author: Williams, J.

text:
    State ex rel. Attorney-General v. Anderson.

      Quo warranto — Practice — -Presidency of city council a public office — Municipal corporations — Organization of council — Revised Statutes, sections 1676, 6760.
    1. The attorney-general may, on his own relation, without being directed by the governor, supreme court, or general assembly, bring a civil action in quo warranto, against a person who usurps, intrudes into, or unlawfully holds or exercises a public office.
    2. The presidency of a city council is a public office, within the purview of section 6760 of the Revised Statutes, authorizing an action in quo warranto to be brought against a person who usurps, intrudes into, or unlawfully holds, or exercises, a public office.
    S. In choosing the officers necessary to effect the organization of a city council, as required by section 1676 of the Revised Statutes, the members being present and voting for candidates therefor, a plurality of the votes cast is sufficient to elect.
    4. The council of the city of Urbana (a city of the second-class) consisted of six members who were duly qualified. They met with the mayor to organize as required by section 1676 of the Revised Statutes, and proceeded to vote for a president, which resulted in A. receiving three votes, C. two votes, and II. one vote for that office. Whereupon the mayor declared A. elected. Held: A. was legally elected to the office.
    (Decided June 7, 1887.)
    Quo Warranto.
    Tbe case is fully stated in tbe' opionion.

      J. A. Kohler, attorney-general, John S. Leedom, Frank Chance and Earnhart, Hunter & Butler, for plaintiff.

      West, Brown & West, J. F. Eichelberger, Middleton & Middleton and Levi Geiger, for defendant.
   Williams, J.

On tbe 30tb day of April, 1887, tbe attorney-general filed, in tbis court, a petition praying tbat a judgment of ouster from the office of president of the council of the city of Urbana, be pronounced against the defendant. The material allegations of the petition are, that the city of Urbana is a city of the fourth grade of the second class, divided into three wards, and having a common council composed of six members. That on the 18th of April, 1887, at the meeting provided by law for the organization of the council, the mayor presiding, the newly elected members of the council having properly qualified, and all the members being present, an election was held for the office of president of the city council, which resulted in defendant receiving three votes, John Gr. Curley two votes and William J. Harris one vote. Thereupon the mayor declared the defendant duly elected. By a like vote a president pro tempore, and a clerk, were chosen; and the defendant assumed and entered upon the office to which he was so declared elected, which the petition charges to be a wrongful and unlawful usurpation of, and intrusion into, said office.

The defendant demurs to the petition, and claims in support of the demurrer:

1. That unless directed by the governor, supreme court, or general assembly, the attorney-general is not authorized to commence an action against a person who usurps or intrudes into a public office:

2. That the position of president of the city council is not a public office; and

3. That it appears, from the averments of the petition, that the defendant did not usurp, or intrude into the office, but was legally elected, and entitled thereto.

I. The first claim of the defendant, it is said, is based upon section 6762 of the Revised Statutes ¿ but that it is not supported thereby is evident when that section is considered in its proper relation.

Section 6760 of the Revised Statutes provides that a civil action may be commenced against a person, who usurps, intrudes into, or unlawfully holds a public office; and section 6761 authorizes such action against a corporation in certain specified instances.

Section 6762 reads as follows: “The attorney-general, or a prosecuting attorney, when directed by the goveror, supreme court, or general assembly, shall commence any such action; and when, upon complaint, or otherwise, he has good reason to believe that any case specified in the preceding section can be established by proof, he shall commence an action.” The contention is, that inasmuch as section 6761 is the preceding section referred to in the latter clause of section 6762, the authority of the attorney-general under that clause, to commence actions upon “ complaint, or otherwise,” is limited to the cases against private corporations specified in section 6761; and, while by virtue of the first clause, he is authorized, when directed as therein provided, to commence an action for any of the causes enumerated in either section 6760 or 6761, he is so authorized, only, when thus directed. The effect and purpose of section 6762 is to impose upon the attorney-general certain duties therein defined. By the first clause, he is required, when directed by the governor, supreme court, or general assembly, to commence any action under either of the preceding sections; and the latter clause makes it equally obligatory on him without such direction to commence an action under section 6761, when he has good reason to believe that any case therein specified can be established by proof. In addition to the duties enjoined, and powers conferred on the attorney-general by section 6762, he may, under the provisions of section 6763, upon his own relation, bring any such action; “ and if the action be brought under the first subdivision of section 6760, security for costs may be reqúired.”

It is quite obvious that section 6763 authorizes the attorney-general, upon his own relation, without any direction by the • governor, supreme court, or general assembly, to bring any action specified in either section; and if it be brought against a person who usurps or intrudes into, or unlawfully holds or exercises a public office, he may require security for costs; but need not do so. The petition discloses that this action is brought by the attorney-general, upon his own relation, and it constitutes no valid objection thereto that it is so brought without the direction of the governor, supreme court or general assembly.

II. We are also of opinion that the president of a city council is an officer, and his station a public office, within the purview of section 6760. It is true the place is without emolument, but that is not a necessary incident to an office; nor is it to be denied that character, because the incumbent is chosen by a limited elective body, composed of public officers; many public officers are so chosen. The term of his office is fixed, and its functions, which are of a public nature, and for public purposes, are bestowed and prescribed by statute.

These public functions, pertaining to the office of president, .are in addition to, and different from those of members of the council. He is, by virtue of his position, the presiding officer •of the organized body, appoints its committees, and becomes, ex officio, a member of certain boards; and all by-laws, resolutions and ordinances are required to be authenticated by his signature. Of such consequence was the office considered by the legislature, that it was deemed proper to provide that no business should be transacted by the council until an occupant was chosen.

Besides, it is of some significance that the statute speaks of the president of the council as an officer. Section 1676, of the Revised Statutes, provides that “ if the members-elect of the council, and the members holding over, then present, constitute a quorum, they shall, forthwith, proceed to organize, by •electing a president and president pro tempore, from their own number, a clerk, and such other officers, necessary to perfect their organization, as by ordinance may be provided.” It is urged,' however, that this does not recognize, or designate the president as an officer, because the phrase “such other officer” refers to officers other than the clerk. But it undoubtedly refers equally to each of the other incumbents of the places to be filled by election, in perfecting the organization. This conclusion is fortified by the latter clause of the section, providing that “ the mayor shall be, ex offieio, president at the time of such organization, and in case of a tie vote in the choice of any officer at such organization, the mayor shall give the casting vote.” The purpose of the meeting is to organize. The election of the president is a part of, and necessary to such organization, as much so as the election of the clerk; and the mayor may give the casting vote, in case of a tie in the choice of a president, as well as in choosing a clerk. To hold otherwise might wholly defeat the object of the section, by preventing a speedy organization. We have not overlooked section 1707, which specifies the officers of cities of the second class. Admittedly there may be other officers of such cities, than those therein named — notably members of the city council. Nor do we regard section 1717 inconsistent with the view expressed.

III. The question left for consideration is, does the petition show a usurpation of, or intrusion into the office of president of the council, by the defendant ?

This depends upon whether he was elected; and this again upon the vote necessary to elect. It is averred that at the election held, all the members of the council were present, and voted; that he received the highest number of votes cast for any candidate, and was declared elected; and it is conceded that if a plurality of the votes are sufficient to elect, he was duly elected to, and rightfully holds the office. Otherwise not.

The statute does not prescribe any specific mode of electing the officers at the organization of the council, nor declare what vote is requisite to such election; but in general terms requires that the members shall “ forthwith proceed to organize by electing a president,” and the exact question to be. decided is, whether, in the absence of any express statutory rule on the subject, a majority is necessary, or a plurality is. sufficient to elect.

In McCrary on Elections, sec. 197, the general rule is thus stated : “ In the absence of any statutory provision expressly requiring more, a plurality of the votes cast will be sufficient to elect. It is only where the statute so provides, that a majority of all the votes cast is necessary to the choice of an officer. In this country where candidates may be numerous, and the votes of the electors divided among a number of different persons, to require a majority to elect would be to prevent a choice in very many cases; hence, it is, that a majority is seldom required in a popular election.”

And in Cooley on Constitutional Limitations, page 620, it is said, that “ unless the law under which the election is held, expressly requires more, a plurality of the votes cast will be sufficient to elect, notwithstanding these may constitute but a small portion of those who are entitled to vote.”

Cushing in his Law of Legislative Assemblies, says: “ The term majority is understood in this country in two significations. In its broadest sense it denotes the greatest of any number of unequal divisions of the whole body; in its strictest, the greater of any two unequal divisions of the whole body. In the popular elections of this country, both these principles are practically applied; the first being known as the principle of plurality; the other only as that of majority. In elections in which the principle of plurality is adopted, the candidate who has the highest number of votes is elected.

