text:
    Fox v. Althorp.
    A tenant covenanted to pay as rent “twelve hundred dollars per annum, payable in monthly installments of one hundred dollars at the first of each and every month.” Installments for four months being due and unpaid, the landlord began, at the same time, in a justice’s court two suits — one for November and December, the other for January and February — the bill of particulars in each case referring to the same lease. A trial as to November and December resulted in a verdict for the plaintiff for eighty dollars, and at the same time, on the same evidence, judgment for the same sum was rendered in each case against the tenant. He appealed the case for January and,February; paid the other judgment and then pleaded it in bar in the common ideas. The record shows no objection by him, in any form, in the justice’s court, to the separate suits on the same covenant. Held: As the case was, the plea was insufficient.
    Error to the District Court of Hamilton County.
    • In a lease dated January 21, 1875, Althorp covenanted to pay to Fox, as rent, for the premises described therein, during the term, “ twelve hundred dollars per annum', payable in monthly installments at the first of each and every month.” The installments payable on the first days of September, October, November and December, 1877, and of January, February and March, 1878, remaining unpaid, Fox, on March 19th, 1878, began, at the same time, four suits against Althorp before a justice of. the peace, his bills of particulars all plainly referring to the same lease and claiming the rent due in September and October in one; that for November and December in another; that for January and February in the third and that for March in the fourth. Althorp made defense, and the case for September and October was tried to a jury, which found a verdict in favor of Fox for $80, and judgment was rendered on the verdict. On the same evidence the justice then rendered judgment for a like sum in each of the other actions. Althorp paid the judgment for the installments due in November and December, 1877; appealed from the'Other judgments to the common pleas, and there pleaded the satisfied judgment in bar. Issue joined on this plea in one case was tried by the court (a jury being waived), which made a finding and judgment for the plaintiff. A motion for a new trial was overruled and a bill of exceptions, presenting all the evidence taken. This included the bills of particulars in all the cases, and the oral testimony of the justice relating the proceedings in his court. This disclosed no objection of any kind by Althorp to the severance of the claim of Fox. On error, the district court reversed the judgment of the common pleas, and Fox here asks a reversal of the district court.

      D. Wulsin and Wm. Worthington, for plaintiff in error.
    The following cases are exactly in point: Palmer v. Stanage, 1 Levinz, 43; Badger v. Titcomb, 15 Pick., 409; Andover Bank v. Adams, 1 Allen, 28; Sparhawk v. Wills, 6 Gray, 28; Perry v. Dickerson, 85 N. Y., 345; McIntosh v. Lown, 49 Barb., 550; Dulaney v. Payne, 101 111., 325; Wehrly v. Morfoot, 103 Id., 183; Merchants Ins. Co. v. Algeo, 31 Pa. St., 446; Shaw v. Beers, 25 Ala., 449; Bobbins v. Harrison, 31 Id., 160; Sweeny v. Daugherty, 23 Iowa, 290; Stiekel v. Steel, 41 Mich., 350; Breekenridge v. Lee, 3 A. K. Mar., 449; Beck v. Devereaux, 9 Neb., 109.
    The following eases are authority, because of the reasons by which the conclusions reached are sustained: Florence v. Jenings, 2 C. B. N. S., 454; Johnson v. Pirtle, 1 Swan, 262; N. O., M. T. B. B. Co. v. Castello, 50 Ala., 12; Waldo v. Jolly, 4 Jo. Law (N. C.), 173; Caldwell v. Beatty, 69 N.'C., 363; Staples v. Goldrieh, 21 Barb., 317; Secor v. Sturgis, 16 N. Y., 548; Griffin v. Wallace, 66 Ind., 410, 416; Steele v. Spight, 2 Roll., 178; Doe v. Woodbridge, 9 B. & C., 376; Doe v. Peck, 1 B. & Ad., 428; Boyce v. Christy, 47 Mo., 70; and see Spatchurst v. Sir Matthew Mins, Aleyn, 57; Palmer v. Stanage, 1 Levinz, 43; 3 Com. Dig., 552, Distress, A, 1; Gambree v. Bari of Falmouth, 4 A. & E., 73; Welbie v. Phillips, 2 Vent, 129.

