author: Day, Chief Judge.

text:
    Rachael Woodmansie v. L. D. Woodmansie.
    1. The account required by section 14 of the guardian act of April 12,1858 (S. & C. 670), to be rendered by a guardian to the probate court at least once in every two years, when rendered and judicially passed upon by the court, is a settlement within the meaning of section 31 of the act.
    2. Under the provisions of said section 31, every settlement so made by a guardian is final between the guardian and ward, unless an appeal is taken therefrom, or the settlement is opened, in accordance with the provisions of the section.
    Error to the District Court of Butler county.
    The facts are sufficiently stated in the opinion.

      Campbell & Gilmore and B. B. Daily, for plaintiff in error.

      James B. Millikin, Thomas Millikin, and Alex. F. Hume, for defendant in error.
   Day, Chief Judge.

The case originated on exceptions to the final account of a guardian in the Probate Court of Butler county. A brief statement will present the only question necessary to be considered.

The plaintiff during her miuority inherited an estate from her mother who died in 1855. The defendant, her father, was appointed her guardian, September 6, 1856. He filed his first account for settlement, March 15, 1861, which was examined and approved by the court. On July ;27,1863, he filed his second account, which was settled and approved by the court. The ward attained the age of majority, May 6, 1866. On March 23, 1870, the guardian filed his third account for settlement. The plaintiff then appeared and filed exceptions to the several accounts filed by the guardian. The court sustained the exceptions to each of the accounts.

The case was appealed to the court of common pleas, which also sustained the exceptions to each account filed in the probate court, and rendered judgment accordingly.

The defendant took the ease on error to the district court, which held that the court of common pleas erred in opening up and modifying the settlements of the guardian made in 1861 and 1863, and reversed the judgment of that court. The case having been taken up on an agreed statement of the facts, the district court rendered a final-judgment on the merits of the case.

The plaintiff prosecutes this petition in error to reverse the judgment, of the district court, and to affirm that of the common pleas.

If the district, court was right in holding that the- settlements of 1861 and 1863 were to be regarded as final and conclusive between the parties in the proceeding then before it, we see no ground for disturbing its judgment on the merits of the case; nor does the plaintiff in-argument-question the judgment on that ground.

The only question to be determined, then, is,, whéther the partial settlements of the guardian, made during the continuance of his office, are to be regarded as fiua-1 between him and his ward. The question is purely statutory, and depends upon the construction to be given to the statutes then in force which relate to the subject. "We are not advised that the question has been decided in this state, and the decisions of the courts of other states, to which we - are referred, are based on statutes differing from our own, and therefore afford us little aid. How then stands the question upon the statutes of this state?

The constitution of 1851 gives to the probate court juris-, diction in the appointment of guardians and the settlement of their accounts. Art. 4, see. 8. The second section of the probate act also confers upon the probate court power to settle the accounts of guardians; and the 20th section, requires the probate judge to publish notice of the filing of any accounts by guardians, and to specify when exception thereto may be heard. The statute in force when the guardian act was passed, and when the settlements in question were made, provides that an appeal may be taken from any order, decision, or decree of the probate court, in settling the accounts of a guardian (S. & C. 1218). It also provides that a record shall be kept of all partial and final accounts of guardians, within sixty days after the filing and approval of the same (S. & C. 1219).

This was the state of the law in regard to the powers and duties of the probate court in relation to the settlement of guardian accounts, in 1858, when the several statutes concerning guardian and ward were revised and consolidated into one act (S. & C. 670). By the revision, the statutes that had been passed under the old constitution were adapted to the powers conferred upon the probate court by the constitution of 1851.

The defendant was appointed guardian in 1856, under the guardian act of 1824. That act was repealed by the act of 1858, which was in force when the settlements in question were made, and controls the case.

But a brief reference to the act of 1824, so far as it relates to the present question, will aid us in the proper construction of the present act, which was substituted for it.

It was provided in section 5 of that act (2 Chase’s Stat. 1317): “ That it shall be'the duty of every guardian, . . . within three years after his appointment, . . . and at the expiration of every two years thereafter, to settle his account with such ward or wards before the court of common pleas by which he may have been appointed, . . . which settlement shall be final between the parties thereto, saving, however, to any such ward or wards the right of opening and reviewing the'same, in chancery or elsewhere, upon good cause shown, at anytime within two years after said ward or wards shall arrive at full age.”

This enactment leaves no room to doubt that under the statute as it stood when the present act was substituted for it, each successive settlement of a guardian was a finality, unless opened as therein provided.

In the 174th section of the administrators’ act, as revised in 1840 (S. & C. 599), it is provided that upon every settlement of an account by an executor or administrator, all his former accounts may be so far opened as to correct any mistake or error therein. But in the revision of the guardian laws in 1858 no provision like that in the administrators’ act was inserted. Provision was made, however, to attain the same end, in thq manner provided in the 5th section of the guardian act of 1824.

It only remains, then, to show that, in relation to the settlement of the accounts of guardians, in the revision of 1858, the legislature, instead of adopting the provision contained in the administrators’ act, preserved and continued the analogous provision of the act of 1824.

The 14th section of the act of 1858 makes it the duty of the guardian “ to render on oath to the proper court an account of .the receipts and expenditures of such guardian, verified by vouchers or proof, at least once in every two yearsand, “ at the expiration of his trust, fully to account for and pay over to the proper person all the estate of said ward remaning in his hands.” By these provisions a guardian is required to settle his account with his ward in the proper court a3 often as that duty was cast upon him by the act of 1824.

But it is said that section 14 does not require biennial settlements, but only biennial reports of the condition of the estate, and that no settlement is contemplated but the one made on the rendition of the final account. This construction is rebutted by a subsequent clause of the same section, which requires the guardian to loan the money of his ward, and provides that he shall, at each settlement, account for all the interest he may receive on the money so loaned.” This clause conclusively shows that the final account is not the only settlement contemplated by the act. On the contrary, it clearly shows that each biennial account, in the contemplation of the act, is regarded as a settlement, for otherwise the words each settlement ” have no meaning. The act of 1858, then, equally with that of 1824, required of the guardian biennial settlements.

This view of section 14 of the act of 1858- harmonizes with the language and policy of section 31 of the same act. The section, so far as material to the present ease, is as follow's : “ The settlement made in the probate court of the accounts of a guardian shall bo final between him aud his ward, unless an appeal is taken therefrom to the court of common pleas in the manner provided by law ; saving, however, to any such ward the right of opening and reviewing such settlement for fraud or manifest mistake, by petition filed in the form prescribed in the code of civil procedure of this state, in the probate court in wdiicli such settlement was made, or the probate court of the county where such guardian may reside when the petition is filed, at the option of the plaintiff in such action, at any time within tw'o years after said ward shall arrive at age.”

The language used in this section does not limit i(s provisions to the final settlement, but it is general in its terms and equally applicable to each account rendered, or settlement made, by the guardian.

■ Except in special cases provided for, section 14 contains the only provision of the act requiring the guardian to settle his accounts in the probate court; and the duty is there expressed only in the requirement that he shall “account” to the court. Indeed, throughout the act, settling or accounting in the probate court are terms used to express the same idea or duty.

In that section such settlement is enumerated, in general terms, as one of his duties in all cases. Section 31 is in equally general terms, alid plainly refers to the general requirement in section 14, imposing upon the guardian the duty of settlement every two years. The object, then, of sectiou 31 is to declare the effect of “the settlement made in the probate court of the accounts of a guardian.” Not of the fiual account, but of the “ accounts” required of the guardian. Such settlement is declared to be fiual betw'een him aud his ward.'

In this view of section 31, no new principle in regard to the settlement of guardian accounts was introduced, but that which had ever been the statutory policy of the state was preserved. Had it been the legislative intent to change this policy by section 31, different language would have been employed. On the contrary, the legislative purpose to continue the provision of the act of 1824, relative to the finality of the biennial settlements of a guardian, in force, is evinced by the context of the section; for, instead of following the administrators’ act as to opening accounts, it adopted, in its revision of the guardian act of 1824, the same saving as to the right of the ward to open and review such settlement, at any time within two years after the ward arrives at full ago, that was contained in that act.

It is said that the failure to provide, in the guardian act, for the review of a partial settlement, on the succeeding settlements, is a legislative oversight. Our construction of section 31 relieves the legislature from this imputation; for in saving the right of the ward, to open and review every settlement of the guardian within two years after arriving at age, it provided ample means of review, and that provision was not needed for that purpose. The omission, however, clearly shows thatyour construction of the section is in accordance with the legislative intent — that each settlement, made with the probate court pursuant to law, should be final between the parties, subject, however, to be opened and reviewed in the manner expressly provided.

The provisions of sections 14 and 31 of the act of 1858, relating to the question before us, may, then, be properly read together, as they are written in one section in the act of 1824 — that the guardian shall settle, or render his account to the probate cour’t, at least once in every two years; and that “the settlement made in the probate court, of the accounts of a guardian, shall be final between him and his ward,” unless an appeal be taken therefrom, or the settlement be opened, as provided in the statute.

It is said also that this construction of the statute deprives the plaintiff of all remedy assto the two settlements in question, although the guardian did not make his final settlement until nearly four years after she became of age. If so, it is the fault of the plaintiff, and not of the law, for, upon our construction of it, she might have obtained, a review of those settlements at any time within two years after she arrived at full age. Nor was it necessary for her to wait so long for the final settlement of the guardian, for the statute afforded lior ample means to enforce an earlier settlement. The statute is not wanting in provisions to secure the rights of a ward, nor, on the other baud, is it regardless of the lights of a guardian.

