author: Shauck, J.

text:
    Aultman, Miller & Co. et al. v. Wilson, Assignee.

      Homestead exemptions — Husband and wife co-partners~-^-Partnership assets not subject to allowance in lieu of homestead exemptions.

    1. Husband and wife who are co-partners in trade are notentitled either jointly or severally to an allowance in lieu of homestead out of-the assets of the co-partnership in the hands of an assignee for the benefit of creditors, until the debts of the co-partnership have been paid in full.
    2. When the right to such allowance is disputed, it is the duty of the assignee to await an order of the probate court in the premises, and without such order he makes the allowance at his peril
    (Decided October 20, 1896.)
    Error to the Circuit Court of Columbiana County.
    Exceptions of the plaintiffs in error to the final account of theassignee and to the inventory were determined in the probate court against the assignee, who tookan appeal tothe court of common pleas. The exceptions challenged the right of the assignors to an allowance in lieu of homestead which had been made to them.
    In the court of common pleas the findings of fact and conclusions of law were stated separately as follows i

    “And the court finds: That the said M. A. & C. S. Landis, at the time thejT made their deed of assignment, November 25th, 1890, were partners and husband and wife, living together ; that they were residents of the state of Ohio, and were not, nor was either of them, the owner of a homestead; that they demanded, out of the property assigned, which was partnership propertly solely, $500:00 worth thereof, in lieu of a homestead, and, having-selected the same, the appraisers, appointed by the probate court, under said assignment, on making the appraisement, set the same off, and the same was thereupon, and before any exceptions were filed to the inventory, taken into the possession and control of the said assignors and by them consumed and disposed of; that on the 31st day of December, 1890, the inventory and appraisement was filed in the probate court; said inventory set out the specific articles and their value which, at the request of the assignors as husband and wife, the appraisers had so set off to them, and stated that the same had been so set off. At the time said property was so set off to the assignors, in lieu of a homestead, the assignee took counsel of a reputable member of the bar of Columbiana county, learned in the law, who was at the same timé the attorney for said assignors, who advised him that under the law of Ohio the assignors were entitled to the property so set off, and about the. same time the attorney for one of the creditors said to the assignee that the assignors were not entitled to such exemption. The final account of the assignee was filed in the probate court, July 30th, 1891. The first exceptions to the inventory were filed September 16th, 1891.
    “On consideration of the above recited facts, the court finds, as its conclusions of law thereon, that the goods so set off to said assignors in lieu of a homestead ought not to have been so set off to them ; that they were not entitled to them out of the partnership property; that the assignee Should be charged with the amount thereof, and that the same, to-wit, the sum of $500.00 should, and the same is hereby ordered to be, added to the amount hereinbefore found as chargeable against said assignee, to which finding and conclusion of law, charging said assignee, with said amount so setoff to the assignors in lieu of a homestead, the said assignee excepts.”
    On petition in error the circuit court found that the court of common pleas erred in its conclusion of law from the facts found, reversed its judgment and rendered a final judgment in favor of the'assignee upon the facts so found.
    This petition in error is prosecuted for the reversal of the judgment of the circuit court and the affirmance of that of the common pleas.

      W. H. Spence and A. H. Clark, for plaintiffs in error.
    We contend no such right attaches under the law, and that the assignee erred in allowing the claim for exemption, and that he should be required to make good to the creditors the $500.00 worth of personal property by him so set off to the assignors, or either of them.
    It is claimed, as we understand it, that the statute has been amended so as to allow “husband and wife” to demand and have set off the exemption allowed by law in lieu of a homestead, even though they are business partners, and the property be partnership property.
    The question is this: Were the assignors jointly or separately entitled to the set off allowed by the assignee? We think clearly not. They were both partners and husband and wife. Even if they join, as husband and wife, in the demand (we contend they could not join but that one or the other should have made the demand) they could not claim such right as partners. The right is personal, strictly individual, to be asserted or not at the will of the person in whose favor the right exists. It is not a joint privilege, but is a personal privilege and individual privilege; Conley v. Chilcote, 25 Ohio St., 324; 26 Ohio St., 317. Bates on Partnership section 1131-1133. Parsons on Partnership as referred to by the court in case cited. Also Pond v. Kimball 101 Mass. 105; Love v. Blair, 72 Ind. 281; Guptil v. McFee, 9 Kan. 30; Kingsley v. Kingsley, 39 Cal. 665; State ex rel v. Spencer, 64 Mo. 355; Bonselly. Comley 44 Pa. St. 442; In re Blodgett, 10 Natl. Bank, Reg. 145; Rhodes v. Williams, 12 Nev. 20 ; Spiro v. Paxton (Tenn.) 31 Am. Rep. 630; 7 Neb. 134; same case, 29 Am. Rep. 380; 55 Ala. 305; found also in 28. Am. Rep. 723; This last case overrules, Howard v. Jones, 50 Ala., 67; Dinklin v. Kimball, 50 Ala., 251; and Gevanie et al v. First National Bank, which are the same parties as in the last above cited case, 51 Ala., 177.
    The policy of the law is to exempt such property as is used by the party for the benefit of himself and family and their convenience, but does not include property owned by a firm and used in their business for profit. On this fund, property and effects, the trust for payment of partnership debts is primary and paramount.
    But was there a partnership in the case before the court? We think there was and to al] intents and purposes just like all copartnerships. They are husband and wife. We concede this, but they were partners, doing business in the firm name of M. A. & O. S. Landis, Section 3112, Revised Statutes.
    It seems clear that the wife in this state is clothed with all the capacity to contract that any other person is.

      The law recognizes her right and ability to enter into partnerships. Her power to do business has been greatly increased by the law, and so has her responsibility. See 81 Ohio L., 65, 209; 84 Ohio L., 132.
    Being a feme sole, as it were, in her trade and transactions, with capacity to employ agents general or special, and may so employ her husband, there would seem to be no reason why she could not form a partnership with her husband; and many cases hold, others assume she can. In re Kincaid, 3 Bliss U. S., 405; Camden v. Miller, 29 Cal., 564; Francis v. Dichel, 68 Ga., 255; Preusser v. Henshaw, 49 Iowa, 41; Plummer v. Lord, 5 Allen (Mass.), 460; Parshall v. Fisher, 43 Mich., 329; Newman v. Morris, 52 Miss., 402; Bitter v. Rathman, 61 N. Y., 512 and 44 Ohio St., 192.
    It seems clear, therefore, that Mrs. Landis had the capacity to enter into partnership with her husband, both in equality and law. Her husband had the same right. There was a partnership in law in fact, and no exemption can be allowed to either or both of them. Payne v. Thompson, 44 Ohio St., 192, and cases there cited.

      II. B. Hill and Billingsley, laylor 06 Glm% for defendant in error.
    The main question in this case is whether or not the assignors were entitled to an exemption in lieu of a homestead out of the property assigned. The probate and common pleas courts held that they were not, but the circuit court held that they were entitled to such exemption.
    It is the well settled rule in this state that the exemption statutes should be liberally construed in favor of the' claimant. (Sears et al. v. Hanks et

      al., 14 Ohio St., 298; McConville v. Lee, 31 Ohio St., 447. Sections 5441, 6348, Revised Statutes.)
    Conceding that the decision inthecaseof Gaylord v. Imhoff, 26 Ohio St., 317, is right, or that it must stand, whether right or wrong, we claim that is wholly inapplicable to the case at bar. No prin ciple of law is better settled in Ohio, than that the syllabus or decision of a case must be read and understood in connection with the facts of the case. Witte v. Lockwood, 39 Ohio St., 145.
    In this case we have a state of facts entirely different from the facts in the Gaylord case. We have here an unusual partnership, a partnership between husband and wife. By becoming partners, they had made all their property of every kind, liable for the payment of the partnership debts, subject only to their right, if they had such right, to hold the exemptions allowed by law in other cases.
    If, however, they owned all their property in partnership, they would not, upon the theory advanced by counsel for the plaintiff in error, be entitled to hold any property of any kind, exempt from execution, not even the bibles, hymn books, psalm books, testaments, etc. Mortley v. Flanagan, 38 Ohio St., 401; Hill v. Myers, 46 Ohio St., 183.
    The set-off was made by the appraisers, and the assignee had no control over them in that matter. The appraisers are appointed by the court, and not by the assignee. They act under oath, and the statute makes it their duty where property is exempt, to “set the same off in the same way that appraisers of property levied on or attached, are required to do; and if for any reason this set-off is then omitted, the court may at any time thereafter, and before sale, order the same to be done by the appraisers.” Revised Statutes, 6348.
   Shauck, J.

However conflicting the decisions elsewhere may be, it is settled in this state that “the members of an insolvent Arm are not entitled to the statutory exemptions out of partnership property after it has been seized in execution by partnership creditors, notwithstanding all the members join in demanding the exemptions.” Gaylord et al. v. Imhoff & Co., 26 Ohio St., 317. A.nd it is manifest that the vesting of the partnership property in an assignee for the benefit of creditors is the legal equivalent of its seizure in execution.

It is said, however, that a different rule should apply here because the relation of husband and wife existed between the members of the insolvent firm, the ownership of the property and the right to demand the exemption being alike joint. Section 5441, Revised Statutes, provides that “husband and wife living together, a widower living with an unmarried daughter or minor son, every widow and every unmarried female having in good faith the care, maintenance and custody of any minor child or children of a deceased relative, residents of Ohio, and not the owner of a homestead, may in lieu thereof hold exempt from levy and sale real or personal property to be selected by such person, etc.” Husband and wife living together by the terms of this section constitute a family for whose'benefit the exemption is allowed, as do widowers, widows and unmarried women, under the conditions named. But there is no reason to suppose that the general assembly was undertaking to impart a joint character to the right. Although a husband lives with his wife, he is the person upon whom is conferred the right of selection. The allowance provided for in this section is in lieu of the family homestead, which may be held exempt from sale under the provisions of section 5435, Revised Statutes, where husband and wife, living together, are also constituted a family for whose use the exemption is made; yet the right to demand.it is primarily that of the husband alone, the wife having no right to make the demand unless the husband fail or refuse to make it.