      J. Shroder, for defendant in error,
    cited Casselberry v. Porquer, 27 111., 170, 172; Nickerson v. Rockwell, 90 Id., 460; Lucas v. Lecompte, 42 Id., 303; Rosennmeller v. Lampe, 89 Id., 212; Reformed Prot. L>. Church v. Brown, 54 Barb., 191; Jex v. Jacobs, 19 Hun, 105; O'Beirne v. Lloyd, 43 N. Y., 248; Perry v. Dickerson, 85 Id., 345; Burritt v. Belfy, 47 Conn., 323; 3 Parsons on Cont. (5th ed.), 188; Baird v. U. S., 96 U. S., 430; Shepherd v. Willis, 19 Ohio, 147; Thayer v. Brooks, 17 Ohio, 489.
   Granger, C. J.

Counsel upon both sides have ably argued for and against the right of a landlord to maintain separate actions for.overdue installments of rent in a case such as this, and they have furnished the commission with references to leading cases in many other states and in English courts. It is evident that where such severance is forbidden and a plea of former recovery sustained, the rule is based upon two grounds: First, a plaintiff is presumed to have included in his cause of action everything due to him thereon up to the time when he began suit, and, after judgment rendered, he is estopped from claiming that more was due. And, second, to prevent oppression of a defendant by compelling him to pay unnecessary costs. The record before us discloses that Fox, at the moment he began suit, asked for all the rent then due, although he prayed for four judgments instead of one. Hence he did nothing to raise an estoppel. The bills of particulars disclosed that the four actions were for overdue rent under the same lease, but it does not appear that Althorp made any objection to the severance, or that he sought, as soon as judgment was rendered in the case tried to the jury, to plead it in bar of the other three actions. As presented in the bill of exceptions the fair presumption is that he acquiesced in the severance as enabling them to promptly try their dispute in a justice’s court. It appears that, practically, the four suits were tried as one, and that his defense reduced his rent from one hundred dollars per month to forty dollars without interest. When it is evident that a defense is purely technical, the conduct of the defendant presenting it should be scrutinized by the court, and if it does not appear that he set it up at his first opportunity, it ought not afterwards to avail him.

Judgment of the district court reversed and that of the conynon pleas affirmed.


source: Caselaw Access Project

author: McCauley, J.

license: Public Domain

text:
    Anderson v. Soward.
    Where a person of full age promises to perform a contract entered into during his minority, he thereby ratifies the contract, although he does not know at the time of the promise, that by reason of his minority at the time of the contract, he is not legally liable thereon.
    Error to the District Court of Greene county.
    The plaintiff in error filed his petition in the common pleas and alleged: That said defendant executed and delivered to him on the 12th day of February, 1868, his certain promissory note of that date, a copy whereof with all endorsements thereon is hereto attached and made part of this petition, and thereby promised to pay to the order of said plaintiff the sum of thirty dollars within one day from and after said date. Said note is long past due and no part thereof has been paid, except the sum of ten dollars on the 17th day of June, A. D. 1868, and on said 17th day of June, 1868, defendant promised to pay the balance due on said note, and there is due thereon from said defendant to the plaintiff the sum of $20.63, with interest from June 17th, 1868, wherefore plaintiff prays judgment against said defendant for the sum of $20.63, with interest from June 17th, 1868, to which the defendant answered: That at the time said note is alleged to have been given, to wit: February 12th, 1868, he was a minor, that he was under 21 years of age, and that he made the payment of ten dollars on said note without the knowledge that he was not legally liable on said note. That he was 21 years of age on the 21st day of March, 1868.
    The plaintiff demurred to this defense and the court overruled the demurrer. The plaintiff failing to reply, judgment was given for the defendant. This judgment was affirmed by the district court, and to reverse both judgments a petition in error is filed here.

      T. L. Magruder, for plaintiff in error.
    The defendant being of full age at the time of ratification he must be presumed to know his legal liabilities and privileges, and could not avail himself of a mistake of law on his part.
    Ignorance of the law should not, and does not, avail an adult any more in this than in other cases. Schouler on Dom. Rel. § 590, and cases there cited -, 2 Kent’s Com., 491, note; 1 Story’s Ecp, 111; Tyler on Infancy, § 58.
    I know there is a current of authority to the effect that acts of confirmation by an infant are required to be made with a knowledge that he is not liable on the contract, and this seems to be the doctrine laid down in the text and elementary books, such as Parsons, Greenleaf, Tyler and Braqdt, but they merely repeat the mere obiter dictum of an English judge in a case — Harmer v. Killing — in which this point was not decided, or even raised, and it has been thus transferred into the text books, the writers evidently never examining the cases cited to support it, the later ones simply following the older ones, and only stating it as an abstract proposition of law, and citing the same cases in support of it. I ask an examination of the cases cited, and it will be found that in not one — except an old case in 3 Pa. St., (Barr,) 428 — was the point decided or raised, and the dictum of the judge in the English case constituted the basis of the Pa. decision. The eases cited by all these text books are the English cases mentioned: Harmer v. Killing, 5 Esp. R., 102; Curtin v. Patton, 11 S. & R., 311; Bead v. Boshears, 4 Sneed, 118; Norris v. Vance, 3 Rich., 168; and Hinelyy. Margaritz, 3 Pa. (Barr,) 428, and, except the last, in not a single one of them was the point adjudicated. The American cases have followed the English one, and, in that, the evidence was, that after the infant was of full age, upon being threatened with an arrest, promised to give a note, but afterwards refused to give it; his promise was made under duress per minas — threats of unlawful imprisonment — and the court say, “he might bind himself by a new promise after he obtained full age, but such promise must be voluntary and given with knowledge that he then stood discharged by law; that where an infant, under the terror of arrest, had a promise extorted from him he was not bound by it. It is very manifest that the only adjudged point in the case was that his promise was made under duress per minas. Therefore it will be found that in the cases cited by the text books (saving Sinely v. Margaritz) the exact point in question has never been adjudged. In fact the only cases in which the precise question has been raised are those of Taft v. Sergeant, 18 Barb., 320; Morse v. Wheeler, 4 Allen, 570.