The view we have taken of the case brings us to the conclusion that the judgment of the district court must he affirmed.


source: Caselaw Access Project

author: Ashburn, J. I.

license: Public Domain

text:
    DECEMBER TERM, 1877.
    Davis et al. v. The State of Ohio.
    1. Police courts have jurisdiction to hear and determine on information, under section 1G7 of the act “ to provide for the organization and government of municipal corporations,” cases of petit larceny, and all inferior offenses which are not required by the constitution to bo prosecuted by indictment, when the offense is committed within the limits of the city, or within four miles thereof.
    2. Under the code of criminal procedure, the accused may demur to an information where the facts stated therein do not constitute an offense punishable by the laws of this state.
    3. An information, under section 8 of “ an act entitled an act to amend section 8 of an act entitled an act for the prevention of gaming ” (70 Ohio L. 191), describing the offense in the words of the statute, is not uncertain, and states facts sufficient to constitute an offense.
    Error to the Court of Common Pleas of Hamilton county.
    On the thirtieth day of August, a. d. 1873, an information was filed in the police court of the city of Cincinnati, by the prosecuting attorney of that -court, against C. L. Davis, A. E. Davis, and James Davis, charging that on the twenty-sixth day of August, a. d. 1873, at the city of Cincinnati, and within the jurisdiction of that court, C. L. Davis, A. E. Davis, and James Davis did unlawfully keep and exhibit for gain certain gaming device, commonly known as “ keno,” in the city of Cincinnati, contrary to the form of the statute, etc.
    To this information the Davises filed a demurrer. On the hearing the demurrer was overruled. Defendants then each put in a plea of not guilty. On the üñal, C. L. Davis and A. E. Davis were each found guilty, and each fined two hundred and fifty dollars, and committed to the work-house for a term of thirty days. James Davis was discharged..
    September 8, 1873, plaintiffs in error, having made application to the court of common pleas for leave to institute proceedings in error in that court, and for stay of sentence, the following entry was made .in that court, viz.: “ Leave to file petition in error and stay of sentence refused, to which plaintiffs hereby except.” On application of plaintiffs to a judge of the supreme court, a writ of error and order to stay sentence was allowed.
    The errors assigned and relied on are :

      First. The police court of the city of Cincinnati had not final jurisdiction in the case.

      Second. The police court erred in overruling the demurrer.

      Third. The information is uncertain and insufficient.

      Fourth. The court of common pleas erred in overruling the motion for the allowance of a writ of error.

      C. H. Blackburn, for plaintiffs in error:
    On the question of jurisdiction, see Municipal Code, § 167; Bebee v. Sheidt, 13 Ohio St. 416; 27 Ala. 291; 32 Ala. 227; 26 Mo. 65; 1 Doug. (Mich.) 384; 7 Hill, 39; 5 Harr. (Delaware) 387; 2 Harr. 25; 2 Ill. 554; 20 Ill. 256; 22 Barb. 323; 5 Ind. 157; 1 Greene, 78; 21 Me. 340; 16 Vt. 246; 2 How. 319; 15 Johns. 121; 19 Johns. 33; 9 Cowen, 227; 7 Mass. 79; 12 Ohio, 253; 15 Ohio, 435.
   Ashburn, J. I.

Since the writ of error was allowed in this case, the question as to the jurisdiction of police courts over offenses of the grade charged in the information has been settled in favor of tlieir jurisdiction. In Cole v. The State, 29 Ohio St. 226, it is held that “ the jurisdiction conferred on police courts by section 167 of the municipal code extends to petit larceny, and all such other inferior offenses as are not required, by section 10, article 1 of the constitution to be prosecuted by indictment.” This ruling followed.

II. Was there error in overruling the demurrer?

To answer this, we must look to the office of a demurrer in a criminal case. A demurrer to an information will be sustained only when the facts stated in the information do not constitute an offense punishable by the laws of this state. 66 Ohio L. § 109; Criminal Code, 304. The accused will be taken to have waived all defects which can be excepted to by motion to quash, or a plea in abatement, by demurring to the information. Id. 111. By a motion to quash, the accused can avail himself of any defect apparent upon the face of the information, whether to the form of the information, or as to the manner in which the offense is charged. Id. 107. The demurrer reaches substance only, and not form.

This information is intended to charge an offense under section 8 of the act to prevent gaming, as amended in 1873. (70 Ohio L. 191.) The question is, does this information contain facts sufficient to constitute an offense under section 8 ? The section is as follows :

“ That if any person or persons shall keep or exhibit for gain any gambling table (except billiard table), or faro or keno bank, or any gaming device or machine of any kind or description, under any denomination or name whatsoever, or if any person or persons shall keep or exhibit anjr billiard table for the purpose of betting and gambling, or shall allow the same to be used for such purpose, or if any person shall act as “backer” or “capper” for any of the above-mentioned games, or either directly or indirectly induce any other person or persons to play at or engage in the same, every such person so offending shall, on couviction thereof, be fined in any sum not less than fifty nor more than five hundred dollars, and be imprisoned in the county jail not less than ten nor more than ninety days, at the discretion of the court, for every such offense, and shall moreover find security for his or their good behavior as to a violation of the provisions of this act, for the period of one year, in the sum of five hundred dollars.”

It is claimed in argument that the information is fatally defective, because it does not specify whether the gaming device v7as kept and exhibited for the gain of money or other valuable security.

By this, we understand counsel for the Davises to claim that this information is deficient in this — 'that it does not state facts sufiieient to constitute an offense punishable under section 8. The defect is supposed to arise from the omission of the words “ money or other valuable security,” after the word “gain,” in the information. These words, or their equivalent, are not found in section 8, and are in no way descriptive of the offense. The current of authority in Ohio is to the effect that the offense should, as nearly as possible, be charged in the words of the statute.

In support of his position, counsel for plaintiffs in error cite the cases of Davis v. The State, 7 Ohio, 205, and Davis v. The State, 17 Ohio St. 270. We think they fail to support his claim. The case in 7 Ohio was an indictment under section 9 of the act of 1831, to prevent gaming. The case in 17 Ohio St. was an indictment under section 2 of the act of 1857, amendatory of the act of 1831. These sections essentially differ in terms and in purpose from section 8 of the act of 1873. Section 9 provided a punishment for the offense of suffering games to be played for gain upon or by means of any gaming device used in certain prohibited places. Section 2, as amended in 1857 (S. & C. 662), made it an offense, “if any person shall keep or exhibit any gaming table, establishment, device, or apparatus to win or gain money or property of value.” By section 2, the learned judge, in Davis v. The State, 17 Ohio St., says, correctly, “ common gamblers were the persons intended to be punished.” A person may keep a gaming device, without being himself a “common gambler” — as the keeper of a billiard table for gain. 17 Ohio St. 33. The keeper of a gaming device might never play, and yet, if he allowed others to play upon it for his gain, he violates the statute.

The offense defined in section 8 is described in the information, in the terms and words of the statute, and is neither uncertain nor deficient in necessary facts to constitute the offense of an unlawful keeping and exhibiting a gaming device for gain.

“A good criminal pleader will never attempt more certainty than the law requires, for fear that, in the minuteness of detail, he may, by chance, misdescribe, in some essential particular, which -would be fatal error.” Spencer v. The State, 13 Ohio, 407. “ There is no common-law crime in this state, and therefore we always look to the statute to ascertain what is the offense of the accused.” Sutcliffe v. The State, 18 Ohio, 476. “All the elements necessary to constitute the crime must be averred, and these elements must be gathered from the statute describing the offense, and not aliunde.” Rich v. The State, 8 Ohio, 112. “ The offense must be described within the terms of the statute. To do this, it is generally necessary to use the words of the statute. There is great danger in employing what are supposed to be convertible terms.” 3 Ohio St. 229.

It follows that the police court did not err in overruling the demurrer to the information, nor did the court of common pleas err in refusing to allow a writ of error.

Judgment affirmed, and this judgment ordered to be . certified to the Police Court of the City of Cincinnati.


author: Wright, J.

text:
    Beard v. Westerman.
    1. Demand and notice is not necessary as against an indorser, who, at the date of the maturity of the noto, has sufficient property of the maker in his possession held as,security against his liability.
    2. A party holding one of a series of notes secured by chattel mortgage, who obtains possession of the property mortgaged, holds it in trust for the owners of the notes; and if he purchase such property at a sale made by himself, he will be held to account for the fair value of the same.
    Error to the Superior Court of Montgomery county.

      Howard & Howard, for plaintiff in error:
    1. Taking security does not dispense with demand and notice. Creamer v. Perry, 17 Pick. 332; Wilson v. Semer, 14 Wis. 380; 17 Wend. 489, 490; 3 Kernan (13 N. Y.), 55; 4 Watts & Serg. 328; 15 East. 173.
    2. In the following cases the indorser was charged because he had taken into his possession the whole of the maker’s estate before maturity of the note: 1 Esp. 302; 5 Mass. 170; 1 Serg. & Rawle, 334; 7 Wend. 165. But, if after maturity of note and without mention of it. 17 Md. 154.
    3. Insolvency at the time of the indorsement, and though known to the indorser, does not discharge the holder from giving notice. 2 Caines, 343; 18 Vesey, 20; 2 11. Black, 609; 11 East. 114; 1 Serg. & Rawle, 334; 7 Wend. 165; 14 N. H. 70; 14 Wis. 880-386.
    If indorser is fully indemnified, the plaintiff is absolved from the necessity of making demand and notice of nonpayment. 14 Ohio, 495; 18 Ohio, 170.
    For a full discussion of this subject and cases, see 1 Parsons on Notes and Bills, 560-575 and notes.

      Josiah Lovell, for defendant in’ error.
   Wright, J.

This was an action against Beard, plaintiff in error, as the indorser of two promissory notes, held by Westerman. Upon the day of payment, no demand was made or notice given, but the plaintiff claimed to recover, notwithstanding, on the ground that at maturity of the note the indorser had property of the maker in his hands as security, sufficient in amount for its payment.

The petition states the matter thus: The said plaintiff also avers that he was excused from making a demand upon the said W. II. Powell, or notifying the said defendant that said notes were unpaid on the 6th day of May, 1869, because he says that the said Jacob Beard then had sufficient effects in his possession, by virtue of said chattel mortgage, to fully and completely indemnify him against the payment of said promissory notes.

The answer takes issue as follows : The said defendant, for answer, says that he denies that at the time, the said 6th day of May, 1869, he had the control of said property, or any part thereof, and denies that he was in any manner indemnified, or had any security for the amount due on said two notes, or any part thereof; and. he denies that he is liable to the said plaintiff in any amount whatever thereon, and he asks to be hence dismissed, with his costs.

When an indorser is indemnified by property of the maker in his possession, at the time the note falls due, demand and notice is not necessary. Kyle v Green, 14 Ohio, 495; Develing v. Ferris, 18 Ohio, 170; 1 Parsons on Bills and Notes, 567 et seq.