Nor is there anything in the legislation upon this subject showing an intention on the part of the general assembly to change the settled and familiar rule that homestead rights attach only to the individual property of the debtor, and that partnership property must, to the extent necessary, be devoted to the payment of partnership debts.

The facts found by the trial court show that when the goods were set off to the assignors upon their demand their right to the exemption was denied by counsel representing some of the creditors of the firm. In that situation it was the duty of the assignee to hold the property subject to the order of the probate court, which alone had original jurisdiction to determine the question of their right. In delivering the property without such order he acted at his peril, and the advice of counsel will not shield him from the consequences of a mistaken course.

Judgment of the circuit court reversed, and that of the common pleas affirmed.


source: Caselaw Access Project

author: Bradbury J.

license: Public Domain

text:
    Kelch v The State.

      Mtirder — Defense 0† insanity — Accused held to. preponderance of evidence — Instructions to jury.

    1. Where, in a trial for murder, the accused sets up his insanity, a s a defense, he is bound to establish it by a preponderance of the evidence, but should be held to no higher degree of proof.
    2. The proof should be deemed to preponderate in favor of this, as of any other disputed fact, whenever its existence is made probable upon a full and fair consideration of all the evi" dence adduced for and against it.
    3. An instruction given to the jury in such case to the effect that the evidence introduced to establish insanity is not “sufficient if it merely show it to have been probable. The proof must be such as to overcome the legal presumption of sanity; it must satisfy you he is insane, ’ ’ requires of the defendant more than a preponderance of the evidence to maintain this defense, and is therefore erroneous.
    (Decided Oct. 20, 1896.)
    Error to the Circuit Court of Cuyahoga county.
    The facts are stated in the opinion.

      Foran <& Dawley, for plaintiff: in error.

      F. L. Strinyple, for defendant in error;
   Bradbury J.

The plaintiff in error, Bushrod Kelch, in December, 1895, was indicted in the County of Cuyahoga for murder in the first degree for killing a woman who had been his wife, but who shortly before the homicide had procured a •divorce from him. In February, 1896 he was placed on trial in the court of common pleas of said county for such offense, and in March following was convicted of murder in the first degree, and adjudged to suffer death. Upon proceedings in error, this judgment was affirmed by the circuit court; whereupon the cause was brought to this court for review»

That the plaintiff in error shot and killed the deceased was not denied or contested upon the trial; the chief contention being' over the mental condition of the accused at the time the homicide was committed. Counsel for him contended: 1st, that the evidence of the state did not sufficiently establish deliberation or premeditation; and 2d, that his evidence was sufficient to show insanity, superinduced by the excessive use of alcoholic stimulants.

The question of the burden of proof, where insanity is set up as a defense in criminal causes, has been fruitful of discussion, and has occupied the attention of the ablest criminal jurists of this country, and of, England. The contention has not so much concerned the degree of proof, as upon whom the burden rested. Some authorities, entitled to great consideration have steadily held that this burden rested upon the state; that while the presumption of sanity was sufficient to support this burden where the evidence did not suggest mental alienation, yet if the defense was made, the state was bound to establish sanity beyond a reasonable doubt. This view was founded upon the obligation which rests upon the state to establish beyond a reasonable doubt every fact necessary to create in- the defendant criminal liability; criminal intent being one of such facts, it was included within the general obligation above stated, and to establish this criminal intent, a mental condition capable of entertaining it must be established. This course of reasoning would render immaterial the question whether the doubt of sanity arose upon the evidence of state, or of tlie defendant, or upon that of both the state and the defendant. . The doubt, however arising, being available by the defendant. This view of the question finds support in numerous well considered cases, among which may be cited Hopps v. People, 31 Ill., 385; Chase v. People, 40 Ill., 352; State v. Crawford, 11 Kansas, 32; People v; Garbutt, 17 Mich., 9; Cunningham v. State, 56 Miss., 269; Bradley v. State, 31 Ind., 492; McDougal v. State, 88 Ind., 24; Guetig v. State, 66 Ind., 94; Wright v. People, 4 Neb., 407; Ballard v. State, 28 N. W. Reporter, 271, (Neb.); State v. Pike, 49 N. H., 399; State v. Bartlett, 43 N. H., 224; State v. Jones, 50 N. H., 369; People v. McCann, 16 N. Y., 58; O'Connell v. People, 87 N. Y., 377; Dove v. State, 3 Heisk, (Tenn.), 348; State v. Patterson, 45 Vt., 308.

The logical consistency of this view of the question is its chief support. In the practical administration of criminal law, however, experience has found much to commend in that opposite view which treats the defense of insanity as independant and affirmative, and • which, consequently, casts upon the accused who asserts it the burden of sustaining it by evidence sufficient to overcome the natural presumption of sanity. Among the cases that sustain this side of the contention may be cited: State v. Jones, 64 Iowa, 349; Ford v. State, 5 Crim. Law Mag., 32, (Ala.); State v. Lawrence, 57 Me., 574; Com. v. Eddy, 7 Gray, (Mass.), 583; McKenzie v. State, 26 Ark., 334; Cavaness v. State, 43 Ark., 331; People v. Bell, 49 Gal., 485; Dejarnette v. Com., 75 Va., 867; Webb v. State, 9 Tex. App., 490; King v. State, 9 Tex. App., 515; Coyle v. Commonwealth, 100 Pa., St., 573; Lynch v. Com., 77 Pa. St., 205; State v. Redemeier, 71 Mo., 173; State v. Gest, 13 Minn., 341; State v. McCoy, 34 Mo., 531. This doctrine has prevailed in Ohio from an early period in its judicial annals. Clark v. State, 12 Ohio, 483; Bond v. The State, 23 Ohio St., 349, Bergin v. The State, 31 Ohio St., 111; Leoffner v. The State, 10 Ohio St., 598.

This- being the established doctrine of this state, the burden of proving his insanity rested on the plaintiff in error. If this burden should be sustained, the law exonerates him from criminal responsibility for his act. It is apparent, therefore,.that to him it was of prime importance that an accurate measure of this butden should be given to the jury. If the charge of the court, in this respect, imposed on him a greater burden than the law prescribes, it contained error prejudicial to this defense.

In most of the cases relating to the burden of proof of insanity in criminal causes, the contention was confined to the question of where it rested — whether on the state or on the defendant —and the quantum or degree of' proof where made to rest on defendant, received little, if any, consideration, either by counsel or the court; and language was sometimes employed by the court which seemed to require of the defendant, to establish his insanity, more than a preponderance of the evidence.

In some of the cases, however, the question of the quantum of proof where the burden was placed on the accused, came directly before the court. Among them is the case of Coyle v. Commonwealth, 100 Pa. St., 573, where it was held that a charge to the jury which required of the defendant, “clearly preponderating evidence,” instead of “fairly preponderative evidence” of insanity was error.'

In Com. v. Rogers, 7 Met., 500, in trial for murder, Shaw, C. J., presiding, the jury, after receiving the charge of the court, and consulting several hours, came into court for instructions respecting the degree of proof requisite to establish insanity, and were instructed that “if the preponderance of the evidence was in favor of insanity of the prisoner, the jury would be authorized to find him insane.”

In Boswell v. The State, the supreme court of Alabama laid down the rule as follows: “We hold, then, that insanity is a defense which must be proved to the satisfaction of the jury by that measure of proof which is required in civil causes.” 63 Ala., 326.

In State v. Jones, 64 Iowa, 350, the charge was murder in the first degree. The supreme court held that “where one charged with murder relies upon his insanity as a defense, the burden is on him to establish a preponderance of the evidence that at the time of the killing he was in such a state of insanity as not to be accountable for the act; but an instruction that, if the evidence goes no farther than to show that such a state of miiid was merely probable, was not sufficient, was erroneous, because its effect was to require more than a mere preponderance of the evidence to establish the defense.” See People v. Bell, 49 Cal., 485-488.

In Bond v. The State, 23 Ohio St., 349, it is held “the burden of proof to establish the defense of insanity in a criminal case rests upon the defendant, but a bare preponderance of testimony is all that is necessary for that purpose.” This rule is reasserted in Bergin v. The State, 31 Ohio St., 111, a ease like the one under consideration, of murder in the first degree; Leoffner v. The State, 10 Ohio St., 598. Self defense in Ohio, as well as insanity, is regarded as affirmative defense. In Silvus v. The State, 22 Ohio St., 90, and Weaver v. The State, 24 Ohio St., 584, both eases where self-defense was relied upon by the accused for justification, this court held that the defense should be shown by preponderating’ evidence. These cases relating to the burden and quantum of evidence required to establish a plea of self defense, are of course only material as tending to show the steadiness with which this court has held to the rule that a preponderance of the evidence is sufficient to sustain an affirmative defense in a criminal cause.

We come now to the question whether the instructions given by the learned judge of the court of common pleas prescribing the quantum of evidence required to establish the defense of insanity, imposed on the plaintiff in error a higher degree of proof than the settled doctrine of the state imposed. After the learned judge had stated to the jury the claim of the plaintiff in error respecting his mental condition at the time of the homicide he proceded to prescribe the measure of proof requisite to maintain such claim, as follows: “In the first place the law présumes every person who has reached the age of discretion to be of sufficient capacity to be responsible for crime; and therefore the burden of establishing the defense of insanity of the accused affirmatively to the satisfaction of the jury, rests upon the defendant. It is not required, however, that this defense be established beyond a reasonable doubt; but it is sufficient if the jury is reasonably satisfied by the weight or preponderance of the evidence that the accused was insane at the time of commission of the act.”

This language extended the obligation resting on the accused to the extreme limits of the rule prescribed by the former decisions of this court, but we cannot say that it clearly went beyond them, and therefore if it had halted there, error would not have intervened.

