court make such order and judgment and decree in this action as will fully protect him.”
    Prank W. Gano did not answer. Elizabeth A. Gano denied that the possession or the ownership of the promissory notes, at the death of Samuel Gano and prior thereto, was in the heirs; and she averred that they were assets of the estate to be administered upon.
    On trial in the court of common pleas there was a finding and decree in favor of Elizabeth A. Gano. A motion for a new trial was oven’uled and a bill of exceptions taken. Plaintiffs also gave notice of their intention to appeal the case to the district court, and the appeal was perfected.
    At the trial in the district court in July, 1883, on request the court found the facts to be as follows:
    “ 1. We find that Samuel Gano died intestate June 11, 1880, leaving surviving him his wife, Elizabeth Gano, and Chloe J. Pisk, who intermarried with I. J. Pisk, and Caroline O. Pearson, who intermarried with B. J. Pearson, aud Sarah Coomer, children of his first wife, and Prank W.
      Gano, the child of his second wife, defendant in this case, his heirs at law and legal representatives.

      “ 2. That his property consisted of one hundred and forty-one (141) acres of land in said county, and his stock, consisting of horses, cattle, and sheep, amounting in value to a few hundred dollars, and about seven thousand dollars in promissory notes, the .property in dispute, and of the value of seven thousand dollars.
    “ 8. That before his last sickness he had expressed a desire that his children aforesaid should have his notes and that his son Frank should have his farm.
    “ 4. That on the day before his death he said he could not get well, and called the attention of his daughter, Mrs. Fisk, to his notes. He said they were in the cabinet; that he wanted her to take them and divide them among the children.
    “ 5. That on the morning of the day of his death, in the presence of I. J. Fisk, Mrs. Fisk, and Caroline Pearson, he called Mrs. Fisk and said to her, “ my notes are in a little box on the bureau there; I want you to take them and divide them equally among you children; ” that the key to the box is in a little draw.er, and to go and get the key; that she did go and get the key, and tried it in the box, and that it was the key belonging to the box; that she gave the key to her husband, I. J. Fisk, to whose care of for him for fear she might lose it; that Gano died the same evening about 5 o’clock, .of the same illness; that after her father’s death Mrs. Fisk took the box containing the notes home with her ; that she never did divide the notes before or after her father’s death; that on the 14th day of June, 1880,1. J. Fisk was appointed administrator of the estate of said deceased; that at the same time appraisers wei’e appointed, who, after being qualified on the 9th day of July, 1880, on the premises of said deceased, inventoried and appraised the personal property of said decedent, including said notes; that the box containing said notes was brought back by Mrs. Fisk, and by the administrator turned over to the appraisers as assets of said decedent, to be inventoried and appraised as part of his estate; that Mrs. Fisk and the other heirs at law of said decedent never relinquished their claim upon said notes, claiming the notes as a gift from their father.”
    And thereupon the court said:
    “We find and declare the law to be upon the findings of fact aforesaid.
    “1. That there was a delivery of the promissory notes in question by the donor during his lifetime, in apprehension of death from his then present illness, and that such delivery constitutes a good gift, causa mortis, subject only to the donor’s implied power of revocation during life.
    “2. That the delivery by the donor of the key of the box containing the notes to his daughter, with instructions to take them and divide equally with herself and his other children, and trying the key to the lock on the box by her, is taking possession of the property for the purposes named, and that it is not essential to the validity of the gift that such division be made during the donor’s life.”
    A motion for a new trial was overruled, and the court ordered the administrator to deliver the promissory notes, to Chloe J. Fisk, Caroline O. Pearson, Sarah Ann Coomer, and Frank W. Gano, in equal proportions, and also that he pay to them, in equal proportions, all the moneys he had collected upon the notes.
    To all which Elizabeth A. Gano excepted, and she now seeks a reversal of that judgment and decree.