      F. P. Cunningham, for defendant in error.
    A ratification of a contract made by a minor, to be binding, must have been made by the adult, having full knowledge at the time he ratifies the contract, that he was not legally liable in the original contract. This is the law as laid down in all the text books so far as we have been able to find. Greenleaf on Ev., Redfield’s ed., vol. 2, pp. 321, 322 and 323; Parsons on Contracts, 5th ed., volume 1, pp. 323 and 324; Taylor on Infancy and Coverture, pp. 86, 87 and 96 ; Story on Contracts, sec. 69; Brandt on Suretyship, sec. 3 ; Parsons on Mercantile Law, vol. 1, p. 5; Baylies on Surety-ship and Guar., pp. 51 and 52.
    It will scarcely do to say that all these law-writers have mistaken the law in such case.
    Taylor says the doctrine above stated seems to be recognized by all the elementary writers on the subject, p. 96. The same doctrine is held in the following cases: 112 Mass., p. 428, Owen v. Long; 40 Indiana, p. 148 ; 3 Pa. St., p.
      Minely v. Margaritz; 3 Richardson, S. C., pp. 164-8; 9 Mass., p. 64, Smith v. Mayo; 1 Pick., pp. 202-3, Ford v. jP/w'iip; 11 S. & R., p. 307; 5 Esp., p. 102, Manner v. Milling; 16 Maine, p. 67, Thing v. Libbey; 4 Sneed (Tenn.,) p. 118 Reed v. Roshears; 14 Mass., p. 457, Whitney v. Mutch; 1 Met., p. 168, Price v. Toby; 110 Mass., p. 365, Bradford v. French; 1 Exch., p. 122, Maines v. Wall.

    The case relied upon by plaintiff in 4 Allen, is an old case, and there are several later cases-in Mass., that hold the contrary, as laid down in the syllabus in case of Owen v. Long, 112 Mass., p. 428, above cited.
    We claim that it was not only a question as to mistake of law, but of facts as well, and such a mistake as the defendant might well be relieved in.
   McCauley, J.

The contracts of an infant generally are not void, but only voidable. Harner v. Dipple, 31 Ohio St., 72; Owen v. Long, 112 Mass., 403; Fetrow v. Wiseman, 40 Ind., 148; Whitney v. Dutch, 14 Mass., 457. There is nothing in the case to show that the note set forth in the petition is such as should be held to be void. It is conceded that the contract is one that might be ratified by the minor after his majority, and that the part payment of the note and the promise alleged in the petition amount to a ratification, unless it was necessary that the defendant when he made the payment and promise, knew that his infancy when the note was given, was a defense in law to an action on the note.

Counsel for defendant in error refer to Hinely v. Margaritz, 3 Pa. St., 428 ; Curtin v. Patton, 11 S. & R., 311; Reid v. Boshears, 4 Sneed, 118; Norris v. Vance, 3 Rich., 168; Owen v. Long, 112 Mass., 428; Fetrow v. Wiseman, 40 Ind., 168; Harmer v. Killing, 5 Esp., 102; and many other cases in which it is claimed this knowledge has been held to be necessary to a ratification. An examination of all these cases and many others in which the rule as claimed, is in some way recognized, shows that in one case only, that of Hinely v. Margaritz, has the rule been held. In no one of a great number of cases in which it is stated as the law, or in some way referred to, was the rule involved or in any way pertinent to the case. The necessity of such knowledge’has been stated as the law, in numerous text books, as an exception to the rule that a promise to perform a contract made with knowledge of the facts which make a defense waives the defense. As in Rindskopf v. Werley, 28 Ohio St., 516; Bank v. Colcord, 15 N. H., 119; Fowler v. Brooks, 13 Id., 240. But no one of those thus stating the rule has attempted to give any reason why this knowledge should be necessary to affirm a contract made in minority, when it is conceded not to be necessary to waive a defense in any other case.