The question, then, is one of fact. Was Beard, the indorser, thus indemnified ?

The notes fell due upon the 6th of May, 1869. The maker was one Powell, who owned an undivided half of certain chattel property, pertaining to a distillery. This property did come into the hands of Beard, but not, as the evidence seems to indicate, until after the notes matured.

Upon this subject the court charged that if Beard, on the 6th day of May, 1869, had not full indemnity, the fact that he afterward came into possession of property belonging to Powell not covered by the mortgage, will not alone make him liable to Westerman in this action, and indemnity secured after the maturity of the notes does not dispense with the necessity of demand and notice of non-payment, if Beard is to be held upon his contract as indorser.

It is very plain, therefore, as plaintiff' in error contends, that he can not be held as indorsor, demand and notice having been omitted, and no sufficient excuse therefore existing.

But. another ground remains upon which the liability of plaintiff in error, who was defendant below, can be successfully established, in accordance with the verdict of the jury.

The notes in this case were two of three given by Powell to Beard, the plaintiff in error, and secured by a chattel mortgage upon Powell’s undivided half of the chattel property in the distillery. Two of these notes, amounting to $1,000, Beard indorsed to Westerman, defendant in error, assigning at the same time the chattel mortgage to the extent of $1,000. These are the notes upon which the present suit is brought. Beard transferred the third note of $500 to another party. This note he was subsequently obliged to take up. Having otherwise acquired the ownership of one-half the chattel property, and holding a mortgage on the other half, and in possession of it all, he put the same up at public sale. Hnable to sell an undivided half, he sold the whole for $175, himself becoming the purchaser. There was testimony tending to show the property to be worth from $3,000 to $5,000. Beard, therefore, was in this position : Having taken up his third note for $500, he held the chattel mortgage to that extent, which was-one-third, Westerman holding the other two-thirds. Being in possession of the property, he must be considered as holding it in trust, to the extent that Westerman was interested in it. If, therefore, he buys it in at a nominal sum, he does not hold it divested of this trust, and he is bound to account to Westerman accordingly. The court put it to the jury that if the property was sufficient to pay the debts it was mortgaged to secure, Beard was still liable for its value, and should be compelled to respond. This instruction was correct, and the jury must have found the property worth largely more than the $175 for which Beard purchased it at his own sale. They must have found that, instead of the, whole being worth only $175, the half was worth over a $1,000, as the verdict is for the amount of the "Westerman notes and interest. What this value really was, was a question of fact, which the jury have determined, and there is no sufficient ground for a court of error to interfere with the finding. Perhaps the result might have been different had Beard purchased at a sale under legal proceedings. Had he foreclosed his chattel mortgage, and bought at the sheriff’s sale, even had he bought at a figure greatly less than the real value, it would have ended his trust, leaving Westerman without remedy. But this was not the course pursued. The sale was a public one, it is true, but not under process. It was merely a sale by Beard to himself.

Rulings of the court are complained of with regard to the rejection of evidence offered.

Much controversy was had over the question, when and how Beard obtained possession of the property covered by the chattel mortgage. One Lovell, an attorney of Westerman, was offered to prove that by agreement between himself, as such attorney, and Beard, the latter was to take possession of and sell the property.

This testimony was ruled out, and properly so. There is nothing to show that Lovell, as attorney of Westerman, was authorized to make such an agreement. lie appears to have been employed to bring suit and collect the notes, but this does not authorize him to make the contract proposed to be proved. Wilson v. Jennings, 3 Ohio St. 528; Card, v. Waldbridge, 18 Ohio, 411.

Beard, upon taking up his third note, had instituted proceedings to foreclose the chattel mortgage, making Westerman a party. The petition and answer of Westerman in that case were offered in this, and also the testimony of Westerman’s attorney, as to the communications made him by his client, upon which the answer was based. This was ruled out, and properly.

It is difficult to see what purpose these pleadings could serve as evidence in the present case. They set up nothing there that is not admitted here. So far as relates to the issue before us, they simply aver the making of the notes and mortgages and the assignment to Westerman; facts which are not now denied. The ruling therefore could not have prejudiced the plaintiff in error.

Finding no error in the record, the judgment of the court below is affirmed.


author: Scott, J.

text:
    Hare et al., Administrators, etc. v. Gibson.
    1. Where a wife is living separate and apart from her husband, and, in a suit against him for divorce and alimony, has obtained a decree fixing the amount of alimón}- to be paid by the husband for her sustenance during the pendency of her petition, and the husband is not in default in respect to the payment of the alimony so allotted, he is not, liable for necessaries subsequently furnished at her request during the pendency of her petition.
    2. Persons dealing with the wife, under these circumstances, do so at their own peril, and are chargeable with knowledge of the allotment and payment of the alimony.
    S. The adequacyof the alimony decreed in such case, can not be collaterally drawn in question, especially by a stranger to the suit.
    Error to the District Court of Wyandot county.

      jD. D. Hare, for plaintiff in error:
    I. As to the liability of the husband for necessaries furnished the wife, where they live separate and apart, see Breinig v. Meitzler, 23 Penn. 156; Tyler on Coverture, 355; Frost v. Willis, 13 Vt. 202; Rumney v. Keys, 7 N. H. 571; Rea v. Durkey, 25 Ill. 503; Cartwright v. Bates, 1 Allen, 514; Blowers v. Sturtevant, 4 Denio, 46, 49; Gill v. Read, 5 R. I. 343; Billing v. Pitcher, 7 B. Mon. 548; Mainwaring v. Leslie, 12 Eng. C. L. R. 238; Ozard v. Dumford, Seiwig’s N. P. 299; Walker v. Simpson, Watts. & Serg. 83.

      II. Only in cases where the maintenance is a voluntary one on the part of the husband, can its sufficiency be called in question. In this case the 'allowance was fixed by the decree of the court, and was duly paid, and the husband can not be charged on account of the wife, whether in point of fact the amount of the allowance be sufficient or not. Bishop on Mar. & Div., § 578; Wilson v. Smythe, 1 B. & Ad. 801; 2 Bright’s Husband and Wife, 19.
    III. Where husband and wife live apart by mutual consent, and the husband secures to the wife a sufficient separate maintenance, and pays the same punctually, he is not liable even for necessaries furnished the wife. Baker v. Barney, 8 Johns. 72; Mott v. Comstock, 8 Wend. 544; Cord on Legal and Eq. Rights of Married Women, 984; Tyler on Coverture, 352; Bingham on Coverture, 192.
   Scott, J.

Defendant in error brought his action, to recover of the plaintiffs in error the amount of an account for medical services and care bestowed by him as a physician in attendance upon the wife of their intestate. The action was brought originally before a justice of the peace of Wyandot county, and came into the court of common mon pleas by appeal. A copy of his account was attached to his petition, and the items were from July 18th, till October 28, 1869, and amounted in the aggregate to $48. The defendants below answered, admitting that the services stated in the petition were rendered for the wife of their intestate, but denying that such services were rendered at the instance of the deceased, Levi Hare. Further answering, they say “ that at and during the time when the services mentioned in the petition are claimed to have been rendered, the said Rebecca Hare was living separate and apart from her husband, the said Levi Hare, against whom she was prosecuting, in the Court of Common Pleas of Seneca county, a suit for divorce and alimony, which suit was still pendiug and undetermined at the death of said decedent, December 11, 1869.

That on the 22d day of June, 1869, after said suit had been, instituted, on motion of the said Rebecca Hare, a decree for alimony pending said suit was made by said court and duly entered upon the journal thereof, granting to the said Rebecca Hare an allowance of one hundred and seventy-five dollars as such alimony.

Said alimony was by said decree made payable in installments, as follows, to wit: twenty-five dollars in ten days from the date of said decree; twenty-five dollars on the 21st day of August, 1869; twenty-five dollars on the 21st day of September, 1869 ; and one hundred dollars on the 21st day of October, 1869. ;

Every installment of said alimony was paid by the said Levi Hare on or before the day when the same became due, and all of said alimony had been fully paid before the 28th day of October, 1869.”

To this answer the plaintiff below replied, alleging that he had no knowledge of the -granting of said alimony or of its payment, and averring “ that at the time of the allowance of said alimony, the said Rebecca A. Hare was in ordinary health ; was able to and did perform her own work and labor, and such allowance was made to said Rebecca A. Hare for her maintenance, with the knowledge that said Rebecca Hare was then in such ordinary health, and so able to perform her work and labor.

“ That in making said allowance, the costs, expenses, and attorney fees incident to the proper preparation of said cause of said Rebecca A. Hare v. Levi Hare, in said Seneca common pleas, for trial at the November term thereof, a. d. 1869, was not included and taken into the account.

That said allowance so made, as aforesaid, was entirely insufficient to provide proper support and necessaries for said Rebecca A. Hare, at and during the time of the rendition of the services set forth in plaintiffs petition, and said plaintiffs account for such services.

“ That said Rebecca A. Hare, during the time of the rendering of said services, was sick and unable to perform her own work and labor, and was subjected to great expense by reason of said sickness.”

. To this reply, the defendants below demurred; their demurrer was sustained, and plaintiff below excepted.

The case was thereupon submitted to the court upon the pleadings on file in the caso; and the court, being of opinion that the plaintiff was not entitled to recover, rendered judgment in favor of defendants below for their costs. Upon the petition in error of plaintiff below, this judgment was reversed by the District Court of Wyandot county, and the demurrer of defendants to the reply of the plaintiff'below was overruled, and the case remanded to the court of common pleas for further proceedings.

Plaintiffs in error here seek a reversal of this judgment of the district court.

Two questions are raised upon the record. First. Do the facts stated in the answer of defendants below constitute a defense to the plaintiff’s action ? We think they do. The facts stated in the answer are, that during the whole time that plaintiff was rendering the services in question, the wife of Hare was living separate and apart from her husband, and was prosecuting a suit against him for divorce and alimony, and that, before the plaintiff' began to render his services, she had obtained an order of the court, in which her petition for divorce was pending, awarding to her one hundred and seventy-five dollars as alimony pendente lite, to be paid by the husband in specified installments, That this order of the court was fully complied with, and the installments punctually paid by the husband at or before the times when they severally became due, and that such payments were fully completed before the close of plaintiff’s account.