      S. G. Kingman'^and T. E. Duncan, for plaintiff in error.
    A gift donatio causa mortis is defined to be a gift in apprehension of death.
    “ It is indispensable to its validity that it be accompanied by a present delivery of the subject of the gift, according to the manner in which it is capable of being delivered.
    . . . It must be actual delivery so far as the subject of the gift is capable of delivery.” 2 Kent’s Com. 566, 567. And see Burr. Dict. 514, 515; Will. Eq. Jur. 554; Sto. Eq. Jur. (10th ed.) § 607a ; 3 Red. Cas. Wills (2d'(ed.), 348, par. 20; Hamor v. Moore, 8 Ohio St. 242; Starr v. Starr, 9 Ohio St. 74; Simmons v. Savings Society, 81 Ohio St. 461; 2 Par. Con. 236; Champney v. Blanchard, 39 N. Y. 111; Craig v. Craig, 3 Barb. Ch. 76; Huntington v. Gilmore, 14 Barb. 244.
    To transfer title to personalty by gift, possession of the property must pass from the donor to the donee during.the life-time of the donor. Wilcox v. Matteson, 53 Wis. 23; Curry v. Powers, 70 N.Y. 212; s. c., 25 Am. Rep. 577; Young v. Young, 80 N. Y. 422; s. c., 36 Am. Rep. 634; Taylor v. Henry, 48 Md. 550; s. c., 30 Am. Rep. 486 ; Case v. Dennison, 9 R. I. 88; s. c., 11 Am. Rep. 222.
    Symbolical delivery will not suffice in this case because the notes were capable of actual delivery. Symbolical delivery can only be effective to pass a gift when the nature of the gift, such as weight, bulk, condition, or position, is not susceptible of actual delivery. 2 Rent’s Com. 566, 567; 1 Par. Con. (6th ed.) 236; 3 Red. Cas. Wills (2d ed.) 348, note; Turner v. Brown, 6 Hun, 331.
    An absolute delivery and continued change of possession are essential to make a valid donatio causa mortis. Craig v. Craig, 3 Barb. Ch. 76; Harris v. Clark, 2 Barb. 94; s. c., 3 N. Y. 93; Logan v. Deshay, Clark’s Ch. 209 ; Brinckerhoff v. Brinckerhoff, 2 N. Y. Leg. Obs. 424.
    The policy of the law is to discourage such gifts, as the temptations and opportunities to defraud and to divert property from its natural channel of descent and to defeat the intent of the statute of wills, written as well as nuncupative, are very great. And the proof of such gifts must be clear and of an unequivocal character. Delmotte v. Taylor, 1 Red. Sur. Rep. 417; 3 Red. Cas. Wills, 348, par. 20; 1 Par. Con. (6th ed.) 236.
    The notes wore never divided before the donor’s death. If the directions were to divide them after his death, they can not be followed, for the reason that such authority can only be conferred by last will and testament. Phipps v. Hope, 16 Ohio St. 586; 1 Par. Con. (6th ed.) 234.
    Property owned by a resident of this state can only be disposed of at his decease either by will or by descent. Needles v. Needles, 7 Ohio St. 432.
    A gift can not be maintained by the evidence of the donee alone, although the donee may be in possession of the alleged gift. Kenney v. Public Administrator, 2 Brad. 319.
    The pretended gift operates as a gross fraud upon the widow’s rights. She sustains the relation of a quasi creditor to the estate of her deceased husband, ahd, as such, her rights can not be defeated or impaired by any gift, grant, or testamentary devise of the property. Revised Statutes, sec. 4196; McCammon v. Summons, 2 Disney, 596.