In many, or all of the cases above referred to, it is stated that a ratification made with knowledge that minority was a defense, was complete and binding. If a promise without this knowledge was sufficient, the knowledge superadded would not detract from the affirmance. But in Morse v. Wheeler, 4 Allen, 570, and Taft v. Sergeant, 18 Barb., 320, the-necessity of such knowledge was directly involved and in both cases it was held that a contract could be affirmed by a promise to pay after majority, whether it was known or not that minority was a defense. We assent to the rule stated in these cases, that a ratification after majority is a waiver of a purely personal privilege, and that the general rule, that a new promise made with knowledge of the facts which make a defense, waives the defense, is quite as applicable to a case of this kind as to any other.

Judgment reversed.


author: By the Court.

text:
    McCullough v. Copeland.
    Ebbob to the District Court of Jefferson County.

      J. W. Feiley and..' Walden f Flliott. for plaintiff in error.

      McQauslen <f* Martin, Trainer f Bigger, A. S. Battin, Jolm M. Qoole and J. F. Dayton, for defendants in error.
   By the Court.

In 1851, the father of L. R., a married woman, conveyed to her a tract of land, in consideration of love and affection, as and for her general estate. After 1861 she transacted business in her own name, and incurred debts for which she made her promissory notes. In February, 1874, she duly executed a will and died. The will was duly admitted to probate. Said notes were presented to the administrator and allowed by him as valid debts of the testatrix. The first clause of the will directed that all her just debts and funeral expenses should first be fully paid out of her estate, and a subsequent clause devised said land to her husband. He took possession under the will, and subsequently mortgaged the land to M. to secure his own debt. L. R. had no other property and no debts other than those above referred to, and down to the time of her decease she treated and acknowledged them as “ her debts.”

Held: The devise to the husband was subject to the payment of said debts. In an action wherein the administrator of L. R., the husband, the mortgagee, and said creditors of L. R., were parties, and in which a sale of ■ the land was decreed, the administrator was entitled to receive a sum sufficient to pay said debts of L. R. and her funeral expenses before any payments to the mortgagee of the husband. The fact that the court ordered payment by the sheriff to her said creditors was not error to the prejudice of said mortgagee.

Judgment affirmed.


text:
    Bell v. Duduit
    Error to the District Court of Scioto C ounty.

      Moore <f* Newman, for plaintiff in error.

      J. W. Bannon, for defendant in error.
   By the Court.

The assignee of an insolvent debtor, W. J. Bell, brought an action in the court of common pleas, against Crawford and others, holding liens on certain real estate of Bell, to marshal liens and for an order to sell the real estate and distribute the proceeds among the lien holders. It resulted in a decree for the sale of the land, to satisfy the mortgage and other liens, and the assignee was ordered to execute the decree. The real estate was three times appraised and twice advertised and offered for sale on each appraisement, and remained unsold for. want of bidders. Thereupon the court, on motion of the assignee, ordered the sale to be made at not less than $15,000, this amount being less than two-thirds of the appraised value thereof. Under this order the property was advertised and sold for $15,000 to Crawford. It is claimed that the court erred in overruling the motion of Bell, the assignor, to set aside the sale and in confirming the same.

The court did not err. When an assignee has commenced an action to sell the realty of the assignor, as provided in section 6351, Revised Statutes, the provisions of section 5416, Revised Statutes, apply to subsequent proceedings to sell under the decree therein made. We have referred to sections of the Revised Statutes because their provisions upon this subject do not differ from the statutes in force when the action complained of was taken.

Judgment affirmed.


text:
    Ohio ex rel. etc. v. The Commissioners of Hocking County.
    Error to the District Court of Hocking County.

      O. W. Olds and L. J. Qritchfield, for plaintiff in error.

      Burgess Case, for defendant in error.
   By the Court.

Without passing upon the rights of any other attorney in the case, we find that the court of common pleas had the power to appoint C. N. Olds to assist the prosecuting attorney in.the trial of the case, Ohio v. Terrell, under the act of March 14, 1878, 75 Ohio L., 47.