“At the time of the first settlement and colonization of the United States, the elections of members of parliament in England were conducted upon the principle of plurality, which also prevailed in all other elections. Such has been and still continues to be the common law of England; and such is the present practice in that country in all elections. Indeed, what is meant there by the term majority, embraces what is denoted by the word plurality. In this country, however, the principle of majority, or absolute majority, as it is sometimes called, was early introduced into the law of elections by the colonists of New England, where it has ever since prevailed to a greater or less extent. In the states where this principle is established, it is usually provided by the constitution or laws, that an absolute majority shall be necessary to the election of certain officers. In all the states, with the exception of the New England states, the principle of plurality generally prevails in reference to all municipal elections, being specially provided by the constitution, or laws, or usages of the several states. Whether, in the absence of any particular provision, the plurality, or the majority principle, would be recognized as the law, must depend upon the usage in each particular state.” Cushing’s Law of Legislative Assemblies, sec. 117-129.

In this state the plurality principle has been, and is applied generally to elections. Prom this usage the term election has acquired a popular signification, and is commonly understood to mean a choice by a plurality of the votes; and the candidate receiving the greatest number of votes is said to be elected. The legislature not having designated any mode of electing the officers at the organization of the council, nor prescribed the number of votes necessary to elect, but simply required the members to organize by “ electing,” it is a fair inference, in the absence of anything to indicate a different intent or meaning, that the term “electing” was used in its popular and generally received sense of choosing by a plurality of votes. This inference is aided by the context, as well as by the manifest object of the statute. One leading purpose was to effectuate a prompt, if not an immediate, organization. As is said by Johnson, J., in State v. Green, 37 Ohio St. 232: “ The council is charged with an important public trust. It is essential to the exercise of that trust, that a speedy organization should be had. They (the members present, if a quorum) shall forthwith proceed to organize,’ is the unmistakeabe language of the statute. Where the question involved is difficult of solution, any system of parliamentary tactics, or any conduct of members, however well meant, calculated to defeat such an organization, or any construction of the statute leading to such a result, will not be favored, unless clearly required by the terms of the law.”

To remove, if possible, all causes and sources of delay, in effecting the organization, it is provided that “ in case of a tie vote, in the choice of any officer in such organization, the mayor shall give the casting vote.” Applying the plurality rule to the election, a tie vote is the only contingency that could arise to prevent the speedy organization.

The statute having specifically enjoined that the organization should be immediately proceeded with, and that no business should be transacted until effected, the further provision against the possibility of a delay resulting from a tie vote, furnishes ground for presuming that such vote was the only obstacle the legislature contemplated could interpose itself to such speedy organization, and that it was therefore deemed unnecessary to expressly provide that a plurality vote should be sufficient to elect.

Our conclusion is that in choosing the officers necessary in the organization by the council, the members being present, and voting for candidates, a plurality of the votes cast is sufficient to elect.

The defendant was, therefore, legally elected.

Demurrer sustained and petition dismissed.


source: Caselaw Access Project

author: Dickman, J.

license: Public Domain

text:
    Corry v. Lamb.

      Dower — Devise in lieu of — Election.
    A widow electing to take the provision made for her in the .will of her husband, will be barred of dower in land of which he was seized as an estate of inheritance during coverture, and which was sold and conveyed on foreclosure of a mortgage executed by him in which she did not join, unless it plainly appears by the will that she should have such provision in addition to her dower.
    (Decided June 7, 1887.)
    Reserved in the District Court of Hamilton County.
    A petition was filed in the court of common pleas of Hamilton county, by the plaintiff Catharine Corry, against the defendant Elizabeth Lamb, alleging that James A. Corry, her late husband, during her coverture with him, was seized of an estate of inheritance in certain real estate described in the petition, situated in Hamilton county and containing 3 68-100 acres. That Elizabeth Lamb claimed to hold the estate of James A. Corry in the premises. That the plaintiff was entitled to dower in the premises as the widow of James A. Corry deceased, and therefore prayed that her reasonable dower in the premises might be decreed to her, and an assignment thereof made, and such further relief granted as equity might require. The cause was submitted to the court and, on the pleadings and proofs, the court found for the defendant, and that the plaintiff was not entitled to dower. An appeal was taken by the plaintiff to the district court, and it appearing to that court that difficult and important questions of law had arisen and were involved in the cause, on motion of the plaintiff it was ordered that the cause be reserved to the supreme court for decision, and the district court thereupon found the facts to be as follows:

      “ (1.) The plaintiff is the widow of James A. Corry, to whom she was married January 14, 1841, and who died July 25, 1881, testate.

      “ (2.) In his will he provided as follows :

      “ Item 1. That his just debts should be first paid.

      “ Item 2. He gave to a family servant one hundred dollars.

      “ Item 3. He devised to his son James E. Corry, a lot of ground in Cincinnati.

      “ Item 4. -He gave and devised to his wife, the said Catharine Corry, as follows, this being the form of the devise: ‘ I give and devise to my beloved wife, Catharine Corry, all the real estate and personal property, wherever situate, by me owned at the time of my death, including the growing crops on my farm, to be hers absolutely, and to her heirs, excepting therefrom only the property mentioned in items 1, 2, and 3 of this will, and excepting therefrom also my horse stock at J. C. Allen’s in Greene county, Ohio, and one six-year old gray mare, on my place in Butler county, Ohio, where I reside. The horse stock at J. C. Allen’s, in Greene county, Ohio, and the gray mare six years of age, on my place, I now bequeath to my said son, James Franklin Corry.’
    “ (3.) The deceased, at the time of his death, was a resident of Butler county, Ohio, and this will was duly admitted to probate iñ Butler county, Ohio, on August 1, 1881, and on the same day the plaintiff appeared in open court, the said probate court of Butler county, Ohio, and in due form as provided by statute, elected to take under the will of her deceased husband, and the said election of the widow to take under the will, was duly entered upon the minutes of the' court.
    “(4.) James A. Corry, on the 13th day of July, 1853, made a mortgage to one Adolphus H. Smith, in which the plaintiff did not join, on real estate which he owned in Hamilton county, Ohio, situated and described as follows:
    “ Being twenty-three acres in section number nine (9), township number three (3), in fractional range number two (2), in the Miami purchase, to be taken off the south side of the said James A. Corry’s farm, commencing at the intersection of the Cincinnati, Lebanon and Springfield turnpike, and the south line of said section number nine (9), thence running west along the said south line of said section number nine (9), to west line of said section number nine (9), thence north with said west line of said section number nine (9), to a line to be drawn parallel with the south line of the section from the said west line to the said turnpike, at a sufficient distance from said south line, so as to include twenty-three (23) acres of land, excepting therefrom one acre of ground for grave-yard with the right-of-way thereto.
    “ Said mortgage contained the following covenants :
    “The grantor, his heirs and assigns, hereby covenanting with the grantee, his heirs and assigns, that the title so conveyed is clear, free and unincumbered, and that he will warrant and defend the same against all claims whatsoever.
    “ The mortgage was foreclosed, and on June 13, 1861, the property described therein was duly sold and conveyed under judicial proceedings in the foreclosure suit, to one John Bates, through whom defendant herein traces her title.
    “ The land in which plaintiff claims dower, consists of 3 68-100 acres of the tract sold to said John Bates; is now held by the defendant, in fee-simple, under deed from Joseph W. Cotteral and Mary Ann Cotteral, his wife, the latter being the grantees of Harriet W. Irwin, and William F. Irwin, her husband.

      “On the 26th day of August, 1869, a final discharge in bankruptcy was issued to James A. Corry, out of the district court of the United States, for the southern district of Ohio.
    “ And the court further find the question of law to be: ‘ Is the widow entitled to dower in said lands upon said findings of fact under the laws of Ohio ? ’ ”

      J. J. Miller and Geo. B. Olcey, for plaintiff in error.

      Simeon M. Johnson, for defendant in error.
   Dickman, J.

In July, 1853, James A. Corry executed a mortgage of the land in which his widow, Catharine Corry, the plaintiff, claims dower, to one Adolphus H. Smith. In the mortgage, the grantor, for himself, his heirs and assigns, covenanted with the grantee, his heirs and assigns, that the title conveyed was free and unincumbered, and that he Avould Avarrant and defend the same against all claims whatsoever. In June, 1861, under proceedings of foreclosure by the mortgagee, the land was duly sold and eonveyed to one John Bates, through whom the defendant Elizabeth Lamb traces her title, and through mesne conveyances holds the premises in fee-simple. As the plaintiff did not join in the mortgage, the proceedings upon it did not affect her dower interest in the land eonveyed. When the right of dower has once attached, although it may possibly never become absolute, it cannot be defeated by any act of the husband in the nature of an alienation or charge. The widow cannot be deprived of it by the creditors of her husband, and when the husband obtains a loan upon a mortgage to which the Avife is not a party, her doAver is superior to the mortgagee’s equity.

But the question to be determined is, whether the widoAV, having elected to take the provision made for her in the will of her husband, is entitled to dower in real estate of which he Avas seized as an estate of inheritance during coverture, and which he aliened by deed in his life-time, but in the execution of Avhich deed she did not join. James A. Corry died in 1881, and the rights of his widow acquired under his will, so far as they are affected by statutory provisions, come under the operation of the Revised Statutes.