The 9th section of the “ act concerning divorce and alimony,” as amended in April, 1857, provides that the court while in session, or any judge thereof during vacation, upon sufficient notice to the opposite party, shall have power to grant alimony to the wife for her sustenance during the pendency of a petition for divorce or alimony. S. & C. 513.

Where, in the exercise of the power thus conferred, a court of competent jurisdiction lias, by decree, fixed the amount of alimony to be paid to the wife for her sustenance. pendente lite, so long as tbe husband is not in default in making payment according to the order of the court, and the wife continues to live separate and.apart from him, the husband is not liable on her contracts. Speaking on this subject, Mr. Bishop, in his work on Marriage and Divorce, says: “ The allotment of temporary alimony is really for the benefit as well of the husband as the wife, especially in those cases where he is the guilty party. For, if no such allotment has been made, he is liable, at the common law, for hecessaries furnished her during the pendency of her suit for divorce, the same as though it was not pending. . . . But if he has regularly paid it, he is relieved from all further responsibility.” 2 Bish. on Mar. and Div. § 401. In Bennett v. O’Fallon, 2 Mo. 69, it was held, that after a decree for alimony, the husband is not chargeable for debts contracted by the wife. And the court says : “ The very object of the decree for alimony is to furnish the wife with necessaries, and the court will take care that it be made effectual for that object, and suited to the condition of the parties. By the decree the husband is charged directly with the due maintenance of his wife; to make him responsible to persons -with whom she might afterward deal, would be to charge him indirectly for the same object.” See also, Wilson v. Smyth, 1 B. & Ad. 801, and Brisco v. Brisco, 2 Hag. (Con. C.) 199.

These authorities fully sustain us in holding that the answer of defendants below constitutes a good defense to the action.

The second question is : Are the facts stated in the reply of plaintiff below, sufficient to avoid the defense made by the answer? The plaintiff says, first, that he had no knowledge of the allotment and payment of the alimony. The answer to this is, that he should have inquired. lie was dealing with a married woman living separate from her husband, and the authorities are abundant that he could do so only at his own peril.

The presumption of law, in such ease, is that the husband is not liable, and the circumstances fixing his liability must be shown by the party seeking to charge him. If he took the risk of doing so, without inquiry, he has only himself to blame. Tyler on Coverture, 355; Cartwright v. Bate, 1 Allen (Mass.), 514; Rea v. Durkee, 25 Ill. 503; Blowers v. Sturtevant, 4 Denio, 46; Breinig v. Meitzler, 23 Penn. St. 156; Gill v. Read, 5 R. I. 343; Bennett v. O’Fallon, supra.

The reply avers, secondly, that the alimony allotted to the wife proved to be inadequate, by reason of her subsequent ill health, -which was not anticipated when the amount was fixed by the court.

This change in her circumstances would, no doubt, have justified her in applying to the court, or to a judge at chambers for an increase of the sum allowed. But, if she remained satisfied with the amount decreed, others have no right to complain. .

The exercise of the judicial discretion which she had herself invoked, can not be collaterally impeached or drawn in question, especially by a stranger to the controversy. "We are of opinion, therefore, that the court of common pleas did not err in sustaining the demurrer to this reply, nor in entering judgment for defendants below, on the pleadings ; and that the district court should have affirmed, instead of reversing said judgment.

Judgment accordingly.


text:
    McCrea v. Martien.
    Where the grantee of land holds the purchase-money in his hands after it becomes due by agreement with the grantor, to indemnify himself from loss by reason of an incumbrance on the land, and enjoyment of the rents and profits thereof until the incumbrance is removed, ho holds the amount due to the grantor as his trustee, and if he uses the money for his own benefit, ho is chargeable with interest on the money from the time it becomes due until paid.

      Error, to the District Court of Ashland county.
    The original action was brought in the Court of Common Pleas of Ashland county, by the plaintiff, to recover of the defendant the amount due on two notes, and to foreclose a mortgage given to secure the payment of the notes. The notes were alike, except that one was payable a year later than the other. The following is a copy of the note first payable:
    “ April 6,1860.
    “ On or before the first day of April, 1862, I promise to pay to James McCrea, or order, the sum of five hundred dollars, for value received; and whereas trouble and dispute have existed in regard to the title to the premises for which the above note is given in part payment, in consequence of debts claimed against the estate of Samuel Erie, deceased; now, therefore, the said James McCrea agrees that the said notes shall not be collected until this dispute and difficulty shall be settled, or put beyond dispute, or any other difficulty or trouble about said premises ; and in case said title to any of said land should fail, the said notes shall be held as indemnity until the same shall be adjusted and settled, and all costs, damages, and expenses which the said Martien shall be put to in consequence of any suit, or suits, or claims against said land shall be paid out of said notes. Gilbert Martien.”
    The defendant, in his answer,, admits the execution and delivery of the notes and mortgage, and avers that, afterward, one Eachel Urie brought suit against the plaintiff1 and defendant in this case, to recover an interest in the land for which the notes were given; that she recovered against them in the common pleas; that McCrea appealed to the district court; that while the case was pending in that court, McCrea, on the 29th of May, 1869, settled the controversy with Eachel Urie, by agreeing to pay her $400; that defendant then paid the plaintiff that sum on the note, which amount was paid to said Urie in satisfaction of her claim; that the notes, by their terms, did not become cine until May 29, 1869, when the Urie claim was settled; and that the defendant then tendered to the plaintiff' $620, the amount then due on the notes. The defendant also sets up, in his answer,atender of $1,040 to the plaintiff', May 28,1863.
    The plaintiff, in his reply, denies the averments in the answer, except as to the payment of $400 on the notes, and the settlement of the Urie claim.
    On the trial, it was proved that the notes were given for a tract of impi’oved land, deeded by plaintiff to defendant, at the date of the notes; that the defendant then went into and. remained in possession thereof; that'on May 28, 1863, the defendant offered to pay the plaintiff' $1,040 in satisfaction of the notes, if he would then clear the title to the land; that plaintiff replied to the defendant, that he well knew his inability to comply with the condition on which the tender was made; that the defendant borrowed the money to make the tender, and returned it the same clay; that he did not keep the sum on hand, nor withdraw it from his business ; that when the plaintiff called on him for the money, after the Urie settlement, ho borrowed the $400 then paid, and requested the plaintiff to wait a few days for the balance ; that June 4, 1869, he tendered $620, in payment of the notes, which was refused ; and that, on the bringing of this suit, the defendant deposited that sum with the clerk of the court, for the benefit of the plaintiff'.
    The court found the issues for the defendant, and held, as matter of law, that the plaintiff’ was not entitled to interest on the notes until after the settlement and dismissal of the Urie ease against the plaintiff and defendant, and rendered judgment in favor of the defendant. To the holding and judgment of the court the plaintiff excepted. He filed a motion for a new trial, on the ground that the finding and judgment of the court was contrary to the law and evidence. A bill of exceptions was taken, embodying all the evidence, and showing that the motion was overruled, and exceptions duly taken.
    The district court, on error, affirmed the judgment of the common pleas ; and this petition in error is prosecuted to reverse the judgments of the courts below.

      McCombs & Curtis and M. R. Dickey, for plaintiff in error.

      T. J. Kenney, for defendant in error.
   Day, Chief Judge.

The question to be determined is, whether the court erred in holding that the plaintiff was not entitled to recover interest on the notes until after the incumbrance contemplated therein was removed.

The statute then in force declared, “that all creditors shall be entitled to receive interest on all money, after the same shall become due, either on bond, bill, prommissory note, or other instrument of writing, or contract for money or property.” S. & C. 742.

Was the money secured by the notes or contracts in question due, within the meaning of thé statute, before the incumbrance was removed ? The answer to this question depends upon the true meaning and legal effect of the instruments. From the language used therein, it is apparent that the maker understood them to be “.notes” payable by a specified time; at which they were regarded as becoming due. Nor is there any doubt but that, if the title to the land for which they were given had been cleared of the contemplated incumbrance, they would have become due on the first day of April, of the year therein named. Are they changed in this respect, by the clauses relating to the supposed incumbrance, though it was not then removed ? So far as .relates to the question of interest, we think not. In regard to that, the notes become due, in any event, at the time respectively stated therein; but if the incumbrance was not then removed, the maker, had the right to hold the money due on the notes as indemnity from loss by reason of the incumbrance. We think this is the true meaning and effect of the instruments in question. Though the money could not' be recovered by action from the maker until the ineumbra-nce was removed, he was to hold it, in the meantime, for the purpose specified, as money duo to the payee.

One note became due April 1,1862, and the other a year later. On the 28th of May, 1863, the defendant tendered to the plaintiff $1,040, being the principal and interest- due at that time ; but he can take nothing from the tender, for it was coupled with a condition with which he knew the plaintiff could not then comply. Nor was it intended that he should receive the money; but the offer was made by the defendant to evince his willingness to pay the notes, and, peradventure, thereby stop the running of interest which he supposed would otherwise accrue against him. Moreover, he did not attempt to keep the tender good which was then made. He borrowed the money to make the tender, and used it the same day to pay the debt thus incurred by him. lie admits that he never withdrew any money from his business to apply on the notes, until the 29th of May, 1869, when he paid $400 on the notes, and the balance, all but the interest, was tendered in payment of the notes, and, after this suit was brought, deposited with the clerk of the court. But this tender was insufficient if the plaintiff was entitled to interest on the notes respectively from April 1, 1862 and 1863 ; and, according to our construction of the notes, he was entitled to such interest.

The view we take of the case is sustained by the principles of equity applicable to the case, and it is to be borne in mind that the plaintiff invoked the equitable aid of the court.

The plaintiff had conveyed the land for which the notes were given, to the defendant, who mortgaged the same back to the plaintiff, to secure the purchase-money. The money due on the notes belonged, in equity, to the plaintiff; and though the defendant might hold it for his own indemnity, he so held it as the trustee of the plaintiff. Instead of holding it without use, he put it into, his business, and used it as his own, or as if it were borrowed money; and, failing to account for the profits, should, upon equitable principles, be held liable for the use of the money.