When Olds presented his bill for services, under such appointment, approved by the court, it was the duty of the commissioners to act, and allow such sum for the services, as seemed to them .just and proper. The action taken was, in effect, a refusal to act upon the question before them.

The court of common pleas erred in commanding the commissioners to allow a specific sum upon the bill of Olds. The district court, after reversing the judgment of the court of common pleas, erred in refusing to award a peremptory writ of mandamus; therefore we reverse the judgment of the district court, and proceeding to render the judgment which the district court should have rendered, reverse the judgment of the court of common pleas, and award a peremptory writ,of mandamus, commanding the commissioners of Hocking county to act, and to allow and pay such sum upon the bill of Olds as the court approved, and to them s;. ms just and proper.

Peremptory mandamus allowed.


text:
    Lough v. Machlin.
    Error to the District Court of Franklin County.

      O. W. Olds, for plaintiff in error.

      W. B. Page, for defendant in error.
   By the Court.

In April, 1853, a plat of a subdivision of four inlots in the city of Columbus, was duly executed, acknowledged and recorded. It showed, in feet, the length and width of each sub-lot, and an alley ten feet wide between sub-lots five and thirteen. By separate deeds describing the premises granted by the number of the sub-lot and reference to said plat, L. became the owner of one, and M. of the other of said sub-lots. No ordinance ‘accepting said alley was ever passed by the council, but, in March, 1863, it passed an ordinance vacating part of the alley between said lots, on petition of L., the then owner of M.’s lot consenting. L. claiming title to the part of the alley so vacated, under a quit-claim deed from the heirs of the original owner of the ground so laid out, built upon it in May, 1863. In 1875, M. sued L. to recover possession as owner in fee simple of so much of the vacated alley as lies between the middle of what was the alley and the line of' M.’s lot.

Held: 1. Because of section 63, act of May 3,1852 (50 Ohio L., 223), the alley never was a public way.

2. As tho dedicator’s deed did not, in effect, describe M.’s lot as “ bounded by an alley,” but by the east line of the alley, the rule of construction of deeds making “ a stream ” or “ a road ” or “ a way,” a boundary, does not apply.

3. As the dedicator’s plat and deed, under the statutes then in force, left the character of the alley to be determined by the council, he was not responsible for the non-action of that body and the doctrine of estoppel does not apply.

4. Mi does not own in fee any of the vacated part of said alley.

Judgments of district court and common pleas reversed.

Nash, J., did not sit in this case.


text:
    The State of Ohio v. William Peacock.
    Bill of exceptions taken in the Court of Common Pleas of Wood County.

      J. B. Troop, prosecuting attorney, for plaintiff in error.

      J. B. Tyler, for defendant in error.
   By the Court.

1. In Marts v. The State, 26 Ohio St., 162, the circumstances under which homicide may lawfully be committed in self-defense are well stated.

2. Where one is assaulted in his home, or the home itself is attacked, he may use such means as are necessary to repel the assailant from the house, or to prevent his forcible entry, or material injury to his home, even to the taking of life. But a homicide in such a case would not be justifiable unless the slayer, in the careful and proper use of his faculties, Iona fide believes, and has reasonable ground to believe that the killing is necessary to repel the assailant or prevent his forcible entry.

3. So far as the charge to the jury here complained of was inconsistent with these principles it was erroneous.

Exceptions sustained.


text:
    Jarvis v. Hannan.
    Error to the District Court of Gallia County.

      J). B. Hebard, W. H. O. Hclcer and T. W. Hampton, for plaintiff in error.

      Samuel A. Nash, for defendant in error.
   By the Court.

In 1875, J. was in possession of land under a title bond, and was entitled to receive a deed therefor from G., upon payment of a balance of the purchase money. J. made to K. a mortgage on the land to secure a debt owing to him, and K. caused the mortgage to be duly recorded. Afterwards J. arranged with G. as to the unpaid purchase money, so that at the same moment G. delivered to J. a deed for the land, J. delivered to H. a mortgage on it securing a note for tlie amount of said purchase money, and H. paid said money to G. H. did not enter his mortgage for record until more than a year after its delivery to him. Held: The title passed to J. subject to the mortgage to H., as against the mortgage to K., and H. holds the paramount lien.

Judgment affirmed.


text:
    Townsend & Co. v. Corning.
    Error to the District Court of Lorain County.

      J. A. Webster, for plaintiff in error..

      Prentiss Vorce, for defendant in error.
   By the Court.