Section 5963, of the Revised Statutes, provides: “ If any provision be made for a widow, in the will of her husband, it shall be the duty of the probate judge, forthwith after the probate of such will, to issue a citation to said widow to appear and make her election, whether she will take such provision, or bo endowed of the lands of her said husband and take her distributive share of his personal estate; and said election shall be made within one year from the date of the service of the citation aforesaid; but she shall not be entitled to both, unless it plainly appears by the will to have been the intention that she'should have such provision in addition to her dower and distributive share.”

Section 5964 provides: * * * “ On the application by her to take under the will, it shall be the duty of the court to explain to her the provisions of the will, her rights under it, and by law in the event of- her refusal to take under the will; * * and if the widow shall fail to make such election, she shall retain her dower, and such share of the personal estate of her husbad as she would be entitled to by law in case her husband had died intestate, leaving children. If she elect to take under the will, she shall be barred of her dower and such share, and take under the will alone, unless as provided in the next preceding section.”

At common law, where there was a provision in the will for the widow, the presumption was that the testator intended it to be in addition to dower, there being no express words putting the widow to her election, nor any incompatibility arising on the face of the will between the two claims. But under the statute, unless an intention to the contrary plainly appears byythe will, the presumption is that the provision made for the widow in the will of her husband is in lieu of dower. Under our statute, the will is to be regarded as assuming to dispose of the dower estate, unless the contrary clearly appears.” Huston v. Cone, 24 Ohio St. 21.

There is no language in the will indicating an intention of the testator, that the plaintiff should have dower as well as the testamentary provision — no expression to overcome the presumption that the provision is exclusive of dower. It is insisted, however, that while the widow’s election to take under the will bars her of dower in testamentary property, it does not thus operate as to lands of which the husband was seized during coverture, which he had conveyed, but in the conveyance of which she did not join. We are satisfied from an examination of the statutes, that the bar to dower by reason of the widow’s election to accept under the will,- extends to all real estate of which the husband may have been seized as an estate of inheritance at any time during the coverture, and in which the wife’s dower has not been extinguished by the statutory method.

The plaintiff’s rights under the will cannot be mistaken. And if she had declined the testamentary provision, her rights as a widow would be placed equally beyond dispute by section 4188 of the Revised Statutes, which endows the widow of “ one-third part of all the lands, tenements and real estate, of which her husband was seized as an estate of inheritance at any time during coverture.” Under section 5963, it is left to the widow’s option either to take such provision as is made for her in the will of her husband, or be endowed of the lands of her husband,” that is, take her dower as secured to her by section 4188 with all that the word imports. If she elects to take under the will, by section 5964, “ she shall be barred of her dower.” The term dower ” is not of obscure and uncertain meaning. It is unambiguous, and has a fixed, definite and legal signification. It is a right that attaches not merely to the lands of which the husband dies seized, but to all the lands whereof he was seized, either in deed or in law, at any time during the coverture. Litt., section 36; 4 Kent’s Com. 35. If to be endowed of the lands pf her husband, or have dower in his lands, applies to all lands whereof the husband was seized as an estate of inheritance at any time during the intermarriage, the language of section 5964, she shall be barred of her dower ” upon her electing to take under the will, should have a no less extended application, and cannot be confined to property devised in the will. The meaning of dower is not so elastic as to embrace one thing when the widow would be endowed according to law, and another thing when she is to be barred of dower by accepting the provisions of the will.

The statute contemplates an alternative, either that the widow shall take imder the will alone, unless a contrary intention plainly appears thereby, or retain the provisions made for her by lato; but she cannot be entitled to both. If she accepts the testamentary provision made for her, she thereby relinquishes the provisions which the law makes for her, and which includes dower in its legal sense. Thus, the statute, when the widow applies to take under the will, makes it the duty of the court to explain to her, her “ rights by law,” in the event of her refusal to take under the will. Again, if she is unable to appear in court on account of ill health, or is a non-resident of the county, a suitable person may be authorized to take her election to accept the provisions of the will in lieu of the provisions made for her by law,” and it becomes incumbent upon such person to explain to her, her right under the will and by law.” And so, if the widow is not able to make an election by reason of insanity or imbecility of mind, it devolves upon the probate court to make an election for her, after ascertaining and becoming satisfied by the method prescribed in the statute, that the testamentary provision for the widow is more valuable and better for her than the provision by law.” It is manifest that if in the alternative she takes under the will alone, she cannot assert a valid claim upon property which is not embraced in the will, and which could not be the subject of testamentary disposition.

The force and intent of the aforegoing enactments, and others of like purport and effect, as operating to bar the widow’s dower in lands aliened by the hnsband during intermarriage, have been illustrated by numerous authorities in other states, in the construction of their statutes in relation to dower and wills, and of devises for the wife’s benefit. In Steele v. Fisher, 1 Edw. Ch. 435, a husband conveyed real estate in fee, without his wife’s joining. Afterward, by' will, he bequeathed to the wife a third of the remainder of his real and personal estate, as and for her right of dower, during her life. She accepted it, and it was held that it was a relinquishment of her claim for dower out of the realty which had been conveyed by the husbaud alone, as well as out of the lands whereof the husband was seized at the time of making his will. It was urged that the provision which the widow accepted, was only a substitute for dower in the estate which the husband had at the time of making the will, and had no bearing upon the right of dower in property previously conveyed. But, said the Nice Chancellor, “ No case is to be found in the books where the distinction here taken has prevailed; and it is difficult to perceive upon what foundation it can be supported, unless there is something in the bequest to show it was intended as a substitute for dower only in some particular parts or portions of the real estate whereof the husband had been seized, and not in the whole to which the right would ordinarily attach.”

Palmer v. Voorhis, 35 Barb. 479, is a case in which the testator by his will made a provision for the benefit of his wife, which was to be a charge upon his real estate, and declared it should be received by her in lieu of dower and thirds of his real and personal estate. But her dower was held to embrace not only an estate in the lands whereof her husband died seized of an estate of inheritance, but also in all lands of which he was so seized during coverture, notwithstanding he may have parted with his interest by a deed of conveyance to others.

The statute of distributions of South Carolina passed in 1791, provided: “That in all cases where provision is made by this act for the widow of a person dying intestate, tbe same shall, if accepted, be in lieu and bar of dower.” In construing this language of the statute, Whitner, J., in Evans v. Pierson, 9 Rich. (S. C.) 9, says: “ It is suggested that the clause in review has reference only to the lands of which the husband dies seized.' * * * Such has not been the course of judicial interpretation heretofore. The right of dower attaches to all the lands and tenements whereof the husband was seized during the coverture. Hence, it has been held, that when the term is used in the act, it embraces the whole right, and consequently where a widow- accepts a provision under the act, it is in lieu of dower entirely, whether in lands aliened, or in those of which the husband continued seized, the design of the statute being clearly to give the right of election between dower at common law and the provision made by the act.” See, also, Avant v. Robertson, 2 McMull. (S. C.) 215.

In Haynie v. Dickens, 68 Ill. 267, the widow claimed dower in the lands of which her husband was seized during coverture, but which were sold during his life-time on execution. The plaintiff had never released her dower, but tho defense relied on was, that her right was barred by a provision made for her by her husband in his will. By the 10th section of the dower act of Illinois, it was provided: “ Every devise of land or any estate therein by will shall bar her dower in lands unless otherwise expressed in the will, but she may elect whether she will take such devise, or whether she will renounce the benefit of such devise, and take her dower in the lands of her husband.” It was urged that this section of the statute could have no application to the case at bar, for the reason that the land in which dower was claimed had been sold on execution, and the testator at the time of his death had no interest in it. The court said, “We do not think this view of the law can be sustained. It was doubtless the intention of the legislature to provide, that a devise of land or any estate therein should bar the widow’s dower in all lands of which her husband was seized during coverture, whether he had alienated the same in his life-time or not.”

The legislation of Massachusetts bears a marked resemblance to that of Ohio, in regard to the rights of a widow claiming to be endowed in the lands of her husband, though a provision has been made for her in his will. Section 24, of the Massachusetts statute of wills (Genl. Stats. 1860, ch. 92), is in pari materia with sections 5963 and 5964, supra, and reads as follows: “ When a man dies having lawfully disposed of his estate by will, and leaving a widow, she may file in the probate office in writing her waiver of the provisions made for her in the will; and shall in such case be entitled to such portion of his real and personal estate as she would have been entitled to if her husband had died intestate. If she makes no such waiver, she shall not be endowed of his lands, unless it plainly appears by the will to have been the intention of the testator that she should have such provisions in addition to her dower.” In Buffington v. Fall River National Bank, 113 Mass. 246, the demandant of dower contended that the land having been aliened in the life-time of the testator, was no part of “ his lands,” and, therefore, not within the provisions of the statute above quoted. “But,” said the court, “the claim of dower out of lands aliened, without release by the wife, stands upon the same right as that of dower in lands remaining a part of the estate devised. * * * The same reason exists for applying the bar in one case as in the other. Thez’e is nothing in the phz’aseology of the statute to limit its application to lands held at the decease of the testator. The expressions ‘ endowed of his lands,’ and dower in the lands of her husband,’ when used affirmatively, embrace, without question, dower in all lands of which the husband is seized at any time during coverture.”