It is well settled by the authorities that, in all such cases, the trustee is chargeable with interest. Powell v. Martin, 8 Ves. 146; Selden v. James, 6 Rand. 464; People v. Gasherie, 9 Johns. 71; Kirkman v. Vanlier, 7 Ala. 217, 230, ahd cases cited.

Moreover, it would be most inequitable to permit the defendant to enjoy the rents and profits of the land, for more than six years, for nothing, or, while he receives the rents and profits of the land, to permit him to use the plaintiff’s money, for the same period, for nothing. The case of Brockenbrough v. Blythe, 3 Leigh, 619, was much like this on the point in question. Blythe conveyed a tract of land to Broekenbrough, of which he owned a moiety, and a minor the other moiety. Payments were to be made at specified times, but “ it was covenanted that none of the defeiTed payments should be demanded by Blythe, until he should make a good conveyance ” of the minor’s moiety, on her arriving at full age. The court said:

“ Then, how does the question stand as.to interest? The record presents the case of a vendor, who has delivered possession of the premises to the purchaser, which he has continued to enjoy without molestation ; of a vendor, who has also faithfully complied with his engagement that a good title should be made upon the happening of a particular event, until which event he has left the purchase-money in the hands of the vendee, as his security, and that vendee has thus, for more than eighteen years, by himself, or his vendee, received the rents and profits, and held the purchase-money also. Is there any principle of law or equity which can justify us in saying he shall keep both ? Shall the purchaser, for so long a period, receive the profits while he is enjoying the interest of the purchase-money ? Eor it -would be willful blindness to the ordinary course of transactions»to suppose that this has lain idle. If raised at all, it has been put to interest, beyond question; if not raised, tbe interest has been saved to the party, which amounts to the same thing; for, in either event, he would have enjoyed the vendor’s estate, for eighteen years, for nothing. The injustice of such a proceeding has long since given rise to the rule that, as to interest and profits, the vendor is to be considered the owner of the money, and entitled to the interest, while the vendee is regarded as the owner of the land, and entitled to the profits, but he can not have both.”

To the same effect are the cases of Breckenridge v. Hoke, 4 Bibb, 272, and Boyce v. Pritchett, 6 Dana, 231.

Rollmun v. Baker, 5 Humph. 406, is also a case in point. The point in the case is stated in the opinion of the court, as follows:

“As to interest, the note was made payable, by its terms, one day after date, and the subjoined agreement that suit shall not be brought upon it, while the payee believed the maker to be safe, can not be construed, either in point of intention or legal effect, so as to prevent the computation of interest upon the note, due by its terms and the contract of the parties.”

"We are, then, upon both principle and authority, constrained to hold that the plaintiff was entitled to interest on the notes from the time they were made payable.

The judgments of the courts below must, therefore, be reversed, and the cause remanded to the court of common pleas for further proceedings, according to law.

Judgment accordingly.


author: Ashburn, J.

text:
    Faurot v. Neff et al.
    F., owning- real estate, in July, 1871, sold it to N., and took, in part payment, a purchase-money note, secured by mortgage, due in five years, with interest. Before the note became due, N. was sick, and for a time insane, when F., believing the debt injuriously affected the mind and health of N., voluntarily and without consideration therefor, and for the purpose of relieving the mind of N., caused the note and mortgage to be delivered to II. E. N., wife of N., with the understanding on his part that, when N. “recovered,” they should bo returned to F. Afterward, with a like purpose, F. entered a cancellation on the mortgage, which was entered of record. "When N. was restored to health and reason, E. requested N. and H. E. N. to return to him the note, and restore the canceled lien on the real estate. They refused. The action was instituted before the maturity of the note and mortgage, to have the note declared an existing indebtedness against N., the mortgage lien restored, and for injunction. On demurrer to a petition setting forth the foregoing facts — Held, the facts set out in the petition are not sufficient to make a case for the equitable relief sought.
    Error to the District Court of Allen county.
    The material facts, as set out in the petition, are as follows : On the 8th of July, 1871, plaintiff, being the owner of inlot No. 48, in the town of Lima, sold and conveyed it to the defendant, O. I. Neff', and in part payment took a purchase-money promissory note for $600, due in five years, with interest, secured by a mortgage on the lot, II. E. Neff, his wife, joining in the mortgage. In March, 1872, the health of C. I. Neff failed, and he became temporarily insane, and the plaintiff was informed by the physician of C. I. Neff that the mortgage indebtedness was affecting injuriously the mind of Neff, and, in his opinion, if the anxiety arising from that indebtedness was removed, his recovery would he more probable. Plaintiff then had a personal interview with C. I. Neff, and came to the same conclusion from the interview as that expressed by the physician. Plaintiff thereupon caused the note and mortgage to be placed in the hands of H. E. Neff, the wife of C. I. Neff, “ with the sole purpose,” he states, “ of relieving the mind of C. I. Neff in respect to the indebtedness, with the understanding that when O. I. Neff should be recovered, IT. E. Neff would return the same to plaintiff'.” Afterward, about the 28th of March, 1872, the mortgage was brought to plaintiff to be canceled, when, for a like purpose, and without receiving any consideration or promise of one from any person whomsoever, he formally canceled the mortgage, and. the cancellation, was entered of record; that the note and mortgage, with accrued interest, remain wholly unpaid; that C. I. Neff has recovered his health, and both he and H. E. Neff refuse to deliver the note to plaintiff, or restore the lien so canceled, or in any manner adjust the same, though often requested to do so ; that C. I. Neff still owns the lot.
    The prayer is to have the note declared an existing indebtedness against C. I. Neff; to have the mortgage lien restored, and an injunction to restrain the sale or incumbrance of the lot.
    This petition was filed before the note and mortgage were due, and defendants interposed a general demurrer. In the court of common pleas the demurrer was sustained. This judgment was affirmed in the district court, and a petition in error is prosecuted here to reverse the judgments of the lower courts.

      Cunningham & Brotherton, for plaintiff in error.

      Isaiah Pillars, for defendant in error.
   Ashburn, J.

The case stands on petition and general demurrer. The only question for consideration is : Does the petition state facts sufficient to constitute a cause for equitable relief?

Such facts as are material and well plead are by the demurrer admitted to be true, and we are to determine whether the admitted facts will authorize the relief prayed for.

We have arrived at the conclusion the petition does not make a case for relief, coming within the grasp of any known principle of equity jurisdiction. This action was commenced before the note and mortgage were due.

Plaintiff’ claims the facts admitted by the demurrer disclose a clear case of an express trust. Without entering into a discussion of what conditions and circumstances will constitute, in a given case, an express trust, we think no express trust exists here. An express trust is raised and created by the act, consent, and- mutual understanding of the parties. No such state of case is found in the facts of this ease. At the time of the transaction no implied trust was created. • If there is in this case any question of trust, it can only be that which, independent of any mutual understanding or intention, is forced on the conscience of defendants by meditated fraud, arising out of the conduct of defendants after the recovery of C. I. Neff.

So far as shown by the facts, the plaintiff voluntarily caused the note and mortgage to be delivered to II. E. Neff, without agreement or understanding, on her part, that they were to be returned to plaintiff at any time in the future. Plaintiff alleges he had the understanding that she would return the note and mortgage to him on the recovery of C. I. Neff. But no mutual understanding is stated. H. E. Neff is not charged with any agreement to hold the papers for the use of plaintiff, and clearly no such understanding on her part is disclosed in the petition. Plaintiff was the sole responsible actor in the transaction, and acted voluntarily for the benefit of 0.1. Neff. Prom this state of the facts, no implied trust could arise. Mr. Justice Story, in his Equity Jurisprudence, § 1195, speaking of implied trusts, lays down this general rule : “A trust is never presumed or implied, as intended by the parties, unless, taking all the circumstances together, that it is the fair and reasonable interpretation of their acts and transactions.”

The transaction here, as related in the petition, partakes more of the nature of a gift than a trust. This, because no mutual understanding, express or implied, appears whereby defendants were, at any time, to restore the note and mortgage lien to the plaintiff; and it does appear that the plaintiff voluntarily caused the mortgage and note to be placed in the hands of H. E. Neff, and the mortgage to be canceled for the sole benefit of 0. I. Neff.

If it was the purpose to charge a fraudulent intention- on the part of defendants, to withhold the note and mortgage after the recovery of C. I. Neff, out of which a trust relation would arise, plaintiff' has failed to make such a ease In his petition. In relation to the original transaction H. E. Neff and C. I. Neff' are free from all taint of fraud, either in fact or law. No conspiracy by defendants, since the recovery of C. I. Neff', to defraud plaintiff is charged. Defendant’s liability in this form of action, if any exists, must arise from some act of commission or omission by thorn siuce C. I. Neff was restored to responsible reason, evincing a fraudulent intent.

The only charge in the petition in relation to this matter is, that since the recovery of C. I. Neff' plaintiff has requested defendants to deliver up the note, and restore to him the canceled mortgage lien on the land, and that they have refused. This charge does not raise a presumption of fraud, and fraud will not be presumed unless authorized by the facts or the law. '

As O. I. Neff was free from all fraud in relation to the original transaction by reason of his insanity at that time, no presumption of fraud would arise as to him, since his recovery, until it is shown that he has done some act or made some declaration evincing a fraudulent purpose in relation to the plaintiff and his rights. It must appear that since his recovery, he has been fully informed as to what took place in relation to the note and mortgage during his condition of temporary insanity, the l’eason that induced the transaction, his obligation to restore the note, and its security, and being so advised, knowingly and fraudulently refuses to restore plaintiff his rights. No statement of fact to this effect appears in the petition.

Judgment of district court affirming the judgment of the court of common pleas affirmed.

Dy lapse of time the note and mortgage of July 8,1871, would now be matured. Whatever rights, legal or equitable, the parties may have under that transaction are not intended to be affected by this holding, but only, that the facts set out in the petition do not make a case for the equitable relief demanded.