Holding an execution for $907, a sheriff levied on personalty worth about $4,000. On the next day he promised a constable who held two executions from a justice’s court against the same debtor, that “he would hold the balance of said goods over and above the amount necessary to satisfy ” said sheriff's execution “ for the purpose of satisfying the said executions in the hands of the constable.” The constable copied the inventory taken by the sheriff and made it a part of his return, and said return stated a levy under said promise. A day or two afterward the same sheriff received another execution and duly levied it upon the same goods which were still in his hands. Held: The constable’s so-called levy was void. The promise of the sheriff gave it no effect. Both of the sheriff’s executions should be first paid out of the proceeds of the goods.

Judgment' affirmed.


text:
    Schneider v. The State.
    Error to the District Court of Cuyahoga County.

      Stevenson Burke, W. W. Boynton and W. B. Sanders, for plaintiff in error.

      J. B. Ingersoll, Oarlos M. Stone, and Alex. Sadden, for defendant in error.
   By the Court.

At the May term of the common pleas for Cuyahoga county, 1879, the plaintiffs in error, Schneider, Smith and Sumner, (the latter of whom was janitor of the Cleveland Homeopathic Hospital College, and the two others were members of the faculty), were convicted and sentenced for concealing and secreting the body of Edwin French, at said college, knowing the same to have been removed without lawful authority. The court overruled a motion for new trial founded on exceptions taken on the trial, and also on the ground that the verdict was against the testimony; and a bill of exceptions containing all the testimony was allowed. In the district court the judgment was affirmed; to reverse which this cause is here.

We find that only one of the assignments is well made, and that affects Schneider alone. We think the verdict against him is not supported by the testimony.

The statute, § 7034 Rev. Stats., under which the indictment is framed, defines several distinct offenses. It is directed against any person who without lawful authority opens a grave, or removes the corpse from its place of sepulture, or delivers it to another for surgical study, or who receives, conceals or secretes the same so removed, or assists in any surgical demonstration, knowing it to have been so removed or delivered.

The record shows that arrangements, participated in by Schneider with outside parties, had been made for the delivery of bodies at the college. As to whether he conteníplated an unlawful delivery, the testimony is conflicting; and there is nothing to show that he intended that the body in question should be delivered. The testimony does not tend to show that he had knowledge of its concealment or of its presence at the college prior to its reclamation by the friends of the deceased. Indeed, the contrary is distinctly proved.

As to Smith and Sumner we are unable to say that their conviction was not warranted by the testimony.

Judgment of the district court reversed.


text:
    Farrell v. Finch.
    Error to the District Court of Hamilton County.

      Archer f McNeill, for plaintiff in error.

      Mallon tf Coffey, for defendant in error.
   By the Court.

Ruan, in an action before a justice of the peace, recovered a judgment against Clarkson, and Farrell became surety for the appeal of the action to the court of common pleas. While the case was pending in the common pleas, Clarkson obtained a discharge in bankruptcy. Held: That while the discharge of Clarkson suspended all remedy against him for the collection of his debts, it did not release Farrell from liability on the undertaking for appeal.

Judgment affirmed.


text:
    The Pennsylvania Co. v. Morel.
    Error to the District Court of Van Wert County.

      Rush Taggart, for plaintiff in error,
    cited Penn.' Qo. v. Rathgeb, 32 Ohio St., 66; Railroad Qo. v. Hlliott, 28; Id., 340; Railroad Qo. v. Miller, 25 Mich;, ■ 274-; Purl v. 8. L. K. Q. $ W. Ry. Qo., 73 Mo., 168, reported, in 6 A. & E. R. R. cases, 27; Henze v. 8. L. if. O. <f* N. Ry. Qo., 71 Mo., 636 ; T. H. I. R. R. Qo. v. Qlarh, 73 Ind., 168; 6 A. & E. R. R. cases, 84; Tucker v. Duncan, 6 Id., 268; B. $ P. R. R. Qo. v.' Stansbury, 65 Md., 648; P. R. R. Qo. v. Righter, 42 N. J., 180 ; Salter Admx. v. U. B. R. R. Qo., 75 N. Y., 278; C.f A. R. R. Go. v. Jacobs, .63 111., 178.

      James D. Price, for defendant in error,
    cited Railroad Go. v. Sipes, 24 Ohio St., 631; Railroad Qo. v. Picksley, 24 Id., 654; 47 Pa. St., 300; Shearman & Redfield on Neg., §§ 13, 29, 31, 481; 46 Mo., 353; 2 Am. Rep., 517.
   By the Court.