At variance apparently with the decisions which we have herein cited, is the case of Borland v. Nichols, 12 Pa. St. 38, in which it was held that the widow’s acceptance of a devise to her did not, under section 10, of the intestate law of 1797, bar her of her dower in land which her husband conveyed in his life-time, and in the conveyance of which she did not join; and the fact that the husband conveyed with general warranty, will not restrain the operation of the statute. The court in commenting upon the act obsez’ved, thát the simple absence of every direct expression indicative of a design to bring lands aliened within the purview of the enactment, ought in itself to be accepted as sufficiently proving that no such design was entertained. It is not unreasonable that the court might have reached a different conclusion, and have found an equivalent to such “direct expression” had the Ohio enactments been under consideration. The requirement of section 5964, that the court should explain to the widow her rights under the will and by law, could not be complied with without making known to her, her statutory right of dower comprehending aliened as well as other lands. And, as by electing to take under the will she would be barred of her dower, and compelled to take under the will alone, it would at once be obvious that she could not in such case be dowable in lands that had been aliened, and were therefore beyond the scope of the will.

.It has been suggested that the covenants contained in the mortgage to Adolphus H. Smith run with the land, and that an action might be maintained thereon by any grantee in possession at the time of a breach by reason of assigning dower to the widow. A debt or claim, it is said, would thus be created-against the estate of the testator or mortagor, and the several devises and bequests in the will other than those of the widow, would be lessened or defeated by her claim of dower in aliened lands, for that, in taking under the will in lieu of dower, she becomes a purchaser for a valuable consideration, and holds the property thus acquired free from the claims of the creditors of the estate. The decision of the case at bar does not require the determination of questions to which such considerations might give rise. It is enough to refer to the approved doctrine, that if the testator has made such a disposition of his real estate that the assertion by the widow of her right to dower would prevent that disposition taking effect according to his intention, then she must elect to abandon either her dower or the benefit given her by the will. Dixon v. McCue, 14 Gratt. 549.

In the view we have thus taken of the case, the plaintiff is not entitled to dower in the lands sold and conveyed under judicial proceedings in the foreclosure suit, and there should be judgment for the defendant.

Judgment accordingly.


author: Spear, J.

text:
    State ex rel. New England Mutual Life Insurance Co. v. Reinmund.

      Taxation of foreign insurance companies — Retaliatory laws — Rev. Stats, secs. 279, 282, 2745.
    1. Section 2745 of the Revised Statutes, which provides that every agency of an insurance company organized out of this state, shall return to the auditor of the county where such agency is located, in the month of May annually, the amount of gross receipts of such agency, which shall be entered upon the tax list and be subject to the same rate of taxation as other personal property, prescribes the rate of taxation upon every foreign insurance company doing business in this state. Section 282 of the Revised Statutes, which provides that when, by the laws of any other state, any taxes are imposed on insurance companies of this state doing business in such state, the same obligations shall be imposed upon all insurance companies of such other state doing business in this state, is operative only when it is shown that the law of the state where such company is organized taxes Ohio companies doing business there at a rate higher than foreign companies are taxed by the mode provided by section 2745. And in such case the superintendent of insurance is authorized to assess and collect, from such foreign company, in addition to such tax on the gross receipts, such sum as will be sufficient to make the total equal to the amount that would be realized were the rule of taxation of the state under whose laws the foreign company is organized applied to such company’s business transacted in this state, but no more.
    2. Where a foreign insurance company has furnished to the superintendent of insurance a certificate of the valuation of its policies in force on the 31st day of December preceding, upon the lives of citizens of this state, made by the proper state officer of the state under whose laws such company is organized, and such valuation is according to the standard provided in section 279 of the Revised Statutes, such superintendent is not authorized to require compensation for valuation of such policies, notwithstanding such company has paid a like charge in former years, and has furnished to such superintendent, at his request, the data from which such valuation was made.
    (Decided June 7, 1887.)
    Mandamus.
    The New England Mutual Life Insurance Company, The John Hancock Mutual Life Insurance Company and The Berkshire Life Insurance Company, are insurance companies created under the laws of Massachusetts. As the material facts in the three cases are the same, the disposition of one will dispose of the others.
    The relator first named claims that it has complied with the laws of this state, requiring its agents in the several counties, to return to the auditor, in the month of May annually, the amount of gross receipts of the agency for taxation as other personal property is taxed; that it has paid in the several counties the amount so assessed in so far as the several treasurers would receive the same, and is ready and willing to pay the balance so soon as such treasurers will accept it; that it has tendered to the defendant an additional sum sufficient to make the amount thus paid and to be paid, equal to the amount that would be due if the rule of taxation provided by the laws of Massachusetts were applied to the relator’s business in Ohio, and that in all respects it has complied with the laws of the state, and is entitled to be permitted to do business in Ohio during the present year. The defendant demands a larger sum, and threatens to deprive the relator of its right to carry on its business of life insurance in this state unless the amount so claimed is paid in full. This proceeding is brought to •compel the defendant to accept the amount tendered as payment in full of all rightful demands.
    The defendant, who is the state superintendent of insurance, insists that because of certain retaliatory laws of the state of Massachusetts, he is entitled to collect of relator, in addition to the amount paid and to be paid as taxes, an amount equal to the one-fourth of one per cent, upon the net valuation of all policies in force December 31, 1886, on lives of citizens of Ohio, and a further charge of one per cent, on the $1,000, as compensation for valuation of the policies of the relator.

      Everett, Dellenbaugh & Weed and Burke, Ingersoll & Banders, for relators.

      Harmon, Colston, Goldsmith & Hoadly, for defendant.
   Spear, J.

The two items of charge may be considered separately. In order to determine the first, we are called upon to construe the statutes of Ohio upon the subject, and to ascertain, as a practical matter, what, by the laws of Massachusetts, as now enforced, is required- of life insurance companies incorporated under the laws of Ohio doing business in that state. If, as a matter of fact, companies organized in Ohio, doing business in Massachusetts, are required to pay excise tax at a rate greater than Massachusetts companies doing business in this state are required by our tax laws to pay, then the exaction is proper and may be enforced; otherwise not.

Section 2745, of the Revised Statutes, provides that every agency of an insurance company incorporated by the authority of any other state, or government, shall return to the auditor of the county, in which the office or agency of such company may be kept, in the month of May, annually, the amount of the gross receipts of such agency, which shall be entered upon the tax list of the proper county, and subject to the same rate of taxation for all purposes that other personal property is subject to at the place where located.”

Section 282, Revised Statutes, has this provision: * * * * “ When, by the laws of any other state or nation, any taxes, fines, penalties, license fees, deposits of money, or of securities or other obligations or prohibitions, are imposed on insurance companies of this state, doing business in such state or nation, or upon their agents therein, so long as such laws continue in force, the same obligations and prohibitions, of whatever kind, shall be imposed upon all insurance companies of such other state or nation doing business within this state, and upon their agents here.”

A construction was given to the foregoing sections of the statute by this court in the decision of the case of The State ex rel. The Fire Association of Philadelphia v. Reinmund, the present defendant, rendered in J nne of last year. In that case the defendant had charged against the relator, as additional to the tax required by section 2745, three per cent, on gross receipts, because of a law of the state of Pennsylvania, which imposes an annual tax of three per cent, upon gross receipts of foreign insurance companies doing business in that state, thus seeking to collect of that company a tax of about five and one-half per cent., while in Pennsylvania an Ohio company would only be taxed at tbe rate of three per cent. The relator had tendered an amount sufficient to make the whole tax equal to three per cent, on the gross receipts, and asked a writ of mandamus to compel the defendant to accept that sum in full. A peremptory writ was awarded. The case was not reported, but the court must necessarily have determined that the two sections were not cumulative, but that section 282 was enacted for the purpose of equalizing burdens, and that that section could have application only where, by the laws of another state, the tax imposed upon Ohio companies was greater than that imposed in this state under section 2745, and then only to the extent of such excess. In other words, our law is protective in its character, its purpose being to protect Ohio insurance companies from impositions which might be put upon them by other states, and not retaliatory in the sense of first imposing upon foreign companies such taxes as are imposed upon other foreign corporations under like circumstances, and then, in addition, a* sum equal to what other states may impose upon our companies doing business there. And the superintendent of insurance performs his whole duty in the matter when he requires companies organized out of this state to pay, in addition to the amount paid as taxes in the several counties, a sum sufficient to make the total equal to the amount that would be realized were the rule of taxation of the state under whose laws the ■foreign company is organized, applied to such company’s business transacted in this state.

This view is in consonance with a recognized policy of this state of long standing, which is to invite, rather than repel, the investment and use here of foreign capital. In this spirit, the obvious interest of the state is to encourage the location here of agencies of companies organized in other states having large experience as insurers and possessed of abundant capital, in order to afford to our people the manifold benefits of the security given by their contracts; and any unnecessary discrimination against those companies would be inconsistent with this en-lighted policy, and would tend to injuriously affect our people. The language employed in the sections quoted fails to show any purpose on the part of the legislature to depart from this well-settled policy.