The learned judge, however, after stating to the jury the character and extent of mental aberation that must be shown to exonerate the accused from criminal responsibility, returned to the subject of the quantum of evidence necessary to establish that mental state, and instructed the jury as follows: “It is not enough, I say to you, that the proof barely show that such a state of mind was possible, nor is it sufficient if it merely show it to have been probably. The proof must be such as to overcome the legal presumption of sanity; it must satisfy you that he was not sane. Again I say to you, that if the proof satisfy you of his insanity at the time of the committing of the act, though such defenses are not uncommon in the law, yet it must be regarded by you, as a full and complete humane defense when satisfactorily established. If not satisfactorily established then it should not avail the prisoner at the bar as a pretext or means of escaping punishment imposed by law.”

The quantum of evidence to establish insanity made necessary by this instruction is substantially greater than a preponderance. It is not sufficient, according to this instruction, that the fact of insanity be made probable, something more than that is required; the jury must be “satisfied” that it existed. To satisfy the mind according to the common notion of mankind is, to free it from doubt; to set at rest. This is the primary meaning' of the word, according to all the lexicographers, when used in this connection. To accomplish this result — to “satisfy” a body of men of the truth of a disputed fact — requires much more than a preponderance of the evidence. Clear and convincing evidence must be adduced in its favor. Evidence of this potency is rarely attainable in cases where insanity is contested. There must be grounds to assert insanitjq founded upon some peculiar conduct, natural or feigned of the party, or the claim will not be made. ■ There also must be conduct consistent with mental soundness, or the claim will be conceded. Where a long course of conduct is established, or a large number of mental or physical acts of a party are adduced, and parts of this conduct, and some of the acts tend to establish mental aberation, while the others consist with mental soundness, the whole evidence might not satisfy a jury that the mind of the party was disordered to the extent of rendering him criminally irresponsible for his acts, and yet might preponderate upon that side sufficiently to engender a belief that such mental condition was probable — that is likely — or supported by evidence sufficient to incline the mind to that belief but which leaves some room for doubt. — Webster.

Doubtless insanity is a defense that may be feigned, and frequently is where no other defense is available, but because artful criminals may adopt it as a last resort, is not a sufficient reason to impose upon the unfortunate, in whose behalf this humane defense is honestly interposed, a higher degree of proof than intrinsically belongs to it. The remedy for this mischief is a searching analysis by counsel,’ court and jury of the con-duet of the party wherever there is reason to suspect that the insanity is feigned.

The learned judge may have been misled as to the quantum requisite to establish the defense of insanity in a criminal case by a note found at the end of the case of Clark v. The State, 12 Ohio, 483, which purports to give the charge of Judge Birchard, who presided at the trial in the court of common pleas.

The language imputed to Judge Birchard by that note was disapproved by the circuit court of the second circuit in a well considered case reported by Judge Shauck, now a member of this court. Sharkey v. The State, 2 C. C. Rep., 101.

By what authority that language is ascribed to Judge Birchard does not appear. If such language was employed by that learned judge, it was at a period in our judicial history, before the question of the burden of proof in such case had been finally settled. In the charge referred to, Judge Birchard explicitly laid down the rule, still adhered to by this court that the burden of proof rested on the accused to establish his insanity. Nothing appears in the case, however, to show that the degree of proof necessary to sustain this burden was discussed by counsel or specially considered by this court. Since then, in the case of Bond v. The State, 23 Ohio St., 349 (supra), this court held that a bare preponderance of the evidence was sufficient to establish this defense. This rule was adhered to in Bergin v. The State, 31 Ohio St., 111. The original contention, as we have seen, respected the party upon whom the burden rested. This court adopted the view of this question most unfavorable to the accused, by easting upon him the burden of proving his insanity, but we do not think this burden should be further increased by requiring of him more than a preponderance of the evidence. As the instructions given to the jury by the learned judge who presided at the trial in the court of common pleas prescribed more than this, it was erroneous in this respect.

Other questions are raised by the record and discussed by counsel, but we think none of them contain substantial error.

Judgment reversed.

Minshall, J., dissents.


author: Spear, J.

text:
    The Lake Erie & Western Railroad Co. v. Weisel.

      Liability of railway company — Animals on track — Contract by owner to maintain fence to protect animals — Ordinary care by railroad — Contributory negligence of owner of animals.

      1. Where domestic animals are injured by a railroad train while trespassing- upon the track of the company, and the owner of the animals is free from negligence contributing to their injury, the company will be liable for a failure on the part of those operating the train to exercise ordinary care to avoid injury.
    2. But, where in a case of like injury, it is shown that the owner was bound, by contract with the company, to maintain a gate placed by him for his convenience in the fence dividing-his land from that of the company’s right of way, and the animals get upon the track by reason of the neglect of the owner to perform that duty, liability on the part of the company arises only when it is shown that the injury resulted from the intentional act, or gross carelessness of those operating the train. Railway Co. v. Smith, 26 Ohio St., 124, approved and followed.
    (Decided October 20, 1896.)
    Error to the Circuit Court of Hancock county.
    The action below was for the killing of horses owned by the defendant in error by the locomotive and freight train of plaintiff in error upon its road.
    A verdict and judgment was given against the company in the common pleas, which, upon error, was affirmed by the circuit court. To reverse these judgments the present proceeding is brought.

      A. Blackford and Jason Blackford, for plaintiff in error.

      Bailey & Bailey, Jas. P. leasm’<?, and A. Zugschwert, for defendant in error.
   Spear, J.

The errors complained of relate to the charge of the court to the jury.

It appeared by the evidence that the horses were killed by the train of the company, in daylight, on its track opposite the lands of the plaintiff. The railroad was fenced with a good fence on both sides, with cattle guards at the road crossings, and it was not on account of any defect in the fence that the animals got upon the right of way. The fence had been built and maintained by the plaintiff under a written contract with the company by which it was agreed that the company should furnish all the material for the fence, and that the plaintiff, in consideration that he might put in two gates, one on each side of the road, opposite a farm crossing, thus giving him communication between his fields, and might set the fences in ten feet on each side of the right of way, agreed to and did build the fences and the gates, and, up to the time of tbe injury maintained them. No one but the plaintiff had the right to use the gates, although occasionally some neighbors did use 'them. One of the horses was breachy and was with the others turned out with a yoke on the evening- before the injury into plaintiff’s pasture field along side the railroad, from which one of the gates opened to the right of way. The horses got on the right of way through this gate which was found open on the morning when the horses were run over. The fence had not been disturbed. 'No one knew how the gate became open. The testimony of plaintiff was that he noticed the gate the evening'before the injury, audit was shut. He supposed some of his family were through the gate last.

The track near the gate ran through a cut some eight or ten feet deep on the part from which the train approached the horses.

Evidence was offered by the plaintiff to show that the engineer and fireman might have seen the horses on the track for a mile before reaching them, and by the defendant to show that the horses were not seen by the engineer or fireman until the train was so close on to them as to make it impossible to stop the train before running over them.

Upon .these facts the court, among other things, charged the jury that:

“The plaintiff further offers evidence tending to show that the engineer and fireman who were on this locomotive had the means of and could have seen, for the distance of a mile or more,' the horses, and evidence is offered tending to show that, being able so to see them they did not stop as it was their duty to do. ’ ’

The court also charged the jury:

“If you find from the evidence that these animals could have been seen by the operators of the train, and they did not when they could have seen them do everything in their power to stop their train and thereby prevent a collision which caused the death of these animals, your verdict will be for the plaintiff for the value of these animals killed.”

To which last instruction the company, by counsel, excepted.

We think, as to this instruction, the court misconceived the law. The evidence having established that the company had performed its full duty as between itself and the plaintiffs, as to the fencing of its road, and was in no way in fault for the condition of the gate which made it possible for the horses to get upon the right of way, and thence upon the track, it owed no greater duty in respect to the protection of the stock, giving the facts the construction most favorable to plaintiff, than was embraced in the exercise of ordinary care.. It could not be said, as matter of law, that the engineer was bound to stop the train. The company had the right to the free and unobstructed use of its track, and the paramount duty of the engineer was the protection of the persons and property on the train, and the train itself. Whether or not it was his duty to stop the train depended upon all the circumstances, and was a question to be submitted to the jury under proper instructions, and, in any event, even if plaintiff himself did not contribute to the accident the engineer was not bound to do everything in his power to stop the train, but was bound only to the use of ordinary care to avoid injury to the stock. It is not difficult to conceive of circumstances where a train and its passengers, crew and freight would be endangered by an attempt to stop. Ordinary care is the rule in such case, and that is to be exercised in away consistent with the paramount duty referred to.

It is stated in the opinion of White, J. in Railroad Co. v. Smith, 22 Ohio St., 246: “If the servants of the company, in charge of the train, having due regard to their duties for the safety of the persons and property in their charge, could, by the exercise of ordinary care, have seen and saved the horses, we think they were bound to do so. ” This is the doctrine of the above case. But it rests upon the further qualification that the plaintiff himself was free from contributory negligence, as shown by the second paragraph of the syllabus.

But the case at bar is not, in its facts, precisely like the case above cited. A fair inference from the facts appearing by the plaintiff’s evidence, is that, by virtue of his contract with the company, he was bound to maintain the gate, i. e., prevent a gap at that point whereby cattle could get upon the track. That duty he did not perform, and by this neglect the horses strayed where they endangered the lives of the crew and the property of the compan3T, and were themselves injured. The plaintiff, therefore, contributed to his own loss by his violation of contract with the party whom he now demands shall make his loss good.

It was held in Railway Co. v. Smith, 26 Ohio St., 124, that ‘Where the owner of land through which a railroad runs, agrees with the railroad company, for a valuable consideration, to build and keep up good and sufficient fences on both sides of the road through his lands, and fails to do so, and on account of the insufficiency of such fences his animals stra3r upon the track and are injured, he is not entitled to recover for suchinjury, although the insufficiency of the fences was caused by casualty and without negligence on his part, unless such injury is shown to have been intentional, or the result of gross carelessness on the part of-the agents and servants of the company.”

. Applying the law of this case to the case at bar the instruction should have been that, in order to recover, the plaintiff must establish that the injury was intentional on the part of those operating the train, or was the result of their gross carelessness.