Wright, J., dissented.


author: Johnson, J.

text:
    Clark v. Potter.
    1. One who enters upon land, under color of title intending to take possession of the entire tract, no part of which is held adversely at the time of his entry, is deemed to he in possession to the extent of his claim.
    2. Prior to the code of civil procedure, equity followed the law in determining when time would begin to run against the right of a mortgagqr to redeem, and when such right would be barred.
    3. Hence, if the mortgagee, with the knowledge and acquiescence of the mortgagor, takes actual, open and notorious possession of the mortgage premises and holds and controls the same adversely to the rights of the mortgagor to redeem, for twenty-one years, under color of title derived from the mortgage, and from a decree of foreclosure and sale of the same to him, the equity of redemption is barred, although the decree foreclosing the mortgage was null and void.
    4. Where the mortgaged premises is an entire tract, as a farm, part of which only is improved, with a tenement thereon, and the possession to the whole is so far adverse as to create a cause of action in favor of the mortgagor, and cause time to commence running against the right to redeem; the temporary interruption of actual residence on the land, caused by the unlawful and violent acts of strangers in tearing down the house and rendering.the premises untenantable for the time being, will not prevent the statute from continuing to run where there is no adverse entry or offer to redeem, and the mortgagee does not abandon his possession and control, but continues to exercise all such acts of ownership and dominion over the premises, as the nature of the land and its condition will admit of.
    Error to tbe District Court of Lucas county.
    The plaintiffs in error brought an action against the defendants in error in the Court of Common Pleas of Lucas county, on the 28th of July, 1870, praying to be let in to redeem certain lands situate in said county, from the lien of a mortgage bearing date October 1, 1840. The entire tract covered by the mortgage contains one hundred and twenty acres. The case was heard in the common pleas at the February term, 1872, and a decree rendered permitting the plaintiffs to redeem as to forty acres of the tract, but denying the prayer of the petition as to the remaining eighty acres. An appeal was taken to the district court, where, at the April term, 1872, the petition was dismissed. Separate motions for a new trial were filed by the plaintiffs, in which they assigned as the grounds for a new trial, that the finding óf the court was against the law and the evidence. These motions were overruled, to which ruling the plaintiffs respectively excepted. A bill of exceptions, embodying all the testimony given in the case, was taken and filed, and ordered to be made part of the record. The plaintiffs come into this court by petition in error to reverse the judgment of the district court. They file herewith a printed abstract of the entire record, in which the testimony is set out in full.
    The material facts upon which the proceeding below was predicated are as follows: About the first of October, 1840, one William Olney borrowed from the defendant, Nathaniel E. Potter, the sum of ten thousand dollars, for which no obligation or security was taken; not long after the loan was made Nathaniel assigned his claim to the defendant, Christopher E. Potter, who obtained the note of Olney for the debt, and two mortgages on lands situate in the counties of Lucas and Wood, Ohio, as security for its payment. At the time of these transactions all the parties resided in Providence Rhode Island.
    The note given by Olney to Christopher E. Potter is for the sum of ten thousand dollars; it bears date October 1, 1840, and is payable to the order of Christopher E. Potter, in twelve months from date, with interest after the expiration of six months.
    Both the mortgages bear even date with the note, but they were not acknowledged until the second day of November following.
    One of these mortgages is'upon the lands in Lucas county, sought to be redeemed in the action below. The consideration is stated in the following language : “ Know ye, that I, the said William Olney, for and in consideration of the sum of a fart of ten thousand dollars in hand before the ensealing hereof, well and truly paid by ChristoE. Potter,” etc. The condition is as follows : “ Provided, nevertheless, and the condition of this deed is such, that if the said William Olney, or his heirs, executors, administrators, or assigns shall well and truly pay, or cause to be paid to him, the said Christopher E. Potter, or to his assigns, a part of a certain promissory note,” etc., setting forth the note above referred to, “ then this deed to be void.” This mortgage was recorded in Lucas county, on the 24th of November, 1840.
    The other mortgage, which was in the usual form, embraced a large quantity of land situate in Wood county, and was conditioned for the payment of the entire sum of said ten thousand dollars. It was recorded in that county shortly after its execution.
    On the 17th of June, 1841, William Olney, in consideration of five thousand dollars, conveyed the Lucas county lauds to Sterry Clark, of Providence, Rhode Island. This deed was duly recorded, in Lucas county, on the 17th of November, 1841.
    A second mortgage upon the Lucas county lands to secure the same debt of ten thousand dollars, was executed by William Olney to Christopher E. Potter. It bears date October 1, 1840, but was not acknowledged until July 8, 1841, which was subsequent to the conveyance of the lands to Clark. This mortgage was evidently given to correct the imperfection before noticed in the first mortgage, as it purports to be a security for the entire debt; it was recorded in Lucas county, August 20,1841.
    On the 18iA of August, 1841, Sterry Clark, in consideration of twenty-five hundred dollars, conveyed an undivided half of the Lucas county lands to Reuben Parsons, of New York. The wife of Sterry Clark did not join in the execution of this deed. It was duly recorded in Lucas county on the 17th of November, 1841.
    On the 24th of October, 1842, Christopher E. Potter filed a bill in chancery in the Court of Common Pleas of Wood county, against William Olney and Sterry Clark to foreclose the two mortgages given by Olney, bearing date in October, and acknowledged in November, 1840. In this proceeding, no notice is taken of the second mortgage upon the Lncas county lands, acknowledged in July, 1841. Neither the wife of Sterry Clark, nor Reuben Parsons, whose deed for a moiety of the lands had been on record for nearly a year, was made a party to the proceeding.
    The bill sets out that Olney, being seized or pretending to be seized of certain lands situate in the counties of Wood and Lucas, which are described, and being in want of ten thousand dollars, did, on or about the first day of October, 1840, apply to the complainant to lend him that sum, “ to be secured by mortgages upon said premises;” that complainant loaned Olney said sum of ten thousand dollars; that Olney, to secure the repayment of the same, wfith legal interest, '• by his deed duly executed on or about the first day of October,” 1840, conveyed said premises to complainant in fee-simple, subject, nevertheless, to a condition of defeasance on the payment of said sum of ten thousand dollars, October 1, 1841, with interest after the expiration of six months, “ as in and by said deeds of mortgage,” copies of which were therewith filed and made part of the bill, would more fully appear.
    The bill further set forth the conveyance of Olney to Clark; alleged that the claim of complainant was paramount thereto; that no part of said sum of ten thousand dollars had been paid ; prayed an account of the amount due, and that the mortgaged premises might be sold and proceeds applied in satisfaction of the debt.
    Copies of both mortgages were attached to the bill and made exhibits.
    The defendants, Olney and Clark, were brought in by publication.
    At the October term, 1848, of the court, a decree gyro conjcsso was entered.
    The court found that there v;as due the complainant for his mortgage money the sum of twelve thousand one hundred and thirty-seven dollars and eighty-one cents, and adjudged that unless paymeut was made within five days from the rising of the court, the master commissioner of the court proceed to sell the "Wood county lands, and the sheriff of Lucas county proceed to sell the Lucas county lands.
    An order of sale issued to the sheriff of Lucas county on November 6, 1843, upon which he made return January 12, 1844, that he had sold the lands in Lucas county to Christopher E. Potter, on the 16th of December, 1843, for eleven hundred and thirty-four dollars.
    An order of sale issued to the master commissioner of the Wood county court, on November 6, 1843, upon which he made return to the March term, 1844, that he had sold the lands in Wood county to Christopher E. Potter, on the 30th day of January, 1844, for three thousand and thirty-seven dollars,
    An order confirming these sale and directing deeds to be made to the purchaser was entered at the March term, 1844, of the Wood eouuty court.
    In pursuance of the order of confirmation the sheriff of Lucas county executed to Potter a deed of the lands sold by him. It bears date November 28, 1844; it was acknowledged December 4, 1844, and recorded October 24, 1845. A conveyance was also executed by the master commissioner of the Wood county common pleas of the lands sold by him.
    The lands in Lucas county are described in the petition as the south half of southwest quarter of section six, and the northwest quarter of the southwest quarter of the same section, containing one hundred and twenty acres.
    It appears that Olney derived title to these lands by deed from one Messena Eox, dated August 28, 1835.
    It further appears that Eox had acquired title to the west half of the southwest quarter by patent in 1831, and to the southeast quarter of the southwest quarter of said section by patent September 2, 1835, and that Eox’s deed to Olney embraced the whole quarter section, being forty acres more than he owned.-

      It further appears that Olney mortgaged the whole southwest quarter to Potter, following, doubtless, the excessive description in Eox’s deed to him.
    The prayer is for the usual account of amount due, if anything, after crediting th'e proceeds arising from the sale of the Wood county lands ($3,039) ; also the rents and profits, and that plaintiffs be permitted to redeem, on payment of amount due, if it be adjudged valid against them, etc.
    The defendants are somewhat numerous, including both the Potters and the purchasers from them, as well as mortgagees of such purchasers, all of whom, except one or two, answer jointly, and put in issue the allegations of the petition.
    It is averred in the answer that these mortgages were made at the same time to secure a single loan of $10,000, in pursuance of a previous agreement to mortgage all these lands in Wood and Lucas counties, and that the scriviner, for convenience of record merely, executed two separate mortgages instead of one, but they were parts of one entire transaction, to secure one debt, and that the Wood county court had therefore jurisdiction to sell the Lucas county lands, as well as those in Wood county.
    It is also alleged, that from the date of the sheriffs deed, in 1844 to 1849, Christopher E. Potter was in the open, notorious, and continuous possession of this one hundred and twenty acres — that in the latter year he sold the same to Nathaniel E. Potter, who, from that time to the commencement of this action, by himself and his grantees, have held like possession; that in 1853 he sold the timber lands, eighty acres, being the south half of the quarter section, to Prentice and Raker; that Prentice sold an undivided half to one Latimer, who died in 1855; that his heirs sold his share to one Williams; that Raker sold to one Eoley, who mortgaged the same to divers persons; that these mortgages were foreclosed and Eoley’s share bid in by one Conahan; that in 1858, fifty-eight acres of this tract was platted into lots and streets, and called “ Williams’ addition to the city of Toledo; ” and that in 1859, by proceedings in partition, these lots and the remaining twenty-two acres were divided between the owners.
    It is further averred that since these numerous sales of town or city lots have been made to bona fide, purchasers, who have taken possession, made improvements, paid taxes, city assessments, etc., that property has largely increased in value, and that during all this time the plaintiffs, or those from whom they claim title, have acquiesced, making no offer to redeem, and asserting no claim until the commencement of this action.
    Eor a second answer, the twenty-one years statute of limitation is pleaded.
    Eor a third, the seven years statute or the act to give greater security to land titles, passed March 22, 1849, is relied on.