M., approaching a railway crossing with a team drawing a loaded wagon, heard a whistle announcing the near approach of a train, but drove on without stopping, although his view was partially obstructed, and the noise of his own wagon drowned that of the train; he attempted to cross the track because he “ thought he could get across before the train would come.” The locomotive damaged his person and his wagon. Held: The fact that the view was obstructed did not excuse his neglect to stop and listen, it made his neglect to» do so greater. We think the evidence clearly proved him guilty of contributory negligence.

Judgment below reversed, new trial granted and cause remanded.


text:
    Yeoman et al. v. Lasley.
    Motion to modify decree.

      John Welch, Harrison Olds Marsh and H. A. Gruthrie, for plaintiffs.

      W A. Hutchins, Qlark McJDougal, and Q. A. Atkinson, for defendant.
   By the Court.

In a case in which neither party was entitled to a trial by jury, the court found for the defendant, overruled a motion for a new trial, and dismissed the action. One of the errors assigned was “ that the finding and judgment were against the evidence and the law.” The bill of exceptions presented the entire evidence. If the trial court had not erred in applying the law to those facts about which there was no material conflict in the evidence, the decree would have been for the. plaintiffs. Held: In such a case the reviewing court may not only reverse the decree complained of, but also render the decree required by the facts referred to.

The motion is overruled so far as it asks that the cause may be remanded for a new trial, but is sustained in its request to strike out the recognition of assignments made by some of the plaintiffs since the trial below.

Judgment accordingly.


text:
    Albin v. Riegel.
    Error to the District Court of Pickaway' County.

      Page Abernethy, for plaintiff in error.

      Lutz cf Lutz and P. Gr. Bostwiek, for defendant in error.
   By the Court.

Cassily v. Rhodes, 12 Ohio, 88, and Houts v. Showalter, 10 Ohio St., 125, have established that a judicial sale does not pass growing crops to the purchaser. The reasons given for these decisions apply as fully to the landlord’s share, where the crop is put in by a tenant, as to a crop grown by the judgment debtor, or by the parties in partition. While, as a general rule, a purchaser is entitled to rent that did not become due until after title vested in him, we think that in this state, a well defined exception to the rule has been recognized, and that the purchaser at a judicial sale acquires no right to the landlord’s share of a growing crop.

Judgment affirmed.


text:
    Croll v. The Village of Franklin.
    Error to the District Court of Warren County.

      JDurhin Ward, for plaintiff in error.

      A. Gr.McBurney, for defendant in error.
   By the Court.

On August 4,1877, the Council of the Village of Franklin, Warren county, Ohio, passed an ordinance “ for the annexation of contiguous territory ” to the village, and appointing A. G. McBurney, “ to prosecute the proceedings necessary to effect such annexation.” Two successive applications to the commissioners of the county, were granted by that body; but the courts reversed their action, because of defects not affecting the validity of the ordinance, or the merits of the application. On the twenty-ninth of June, 1878, a third application was presented to the county commissioners. On hearing, after due notice, they granted it. Croll and others, resident in the territory ordered to be annexed, sued in the common pleas to enjoin the further proceedings required to complete the annexation. The act of March 1,1877 (74 Ohio L., 36), was in force when the ordinance was passed. The municipal code, passed May 14, 1878, repealed said act. Section three (75 Ohio L., 165,) provided that “ the territorial limits of * * existing corporations shall remain as they are until changed in the manner herein provided.” Section eight (same page) kept in force all ordinances “ not inconsistent with this title.” The only change from the act of March 1, 1877, was the substitution of the words, “When the inhabitants generally of any municipal corporation shall desire,” for the words, “ When any municipal corporation shall desire.” Held: 1. This change of phrase made no change in meaning. No mode being provided for ascertaining what “ the inhabitants generally ” desired, the act of their representatives in council assembled expressed that desire. 2. The ordinance was “ not inconsistent ” with the title referred to in the municipal code; it continued in force and, while unrepealed, gave full authority to the designated agent “to prosecute the proceedings necessary to effect such annexation ” until he succeeded, or was barred by a final decision on the merits.

Judgments below affirmed'L


text:
    Stevens v. McKnight and Sawhill.
    Error, to the District Court of Richland County.

      Dirlam Legman, for plaintiff in error.

      Thomas McBride, for .defendant in error.
   By the Court.

If in a contract in writing to sell land the tract is described as containing “ about one hundred and forty acres,” the import of the qualifying word “about,” is simply, that the actual quantity is a near approximation to that mentioned. When there is found to be a material and valuable variation, a court of equity upon a petition for specific performance will give the word its proper effect. In this case, the county surveyor, upon actual measurement, found one hundred and thirty-four and seventy-four hundredths acres in the tract. It was of the value of about fifty-five dollars per acre.