Exceptions to the refusal of the court to give two instructions requested by the company’s counsel, are not passed upon, for the reason that the form in which they are printed renders their meaning obscure.

The charge, as printed, was,, we think, misleading, but that is not here made ground for reversal.

Judgment reversed and cause remanded.


author: Burket, J.

text:
    The Woodland Oil Company v. Crawford.

      Lease of land — For obtaining gas and oil — Constmiction of lease— Stipulations as to default — Assignment of lease — Liability of assignee.

    1. 0. granted, demised and let, by written instrument, a certain tract of land and all the oil and gas in or under the same, to U. and his assigns, for the purpose, and with the exclusive right, of drilling and operating the land for gas and oil for five years, and as much longer as oil or gas should be found thereon in paying quantities, upon the consideration of one dollar paid, and a promise to pay certain rentals for further delay if default should be made in drilling a well within one year, and which instrument had the following forfeiture clause: “And a failure on the part of U. to complete such well or wells as above specified, or instead thereof, to pay the rental as above provided, shall render this lease and agreementnull and void, together with all rights and claims', and not binding on either party, and not to be revived without the consent of both parties hereto, in writing. ’ ’ Default having been made in drilling, in an action to recover the promised rental, Held: — First—that such instrument is a lease of the land, oil and gas for the limited time and purpose expressed therein. Second — that the forfeiture is for the benefit of the lessor and at his option. Third- — that the promise to drill a well or pay rental cannot be discharged by a mere failure to perform the promise. Fourth — upon failure to drill the well, or instead thereof to pay the agreed rental, suchrentalmay be recovered by action as rental, and need not be sued for as unliquidated damages.
    2. U. assigned the lease to the oil company, and in such assignment stipulated that the oil company should have and hold the lease under the terms thereof, and under and subject to the rents and covenants therein reserved and contained, on part of the lessee to be paid, kept, done and performed, and the oil company accepted the assignment and received the lease thereunder. Held: — That thereby the oil company stepped into the shoes of XT., and assumed his obligations, and became liable for the rentals due under the lease.
    (Decided October 20, 1896.)
    Error to the Circuit Court of Monroe county.
    On the 23d day of March, 1889, Thomas J. Crawford, defendant in error, his wife joining to release dower, entered into a contract in the nature of an oil lease with one Cyrus Underwood, which lease, omitting the acknowledgement, is as follows:
    “This agreement, made the 23rd day of March, A. D. 1889, by and between Thomas J. Crawford and Mary A. Crawford, his wife, of the township of Perry, county of. Monroe, and state of Ohio, of the first part, and Cyrus Underwood of Jamestown, state of New York, the second part.
    “Witnesseth, that the said parties of the first part for and in consideration of one dollar to them in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, and of the agreements hereinafter mentioned, have granted, demised and let unto the party of the second part, all the petroleum and gas in or under that certain tract of land hereinafter described and also all the said tract of land for the purpose and with the exclusive right of drilling and operating upon said premises for said petroleum and gas.
    “The said tract of land being situated in the township of Perry, county of Monroe and state of Ohio, and is bounded and described as follows, to-wit: North by lands of John T. Duvall and David G. Crawford; east by lands of Peter Eddy and David G. Crawford; south by lands of Chas. Biggie and Fanny Scales; west by lands of Fanny Scales and Wm. Robinson; containing one hundred and twenty-eight (128) acres, be the same more or less. Together with the right of way over said premises to the places of operating, the right to lay pipes to convey water, oil and gas, also to use water from said premises, and to remove any machinery or fixtures placed on said premises by the party of the second part.

      “To have and to hold the same unto the said party of the second part, his heirs and assigns for the term, and period of five years from the date hereof, and as much longer as oil or gas is found in paying quantities thereon.
    “In consideration thereof, the said party of the second part agrees to give or pay to the parties of the first part the full equal one-eighth part of the petroleum produced and saved by the party of the second part from the premises, and to deliver the same, free of expense into tanks or pipe lines to the first party’s credit. And should gas be found in any well in sufficient quantities to justify marketing the same, the party of the second part shall pay to the parties of the first part at the rate of two hundred ($200.00) dollars per annum for each of such wells so long as the gas shall be sold therefrom.
    “It is also agreed, that no wells shall be drilled within three hundred feet of the buildings now on the premises without the consent of both parties.
    ‘ ‘It is further agreed, that the party of the second part shall complete a test well in the township of Perry, county and state aforesaid, or within two (2) miles of the above described premises, within one year from the date hereof, or in default thereof, pay to the parties of the first part for further delay, a yearly rental of one hundred and twenty-eight dollars for the above described premises from the said time for completing the said test well until such well be completed, and in case oil is found in paying quantities in said test well, the party of the second part agrees to complete a well on the above described premises, within one year from the comple-. tionof said test well, or in default thereof, pay to the parties of the first part for further delay, a yearly rental of thirty-two ($32) dollars for the above described premises from the time set for completing a well thereon until such well shall be completed. The rentals, as they become due under this contract, shall be deposited to the credit of the parties of the first part in the Monroe Bank of Woods-field, Ohio, or paid direct to the said first parties. And a .failure on the part of the second party to complete such well or wells as above specified, or instead thereof, to pay the rental as above provided, shall render this lease and agreement null and void, together with all rights and claims, and not binding on either party, and not to be revived without the consent of both parties hereto, in writing.
    “The parties of the first part reserve a sufficiency of water for the use of the stock kept on the premises, and also for household use.
    “It is understood that all the conditions between the parties hereto shall extend and apply to their respective heirs, executors, administrators and assigns.
    ‘ ‘In witness whereof the said parties have hereunto set their hands and seals the day and year first above written.
    T. G. Crawford, (Seal.)
    Mary A. (her mark) Crawford, (Seal.)
    Cyrus Underwood, (Seal.)”
    Sealed and delivered in the presence of
    George Neff,
    D. Crawford.
    Six other parties entered into the same kind of contracts with Mr. Underwood as to lands owned by them, all of which contracts were duly recorded.