      Scribner & Hurd, for plaintiffs in error:
    I. The equity doctrine as to laches has no application in a proceeding to redeem mortgaged premises. Such a proceeding is not barred unless an ejectment to recover the possession would be barred; and as a general rule the doctrine is not applied in any case where there -is a statute of limitations in force applicable to it.- Larrowe v. Beam,, 10 Ohio, 498.
    On the subject of the equity doctrine as to laches, see Smith v. Clay, 3 Br. C. C. 640; Elmendorf v. Taylor, 10 Wheat. 152; Cook v. Arnham, 3 P. Wms. 283, 287; Aggas v. Pickerell, 3 Atk. 225; Moore v. Cable, 1_John Ch. 385; Gordon v. Hobart, 2 Sumn. 401; Slee v. Manhattan Co., 1 Paige, 80; Bolinger v. Choteau, 20 Mo. 89; 2 Washburn on Real Property, 169, 170; Angell on Limitations (5th ed.), § 456, n. 2; Robinson v. Fife, 3 Ohio St. 551.
    II. There are certain rules of law connected with the application of the statute of limitations, which should be considered in determining this case.
    1. The statute is to be taken strictly; the evidence to establish title under it must be clear and satisfactory.
      Irving v. Brownell, 11 Ill. 413; Turney v. Chamberlain, 15 Ill. 271; Groft v. Weakland, 34 Penn. St. 304; Washburn R. P. 124; Angell on Lim., §§ 392, 395.
    2. The law draws to the legal title the constructive possession. To displace this there must be an actual ouster and continued adverse possession. Angeli on Lim. (5th ed.), § 384, and also page 394; Taylo.r on Eject. 900.
    3. Payment of taxes is not evidence of possession. Taylor on Eject. 895; 2 Smith’s L. C. (6th ed.) 638; Ewing v. Burnett, 1 McLean, 266; Stevens v. Rhinelander, 5 Rob. 285; Reed v. Field, 15 Vt. 672.
    4. Mere casual acts of ownership do not constitute adverse possession. Taylor on Eject. 909; Rifener v. Bordman, 53 Penn. St. 313; Young v. Herdie, 55 Penn. St. 172.
    5. The adverse possession must be continuous and unbroken. 2 Smith’s L. C. (6th ed.), 537; Johnson v. Irwin, 3 S. & R. 291; Royer v. Benlow, 10 S. & R. 303; Jackson v. Schoonmaker, 2 Johns. 230; Hoey v. Furnam, 1 Barr, 296; Cornelius v. Gibson, 1 Dutch. 33; Lorber v. Willing, 10 Watts, 141; Parker v. Parker, 1 Allen, 245; West v. Lanier, 9 Humph. 761; Glaney v. Handlette, 39 Me. 451; Stephens v. Leach, 19 Penn. St. 265; Ewing v. Alcorn, 4 Wright, 500; Tyler on Eject. 907-8.
    As to the extent of possession, see Jones v. Chiles, 2 Dana, 25; Ellicott v. Pearl, 10 Pet. 412, 444; Owings v. Gibson, 2 A. K. Marsh. 515; Stewart v. Harris, 9 Humph. 714; West v. Price, 2 J. J. Marsh. 380.

      William Baker and Charles Pratt, with whom was C. S. Bradley;

    [No perfect copy of the brief of counsel for defendant in error coming to the hands of the reporter, he has only been able to abstract a portion of their argument. — Reporter.]
    The facts of this case clearly bring it within the operation of the act of March 22, 1849, (2 Curwin, 1495), and it is a complete bar, both as against Clark and his heirs and Parsons and his grantee. But whether or not this be so, the general statute of limitations of 1831 applies.

      As to the extent of and what may amount to actual possession, see Ellicott v. Pearl, 10 Pet. 412; 2 Smith’s L. C. (6th ed.) 641, 642; Tyler on Eject. 892, 893, 895, 903, 904; Angeli on Lim. 397, 400; Prescott v. Nivers, 4 Mason, 380; Jackson v. Porter, Paine, 457; 3 Iredell, 578; Scammon, 181; Washburn R. P. 137; Gardner v. Gooch, 48 Me. 492; Hardesty v. Glenn, 32 Ill. 64; Fairman v. Beall, 14 Ill. 244; Booth v. Small, 25 Iowa, 178; Angelí on Lim. 367, 400; 19 Ga. 8; 21 How. 493; 30 Ill. 279; 3 Watts, 72; Abell v. Harris, 11 Gill. & F. 371; Noyes v. Dyer, 25 Me. 468; 2 Me. 275; Spear v. Ralph, 14 Vt. 400; Chilsom v. Buttolph, 12 Vt. 231; Royer v. Benlow, 10 Serg. & R. 303; Heiser v. Rieble, 7 Watts, 37; Hopkins v. Robinson, 3 Watts, 205; Proprietor of Kenebeek Purchase v. Springer, 4 Mass. 415; Farrar v. Fessenden, 39 N. H. 269; Byrum v. Carter, 4 Iredell, 310; Murphy v. Springer, 1 Grant’s Cas. 73; Draper v. Short, 25 Miss. 197; Finlay v. Cook, 54 Barb. 9; Hulls v. Brentin, 47 Ill. 396; 43 Ala. 271; Williams v. Dugan, 20 Miss. 186; Ford v. Wilson, 35 Miss. 490.
    Even a void deed may raise color of title, and define the extent and boundary of the possession under it, by the desoription in the deed. Pillows v. Roberts, 13 How. 472; Minot v. Brooks, 16 N. H. 376; 3 Washb. Real P. 139; Wrtght v. Matteson, 18 How. 50, 56; Angeli Lim. 404, 406, 409; Jackson v. Todd, 2 Caines (N. Y.), 183.
    A deed founded on a void decree in chancery gives'colorable title. 1 Meigs, Tenn. 207.
    As to laches: Smith v. Clay, 3 Bro. Ch. 639; 2 Story Eq. § 1520, note; Kane v. Bloodgood, 7 Johns. 93; Bergen v. Bennett, 1 Caine’s Cases, 1; DeCouche v. Sevatia, 3 Johns. 190; Higginbothan v. Burnett, 5 Johns. Ch. 184; Prevost v. Gratz, 6 Wheat. 481; Hughes v. Edwards, 9 Wheat. 489; Willison v. Watkins, 3 Pet. 43; Miller v. McIntyre, 6 Pet. 61; Piatt v. Vattier, 9 Pet. 413; 2 Hilliard on Mort. 1-30, and cases cited; Cholmondeley v. Clinton, 2 Fac. & W. 1; Tuttle v. Wilson, 10 Ohio, 24.
   Johnson, J.

As the widow of Sterry Clark has died since the judgment below, further consideration of her rights in this action becomes unnecessary.

Upon a careful examination of the record, we think the district court was warranted in finding as facts:

1. -That prior to and at the date of said mortgage, and when the property was sold and conveyed to Potter, and for several years thereafter, the mortgaged premises was owned, held, and occupied as one entire tract of land or farm, about forty acres of which was cleared, with a tenement house, fences, etc., such as is usual with a new farm, in a new country, and the balance wild, timbered land.

2. That Potter took possession, under his purchase, of the entire tract, in good faith, claiming the whole, and for more than twenty-five years exercised exclusive control and dominion; that his possession and claim of ownership was open, notorious, and adverse.

3. That, with -the exception of a temporary suspension, the premises wTere, dui’ing all that period, actually occupied by a tenant, residing on the improved part, but such tenancy was interrupted for some time over a year, caused by the unlawful acts of strangers, who tore dowm the house and carried off the fences, rendering the premises incapable of actual residence.

4. That during the suspension of actual residence, as well as at all other times, Potter and his grantees were in the sole control, paying taxes and assessments, making sales, cutting and selling timber, preventing trespasses, and doing all such acts of ownership as the nature and condition of the property would admit of.

5. That at the time of such sale and conveyance to Potter, or soon thereafter, Olney and his grantees, though not actually served, had, in fact, notice of such foreclosure and sale, and of the subsequent adverse possession of Potter, and acquiesced therein, making no offer to redeem, nor any adverse entry or claim.

6. That, at the time of such sale, the land was worth far less than the amount necessary to redeem, and that by reason of the rapid growth of the city of Toledo, of which it now forms a part, and the improvements made by Olney and his grantees, the value far exceeds the mortgaged debt and interest.

"We are of opinion that the district court did not err in refusing the plaintiffs the relief prayed for.

A majority of the court are strongly inclined to hold that the act of March 22, 1849 (2 Curwen, 1494), 'governed, and that the right to redeem was barred in seven years; but as we are all agreed upon another ground, our decision is not placed on that.

There is an absence of equity in the plaintiff’s claim. It is apparent that it is of recent origin, owing its existence to the enterprise which has been generated by the rapid growth of the city of Toledo, and the consequent spirit of speculation to which that gave rise.

It is clear that the immediate grantees of Olney long ago abandoned all intention of redeeming, if they ever entertained it, and for more than twenty-one years acquiesced in the ownership of the mortgagee and those claiming under him.

It is of the very highest authority that: “A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights or acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonably diligeuce. Where these are wanting, the court is passive and does nothing; laches and neglect are always discountenanced; and therefore from the beginning of this jurisdiction there was always a limitation of suit in this court.” Smith v. Clay, 3 Brown Ch. 634; Cholmondeley v. Clinton, 2 Jac. & W. 1; Kane v. Bloodgood, 7 Johns. 93; Bergen v. Bennett, 1 Caines’ Cas. 1; DeCouche v. Sevatia, 3 Johns. 190; Higginbothan v. Burnett, 5 Johns. Ch. 184; Prevost v. Gratz, 6 Wheat. 481; Willison v. Watkins, 3 Pet. 43; Miller v. McIntyre, 6 Pet. 61; Piatt v. Vattier, 9 Pet. 413; 2 Hilliard on Mort. 1-30, and cases cited.

The doctrine of these cases is fully indorsed in Ohio. Tuttle v. Wilson, 10 Ohio, 24; Pendleton v. Galloway, 9 Ohio, 178; Williams v. Presbyterian Church, 1 Ohio St. 478; Robinson v. Fife, 3 Ohio St. 551; Piatt v. Smith’s Fx’r, 12 Ohio St. 561.