      Andrews $ Allison, and James Olds, for defendants in error.
    The bill of exceptions does not purport to contain all the evidence, and hence the questions sought to be made by the assignments of error that the findings are not supported by, and are against the weight of, the evidence can not be considered. Reid v. Sycks, 27 Ohio St. 285, 287 ; Railway v. Probst, 30 Ohio St. 104; Armleder v. Lieberman, 33 Ohio St. 77; Meyer v. Shroeder, 10 Am. L. Rec. 309; s. c., 6 Week. L. Bull. 698.
    The facts, as found by the court, contain all the elements of a perfected gift. Gardner v. Merritt, 32 Md. 78; s. c., 3 Am. Rep. 115; Tillinghast v. Wheaton, 8 R. I. 536; s. c., 5 Am. Rep. 621; Grymes v. Hone, 49 N. Y. 17; s. c., 10 Am. Rep. 313; Hill v. Stevenson, 63 Me. 364; s. c., 18 Am. Rep. 231; Martin v. Funk, 75 N. Y. 134; s. c., 31 Am. Rep. 446; Kellogg v. Adams, 51 Wis. 138; s. c., 37 Am. Rep. 815; Harris v. Hopkins, 43 Mich. 272; s. c., 38 Am. Rep. 180; Carpenter v. Soule, 88 N. Y. 251; s. c., 42 Am. Rep. 248; Ross v. Draper, 55 Vt. 404; s. c., 45 Am. Rep. 624; Reed v. Copeland, 50 Conn. 472; Druke v. Heiken, 61 Cal. 346; s. c44 Am. Rep. 553; Camp’s App., 36 Conn. 88; Minor v. Rogers, 40 Conn. 512; Ray v. Simmons, 11 R. I. 266; Burke v. Bishop, 27 La. Ann. 465; Sheedy v. Roach, 124 Mass. 472; Davis v. Ney, 125 Mass. 590; s. c., 28 Am. Rep. 272; Darland v. Taylor, 52 Iowa, 503; s. c., 35 Am. Rep. 285; Gerrish v. New Bed. Inst. Savings, 128 Mass. 159; s. c., 35 Am. Rep. 365; Fletcher v. Fletcher, 55 Vt. 325; 1 Par. Con. 201; 1 Burr. Dict. 633; 2 Rent’s Com. 439; Martrick v. Linfield, 21 Pick. 325; s. c., 82 Am. Dec. 265; Wheelwright v. Wheelwright, 2 Mass. 66; s. c., 8 Am. Dec. 66; Hatch v. Hatch, 9 Mass. 307 ; s. c., 6 Am. Dec. 67; Merriwether v. Morrison, 78 Ky. 572; Mitchell v. Ryan, 3 Ohio St. 377.
    In the case of McCammon v. Summons, 2 Disney, 596, relied upon by counsel for plaintiffs in error, which was an action to enforce a trust, it was alleged and proven that the object for which the real and personal estate was transferred was to prevent the wife from receiving her share of it. But in the case at bar no question of fraud is made. Eor aught that appears upon the record, the wife was well and amply provided for.
   Eollett, J.

These promissory notes are claimed as gifts causa mortis.

The principles and laws that govern the rights of ownership and control of property are fundamental to man’s enjoyment and civilization. The rules and laws for the transfer or • transmission of such rights are carefully guarded, and should be strictly enforced.

Gifts causa mortis are not favored, and such gifts must be clearly proved. The civil law sought to prevent fraud in such gifts, and required their execution in the presence of five witnesses, to render them valid. Great strictness and clear proof to establish such gifts have been required by the English courts, and litigation as to them has been extensive and hostile.

Such a gift can be upheld only when the intention of the donor is definite and certain, and such intent is expressed as to a proper matter of such gift, and such gift is executed.

Whatever property Samuel Gano had at his death could be disposed of only by his will or by the law. Needles v. Needles, 7 Ohio St. 433; Crane v. Doty, 1 Ohio St. 283.

This court held, in Phipps v. Hope, 16 Ohio St. 586, that “ directions by an owner in respect to a disposition of his property, to take effect after his death, and different from such as the law would prescribe in case of intestacy, are of no validity unless made through the medium of a last will and testament.”

Directions alone are not sufficient. A gift causa mortis has the nature of a legacy. It is a gift in prospect of death, and it may be revoked before death, and it is not complete during the donor’s life, but takes effect only upon his death. Such a gift is liable to the debts of the donor. Such is the holding of both English and American courts. '

In Lawson v. Lawson, 1 P. Wins. 441, a husband upon his death bed gave to his wife a purse of 100 guineas and bid her apply it to her own use, and the court held, “ This is a donatio causa mortis and a good legacy to the wife, and shall not go to the executors or administrators of the husband if there is sufficient to pay his debts.” But we need not cite other decisions, as the statute 8 and 9 Yictoria, c. 76, declares, that such a gift is a legacy within the meaning of the acts in England and Ireland, which impose duties on legacies.

“ A donatio causa mortis is of .the nature, of a legacy.” Jones v. Brown, 84 N. H. 439.