The law of Massachusetts relied upon to justify the amount charged by the defendant against the relator, is embraced in the following sections:

“ Sec. 25. Every corporation and association engaged within the commonwealth, by its officers, or by agents, as defined by chapter one hundred and nineteen, in the business of life insurance, whether incorporated by this commonwealth, or otherwise, shall annually pay an excise tax of an amount to be determined by assessment of the same at the rate of one-quarter of one per cent, per annum upon á valuation equal to the aggregate net value of all policies in force on the 31st day of December, then next preceding, issued or assumed by such corporation or association, and held by residents of the commonwealth.

' “ Sec. 31. Every life insurance company, corporation, association or partnership, incorporated or associated by authority of any other state of the United States, by the laws of which state, a tax is imposed upon the premium receipts of life insurance companies chartered by this commonwealth and doing business in such state, or upon their agents, shall annually, so long as such laws continue in force, pay a tax or excise upon all premiums charged or received upon contracts made in this commonwealth, at a rate equal to the highest rate imposed during the year upon life insurance companies chartered by this commonwealth, or upon their agents doing business in such other state.”

Section 25 has received construction by the Supreme Judicial Court of Massachusetts. A law similar in all respects to this section, except as to the per cent, imposed, was held in Connecticut Ins. Co. v. Commonwealth, 133 Mass. 161, to be a tax not upon property, but upon the franchise, the right to do business, being as to foreign corporations, thus permitted to exercise the franchise by comity, a condition which the state sees fit to prescribe attached to the privilege granted. A like construction was given by this court, in West. Union Telegraph Co. v. Meyer, 28 Ohio St. 522, to a law similar to section 2745, above quoted, imposing a tax upon gross receipts of foreign express and telegraph companies. So that, the object and nature of section 25 of the Massachusetts law and of section 2745 of our law is the same. Each imposes a tax upon the privilege of doing business; each aims to raise revenue, and each is to be enforced according to its terms, irrespective of the law of any other state upon the subject. Section 31 has received practical construction by the tax commissioner of Massachusetts. No case is cited showing that it has received judicial construction; nor is it necessary to a determination of the present case that construction be given to it by us. It is, however, apparent that the two sections, taken together, relate to the same subject-matter, to-wit: the imposing of burdens upon foreign life insurance companies as a condition to their doing business in that state. As above stated, this court has held that a tax on gross receipts is a charge for the privilege of doing business; section 31 imposes a tax on gross receipts; hence it, as well as section 25, imposes a tax on the privilege of doing business. So far the two are alike. But it is not (as in 25) absolute in its requirements; it is contingent upon the prior imposition by another state, of burdens by way of taxation upon gross receipts of Massachusetts companies, and the existence of the continuous right of such imposition, and the declared purpose is that foreign companies shall pay excise tax upon premiums ret eived in Massachusetts, at a rate equal to the highest rate imposed by such other states upon Massachusetts companies. This purpose would apparently be accomplished by adding to the sum realized by the mode prescribed by section 25 such tax on gross receipts, as would make the whole sum exacted equal to the highest rate imposed by such other state upon Massachusetts companies, and would not seem to require that the tax on gross receipts should necessarily be added to the rate imposed by the other state to the amount realized by the assessment of one quarter of one per cent, on net values. In the absence of authoritative construction by the courts of Massachusetts, it is reasonable to treat the two sections as in pari materia, section 25, as fixing the absolute rate of taxation; section 31 as a proviso authorizing the imposition of additional excise tax, to the end that the entire tax shall equal the highest rate imposed upon life companies chartered by that commonwealth doing business in other states. And we may assume, that, were a case made, the courts of Massachusetts would give a construction to section 31 similar in spirit to that given by this court to section 282 of our statute.

But as before suggested, the question is, what is actually imposed by way of tax upon Ohio companies doing business in Massachusetts? Perhaps this question is fully answered by the statement that in fact there is no Ohio life insurance company doing business in Massachusetts. But we may go farther and inquire what practice prevails there as to insurance companies of other states. This question is one of fact. Before the defendant can justify an exaction of the character here being considered, he must make it appear that,' as matter of fact, the authorities of Massachusetts require of foreign companies a greater tax than our authorities impose upon foreign companies. This he has neither shown nor attempted. On the contrary, it is shown, by testimony, that the practice in Massachusetts upon the subject is in strict accord with that of this state as enforced by this court in The State ex rel. The Fire Association of Philadelphia v. Reinmund, Supt., before referred to. That is, if the tax of the other state does not exceed one-quarter of one per cent, upon the net value of the policies in force on the 31st day of December preceding, then that would be all that the tax commissioner (answering to our superintendent of insurance) would assess or collect; while if the tax in the other state on Massachusetts companies, assessed upon gross receipts, is in excess of one-quarter of one per cent, on net value of’ policies, such excess only is exacted in addition to the one-quarter of one per cent. So that, an Ohio company doing business in Massachusetts would be required to pay no more than is by our section 2745 required of Massachusetts companies doing business here, unless it were shown that one-quarter of one per cent, upon the net value of policies in force in that state, was a sum greater than the per centage of the gross receipts, in which case there would be added the excess only.

Applying the Massachusetts rule here, if the rate of percentage on net value of policies, as provided by section 25, is in excess of the sum that would be produced by the per centage assessed in Ohio on gross receipts, then the Massachusetts company is subject to further assessment to the extent of such excess ; but if the amount realized by the per centage on net value of policies of the company, December 31, preceding, is not larger than would be realized by our assessment on gross receipts, then no further exaction can, be required. To illustrate, the gross receipts of the relator in Ohio for the year 1886, were $24,720. The annual taxes on this sum, imposed by section 2745, amount to $621.80. The net value of policies outstanding on the 31st of December, 1886, hold by citizens of Ohio, amounted to $349,815,75. One-quarter of one per cent, on this is $874.54, being an excess of the tax above given, of $252.74. Upon payment of this last mentioned sum the relator will have fully satisfied the claim of the defendant under the sections of the law under consideration. We hold that so long as the present mode of assessment prevails in Massachusetts, this state has no ground for retaliation, and that, except to the extent above stated, there is no authority for the charge of one-quarter of one per cent, on the net value of the policies.

The other item in dispute is a charge of one cent on the $1,000 insured by the relator on lives, compensation for valuation of policies. Section 279 of the Revised Statutes provides that “ when the laws of any other state of the United States authorize a valuation of life insurance policies by some designated state officer according to the standard herein provided, any other standard which makes the value of the policy not less than that of the standard herein provided, the valuation made according to the said standard, by such officer, of the policies and other obligations of any life insurance company not organized under the laws of this state, and certified by said officer, may be received as true and correct, and no further valuation of tbe same shall be required of sucb company by the superintendent of insurance.”

Section 282 of the Revised Statutes provides, that there shall be paid, also, by every life insurance company doing business in this state, annually, by way of compensation for the valuation of its policies in case no certified valuation of the same has been furnished to the superintendent of insurance, as provided in section two hundred and seventy-nine of this chapter, one cent on every thousand dollars insured by it on lives.”

The relator furnished to the defendant proper certificate of the certified valuation of its policies, made by the commissioner of insurance of Massachusetts, the proper state officer. The valuation was according to the standard provided in our statute. "We find no authority in law for this exaction, nor does the fact that the relator, in former years, paid a like charge, or that, at the request of defendant, the company’s agent furnished the data upon which the defendant’s valuation was based, estop the relator from disputing the charge.

Peremptory writ awarded.

Owen, C. J., being a member of one of the relator companies, did not sit.


author: Minshall, J.

text:
    Root v. Railroad Company.

      Attachment — Sufficiency of levy — Return of officer — Revised Statutes, section 5529.
    1. In order to constitute the levy of an attachment on personal property, it must be taken into the custody of the officer levying the writ, so as to be held subject to the order of the court from which the writ issued. After the seizure has been effected, the property may be placed by the officer in the possession of a person acting for him as keeper, but cannot be left in the possession of the debtor, and subject to his control, unless upon the execution of a forthcoming undertaking as provided in section 5529 of the Revised Statutes.
    2. In the absence of a levy so made, the court acquires no jurisdiction over the property sought to be attached, and it may be taken in execution or attachment by any other creditor as if no previous writ had been issued.