      Ón the 10th day of April, 1889," Mr Underwood made an assignment of said seven contracts to the Woodland Oil Company, and which assignment, with a description only of the lands of defendant in error, is as follows:
    “assignment op leases.”
    “Know all men by these presents that Cyrus Underwood, of Jamestown, New York, for and in consideration of the sum of one dollar to me in hand paid by Woodland Oil Company at and before the ensealing and delivery of these presents the receipt whereof is hereby acknowledged, hath granted, bargained, sold, assigned and transferred and by these presents doth grant, bargain, sell, assign and transfer unto the said Woodland Oil Company, its successors and assigns, all the whole of the grantees or lessees interest and estate of, in and to the following mentioned indentures of lease, grants and conveyances, and the lands and premises therein granted, leased and demised and intended so to be, situate in the county of Monroe and state of Ohio, to wit: Thomas J. Crawford and wife to C. Underwood, dated March 23, 1889, 128 acres in Perry township, recorded June 27, 1889, in book 4, page 22.
    “With the appurtenances together with the same interest of in and to all the tubing, easing, build-ding’s, improvements, rigs, machinery, boilers, engines, oil and gas well supplies, connections and fixtures upon the said premises or any part thereof and to the grantees or lessees interest be-' longing and appertaining’. And also all my estate, rig’hts title, interest, claim and demand whatsoever of, in, to and out of the said leases, grants or conveyances, lands and premises and other property hereby conveyed or intended so to be. To have and to hold the said interests in the said leases, grants, conveyances, lands and premises unto the said Woodland Oil Company, its successors and assigms, to the use of the said Woodland Oil Company, its successors and assigns, for and under the terms, limitations and conditions and reservations of the said leases or grants respectively and under and subject to the rents, royalties and covenants in the said lease or conveyances respectively reserved and contained on the part of the grantees or lessees thereof to be paid, kept, done and performed and to have and to hold the said interests in the remaining property hereby conveyed unto the said Woodland Oil Company, its successors and assigns, forever. In witness whereof I have hereunto set my hand and seal the 10th day *of April, 1891.
    Cyrus UnderwooI), (Seal.)
    Signed, sealed and delivered in presence of
    H. S. Grayson,
    H. J. O’Donnell.”
    Afterward Thomas J. Crawford commenced an action against the Woodland Oil Company for breach of said contracts and to recover the rental therein agreed to be paid. The first cause of action in his amended petition is as follows :
    “Por a first cause of action, the plaintiff, Thomas J. Crawford, says that the defendant, The Woodland Oil Company, is a corporation organized and doing business under the laws of the state of Pennsylvania, and owning real estate and personal property in Monroe county, Ohio; that on the 23d day of March, 1889, said plaintiff and Mary A. Crawford, his wife, who has since died, entered into a certain indenture of lease (of which reference is hereto made, marked exhibit ‘A’ in the petition herein filed and which exhibit is made a part of this amended petition as if hereto annexed or attached as an exhibit), with one Cyrus Underwood for the consideration of one dollar, paid said plaintiff by said Cyrus Underwood; that in said indenture of lease said plaintiff and his said wife, granted, demised and let unto the said Cyrus Underwood, his heirs and assigns all petroleum in or under a certain tract of land hereinafter described and also said tract of land for the purpose and with the exclusive right of drilling and operating upon said premises for said petroleum and gas, together with the right of way over said tract of land to the place of operating, the right to lay pipe lines to convey water, oil and gas, also to use water from said premises, and.also to remove any machinery or fixtures placed on said premises. The said tract of land or premises being situated in the township of Perry, county of Monroe and state of Ohio, and is bounded and described as follows, to-wit: North by the lands of John T. Devaul and David G. Crawford; east by the lands of Peter Eddy and David G. Crawford; south by the lands of Charles Biggie and Fannie Seales; west by the lands of Fannie Scales and William Robinson, containing one hundred and twenty-eight (128) acres, be the same more or less, for the term and period of five years and as much longer as oil and gas is found in paying quantities thereon.
    ‘ ‘Plaintiff says, that in said indenture of lease said Cyrus Underwood agreed to give or pay to said plaintiff the full equal one-eighth (£) part of the petroleum produced and saved by the said Cyrus Underwood from the said premises and deliver the same, free of expense into tanks or pipe lines to the credit of the plaintiff. And should gas be found in any well in sufficient quantities to justify marketing the same, the said Cyrus Underwood shall pay plaintiff at the rate of $200.00 per annum for each of such wells as long as the gas shall be sold therefrom; and said plaintiff further says, that said Cyrus Underwood covenanted and agreed therein to complete a test well in the township of Perry, in the county of Monroe, and state of Ohio, or within two miles of the above described premises within one year from the 23d day of March, 1889, or in default thereof pay to the said plaintiff for further delay a yearly rental of one hundred and twenty-eight (128) dollars for the above described premises from the said time for completing the said test well until such well shall be completed. The rentals as they become due under this indenture of lease shall be deposited to the credit of the plaintiff in the Monroe Bank, of Woodsfield, Ohio, or paid direct to said plaintiff.
    “Plaintiff says that on the 10th day of April, 1891, said Cyrus Underwood assigned and transferred all his rights, title and interest in and under said indenture of lease to the defendant. The Woodland Oil Company, said defendant, assuming as a part of the consideration all his (Underwood’s) liabilities thereunder; that „ neither said Cyrus Underwood nor said defendant has ever drilled, put down, begun or completed a test well or any other well as prescribed in said indenture of lease in said township of Perry, county of Mohroe and state of Ohio, or within two miles of said premises, or paid to plaintiff or deposited in the Monroe Bank aforesaid to plaintiff’s credit any rentals or money-in default stipulated under said indenture of lease although, often requested so to do. Plaintiff says, that he has duly performed all the conditions on his part to be performed under said indenture of lease, and that said Mary A. Crawford joinedin said indenture of lease merely to release her inchoate right of dower, and had and claimed no interest in said rentals, the same being the sole property of plaintiff, and that said plaintiff on the 23d day of March, 1889, owned and still owns said premises described in said indenture of lease.
    “Wherefore plaintiff prays for judgment against said defendant for the sum of $384.00, with interest on $128.00 from March 23, 1891, on $128.00 from March 23, 1892, on $128.00 from March 23, 1893.”
    There were eight other causes of action, two of which were abandoned, and the other six were each like the first, except that they were on other contracts which had been assigned to defendant in error, after a failure to drill or pay rental, and. a total recovery of over two thousand dollars was asked for a breach of the seven contracts.
    The oil company demurred to each cause of action of the amended petition upon the ground that it did not state facts sufficient to constitute a cause of action.
    The demurrer was overruled and exceptions taken. The oil company then answered, and as a first defense stated that two other named persons had an interest in the subject of the action and in obtaining the relief demanded. The second, third and fourth defenses to the whole of the amended petition are as follows:
    “Defendant, for a second defense to the amended petition and to each cause of action thereof, admits that it is a corporation, and it admits that all the leases named in the petition were made to Cyrus Underwood at the time stated; and it admits that said Underwood assigned the same (except No. 9, Exhibit ‘I’) to defendant about the time stated therein; it admits that no well was completed in one year and no rental has been paid by defendant, but it denies that it assumed or agreed to assume any of the liabilities of said Underwood to plaintiff under said leases, or to any one of the lessors under whom Underwood held; and it denies 'that the acceptance of the assignments of said leases from said Underwood created any liability or in any way obligated this defendant to pay to said lessors, or either of them, or to plaintiff any yearly rental then due, or hereafter to become due on any of said leases; and it denies that it is indebted to plaintiff in any sum, on either cause of action of his petition; and it denies each and every allegation of the petition not herein admitted.
    “Defendant says, for a third defense to the amended petition and to each cause of action thereof, that each and every lease described in the several causes of action in said petition contained among other provisions, the following” ‘And a failure on the part of the second party to complete a well or wells as above specified, or instead thereof, to pay rental as above provided, shall render this lease and agreement null and void, together with all the rights and claims, and not binding on either party, and not to be revived without the consent of both parties hereto, in writing;’ and defendant avers that before the assignment by Cyrus Underwood to it of the leases described in the petition, the time for completing a test well according to the terms of each and all of said leases had expired, and one yearly rental was overdue, yet no test well was completed and no rental has been paid,which rendered said leases and. each of them null and void ; and neither of said leases was revived by said Cyrus Underwood and plaintiff or the other lessors, or by any other person'or persons, and defendant says that each and all of the leases described in the petition were null and void when the same were assigned to it, and that neither of them has since been revived.
    ‘ ‘Defendant, for a fourth defense to the amended petition and to each cause of action thereof, says, that the sums of money to be paid for delay in completing wells called yearly rental in each of said leases, was intended and understood by the parties thereto to be a penalty, and was intended to indemnify plaintiff and the other lessors for all damages actually sustained by delay or failure to complete a test well, and other wells on the lands leased; and it avers that neither plaintiff or any of the lessors under whom he claims have sustained damages by reason of defendant having failed to complete a test well, or other wells on said lands for at the time of the execution of said leases and at the commencement of this action there was neither oil nor gas in paying quantities under the land described in said lease or either of them. ’ ’ The oil company also filed three separate defenses to the first cause of action of the amended petition, the first of which is as follows:
    “Defendant, without waiving any of its defenses to the amended petition, but insisting on each of them the same as if this separate answer were not made, answers the first cause of action as follows:
    “Defendant says, that the lease described in the first cause of action was executed March 23rd,-1889, and the first yearly rental claimed by plaintiff thereunder became due March 23rd, 1891, as stated in the -amended petition; and defendant avers that it is not liable under the assignment of the lease for yearly rental which accrued before said assignment, and it denies that it is liable for any subsequently accrued rental.”
    The second and third defenses to the first cause of action are not material here.
    The plaintiff below demurred to the third defense in the general answer to the amended petition, and also to the first special answer to the first cause of action in the same petition, both of which demurrers were sustained, and exceptions taken.
    The reply of the plaintiff below as to what was left of the answers after sustaining these two demurrers, was a general denial.
    The case was tried to a jury, and verdict returned for plaintiff below for $463.07, and motion made for a new trial, which was overruled and judgment entered on the verdict, to all of which defendant below excepted. The circuit court affirmed the judgment, and thereupon a petition in error was filed here to reverse both judgments.

      J. P. Spriggs <& Son and Mallory <& Jeffers, for plaintiff in error.
    The instruments in suit, although commonly called oil leases, may more properly be denominated licenses, or grants of the right to enter upon the lands and mine or drill for oil and gas; which if found in paying quantities shall after being brought to the surface be divided between the licensor and licensee in the proportions named in the instruments.
    No possession was ever taken by the licensee or his assignee under any of these instruments, so that they were all unexecuted licenses. Ohio Oil Co. v. T. F. &. S. R. R. 4, C. C. R. 210; Herrington v. Wood, 6 C. C. R. 326; Bank v. McConia, 8 C. C. R. 442; Shepherd v. McCalmont Oil Co., 38 Hun. (N. Y.) 37.
    These contracts like all other contracts should he construed so as to carry out the intention of the parties, if their intention can be ascertained from the language used in the instruments.
    There is no ambiguity, and there is not a word of doubtful or uncertain meaning used in the expression; and taken as a whole it meant that a failure to drill a test well or to pay the rental at the time it became due rendered the license void.
    We maintain that the parties had a right to make their contracts .so that each would become absolutely void in case the rental was not paid when it became due, and that the contracts in suit are such contracts.
    That the assignee of one of the instruments in suit is not liable for rental overdue at the time of the assignment, unless under a'special agreement is so apparent that no authority is necessary.

      Stern v. Sewing Machine Co., 53 How. (N. Y.) Pr. 478; L. Gierse v. Green, 61 Tex., 128; Johnson v. Bates, 48 N. Y. Sup. Ct. Rep.
    The defendant below requested the court to charge the jury: “That the sums named in the several leases to be paid as yearly rental, is a penalty only, and is not liquidated damages, and if the plaintiff is entitled to recover he can.
    1. Although the amount to be paid is called in the leases a rental, it is manifest that it is not rent, because the language is that the amount is to be paid for “further delay,” which is clearly not rent.
    Payments in addition to the rents reserved in the lease, which the lessee, for any cause, agrees to pay for the balance of the term are not recoverable as rent, although the word rent -is used.
    Wood’s Land and Tenant, 2nd Ed., p. 1023, and cases cited. Miners' Bank v. Heilner, 47 Pa. St. 452.
    2. In general a sum of money in gross to be paid for the non-performance of an agreement, is considered as a penalty. It will not, of course, be considered as liquidated damages. Taylor v. Sandiford,, 7 Wheaton, 13; Baird v. Tolliver, 6 Humphrey, Tenn. 186; Walls v. Carpenter, 13 Allen, (Mass.) 19; Chedwick v. Marsh, 21. N. J. L., 463; Bell v. Fruit, 9 Bush., 257; Moore v. Platt Country, 8 Mo. 467; Colwell v. Lawrence, 38 Barb. 643; Goldsborough v. Baker, 3 Cranch C. C. 48; Greer v. Tweed, 13 Abb. (N. S.) 427. 38 N. Y. 11 Tiff. 71.
    3. If the court was correct in its charge, “That the non-existence of oil in paying quantities in the lands would defeat the right to recover any sum, then the rentals named must be considered as penalties; for if they are liquidated damages they are payable whether oil exists in the land or not.

      Cook v. Andreas, 36 Ohio St., 174, and in Brick Co. v. Pond, 38 Ohio St., 65.