“ Gifts causa mortis are of a mixed nature, resembling gifts inter vioos, in the essential requisite of delivery, and resembling legacies in being subject to the debts of the deceased, and in being ambulatory or revocable, and contingent on death.” Bloomer v. Bloomer, 2 Brad. 340. Also see Rhodes v. Childs, 64 Pa. St. 18, Rop. Leg. 2 ; 3 Red. Wills, § 42, and cases cited.

Look at the “ facts ” in this casé as found by the court. Decedent left a widow, three girls who were children of a first wife, and a boy the son of his widow. These promissory notes constituted the larger part of his estate. Before his last sickness he had expressed a desire that his son Frank should have his farm, and that “ his children aforesaid” should have the notes. Do the words “his children aforesaid” include only the “children of his first wife,” or do they include his son Frank? Give the words either meaning, and his expressed desire was not carried out, and is not asked to be carried out.

At his death bed, though boarding with his son Frank, there were present only two of his children, the married daughters of his first wife, and I. J. Fisk, the husband of one of these children; and on the morning of the day he died, in the presence of this husband, and Caroline Pearson, her sister, “he called Mrs. Fisk, and said to her, my notes are in a little box on the bureau there ; I want you to take them and divide them equally among you children.” There was but one person present who is not a beneficiary of this claimed gift, and he is the husband of the chief actor, who got the key and tried it in the box, and, “ for fear she might losé it,” gave the key to this husband. It does not appear that a word was'said to the other daughter, or that he told her to take any thing.

"We will not stop to consider whether this husband should testify in such a case, or what effect should be given to his statements.

The father died the same evening, on Friday, and was buried the next day, on Saturday.

“After her father’s death, Mrs. Fisk took the box containing the notes home with her.” What else was in the box we do not know. The notes were never divided. On the next Monday, I. J. Fisk was appointed administrator, and took these notes, and they were appraised as part of the estate, and have ever been so held.

The validity of each gift, causa mortis, depends upon the facts of each case.

“ The gift of the maker’s own note is the delivery of a promise only, and not of the thing promised; and upon the death of the maker, leaving the promise unfulfilled, the gift fails.” Starr v. Starr, 9 Ohio St. 74.

“ The drawer of a cheek delivered it to the payee, intending thereby to give to the payee the fund on which the cheek was drawn. Held, that until the check was either paid or accepted, the gift was incomplete, and that, in the absence of such payment or acceptance, the death of the drawer operated, as against the payee, as a revocation of the check.” Simmons v. Savings Society, 31 Ohio St. 457.

In each above case there was something more to be done, either by the donor or by the donee, before the gift could be enforced.

To constitute a vailid gift the transfer must be consummated, and not remain incomplete, or rest in more intention ; and this is so whether the gift is by delivery only, or by the creation of a trust in a third person, or in the donor; enough must be done to pass the title.” Martin v. Funk, 75 N. Y. 134.

The words, found by the court to constitute the gift of the notes, were, “ I want you to take them and divide them eqnally among you children.” Suppose he thus intended the four children, what was Mrs. Eisk to do ? Was she to collect the money due on the notes, and then divide the proceeds equally among them ? If so, the gift was not complete, and no title passed. His death revoked the gift.

Or was Mrs. Eisk to divide the notes into four equal amounts in value, and then deliver to each child a definite parcel of these thirty-eight notes ? This was never done, and these notes, it seems, could not be so divided. So there never was a separation of the notes made so as to vest in each donee an ownership in particular notes.

But, had the notes been so that they could be equally divided, how could the doubtful or worthless notes be disposed of? Who would take them ? Or should she disregard them ? Gano did not hand the notes to Mrs. Eisk, and say, “ I give these notes to you four children;” neither did he say, “ I give these notes to you children equally, one-fourth part to each.” Something more must be done to complete the gift.

But the delivery must be as perfect and complete as the nature of the thing given will admit of. Par. Con. *326, and cases cited; 3 Wait. Act. & Def. 505.

To establish a gift, causa mortis, the common law requires clear and unmistakable proof, not only of .an intention to give, but of an actual gift perfected by as complete á delivery as the nature of the property will admit of.” Hatch v. Atkinson, 56 Me. 324. See also 3 Red. Wills, 348 (20).

The facts found by the district court show there was no delivery of the alleged gifts; and the court erred in holding, upon such finding of facts, that there was such a delivery of the promissory notes as constitutes a good gift, causa mortis.