      3. Where, as a matter of fact, personal property is for the first time seized by an officer and taken into his custody under a writ of execution, the return of the officer that he had levied the same upon certain property, subject to a former attachment, does not preclude the execution creditor from showing that, from an omission of the officer to take the property into his custody, no such attachment had in fact been made.
    (Decided June 7, 1887.)
    Error to the Circuit Court of Hocking County.
    The litigation in the case below arose out of a controversy between certain creditors of an insolvent corporation, the Hocking Iron Company. The plaintiff, under an execution issued upon a judgment in its favor, had levied upon certain property of the insolvent company. Executions of other creditors, the first being that of The Austin Powder Co., had previously been levied upon the same property. But, prior to any of these levies, the plaintiff in error Charles Root & Co., claimed to have acquired a lien upon the same property by proceedings in attachment. The suit was begun for the purpose of contesting the validity of this lien. By an amended petition the ¡plaintiff below claimed that the property had never been taken into his custody by the sheriff under the writ of attachment, and that no attachment was in fact made. Like averments were made by the other execution creditors in their cross-petitions. The case went to the circuit court on an appeal, where it was tried upon the pleadings and the evidence. The court, at the request of Root & Co., made a finding of the facts, and rendered judgment thereon in favor of the execution creditors. The finding is as follows :
    . “ 1st. That the defendant, Charles Root & Co., obtained a writ of attachment against the Hocking Iron Co. from the court of common pleas of Hocking county, on the 9th day of October, A. D. 1882, and placed the same in the hands of the said T. F. McCarthy, sheriff of said county.
    “ 2nd. That on the 10th day of October, A. D. 1882, said sheriff and one D. C. Welling, the attorney of record of said Root & Co., proceeded to Orbiston, in said county, for the purpose of levying said attachment upon the property of said Hocking Iron Company. That shortly after their arrival there, they met one Joseph F. Wheeler, the general superintendent of the furnaces, mines, stores, and property of the said defendant, The Hocking Iron Company, to whom was made known the business of said sheriff and said Welling, and that said Wheeler assured the said Welling that said claim of said Eoot & Co. would be paid in a few days. It was thereupon agreed by and between the said D. C. Welling, as the attorney of said Eoot & Co., and the said Joseph F. Wheeler, as the said superintendent and agent of said Hocking Iron Company, that in order to avoid the stopping of said furnace and mine, the closing of said store, the discharge of the employes of said Hocking Iron Co., and the suspension of the mining and manufacture of pig iron, and the cessation of said company’s business, that the said sheriff should declare that he attached said stock of goods in said store, but that the same should not be done in the presence of any freeholders, or in a public manner, nor should any inventory or appraisement be made of said property or any part thereof, nor should any notice of said attachment be posted up in any conspicuous place, nor should said store be closed, nor any of the said goods be taken into the actual possession of said sheriff; but that the said Wheeler should remain in charge of said store and the goods therein, run said business just as it had been done before, sell any or all of said stock of goods necessary or desirable in carrying on said business, buying any additional stock for said store, keep no account of said business or of such sales, make no return of said sales or the proceeds thereof to said sheriff or any one for him; that said sheriff thereupon, in the manner agreed upon, declared said levy of said attachment and departed in company with the said Welling, leaving the said Wheeler, superintendent as aforesaid, in full possession and control of said property.

      “ 3rd. That on the evening of the same day, or during the next day, the said superintendent, Wheeler, gave to the said sheriff in his office in Logan, O., a list of the additional articles of personal property not in the store, consisting of mules, horses, bank cars, etc., but that said sheriff did not see any of said property, nor appraise the same, nor take the same into his possession until he seized it under the The Austin Powder Company’s writ.
    “4th. That the said Wheeler, superintendent as aforesaid, continued in the possession and control of all of said property, selling and disposing of the same, buying and adding thereto, and using the same in conducting the business of the said Hocking Iron Co., and turning the proceeds over to said company in the same manner as he had always done while conducting said business.
    “ 5th. That on the 20th day of October, A. D. 1882, there came into the hands of said sheriff a writ of execution from the court of common pleas of Franklin county, Ohio, against The Hocking Iron Co., and in favor of The Austin Powder Co., by virtue of which writ said sheriff, on October 21,1882, seized and took into his possession, for the first time, said stock of goods and personal property, closed up said store, furnace, and mines of said Hocking Iron Co., and sold said property thereafter; out of which sale arose the funds in controversy.
    “ 6th. That on the 5th day of December, 1882, while said sheriff was still in possession of said property, he levied the execution of T. J. Price & Co., and The Columbus Machine Co. upon said property, and upon the 19th day of December, 1882, he levied the execution of plaintiff upon the same.
    “ From which finding of facts the court concludes, that in law, no valid levy or seizure of said property, or any part thereof, was made by said sheriff under said writ of attachment of said Root & Co., but that said pretended levy or seizure under said attachment was illegal and void as against the subsequent levies made under the executions of said plaintiff and the said cross-petitioners, T. J. Price & Co. and the Columbus Machine Company.”
    The plaintiffs in error excepted to the second, third and fifth findings of fact, as not sustained by the evidence; and, on the overruling of a motion for a new trial, took a bill of exceptions, which is made a part of the record. They also excepted to the conclusions of law and the judgment of the court, upon the findings of fact.
    It appears from the returns, set forth in the bill of exceptions, that the sheriff’ as to each of the executions, returned that he levied the same subject to the attachment of Root & Co.

      D. C. Welling and Watson & Burr, for plaintiffs in error.
    The defendants in error admit, in their pleadings, the seizure,, by the sheriff, of the goods. Ve claim that after such levy and seizure, the sheriff could do nothing that would render the service of the writ illegal as against subsequent execution or attaching creditors.
    The railway company and other contesting creditors cannot attack, in a collateral proceeding, an attachment, for mere irregularity. Ward v. Howard, 12 Ohio St. 161; O’Farrell v. Stockman, 19 Ohio St. 296; Paine v. Mooreland, 15 Ohio, 435; Moresi v. Swift, 15 Nev. 215; Rudolf v. McDonald, 6 Neb. 166; Fridenberg v. Pierson, 18 Cal. 152; Isham v. Ketchum, 46 Barb. 44; Jacobs v. Hogan, 15 Hun, 197; Chamberford v. Hall, 3 McCord, 346; McBride v. Floyd, 2 Bailey, 214; Fowler v. Whitman, 2 Ohio St. 270; Tilton v. Cofield, 93 U. S. 167.
    The levy of the attachment made by the sheriff was valid. Pugh v. Calloway,, 10 Ohio St. 495; Murphy v. Swadener, 33 Ohio St. 94,
    The subsequent levies were expressly subject to the attachment of Root & Co. This fact was a recognition of their rights which the execution creditors should not be permitted to deny. Liebman v. Oshbacker, 36 Ohio St. 94.

      Levi J. Burgess, for defendants in error.
    The court of common pleas never had jurisdiction over the personal property of the The Hocking Iron Company in the suit of Root & Co., because no valid levy of the writ of attachment was made. The property was never legally seized by the sheriff so as to bring it within his control and within the jurisdiction of the court as against the rights of subsequent levying creditors and bona fide purchasers. Drake on Attachment, sections 5, 255-259, 291, 292; Mitchell v. Eyster, 7 Ohio 1 pt. 257; Parker v. Miller, 9 Ohio, 108; Cochran v. Loring, 17 Ohio, 409; Endel v. Leibrock, 33 Ohio St. 254; Voorhees v. Jackson, 10 Pet. 449; Paine v. Mooreland, 15 Ohio, 435; Minor v. Smith, 13 Ohio St. 80; Crocker on Seriffs, sec. 436; Green v. Burke, 23 Wend. 493; Murphy v. Swadener, 3 Ohio St. 85.
   Minshall, J.

In order to effect an attachment of personal property, it must be taken into the custody of the officer serving the writ; until this is done, no attachment can be said to exist. It need not in all cases be actual, but must in every case be such custody as the nature of the subject attached will admit of. Such is not only the positive requirement of our statute (sec. 5528, Rev. Stats.), but is in accordance with the statement of the law upon the subject as found in the treatises and decided cases. 1 Wade on Attachment, sec. 129; Drake on Attachment, sec, 292a; Waples on Attachment, 175; Freeman on Executions, sec. 262; Minor v. Smith, 13 Ohio St., 79; Murphy v. Swadener, 33 Ohio St., 85.

There is no doubt but that after the attachment has been properly made, the officer may continue his custody of the goods by placing them in the possession of some third person acting as his agent. They cannot, however, be left in the possession and subject to the control of the debtor. “It is,” says Mr. Drake, “ of special importance that an officer should not leave attached property in the possession of the defendant, unless authorized thereto by some statutory provision.” Drake on Attachments, sec. 292a. And he adds as a reason that, “ The possession of personal property is the only indicium of ownership; and to suffer a debtor to retain possession of his property after it has been attached, is prima facie evidence that the attachment is fraudulent in respect to other creditors, whose attachments, or a bona fide purchase from the defendant, will prevail against the attachment whose lien has thus been lost.” See also, Dunklee v. Fales, 5 N. H. 527; Bryant v. Osgood, 52 N. H. 185; Gower v. Stevens, 19 Maine, 92; Gates v. Flint, 39 Miss. 365; Murfree on Sheriffs, sec. 259.