      C. S. Bushcman, L. F. Matz and G. L. Weems, for defendant in error.
    In answer to plaintiff in error’s first argument, we claim the instruments in this suit are leases, and that we are entitled to collect the rents therein named, according to well settled rules of law, and according to .the terms as set forth in the defendant in error’s amended petition. We claim the court did not err in sustaining the demurrer to the 3rd general defense in plaintiff in error’s answer. 29 N. E. Rep., 398.
    An agreement in an oil lease providing that a failure to sink a well within a certain time, or to make certain payments, shall render the lease void, is enforceable at the option of the lessor.”
    To place the phrase “null and void” in a contract does not effect its validity with either party or parties to the same. A contract can be discharged by breach of the same; but not by him who makes the breach according to well settled principles of law, equity and justice. “That no man can take advantage of his own wrong.” 1 Parsons on Contracts, 506; Taylor’s Landlord and Tenant, See. 492; 1 Smith Leading Cases, 102, 119; Smith v. Whitbeck, 13 Ohio St., 471; 3 Kent 464; Section 4113, Revised Statutes; Gay v. Davy, 47 Ohio St., 396; Williams on Real Property, 396; Galey v. Kellerman, 16 Atl. Rep. 474; Jones v. Gas Co., 25 Atl. Rep., 386; Wills v. The Gas Co. 18 Atl. Rep, 721; Ogden v. Baty, 23 Atl. Rep. 334; Smith v. Miller, 49 N. J., 521; 13 Atl. Rep., 39; Gainhart v. Finney, 40 Mo., 449; 93 Am. Dec. 303.
    Are the amounts named in these leases rent or liquidated damages or are they a penalty?
    In the following cases, leases similar to the ones in this case, the amounts were held to be rentals, and the whole amount therein named was held to be collectable. Letherman v. Olive, 25 Ath. Rep. (Pa.) 309: Clark v. Jones, 1 Denio, 516, Am. Dec. 43, p. 706; Galey v. Kellerman, 16 Ath. Rep. 474: Jones v. Gas Co., 25 Ath. Rep. 386. Smith v. Miller, 49 N. J. 526; Ray v. Western Penn. Nat. Gas. Co., 21 Amer. St. Rep., 922; Ogden v. Haty, 23 Atlantic Rep., 334. Pomeroy’s Equity Jurs. Vol. 1, p. 604; Grasilli v. Lowden, 11 Ohio St., 349; Cothel v.

      Talmage, 9 N. Y., 55; 61 Am. Dec., 716; Clement v. Cash, 21 N. Y., p. 83; Lange v. Werk, 2 Ohio St., 519: Lehigh Zinc & Iron Co. v. Bramford. 14 Supreme Court Reporter, 219; 33 Fed. Rep., 677; 15 Amer. Enc. of Law, 599-600; McCahan v. Wharton, 121 Pa. St., 424: Gilmore v. Ontario Iron Co., 86 N. Y. 415; Clark v. Midland Blast Furnace Co., 21 Mo. App., 58; Bradford Oil Co. v. Blair, 113 Pa. St., 83; Westmoreland & Cambria Nat. Gas Co., v. De Witt, 18 Atlantic Reporter, 724.
   Burket, J.

By the instrument in question, the. plaintiff below granted, demised and let the oil, gas and tract of land for the purpose, and with the right of drilling and operating for oil and gas for five years, or as much longer as oil or gas should be found in paying quantities in the land. This is more than a license; it is a lease of the land, oil and gas for a limited time and purpose, with a right of possession to the extent reasonably required for such purpose, the landlord retaining all that should not be so required.

The principal contention in this case arises upon that part of the lease which provides that a test well should be drilled within one year, and in default, payment of a yearly rental of $128.00 for further delay, and the further provision that a failure to drill the test well, or pay the rental should render the lease null and void, and not binding on either party, and not to be revived without the consent in writing of both parties.

It was this provision that was relied upon in the demurrer to the amended petition, and in the third general defense in the answer of the oil company.

Reduced to its essence, this is a promise in writing upon sufficient consideration, to pay a yearly rental of $128.00 for the right to use, to a limited extent, certain premises, with a further provision in the same instrument, that a failure to pay should discharge the debt; that a default of payment should be the equivalent of payment; that failure should be performance; that non-payment should be payment.

Such contradictions in like instruments have caused the courts to look critically into such instruments to ascertain the real intention of the parties because such contracts cannot be enforced according to their letter. A promise to pay cannot be fulfilled by a failure to pay. A promise to drill a well cannot be satisfied by a failure to drill such well. The proper construction to be placed upon such an agreement is, that upon failure of the lessee to drill a well, or pay the rental, or both, as the case may be, the lessor may elect to put an end to the lease, and enforce payment of the promised rental, or sue for damages for failure to drill the well, or he may elect to have the lease continue in force to the end of the term, and enforce the drilling of wells, and the payment of rentals, as provided in the lease. Such provisions of forfeiture are for the benefit of the lessor, and not for the benefit of the lessee. The lessee cannot plead his own default or wrong, in discharge of his obligation to drill or pay rental. Parties may agree that in case of failure to drill or failure to pay, or both, the lessee shall be relieved of his obligation upon such terms as the parties may agree upon in the lease, whether the terms be of value to the lessor, or loss or inconvenience to the lessee, but a naked default and non-performance, as in this lease cannot be held to discharge the obligations of the lessee. The following authorities are in point:

Leatherman v. Oliver, 151 Pa. St. 646; S. C. 25 Atl. Reporter, 309; Ray v. Western Pa. Nat. Gas Co., 138 Pa. St. 576; S. C., 21 Am. St. Reports, 922; Clark v. Jones, 1 Denio, 516; S. C., 43 Am. Dec. 706; Galey v. Kellerman, 123 Pa. St. 491; S. C., 16 Atl. Rep. 474; Jones, v. Gas Co., 146 Pa. St. 204; S. C. 23 Atl. Rep., 386; Wills v. The Gas Co., 130 Pa. St., 222; S. C., 18 Atl. Rep., 721; Ogden v. Hatry, 145 Pa. St., 640; S. C., 23 Atl. Rep., 39; Smith v. Miller, 49 N. J. L., 521; S. C., 13 Atl. Rep., 39; Taylor’s Landlord and Tenant, Sec. 492; 1 Smith’s Leading Case’s, 102, 119.

It would also be competent for an owner of land to give an option to another party, upon a sufficient consideration, to drill one or more wells within a stated time, and upon failure to drill such wells within the time limited, all rights to cease as to both parties. And it is contended by the oil company in this case, that the leases in question are such options, or else are mere unexecuted licenses. In case ' of an option, a certain consideration is paid or agreed to be paid to tie up the land for a given time, and during1 that time the owner is prevented from using or disposing of the land contrary to the terms of his contract. But in such cases the consideration for the option must be paid, and cannot be satisfied by a naked default. If such default could' be held as satisfaction of the consideration, the instrument would be without consideration, and therefore void.

In. the leases in question the consideration is one dollar paid, and certain rentals promised to be paid in default of drilling a well, and considered as an option, the whole consideration for the option must be paid. The same result follows if the instruments be regarded as unexecuted licenses. The consideration paid and agreed to be paid for the license is one dollar paid, and certain ■rentals to be paid, and the licensor not having interferred with the rights, of the licensee, the latter is bound to pay the full consideration promised for the license, even though he never availed himself of its privileges.'

So that whether the instruments in question are regarded as leases, options or licenses, the plaintiff below is entitled to receive the considerations or rentals agreed to be paid.

The first defense to the first cause of action of the amended petition, to which a demurrer was sustained, raised the question whether the oil company became liable under the assignment to it for the rentals which had matured and remained unpaid at the time of the assignment of the leases, as well as for the rentals which thereafter accrued. We think that the demurrer was properly sustained. In his assignment of the leases, Mr. Underwood stipulated that the oil company should have and hold the leases under the terms thereof, and under and subject to the rents and covenants therein reserved and contained, on part of the lessee to be paid, kept, done and performed. By accepting this assignment with that stipulation, and causing the same to be recorded, and receiving the leases thereunder, the oil company became bound to perform all the unperformed terms of the leases. It stepped into Mr. Underwood’s shoes and assumed his obligations.

■ It is also urged that the failure to drill the required well, and failure to pay the agreed rental did not entitle the lessor to recover the amount named as rental, but at most would only entitle him to recover unliquidated damages. We regard the case as one of rental. The amount agreed to be paid was for the exclusive right of drilling and operating the premises for oil and gas. Failure to exercise the right would not relieve the company from payment of the amount agreed upon as the price of such exclusive right. There are some other questions made in the record, but we find no error as to them, and do not regard them of sufficient general interest to warrant a further report.

Judgment affirmed.


author: By the Court:

text:
    City of Cincinnati v. James et al.

      Assessment for street improvement — Excess above amount allowed by law — Collection may be enjoined.

    1. When an assessment for a- street improvement, whether payable in installments or not, is larger than allowed by law, and sufficient has been paid, though voluntarily, to equal or exceed the amount which could be lawfully assessed, the collection of the remainder of such assessment may be enjoined.
    2. In such case the action is not to recover payments already made, but to prevent the collection of unpaid illegal installments.
    (Decided October 20, 1896.)
    Error to the general term of the Superior Court of Cincinnati.
    The plaintiffs below, defendants in error here, own two lots in the city of Cincinnati, one of which fronts thirty-five feet on Eighth street, and abuts lengthwise 105 90-100 feet on Baymiller street; the other lot fronts thirty-five feet on seventh street, and abuts lengthwise 105 90-100 feet on Baymiller street.

      By order of the city, Baymiller street was improved, and the cost assessed upon the property by the foot front; and in making such assessment the city assessed each foot of said lots abutting on Baymiller street, instead of assessing only thirty-five feet of each lot, which is the frontage of the lots respectively on Seventh and Eighth streets, according to the rule laid down in the Haviland case, 50 Ohio St. 471.
    The city ordered the assessment to be paid in ten annual installments. The plaintiffs below paid six installments amounting to $475.54, and then began this action to enjoin the collection of the other four installments, claiming that they had already paid more than the full amount of any assessment which the city could legally make on said lots for the improvement.
    The court found that the ten installments, when made on only the thirty-five feet of each lot, amounted to only $255.00] and as more than that sum had already been paid, the court granted the prayer of the petition, and enjoined any further collections.
    The city claimed that the six payments already made, were voluntary payments, and that the adjustment, under the rule in the. Haviland case, should be only as to the unpaid four installments, and to test that question brought this case here on error, seeking to reverse the judgment of the general term.