We need not examine how far the courts will protect a widow from an intended fraud upon her rights as such widow, neither to what extent a father may disinherit his children by gifts made during the last few hours or days of his life. Our laws relating to written and nuncupative wills, and our laws of descent, should not be defeated by such gifts, unless in a very clear case.

Cases of donations, causa mortis, are exceptions not to be extended by way of analogy. Headley v. Kirby, 18 Pa. St. 326; also cited in 1 Am. Law Reg. 25.

This attempt to make a will for the father, and to dispose of his property, “ different from such as the law would prescribe in case of intestacy,” is “ of no validity.”

Judgment reversed and cause remanded.


author: Atherton, J.

text:
    Miller v. Anderson.

      Bastardy — Liability of natural father when mother marries another man during pregnancy — Presumption as to paternity — Application of rule.

    1. The natural father of a child can not be held for its support, under the statutes of this state, if the mother, after the child was begotten, and during pregnancy, contracts a marriage -with another man, who marines her with full knowledge of her condition.
    2. By such marriage, the man so marrying, consents to stand in loco parentis ■ to such child, and is presumed in law to he the father of the child, and this presumption is conclusive.
    3. This rule has application to proceedings under the bastardy statute, and has no relation to actions where questions of heirship and inheritance are involved.
    Error to the District Court of Jefferson county.
    On the 7th day of June, 1881, Emiline Miller made a complaint in bastardy against James M. Anderson, the defendant, before a justice of the peace, alleging that on the 10th day of November, 1865, she had been delivered of a bastard child, and that defendant was the father of the child.
    On this complaint, and an answer denying its truth, a trial was had in the court of common pleas, at the November term, 1882, which resulted in a verdict and judgment in favor of complainant. A motion for a new trial was made by defendant, and overruled, and a bill of exceptions taken, setting out all the evidence. The case was taken on error to the district court, and on a hearing the judgment of the common ¡oleas was reversed, and the complaint ordered to be dismissed, and the complainant now assigns for error the judgment of reversal.
    The only evidence offered on the trial was the testimony of the complainant and defendant, the former affirming, and the latter denying that defendant was the father of the child.
    From the testimony of the complainant, it appeared that the child was born on the 10th day of November, 1865, and about six months after the child was begotten, and while enciente she was married to a man by the name of Riddlemoser. That he married her with full knowledge of her condition of pregnancy, and continued to live with her as her husband till his death, which occurred two and a half years afterward. The child was born at the house of Riddlemoser and complainant, and lived with them during their joint lives, and during their co-habitation the complainant had another child by Riddlemoser.
    It also appeai’ed that for years before the marriage of complainant and Riddlemoser, the latter lived in the same neighborhood, and within a mile and a half of complainant. She testified she barely knew Riddlesmoser by sight, and that he had never had access to her before marriage, and that Anderson was the father of'the child.
    The complainant was the sole witness to support her case, and when she rested, the defendant moved the court to dismiss the complaint, and withdraw the case from the jury, on the ground that upon the testimony no case was made against the defendant, but the court overruled the motion, and defendant excepted.

      Andrews &¡ Mrskine and John M. Cook, for plaintiff in error.

      Trainor Son, for defendant in error.
   Atherton, J.

The question presented by this record is, whether, under the state of facts disclosed, Anderson can be held as the putative father of this child, and be required to contribute to its support, or whether Riddlemoser, having married the complainant^ with full knowledge of her condition, is alone liable for its support.

The Revised Statutes provide: “ Sec. 5614. When an unmarried woman, who has been delivered of or is pregnant with a bastard child, makes complaint thereof in writing, under oath, before any justice of the peace, charging a person with being the father of such child, the justice shall thereupon issue his warrant,” etc.

Can the child in this ease, in legal contemplation, be regarded as a bastard ?

Blaekstone, under the inquiry, “Who are bastards?” says: “A bastard, by our English laws, is one that is not only begotten, hut born out of lawful matrimony.” 1 Blaekstone, 454. And Kent also defines illegitimate children or bastards as “ being persons who are begotten and born out of lawful wedlock.” 2 Kent, 208.