The requirement of our statute as to the attachment of personal property is, that if it can be come at, the officer shall take it into his possession, and hold it subject to the order of the court.” Sec. 5528, Rev. Stats. But it may, as provided in the next section, be delivered by the officer “ to the person in whose possession it was found ” by such person executing a forthcoming undertaking. In such case the undertaking, instead of the property, becomes the security of the creditor; and the property itself may be disj>osed of by the debtor, or taken in execution by other creditors. Jones v. Peasley, 3 Green, 52; Biscoe v. Sandefur, 14 Ark. 568; Brush v. Seguin, 24 Ill. 254; Freeman Ex. sec. 264. Hence it appears, that in any case, when personal property, sought to be attached, is left by the officer in possession of the debtor, it ceases to be in custody of law and may be taken by other creditors. Whatever the rule may be as to personal property taken in execution Acton v. Knowles, 14 Ohio St. 28), such is the rule where it is sought to effect an attachment of it.

That there are many requirements of the statute regulating proceedings in attachment that may be omitted without affecting the validity of an attachment as to other creditors and purchasers, is not questioned. But it will be found that these requirements are such only as are designed for the protection of the debtor — as the giving of a bond by the attaching creditor, or mere irregularities in the affidavit for an attachment. Such irregularities and omissions are regarded as waived unless advantage is taken of them by the debtor; they are not available to other creditors. The provisions, however, that require notoriety in making the attachment — that it shall be done in the presence of two freeholders of the county, ánd that the property shall be taken into custody of the officer, are designed for the protection of creditors and purchasers of the debtor,; and, unless the property is so attached, the court acquires no jurisdiction over it, and the attachment is invalid as to such third persons. This distinction is taken in the case of Ward v. Howard, 12 Ohio St. 161, in the observation of the court, that “ any thing may be' waived by the defendant, which is substantially no injustice to other creditors, or is not intended to guard their rights.” And so the court added that “the objection that a proper undertaking was not executed, and that the facts were defectively stated in the affidavit, were properly overruled by the court.” O’Farrell v. Stockman, 19 Ohio St. 296, is of like effect. We have examined the various cases cited by counsel for plaintiff in error, and find none that go further than we have stated, though the generality of the language used in some might indicate that they did. A different holding would be lacking in principle, as all the authorities agree that the property must be seized in attachment or the court acquires no jurisdiction over it; and that no seizure can be effected unless the officer takes it into his custody; and if he voluntarily abandons its custody to the debtor or his agent, the attachment ceases to exist.

Applying the law to the facts as found by the court, it is clear, as we think, that no such custody of the property sought to be attached was taken in this case, as is required to constitute an attachment. The sheriff, with the attorney of the creditor, went to the place of business of the debtor, The Hocking Iron Company, listened to the representation of its superintendent that the debt would be paid in a few days, and that to make an attachment would be rpinous to the business of the company. And, influenced by these considerations, the sheriff, with the assent of the creditor’s attorney, went through the form of declaring that he attached the property, and then departed leaving it in the possession of the superintendent of the company, with the understanding that he might proceed to deal with the property as if no attachment had been made, and he did so. No change was made in its actual custody, and no freeholders were called to witness the attachment. It is true a notice was posted that the attachment had been made, but it was purposely posted in the most inconspicuous place that could be found. In all that was done more care was observed to avoid anything that would, by its notoriety, embarrass the debtor in the prosecution of its business, than to effect a valid attachment, by observing the requirements of the law regulating such proceedings. It cannot be said that the property was left with the superintendent as the agent or keeper of the sheriff. It was found in his possession as the agent of the debtor, and left with him as such agent and not as the agent of the sheriff; and no forthcoming bond was taken as required in such cases. The findings of the court show that the intention was that the levy should be kept secret, and for this reason, if no other, the attachment was void. Thus it is said, The levy ought to be notorious; it must not be made in such manner as to indicate an intention to keep it secret. In general, a secret levy must be held invalid as against third persons.” Freem. Ex. sec. 260, 261.

But it is claimed that the execution creditors are precluded from showing that no attachment had been levied upon the property, by the return of the sheriff, made upon such execution, that he levied the same subject to the attachment of Root & Co. There is no finding as to this made by the circuit court, most probably from the fact that no such point was made in that court. But the return of the sheriff is set forth in the bill of exceptions, and the fact that the return, in each case, was made as claimed, seems to have been uncontroverted; and may therefore be noticed.

There are, as we think, two reasons why the returns made by the sheriff upon the writs of the execution creditors are not conclusive as to them :

1. The attaching creditor was not a party to either of the suits in which these returns were made; as to each of these suits he was a stranger. It will not be claimed that his rights could have been impaired by any return made by the sheriff upon either of these writs, hence to make either of them conclusive for him, whilst not so as against him, would be to apply the principles of an estoppel where there is no mutuality. And it is upon this principle that, as a general rule, a return is regarded as conclusive between parties and privies when offered in evidence. When made and filed, the return becomes a part of the record in which it is issued. If,” says Mr. Freeman, we keep this fact in view, we shall usually be able to determine, without difficulty, whether a return can properly be admitted in evidence, and tbe effect to be given to it when it is admited. Whenever the record in a case is competent evidence, the return, because it is a part of that record, is also, as a general rule, competent evidence. If the case is one in which the record is conclusive evidence between the parties, the return is also conclusive between them. If, on the other hand, the record is not conclusive between the parties, the return cannot be regarded as conclusive between them.” Freem. on Ex., sec. 363. This is certainly a rational statement of the rule, and accords with the decisions in this state. As between a party and a stranger, the return may for some purposes be evidence, but it is not conclusive. The latter effect is given to a return only as between parties and privies. Phillips v. Elwell, 14 Ohio St. 240, and authorities cited by Peck, J., at page 244.

2. Again, it is no part of the duty of a sheriff to determine whether there are, or are not, liens upon the property that he seizes in execution. Hence, the return of the sheriff on the execution in favor of the Austin Powder Co., that he levied it upon certain property subject to the attachment of Root & Co., was not a necessary part of his return on that writ; and the same is true as to his return upon the subsequent executions. Where the property on which the sheriff levies a particular writ, is in his possession under a former one, a second seizure need not, and in fact cannot, be made; the seizure as to such subsequent writ is in law effected by simply indorsing a levy upon it, and such levy will take effect from the receipt of the writ by the sheriff. Where the property is in his custody under the former writ, such custody supports the return of a levy made under the second writ; but if it is not, and no seizure is in fact made under the second writ, the latter one is no more effectual than the former one. But where, as in this case, the property is for the first time seized under the second writ (5th finding of fact) it stands upon its own footing, and is necessarily prior in right to all liens depending upon a seizure of the property ; and it is not in the power of a sheriff to alter the rights of a party in this regard by any statement in his return in favor of another, where such statement is not a necessary part of his return; and this is true irrespective of the question of parties and privies. For it is well settled that the return of an officer is conclusive as to such parties and privies only as to such facts as it was his legal duty to state. Cow. & Hill’s Notes; Phil. Ev. 383; Freem. Ex., sec. 364. A return upon a writ properly embraces no more than a pertinent history of what was done by the officer in executing it according to its requirement ; and where it is made to include matters outside of such history, the matters so incorporated constitute no part of the return, and are not evidence even as between parties, much less as between strangers.

A further point is made upon the pleadings, that the amendment filed to the original petition, is inconsistent with it. This may be so, but we see no reason why a party may not be permitted to change the averments of his pleading. Such a motion is always addressed to the sound discretion of the court, and will not be reviewed on error unless it clearly appears that such discretion has been abused. Clark v. Clark, 20 Ohio St. 128. It was averred in the original petition, “that on the 16th of October, 1882, the sheriff had seized all of said goods ” under the attachment of Eoot & Co. If this averment was made aceording to the best of the pleaders’ information at the time, but was incorrect, we know of nQ‘ principle that would preclude him from correcting his statement at a subsequent time by leave of court. The court was doubtless satisfied that the party was acting in good faith, or it would not have permitted the amendment to be filed.

Judgment affirmed.


author: By the Court.

text:
    Myers v. Seaberger.

      Taxation — Loan of money — “Credits”—Mortgage.
    A loan of money, secured by mortgage on real estate, is a credit within the meaning of the statutes of this state providing for the taxation of property ; and, where the creditor resides in another state, is not subject to taxation in this, although the securities are in the hands of an agent residing here, intrusted by the terms of his agency with the collection of the interest and principal when due, and its transmission to the creditor when collected.
    (Decided June 7, 1887.)
    Error to the Circuit Court of Knox County.

      Adams & Irvine, for plaintiff in error.

      A. H. Melntire, for defendant in error.
   By the Court.

The action below was a suit by the treasurer of the county to recover of the defendant the sum of $445.06, taxes aud penalty, charged upon the duplicate of the county against her for the year 1882. The defendant, a nonresident, denied her liability to taxation in this state. The facts were substantially as follows: The defendant upon her marriage, in 1879, became a non-resident of the state, residing from that time with her husband, Charles Seaberger, at Chicago, Illinois. The amount, $17,000, listed for taxation against her, was the sum of certain loans that had been made for her upon mortgage securities in the county. They had been made by her uncle, acting as her agent, previous to her marriage. After her marriage he continued to act for her in making collections of principal and interest, but not otherwise. He had no power to make investments. He was required by his agency to transmit the collections as soon as made. He made no investments for her after her marriage, and, as required, transmitted the collections as soon as made. The uncollected securities, however, remained in his hands for the purposes of the agency as just stated.