Piatt v. Smith’s Ex’rs was, like the present, a bill to redeem, filed by the heirs of Piatt, who bad died insolvent, and whose administrators had declined to redeem and had relinquished the land to the mortgagee. The court says (p. 570): “ The present action was not commenced until twenty-seven years after the time then fixed for the payment of the money; and no tender or offer to pay the money has even as yet been made; but an account is now asked for rents and profits extending back over.a space of more than a quarter of a century. That this is an almost unprecedented delay on the part of the complainants seeking relief in a court of equity must be admitted. How is it explained so as to avoid the objection of gross laches and staleness of claim ?”,

In this case, which was in the nature of a deed and separate defeasance, we may apply the language of the learned judge in that case as peculiarly applicable, substituting only the name of Olney and his grantees for those of Piatt and his heirs.

“No facts are stated or proved, explaining the delinquency of Piatt or his representatives to perform his part of the contract according to its terms. Nor is it either averred or proved that the land was in fact worth as much as the money so to have been paid, to entitle him to a re-conveyance.

“ But even conceding the right to have existed in the grantor after expiration of the time limited by the contract to tender the money due on the note and have a reconveyance of the lands decreed in a court of equity, the assertion of the right must not so long be delayed as to be in conflict with the rule of relief, that the party asking to enforce a contract against another must show himself ready, willing, and prompt in executing the contract on his part, or show some sufficient excuse for his delinquency. Otherwise he will have failed to show such a doing of equity as to justify him in asking relief in a court of equity.”

In Fisher v. Boody, 1 Curtis C. C. 219, it is said: “This distinction between a positive bar from lapse of time and that lying by and acquiescence, which will cause a court of equity to look upon the proofs with some distrust, and to refuse relief unless the delay and acquiescence are satisfactorily accounted for, I consider a most important principle, necessary to be constantly kept in view in wielding the transcendent powers of a court of equity; and it rests upon ample authority, though, in my judgment, it has not been sufficiently regarded.” Prevost v. Gratz, 6 Wheat. 481; Elmendorf v. Taylor, 10 Wheat. 153; Piatt v. Vattier, 9 Peters, 416; Stearns v. Paige, 1 Story, 217; Wagner v. Baird, 7 How. 234; 1 Mad. 99; Lawrence v. Blake, 8 Clark and Pin. 504; Hough v. Richardson, 3 Story, 659.

Where a decree of foreclosure and order of sale was had in 1842, and no further action, save continuances, was had until 1868, meanwhile the mortgagor had been in possession, sold portions of the land to innocent purchasers, who had no actual notice of the pending suit, and who had remained in possession more than twmnty-one years, it was held, that the unexplained delay was §uch as to prevent the enforcement, of the decree against such purchasers. Fox v. Reeder, 28 Ohio St. 181. See also, Hughes v. Edwards, 9 Wheat. 497.

The general rule is, that the right to redemption is barred by the same length of time as the right of entry at law, if the mortgagee is in possession as owner.

To this rule there are some exceptions, as when the mortgagor can bring himself within some one of the disabilities of the statute, such as infancy, etc., or wThere the possession of the mortgagee is referable to an agreement between him and the mortgagor, as in the case of a Welch mortgage, under which the mortgagee is in as a trustee and bound to account.

In such cases the statute does not run. Potter’s possession was not of this character.

It was unmistakably adverse to the right of redemption.

He was occupying and exercising acts of ownership under color of his title acquired by purchase at sheriff’s sale. The proceedings to foreclose, the purchase and possession, the payment of taxes and assessments, the employment of an agent to look after the lands, are all acts adverse to those of the mortgagor, and referable solely to his title as owner under the mortgage.

They are explanatory of Ms title and give character and significance to Ms possession.

"We do not propose to consider the mooted question, whether a less period than twenty-one years, will bar the right of redemption.

It is sufficient to say that if there was such a possession for more than twenty-one years, as would bar ejectment, the district court did not err.

“An entry under a deed gives possession of all vacant land described in the deed, if not in any adverse possession; although there may be no fences or inclosure around the ambit of the tract, and an actual entrance on only a part of it. To constitute actual possession it is not necessary there should be any fence or inclosure of the land.” Ellicott v. Pearl, 10 Peters, 412.

“ One who enters upon land intending to take possession of the entire tract, no part of which is held adversely at the time of entry, is in possession to the extent of his claim.” Langworthy v. Myers, 4 Iowa, 18; Booth v. Small, 25 Iowa, 178; Owing v. Gibson, 2 A. K. Marsh. 460; Little v. Dowling, 37 N. H. 355.

The distinction between an entry and possession under color of title, as in the present case, and such entry and possession without deed or color of title, is clear and well recognized.

In the former case, the possession is by construction held to extend to the boundaries of the deed; in the latter, it must be actual, definite, positive, and notorious, a pedes pos sessio. Ewinq v. Burnett, 11 Peters. 49; Angel on Lim. 398, 402.

In Ewing v. Burnett it is said: “An entry by one man, on the land of another is an ouster of the legal possession arising from the title, or not, according to the intention with which it is done; if made under claim and color of right, it is an ouster ; otherwise it is a mere trespass; in legal language, the intention guides the entry and fixes its character. That the evidence in this ease justified the jury in finding an entry by the defendant on this lot as early as 1804, can not be doubted; nor that he claimed the exclusive right to it, under color of title, from that time till suit brought. There was abundant evidence of the intention with which the first entry was made, as well as of the subsequent acts related by the witnesses to justify the finding, that they were in assertion of a right in himself; so that the only inquiry is as to the nature of the possession kept up. It is well settled, that to constitute an adverse possession, there need not be a fence, building, or other improvements made. 10 Pet. 442; it suffices for the purpose that visible and notorious acts of ownership are exercised over the premises in controversy for twenty-one years, after an entry under claim and color of title. So much, depends on the nature and situation of the property, the uses to which it can be applied, or to which the owner or claimant may choose to apply it, that it is difficult to lay down any precise rule, adapted to all eases. But it may safely be said, that where acts of ownership have been done upon land, lohich from their nature indicate a notorious claim of property in it, and are continued for twenty-one years, with the knowledge of an adverse claimant without interruption, or an adverse entry by him, for twenty-one years; such acts are evidence of an ouster of a former owner, and an actual adverse possession against him.”

The principle upon which the limitation operates, is, that the' adverse claim is accompanied by such an invasion of the rights of the opposite party as to give him a cause of action, which he has failed to prosecute within the time limited by law, and which he is therefore presumed to have surrendered or abandoned.

As the character of the possession depends on the nature and situation of the property, and the uses to which it can be applied, or to which the owner may choose to apply it, it is evident that resort must be had to the usual and ordinary conduct of owners of such land to determine if it is sufficient.

If this possession compoi’ts with the ordinary management of similar lands by their owners, it furnishes satisfactory evidence of adverse occupation.

When the land is partly improved and partly unimproved, an entry, even under a void deed, describing the whole, and acts of ownership under color of title derived from this deed over the whole — such as payment of taxes, preventing trespasses on the unimproved part, and using the improved part —is satisfactory evidence of adverse occupancy, when the opposite party, with knowledge of these acts, makes no claim, but acquiesces for more than twenty-one years. Angeli on Limitations, § 398; Noyes v. Dyer, 25 Me. 468; Kennebeck v. Laboree, 2 Me. 275; Spear v. Ralph, 14 Vt. 400; Chisholm v. Bullolph, 12 Vt. 231; Proprietors v. Springer, 4 Mass. 415.

Counsel for plaintiffs strenuously insist that as to the forty acres not sold in 1853 to Baker and Prentice, there has not been that continued possession requisite.

The deed to the whole tract was executed December 4, 1844. Prior to that, Potter had employed an agent to look after the property, and had paid taxes since 1843.

The improved part, mostly these forty acres, had been continuously occupied by tenants since the spring of 1845 to the winter of 1863-4, when the house was torn down by the neighbors by reason of objectionable tenants to whom it had been sublet, and the material was afterward moved off by the tenant in April, 1864.

About the same time piost of the fencing was stolen for firewood, and the greater part of the cleared land was an open common. It also appears that from the time the house was pulled down, in the winter of 1863-4 to the spring of 1865, no tenant actually resided on the land, although during all that time the mortgagee, through his agent, continued to pay taxes aiid to exercise all other acts of ownership and control that was possible under the circumstances.

No intention was entertained of abandoning the property. No adverse entry or claim was then or at any time made. There was no disseizin or ouster. The acts of a mob and of thieves had made it temporarily ipifit for actual residence.

Surely there is no principle of either law or equity that would make these acts of lawlessness and violence inure to the advantage of the plaintiffs. In such case, when there is no abandonment or ouster, nor any offer to redeem, the plaintiffs’ adverse possession continues, though he has no tenant residing thereon, if he exercises all those acts of adverse claim of which the property is capable. The single fact that during the space of a year no tenant actually resided on the tract, does not operate to break the continuity of possession, when, as in this case, there was no adverse entry by the owner of the legal title or those claiming under an adverse title, and when there were continuous acts of ownership comporting with the condition of the property.

The principle on which the statute is predicated, is not that the party in whose favor it is invoked has set up an adverse claim for the period specified, but that such adverse claim is accompanied by such invasion of the rights of the opposite party as to give him a cause of action. Angelí on Lim., § 390. It is the occupation with an intent to claim against the true owner, which renders the entry and possession adverse.

Where the first possessor died, and his heirs were driven from the actual possession by a public enemy, the possession was considered by the equity of the jus post limmiv as revested in the heirs on the removal of the hostile force. Smith v. Lorillard, 10 Johns. 338.

A continued residence on the land is not necessary, if it has been inclosed and used in such manner as to give publicity to the possession. Making improvements, or receiving rents would be sufficient without evidence. Angell on Lim, § 392.

In Macentile v. Savoy, 17 Serg. & Rawle, 104, it was held, in the case of a dwelling-house in a city, that direct proof of occupancy during the whole period is not necessary, and that the possession continues, although the house may not be occupied during the whole period without intermission.

Judgment of the district court affirmed.