      Frederick Hertenstein and W. H. Whittaker, Corporation Counsel, for plaintiff in error.

      John Gal/oin and M. L. Galvin, for defendants in error.
   By the Court:

The action below was for the purpose of enjoining the collection of the four unpaid installments oí the assessment and not to recover back any part of the six assesments which had already been paid. The- fact that these six assessments had been paid voluntarily, therefore is of no importance in the cáse. The plaintiffs below paid $220.54 in excess of the full amount of a legal assessment for the improvement, b.ut they are not seeking to recover back this excess, but only to enjoin the collection of the other four installments. They paid the city all they owed and more, and should not now be required to pay still more. As soon as the city received payment to the full extent to which it had power to make a legal assessment for the improvement, its power of further collection was gone, and it would make no difference how the illegality in -the assessment arose, whether by overestimate, as in the case of Pike v. Cummings, 36 Ohio St., 213, or by mistake in calculations, as in Groesbeck v. Cincinnati, 51 Ohio St., 365, or'by a wrong construction of a statute as in this case, or by any other cause. Neither can it make any difference that the payments are made by installments. No more installments can be collected than equal the amount of an assessment made according to law. The case of Pelton v. Bemis, 44 Ohio St., 51, was an action to recover back an illegal assessment, while this is an action to enjoin the collection of such assessment. The distinction between the two is manifest. There is no error in the record.

Judgment affirmed.


author: Williams, C. J.

text:
    The H. B. Clafflin Co. et al. v. Evans et al.

      Partnership — Insolvent firm — Assignment of partnership property by managing partner — Presumed consent of absent partner— Assignment dates from delivery to Probate ftidge — Rev. Stat. 6885, construed.

    1. A managing partner entrusted with the sole charge of the business and effects of the firm, may, in case of its insolvency, make a valid assignment of its property for the benefit of its creditors, without having obtained the consent of a co-partner who is a non-resident of the state where the business was carried on, and absent therefrom; the assent of the absent partner to the assignment, in such case will be presumed.
    2. An assignment for the benefit of creditors takes effect, as to all persons, from the time of its delivery to the probate judge of the proper county ; and it is his duty to endorse thereon the exact time of its delivery to him. Revised Statutes, section 6335. Neither the delay of the judge in making the endorsement, nor the endorsement of a date later than that of the delivery to him, though done in obedience to instructions received from the assignor, can postpone the taking effect of the assignment beyond the time of its actual delivery, or affect rights acquired thereby.
    3. While the presumption is that the officer performed his duty and the endorsement speaks the truth, that presumption is not conclusive, but the true time of the delivery of the assignment may be shown by the parties whose interests are affected.
    (Decided October 20, 1896.)
    Error to the Circuit Court of Delaware county.
    The case originated in the probate court, upon an application for an order directing the assignee! of the Snodgrass Brothers to, distribute funds ’in his hands to certain creditors who were asserting priority by virtue of liens alleged to have been acquired previous to the assignment. v
    The application was resisted by the general creditors, and an appeal taken from the judgment rendr ered, to the court of common pleas, where a special finding was made of the facts, which, so far á‘s they are material to an understanding of the questions upon which the case is reported, are substantially as follows: The Snodgrass Brothers was the name of a copartnership which, prior, and up to the 30th day of June, 1892, had been engaged in carrying on a commercial business in Delaware county; it had become financially embarrassed, and on that day was confessedly insolvent. The firm consisted of John F. Snodgrass, who had the actual charge of the partnership effects and the entire management and control of the business, and Samuel Snodgrass, who was a resident of the state of California, where he was engaged in other business not connected with that of the firm, and who at no time had taken any active part in the business of the firm. John P. Snodgrass becoming aware of the insolvency of the firm, and convinced of the certainty of immediate' suspension of business, concluded to make an assignment of the effects of the partnership for the benefit of its creditors; but desired, before doing so, to create certain preferences. With that purpose in view, on the 29th day of June, 1892, he executed, in the firm name, separate promissory notes, making them payable respectively to the creditors whom he desired to prefer, for the amount of the firm’s indebtedness to each creditor. These notes were dated back, so as to appear to be due, and each had at-' tached a warrant of attorney, authorizing judgment to be taken upon it by confession in any court of record; and, on the same day, judgments were obtained on each of the notes, in another county, upon which executions were issued to the sheriff of Delaware county, who, early on the morning of the next day, (June 30,- 1892), received the writs, and at 7 o’clock on that morning levied the same on the partnership property, and made return of the levies of that date. In the meantime, after the writs were received by the sheriff, but before any of the levies were made, John F. Snodgrass, without having consulted his copartner, who was then absent from the state, executed in the name and behalf of the firm, an assignment of all the partnership property to a trustee for the benefit of the firm creditors, and handed it to the probate judge of Delaware county, with instructions not to file it until after the executions should be levied by the sheriff. From the time the deed of assignment was so handed to him it continued in the custody of the probate judge, who, following the instructions he had received, did not mark it filed until after the levies of the executions were made.
    This was done in order that the execution creditors might have priority over the general creditors. The assignee qualified, took possession of the property and sold it,, having agreed with the execution creditors that the proceeds should stand in the place of the property, and the rights of the creditors, with respect to it, be determined on distribution. The assignment was adjudged to be valid, but the court held that it did not take effect until it was marked filed by the probate judge, which, being after the levies were made, entitled the execution creditors to priority in the distribution of the fund; and, as that was insufficient to pay all of them in full, it was ordered distributed among them in proportion to the amount of their respective claims. That judgment was affirmed by the circuit court, and the general creditors who were denied participation in the fund prosecute error in this court.

      Powell c& Minahcm for plaintiffs in error.
    Our first claim in this case is that the deed of assignment was handed to the probate judge before the executions were levied by the- sheriff, and therefore no property was seized by the pretended levies, but the entire property of the partnership passed, by the deed of assignment, to the assignee free from any levies, for the benefit of general creditors. Section 6335, Revised Statutes.
    It is true the probate judge endorsed upon the deed of assignment as the date of filing, 8:10 o’clock instead of 7 o’clock, the time it came to his hands. The endorsement, though the ordinary and most convenient evidence that a paper has been filed, is not essential. File marks are but evidence. Haines v. Lindsay, 4 Ohio, 88; Nimmons et al v. Westfall, 33 Ohio St., 213; King v. Penn., 43 Ohio St., 57.
    Our next claim is that the confessions of judgment, having been made by one member of the firm of Snodgrass Brothers alone, do not bind his copartners or the firm. Grazebrook v. McCredie, 9th Wend., 437; Elliott v. Halbrook, 33 Ala. 659; McKee v. Bank of Mt. Pleasant, 7 Ohio, part 2, p. 175; Grear v. Hood, 25 Penna. St., 430.
    It is settled in the findings of facts that before the creditors obtained knowledge of the judgments and levies the deed of assignment for the benefit of the'general creditors had taken effect. Wilcoxson v. Burton, 27 Calif. 228.
    Finally, we present the question whether an insolvent debtor who is about to make an assignment . can prefer such creditors as he may select without any action on their part and without their knowledge or consent.

      If a creditor voluntarily executes mortgages to certain creditors who are not asking them or pressing him, and then assigns for the benefit of creditors, these mortgages are illegal preferences.

      Mg Clure <fi Smyser and IF. A. Hall, for defendants in error.
    The plaintiffs in error contend that, under section 6335 of the Revised Statutes, the handing of said deed of assignment to the probate judge by the assignor made it an effective deed of assignment from that moment.
    It is the intention to deliver that gives validity to the act of delivery. ’ 2 A. S. Rep., 70, 71; Webb v. Christen, 2 A. S. R., 70; Merrills v. Swift, 46 Am. Dec., 316; Johnson v. Sharp, 31 Ohio St. 618.
    In the case at bar we maintain that John F. Snodgrass, the assignor, had full control of said deed of assignment up to the time the probate judge was authorized to note the hour of filing on said deed, and to note the filing on the journal of the court, which was eight o’clock and 10 minutes, it being conceded that the executions had been levied at 7 o’clock a. m. same day. Shirley v. Ayers, 14 Ohio, 310; Duke v. Spangler, 35 Ohio St., 125; Railroad Co. v. Iliff, 13 Ohio St., 235; Black v. Hoyt, 33 Ohio St., 203.
    Under section 6335, Revised Statutes, two things are to be considered:
    1st — Delivery.
    2nd — Filing on the journal of the court.
    What constitutes a valid delivery is a legal question.
    There must first be a delivery to the probate judge, and after the delivery he must immediately endorse the fact of delivery on the deed of assignment, and note the filing on the journal of the court.
    There is no question as to the good faith of these judgment creditors. There is no question as to the validity of all the debts for which cognovit notes were given and judgments were entered.
    The plaintiffs in error herein, as exceptors, attack the validity of the judgments rendered in favor of the defendants in error herein. They offer no evidence whatever. Their objection is solely to the manner in which the preferences were obtained. C. W. Co. v. Hodenpyl et al., 135 N. Y., 433.
    All presumptions are indulged in favor of the judgments when the judgments are attached collaterally. Black on Judgments, section 288, citing 13 Ohio St., 431 and 439. The rule in Ohio is, that a judgment cannot be attacked in collateral proceeding except for fraud or mistake.
    As no mistake is alleged in this instance, the sole question for consideration is, was the judgment procured by fraud?
    A judgment irregular, informal and erroneous, if the court had jurisdiction, is protected from collateral attack. 39 Ohio St., 366.
    A judgment must be an utter nullity to subject it to attack in a collateral proceeding. 39 Ohio St., 336.
    The court cannot correct irregularities or errors in a judgment in a collateral proceeding. 13 Ohio St., 456, followed in 16 Ohio St., 187.
    “To annul a judgment for fraud, legal or technical fraud is not sufficient; actual, positive fraud, or fraud in fact, must be shown.” 73 Am. Dec., 211; Starr v. Starr, 1 Ohio, 146, cited in 35 Ohio St., 126, and 23 Ohio St. 479.