The common pleas court rendered judgment for the treasurer, which, on a proceeding in error, was reversed by the circuit court, and judgment rendered for the defendant.'

The judgment of the circuit court, is, as we think, right. “ Our system of ad valorem taxation has uniformly proceeded upon the theory, that tangible property is to be taxed according to the law of the place where it is situated, irrespective of the residence of its owner; while, with equal uniformity, it has proceeded upon the theory that credits,’ * investments in bonds/ stocks/ etc., are taxable according to tbe laws of tbe place where their owners or holders reside.” Per Welch, J., in Worthington v. Sebastian, Treas., 25 Ohio St. 8. A loan of money upon mortgage is a credit within the definition of the subjects of taxation contained in section 2730, of the Revised Statutes, being a legal claim for money, not included in the definition of “ money ” itself as therein defined. There is, as we think, no ground for saying that a loan of money secured by an ordinary mortgage is “ an investment in bonds ” within the definition of the phrase contained in the section just cited. The definition includes only such “ evidences of indebtedness ” as are “ issued ” by incorporated or unincorporated companies, towns, cities, etc. A mortgage may be made and delivered, but it would be a misuse of words to speak of it as issued, in the sense that a bond is issued by a company or municipalit}'. Hence the simple fact that the securities were “ held ” by a person residing in this state, as agent of the owner, is not material, unless it be so in connection with some other subject of taxation.

Nor does the fact that the definition of “ personal property ” is made to include “ money loaned on pledge or mortgage of real estate, although a deed or other instrument may have been given for the same, if between the parties the same is considered as security merely” (sec. 2730, Rev. Stats.), affect the question here presented. The same clause is inserted in section 2734, of the Revised Statutes, and is intended to circumvent any mere shift of the kind to avoid taxation. It was not intended to make money so loaned taxable as tangible personal property. The purpose and effect of the provision is to make a loan of money secured by a deed, absolute on its face, taxable as a loan secured in any other form.

A loan then, of money secured by mortgage in any form, is to be taxed as other credits in this state. The subjects of taxation are enumerated in section 2731, of the Revised Statutes. The language is as follows: “All property whether real or personal in this state, and whether belonging to individuals or corporations; and all moneys, credits, investments in bonds, stocks, or otherwise, of persons residing in this state, shall be subject to taxation.” The first clause evidently embraces all tangible property, real or personal, situated in this state, irrespective of the residence of the owner; and the second clause embraces all intangible property of persons residing in this state, irrespective of where the subject of the property may be situated. So that it seems clear that the credits of persons not residing in this state are not the subjects of taxation by its authorities, though the debtor may reside here. Such has been the uniform policy of this state. To use the language of Welch, J., in the case above cited: Intangible property has no actual situs. If, for purposes of taxation, we assign it a legal situs, surely that situs should be the place where it is owned, and not the place where it is owed. It is incapable of a separate situs, and must follow the situs either of the creditor or the debtor. To make it follow the residence of the latter, is to tax the debtor and not the creditor.”

Such has been the uniform view taken of the question in this state, and elsewhere, except in the state of Pennsylvania, and possibly some others. Bradley v. Bauder, 36 Ohio St. 28; Grant v. Jones, 39 Ohio St. 506. In Railroad Co. v. Pennsylvania, 15 Wall. 300, it was held by the supreme court of the United States, that a state cannot tax the credits of non-residents, though secured by mortgage on property in it, on the ground that the situs of a credit being that of the creditor, is not within the jurisdiction of the state, and therefore not subject to taxation by it. While in Kirtland v. Hotchkiss, 100 U. S. 491, it was held that when the creditor resides in the state, his credits are subject to taxation by it, without regard to where the debtor may reside, because the-credit, following the residence of the creditor, is within the jurisdiction of the state.

The rule as above stated is qualified as to “ money ” by section 2734, Rev. Stats. By this section every person of full age and sound mind is required to list for taxation all moneys invested, loaned, or otherwise, controlled by him, as agent or attorney, or on account of any other person or persons.” But the case before us does not come within this provision. The agent of the defendant had no power to loan or invest money for her in this state. His duties were confined to the collection of that which had been loaned, and transmitting it to his principal as fast as it was collected. The phrase, “ or otherwise controlled by him,” must be construed to mean, in a manner similar to the loaning and investing of money. For it is a settled rule of construction that, in accordance with the maxim noseitur a soeiis, the meaning of a word may be ascertained by reference to the meaning of words associated with it; and again, according to a similar rule, the coupling of words together shows that they are to be understood in the same sense. Broom’s Leg. Max. *523. To loan or invest money is one thing; to collect and transmit it to the owner when collected, is another and different thing. Any other construction would require every atttorney in the state engaged in making collections for non-residents, to return the same for taxation. Such could not have been the intention of the legislature, nor does the language of the statute require that such construction should be placed on it.

Judgment affirmed.


text:
    Union National Bank v. First National Bank.

      What constitutes a guaranty of a promissory note.

    (Decided June 21, 1887.)
    Error to the Superior Court of Cincinnati.

      Champion & Williams and Wright & Wright, for plaintiff in error.

      Smith & MeConiea and Evans & Roettinger, for defendant in error.
   By the Court.

Upon the statement, “We know them to be good,” made by the Union National Bank of Cincinnati to the First National Bank of Delaware, O., the latter purchased of the former certain promissory notes, among them being one for the sum of $5,000, made by Newburgh, Frenkel & Co., payable to the order of Nathaniel Newburgh in four months from date, January 22, 1883, indorsed by the payee. The note was not paid at maturity, the maker and indorser having become insolvent. The bank at Delaware having used due diligence without avail to collect the note, gave due notice to the bank at Cincinnaii, and demanded payment of it, which was refused. . Thereupon the bank at Delaware brought suit against the bank at Cincinnati for the amount of the note. Held, that the statement on which the note with the others was sold, “ we know them to be good ” constituted a guaranty that the note sued on was good and collectible at maturity; and the plaintiff having, without avail, used due diligence to collect the note, had a right to recover of the defendant, upon such guaranty, the amount of the note so purchased. Sturges v. The Bank of Circleville, 11 Ohio St. 153, approved and followed.

Judgment affirmed.


text:
    Delong v. Barnes.

      Promissory Note — Patent right note.

    (Decided June 21, 1887.)
    Error to the District Court of Lake County.

      Alvord & Alvord, for plaintiff in error.

      Burrows & Bosworth and E. J. Sweeney, for defendant in error.
   By the Court.

At the trial in the court of common pleas, the defendant offered testimony tending to show that, on May 21, 1874, James M. Barnes, the defendant in error, and his wife Arminda H. Barnes, in consideration of an assignment to them by A. E. Canfield of an alleged interest in a certain patent right, made and delivered to the assignor their promissory note for $750 with the words “given for a patent right” written thereon as required by the statute: that immediately after the execution of the note, on the same day, at the same place, and as part of the same transaction, the note was surrendered to the makers thereof, and two new notes in lieu thereof for $600, in the aggregate, were made by the above named James M. Barnes and Arminda H. Barnes to the same payee, A. F. Canfield, without the words “ given for a patent right ” written thereon, the payee allowing a discount of one hundred dollars from the note for $750, and the makers thereof agreeing to pay the fifty dollars balance in cash. The original action was founded on one of the two new notes thus given — the same having been indorsed in blank by the payee, and sold and delivered to William Delong, the plaintiff in error, before due. In the court of common pleas, the plaintiff requested the court to charge the jury as follows:

“ If the jury find from the evidence that the consideration of the note was the sale of an interest in a patent right, and that there was first given in payment for said interest a note for $750, having thereon written, as required by the statute the words “given for a patent right,” and the same was discounted by the payee for notes amounting to $600, of which the note in suit was one written in the usual form of commercial paper, and negotiable, but without the words “ given for a patent right ” thereon written, such note in suit is not a patent right note within the meaning of the statute.” Which request the court refused to give in charge to the jury, to which refusal the plaintiff excepted.

Held: 1. The court did not err in refusing to charge the jury as thus requested.

2. The note sued on was, within the meaning of section 3178 of the Revised Statutes, “ A promissory note or other negotiable instrument, the consideration of which consists, in whole or in part, of the right to make, use, or vend a patent invention, or an invention claimed to be patented.”

3. A charge to the jury that the plaintiff “ must have had notice or information of such facts as amounted to him, under tbe circumstances surrounding bim at tbe time, to substantial and real knowledge tbat tbe note was given for a patent right, or be is not chargeable with knowledge,” is a sufficient designation of tbe knowledge implied in the provision of section 3178 of tbe Revised Statutes, tbat “any person,who purchases or becomes tbe bolder of a promissory note or other negotiable instrument, hnoioing it to have been given for tbe consideration aforesaid, shall bold tbe same subject to such defenses, although tbe words 1 given for a patent right ’ are not written or printed upon its face.”

Judgment affirmed.