In Best on Presumptions, in discussing presumptions of legitimacy, the author says: “ One of the strongest illustrations of this principle (although resting in some degree on grounds of public policy) is the presumption in favor of the legitimacy of children ” . . . “ Thus it is said to be a presumption, juris et de jure, that a child born during wedlock, and of which the mother was visibly pregnant at the time of marriage, must be taken to be the offspring of the husband.” Section 58.

The supreme court of Iowa, in the case of The State v. Romaine, 58 Iowa, 48, lays down the rule that “ if a woman be pregnant at the time of the marriage, and if the pregnancy be known to the husband, he should be conclusively presumed to be the father.”

In State v. Herman, 13 Ired. 502, the supreme court of North Carolina held that “ a child born in wedlock, though born within a month or a day after marriage, is legitimate by presumption of law, and where the mother was visibly pregnant at the marriage, it is a presumption juris et de jure that the child was the offspring of the husband.”

And in Rhym v. Hoffman, 6 Jones Eq. N. C. 335, the court quote with approval a quotation from 1 Roll’s Abr. 358, and 2 Bac. Abr. 84, as follows: “ So, if the woman be big with child by A., marry B., and then the child is born, it is the legitimate child of B.”

It has been held in a large number of cases, both in England and America, that the wife is not a competent witness to prove non-access of the husband, whether the child was begotten before or after marriage.

In Rex v. Reading, Hardw. 79, Lord Hardwicke said, “ it must be of very dangerous consequence, to lay it down in general, that a wife should be a sufficient sole evidence to bastardize her child, and to discharge her husband of the burthen of its maintenance.”

Similar language is used by Lord Ellenborough in The King v. Luffe, 8 East, 193, and in various English authorities.

The reason for this rule is stated in Tioga County v. South Creek Township, 75 Pa. St. 433, in the following language: “ That issue born in wedlock, though begotten before, is presumptively legitimate, is an axiom of law so well established that to cite authorities in support of it would be mere waste of time. So the rule that the parents will not be permitted to prove non-access for the purpose of bastardizing such issue is just as well settled. Many reasons have been given for this rule. Prominent among them is the idea that the admission of such testimony would be unseemly and scandalous, and this not so much from the fact that it reveals immoral conduct upon the part of the parents, as because the effect it may have upon the child, who is in no fault, but who must, nevertheless, be the chief sufferer thereby. That the parents should be permitted to bastardize the child, is a proposition which shocks our sense of right and decency, and hence the rule of law that forbids it.”

This doctrine is recognized in Parker v. Way, 15 N. H. Rep. 45 ; Davis v. Houston, 2 Yeates, 289; Page v. Dennison, 1 Grant’s Gases, 377; s. c., 29 Pa. St. 420, in which ease the court in addition hold that: “Whether the child is begotten in or out of wedlock, if marriage precedes the birth, the presumption of paternity is the same, and it can only be bastardized by proof of non-access. The wife is not a competent witness to prove non-access on the part of her husband, and that her child begotten before, but born during wedlock, was not begotten by him.”

On the same point see State v. Wilson, 10 Ired. 131, and State v. Herman, supra, in both of which cases the pregnancy preceded the marriage.

The cases are collected on this point in 1 Phil, on Ev. *87, and note, and the reason of the rule stated in the text, as follows: “ This rule is established, independently of any possible motives of interest in the particular case, upon principles of public policy and decency.”

It will be observed that after the complainant in the case had submitted her evidence and rested, the defendant moved to arrest the case from the jury and dismiss the complaint upon the ground that the testimony offered made no case against defendant, and if no competent testimony of non-access had been offered the motion was well taken. But the court overruled the motion and defendant excepted. Whether, under our statute relating to evidence, the complainant was incompetent to prove non-access, we do not feel compelled to decide, for the case can be determined without it. ^

The question yet remains, whether, if Riddlemoser, by contracting marriage with the complainant, and putting himself in loco parentis, and assuming the place of a parent and his duties and obligations, has legitimated the child or not, for if by that act the child in legal contemplation is the child of Riddlemoser, it is not a bastard, and the defendant can not be held under our bastardy act.

No case in point has been adjudicated in Ohio, so far as our reports show.