      A creditor at large must reduce his claim to judgment before he can attack a judgment on the ground that it was improperly or fraudulently entered. 135 N. Y., page 630; Waite on Fraudulent Conveyances, section 74.
    But the plaintiffs in error ask the court to infer that John F. Snodgrass had no authority to confess judgment in the name of the firm.
    So far as the record discloses, they offered no proof whatever on this subject, but as a mere arbitrary inference of law have asked this court to declare said judgments null and void, because of a want of power in the partner to make the confession. If it is true that the court will indulge all presumptions in favor of the validity of a judgment, in the absence of any proof attacking its validity, the contention of the plaintiffs in error is manifestly untenable.
    1 Bates on Law of Partnerships, Sec. 380. The court will not infer, without proof, that a confession was unauthorized. Preference may be given by cognovit note. Revised Statutes, Sec. 6355, 1 Ohio St., 242; Doremus et al. v. O'Hara et al. 1 Ohio St., 50.
    Preferences may be given by a confession of judgment to secure surety from contingent liability. 1 Handy, 375; 1 Ohio St., 237; Black on judgments, Sec. 72; Atkinson v. Tomlinson, 1 Ohio St., 243; Black on judgments, Sec. 60, Vol. 1. An unauthorized execution may be ratified. 22 Am. St., Rep., 571; Van Fleet on Collateral Attack, 583; Brown & Co., v Webb, 20 Ohio St., 400.
    That a failing debtor has a right to prefer creditors has been so repeatedly decided by this court as to render a citation of the authorities upon that subject wholly unnecessary.
   Williams, C. J.

The plaintiffs in error, it is conceded, are entitled to share in the fund for distribution by the assignee, ratably with the creditors who were accorded priority by the judgment below, unless the assignment is invalid, or did not take effect until after the executions were levied.

The validity of the assignment is questioned on the g’round that, though, executed in the name of the firm, it was so executed by one of the partners only, and without having obtained the consent of the other.

That one member of an insolvent firm cannot make a valid assignment of the partnership effects to a trustee for the benefit of its creditors, against the expressed will of a copartner, or without his assent when he is present or accessible, was held by this court in Holland v. Drake, 29 Ohio St., 441.

That decision is placed upon the ground that the appointment of a trustee to dispose of the effects of the firm for the benefit of its creditors, is not within the contemplation of the ordinary partnership, or the usual course of its business, and therefore beyond the scope of the agency arising from the partnership relation. The contrary doctrine is maintained by high authority, and with much show of reason. It is not doubted that one partner may sell any part of the partnership property to one or more of the creditors in payment of the partnership indebtedness, or sell all of its effects to all of its creditors, and if insufficient to satisfy their debts, in full, the sale may be so made to them as to secure a pro rata division ; and it is not surprising- that authorities are found which strenuously maintain that the power of the partner to accomplish the same result by an assignment to a trustee to make such distribution is included in the agency resulting from the partnership relation. The dissolution of the partnership ensues not less certainly from a sale of the whole of its effects directly to the creditors, than from the transfer to a trustee for their benefit. But we are not disposed to depart from the rule laid down in Holland v. Drake, supra, nor are we disposed to extend it. It does not apply where the partner whose assent has not been obtained to the assignment was not accessible in the exigency which seemed to call for immediate action; nor, where his authority or assent may be fairly implied from the situation of the parties, or the .manner of conducting the business. In the ease referred to, the partner whose assent was lacking- not only resided in the city where the partnership had its place of business, but he was the active managing member of the firm having control and management of its property and business. The circumstances were such as to repel, rather than give rise to any inference of authority or assent by him to a final disposition of the firm effects by his copartner who had taken no active part in its affairs. The situation is reversed in the case we have before us. Here, the partner who executed the assignment was the active managing member of the firm, having the entire charge and control of the partnership business and custody of its property; and it is plainly inferable from the permanent absence of the other partner, and his total inattention to the business, that he intended to entrust the affairs of the firm wholly to the resident partner. The absent partner having withdrawn from participation in the conduct of the partnership affairs, and, being inaccessible for consultation and advice, might reasonably expect and be held to intend that the member placed in control should, not only exercise the implied powers of agency ordinarily possessed by a partner, but, in addition, should have the discretionary power in case of emergency to do what, under the circumstances, should appear to be just and proper in the disposition of the firm property. And, where a commercial house so situated is overtaken by financial distress amounting to obvious insolvency, the authority of the acting partner to appropriate the property .to the creditors equally, by placing it in the hands of a trustee for that purpose, may well be presumed, in the absence of express dissent by the copartner, or of circumstances which 'would fairly indicate his dissent. Equality among creditors of equal merit is favored in equity, and accords with natural justice; and a disposition of the partnership assets, in case of insolvency, which secures that equality, the courts will not be eager to disturb.

The validity of an assignment of the partnership property, executed by one partner in the name of the firm, under circumstances similar to those existing in the present case, was sustained in an opinion by Chief Justice Marshall, in Anderson v. Tompkin, 1 Brock., 456, and also by the same learned judge, in Harrison v. Sterry, 5 Cranch, 289. And it was held in McCullough v. Sommerville, 8 Leigh, 415, that “when a partner resides out of the state where the partnership business is carried on, the managing partner in charge of the business may make a valid assignment of the firm effects for the benefit of its creditors.”

We find no difficulty, therefore, in sustaining this assignment, both on reason and authority, without calling in question the decision in Holland v. Drake, supra.

There having been a valid execution of the assignment, the question is presented, when did it take effect so as to vest the title, to the property in the assignee? This question is answered by the statute, which provides that every assignment for the benefit of creditors shall take effect from the time of its delivery to the probate judge of the proper county, and such delivery may be made by the assignor to the probate judge, “either before or after its delivery to the assignee;” and the probate judge shall endorse thereon the exact time of its delivery and “note the filing on the journal of the court.” Revised Statutes, section 6335. The instrument of assignment in question was delivered to the probate judge of Delaware county when it was handed to him by the assignor on the morning of the 30th. day of June, 1892.

True, it was so handed to him, as shown by the findings of fact, with instructions not to endorse upon it the exact time of delivery, but to make the date of its delivery appear to be subsequent to the levies of the executions, and thus enable the execution creditors to secure a lien giving them priority over the other creditors. The assignment was nevertheless delivered to the probate judge when it was placed in his possession, and there was no condition attached to the delivery. It was the purpose and intention of the assignor that the instrument should become operative as an assignment, and it thereafter remained in the custody of the judge. There was no other delivery of it.

The assignee qualified under it, and has proceeded in the execution of the trust. By the positive terms of the statute, the assignment became effective from the time of such actual delivery; and the observance by the probate judge of the assignor’s instructions to delay making the endorsement of the filing and so make it as to show its filing of a date later than its delivery, could not defeat or postpone its operation, nor change the legal consequences which resulted from its delivery. Upon receiving the instrument, the probate judge.had a plain statutory and official duty to perform, which was to endorse thereon the exact time it was so received, and make a corresponding entry on the journal of the court. The presumption, of course is, that duty was performed, and the endorsement speaks the truth. The endorsement, however, is but prima facie evidence of the time of the filing, and, the true date of the delivery of the instrument may be shown. It is established by the finding of the trial court that the deed of assignment in question was in fact delivered to the probate judge before the executions were levied, but was held by him and not endorsed filed until after the levies were made, in obedience to the instructions of the assignor; from which that court concluded, erroneously as we think, that as a matter of law, there was not a delivery until the date of the filing was so endorsed thereon. It seems clear that any such understanding or arrangement must be wholly ineffectual to displace or interfere with the rights which accrued upon the delivery of the assignment.

The judgment below must be reversed; the application of the defendants in error overruled; and the cause remanded to the probate court for further proceedings.

Judgment accordingly.


text:
    The State ex rel. v. Dahl et al.

      Death of one elected to office before term begins — Procedure in such case — Section 11 Rev. Stat.

    Where one, elected to an office, dies before his term begins, no vacancy is thereby created in the office until the end of the term of the existing incumbent; and if this falls within thirty days of the next proper election, (Section 11, Revised Statutes); the vacancy cannot be filled by an election thereat.
    (Decided October 20, 1896.)
    In Mandamus.

      John logan, for plaintiff.

      J. J. Harper and Joseph Jlidy, for defendants.
   By the Court:

The object of this suit is to compel the Board of Elections in Fayette county, to place the name of the relator on the official ballot of the county as nominee of the Republican party in that county for the office of county auditor. The defendants demur to the petition. The petition shows that Frank L. Nitterhouse was duly elected auditor of Fayette county at the November election, 1895; that he was afterward duly commissioned by the Governor, but died September 30, 1896. His term of office, had he lived, would have commenced October 19, 1896. Assuming that his death created a vacancy in the office of county auditor at the time thereof, to be filled by election in November next, the Republican party, through its regularly constituted committee empowered to make nominations in such cases, nominated the relator, and requested the defendants to place his name on the official ballot for the office of auditor of the county, and to be voted for as such at the coining election. This the bqard refused to do. The only question in the case is, whether the death of Nitter house,- on the 30th day of September last, created a vacancy in the office of auditor of the county. We think not. His term of office was not to begin until the 19th day of October following his death, whichis less than thirtydaysof the coming November election. His death created no vacancy in the office, as it was then filled by a duly elected, qualified and acting auditor, who would continue to be such until the end of his term, unless he should die or resign. Hence, as no vacancy could occur in the .office by reason of the death of Nitter house, before the 19th day of October, it could not be filled by election at the following November election. Section 11, Revised Statutes.

The case of State v. Hopkins, 10 Ohio St., 509, when carefully considered, in no way conflicts with this view. The holding there is, that the death of one who had been elected treasurer of the county^ created a vacancy in the office that could be filled by appointment, when, had he lived, his term would have commenced. This is not a holding that the vacancy was created at the time of his death, but a holding that, from the fact of his death, a vacancy occurred at the end of his predecessor’s term; the vacancy occurred then and not before, and authorized it to be filled by the commissioners of the county under the statutes there cited.

Demurrer sustained and petition dismissed.

Williams, C. J., not sitting in the case.