This court, in Roth v. Jacobs, 21 Ohio St. 646, held that after a woman, pregnant with child, had filed her sworn complaint in bastardy, charging the defendant with the paternity of her unborn child, her subsequent marriage with another did not necessarily vrork a discontinuance of the action, for the reason, as the court say, that it can not be conclusively presumed that the man who marries a pregnant woman is the father of the child. He may not have known that she was in that condition when he married her, and therefore, if born alive, it may be a bastard. There was no suggestion in that case of what the result would have been had the marriage been contracted by a man with fall knowledge of the pregnancy.

In Haworth v. Gill, 30 Ohio St. 627, it was attempted to make a defendant liable under the bastardy act by showing that \vhile complainant was the wife of another he became the father of her unborn child.

After the child was born the complainant procured a divorce from her former husband, and the court held that to make defendant liable the delivery and pregnancy, as well as the making of the complainant, must be predicated of an unmarried woman. The court in that case suggestively say: “ But no complaint could have been made m this case, either during pregnancy or for eight months aner delivery. The child was, during all this time, the iunocont and honest child of a married woman; and in any proceeding under this act, would have been conclusively presumed to be legitimate. The subsequent divorce of the mother may have changed her status, but not that of her child. . . . It dissolved the marital relation, but did not bastardize the issue begotten and born during its continuance.”

So we say here: By the act of Riddlemoser in marrying the complainant he most solemnly and effectively acknowledged the unborn child to be his own. He knew her condition, and every honorable sentiment would require him to marry her if the child was his and to avoid her if it was not. He chose to marry her and thus legitimate her issue and make it his own. The act would have made the child heir to his estate, and, being made so by his act, can the inhuman mother, by her uncorroborated testimony, make it a bastard ? We have a statute, Revised Statutes, section 4175, providing, that when a man has children by a woman, and afterward intermarries with her, such issue, if acknowledged by him as his children, are deemed legitimate, and will then have all the rights of heirship and inheritance of children born in wedlock.

Suppose a woman has children believed by a man who afterward marries her to be his; that he contracts marriage with the mother, and fully acknowledges the children to be his own, can they be bastardized by proving somebody else begat them, and especially can theiy mother bastardize them and take from them the rights they acquired by the marriage of their mother with the man that acknowledged them to be his own ?

A case precisely in point with the one under considera ■ tion has recently been determined by the supreme court of Iowa — State v. Shoemaker, 62 Iowa, 348.

In that case a child was begotten by the defendant, and during the pregnancy of the complainant, and two months before the birth of the child, she was married to another man, who was fully informed that complainant was enciente, and her condition apparent from her appearance. Upon these facts the court held that the defendant could not be made liable under the bastardy act. The reasoning of the court was in substance as follows, and this court adopts it as its own.

If another man, not the father of the unborn child, elects to stand in loco parentis to the child, the law will esteem such man as the father; that one who marries a woman that he knows to be enciente is regarded in law as adopting the child into the family at its birth; that he could not expect the mother to discard it or abandon it at its birth, or refuse it nurture or maintenance, and that the child, so receiving nurture ' and support, must necessarily become one of the family of the wife, which would also be of the family of the husband; that this understanding must necessarily enter into the marriage contract of the husband and wife, and when this relation is established the law raises a conclusive presumption that the husband is the father of such child.

As recognized in that case, we do not affirm this rule holds good on questions of heirship. There the lights of others are involved outside of the husband and the alleged bastard child. But in such a case as this the rights and liabilities of husband and child alone are involved.

The court say: “A husband who, in the manner we have indicated, has put himself in loco parentis of a bastard child of his wife, ought not to be permitted to disturb the family relation, and bring scandal upon his wife and her child, by establishing its bastardy, after he has condoned the wife’s offense by taking her in marriage.”

And this rule, as announced, is established upon obvious principles of public policy and decency. This child was bora in 1865. The husband had prior thereto condoned the wife’s offense, and by taking her in marriage, with full knowledge of her condition, adopted her child on its birth into his family, and, even if he was not its natural father, consented to stand in law as such, with all the rights and responsibilities of a father in fact. The child became entitled to his protection and support, and owed him its duty and service, and was legitimated and legitimate, and the “ honest child of wedlock.” So it remained until sixteen years of age. Public policy, public decency, and every consideration which concerns the peace and well-being of the family, cries out against the unnatural effort of the mother to bastardize her issue.

Our conclusion is that the judgment of the district court should be

Affirmed.