Judgment reversed.


text:
    Williams v. Finlay.
    Error to the District Court of Lucas County.

      Joshua R. Seney, for plaintiff in error.

      Thomas Dunlap, for defendant in error.
   By the Court.

The plaintiff in error brought an action against the defendant in error, alleging in her petition, that on or before the first day of May, 1876, one Ernest Wangeman occupied certain premises in the city of Baltimore, in the state of Maryland, as the tenant of the plaintiff; that on that day there was due to her from Wangeman, as rent for the premises, six hundred and seventy dollars.

“That on said first day of May, 1876, in accordance with the laws of the state of Maryland, the plaintiff distrained an organ, then being in and upon said premises, as a distress for the rent due as aforesaid, whereby, under the laws of said state, the plaintiff acquired a lien on said organ for the payment of said sum of six hundred and seventy dollars.

“ That while the plaintiff’s lien was subsisting on said organ, the defendant, William J. Finlay, without the knowledge or consent of the plaintiff, removed said organ from said state, and unlawfully converted and disposed of the same to his own use.”

A demurrer to the petition was overruled. The defendant then answered by way of a general denial. On trial to a jury, there was a verdict for the plaintiff, and judgment was entered upon the verdict. On petition in error, the district court reversed the judgment of the court of common pleas, and sustained the demurrer of defendant to plaintiff’s petition. Held:

The laws of another state, where they come in question in thé courts of this state, must be pleaded and proven as matters of fact. If not set forth with sufficient fullness, objection may be taken by motion to correct .the insufficiency. The demurrer to the plaintiff’s petition was properly overruled by the court of common pleas. No motion having been made by the defendant, the petition and answer-should be construed as putting in issue the fact of the existence of the law of Maryland; and, no bill of exceptions having been taken embodying the evidence in the case, it is to be presumed that the law of Maryland was proved as a fact, by competent evidence.

Judgment of district court reversed, and judgment of court of common pleas affirmed.


text:
    Raymond v. Ross.
    Error to the District Court of Cuyahoga County.

      JS. Sowers, for plaintiff in error.

      W. F. Carr, for defendant in error.
   By the Court.

In 1859 an unimproved lot in the city of C. was sold for taxes, and after two years a deed was duly made by the auditor, conveying.it to the purchaser, S. S., and those claiming under him, paid taxes and assessments on the lot and made permanent improvements thereon. L., holding title by deed from S., mortgaged the premises to R. L. & Co. to secure a debt. After default, R. L. & Co. sued in the common pleas on the mortgage. Pending said suit, N. began an action in the superior court of said city against L. and R. L. & Co., claiming 'title paramount to L. and his grantors, and recovered the premises. Neither defendant set up any claim under the occupying claimant law for the improvements, or asked reimbursement for taxes and assessments paid. Afterward L. R. & Co. obtained a decree against L. in the foreclosure suit, and N. conveyed the lot to R., who had notice of the above stated facts. R. L. & Co. then sued R., claiming to recover the taxes and assessments paid, and the value of the improvements made by L. and his grantors. Meld: This claim, if valid, should have been set up in the action in the superior court, and is barred by that judgment.


text:
    Kimmel v. Pratt.
    Error to the District Court of Hancock County.

      J. F. Burlcet, for plaintiff in error.

      A. Blackford and John Foe, for defendant in error.
   By the Court.

The plaintiff against whom an answer “ demanding affirmative relief ” is filed, is “ a defendant to a cross-petition,” and section 5097, Revised Statutes, gives him until “the third Saturday after the cross-petition is filed” to plead to it. A judgment taken by such defendant before said third Saturday without the knowledge of the plaintiff, is obtained by “irregularity,” and should be set aside by a proceeding under chapter six, division four, of title one, Revised Statutes.

Judgment affirmed.


text:
    Goode v. Patterson et al.
    Error to the District Court of Crawford County,

      Stimmel Davis, for plaintiff in error.

      J. Bcroggy, for defendant in error.
   By the Court.

L. was examined in proceedings in a probate court, under section 5472, and following, Rev. Stats.: The questions and his answers thereto were reduced to writing by the judge, and signed by him. Afterwards, in an action against L. and others to set aside a deed made to L., on the ground that it was in fraud of creditors (being the identical matter concerning which he had been so examined), the plaintiff offered said examination in evidence. The court excluded it.

Held: This was error. Section 5476 does not apply to a civil action based upon discoveries made in such proceedings in the probate court, and brought for the purpose of applying upon a judgment property subject to such application.

Judgment reversed.


text:
    Selders v. Lane.
    Error to the District Court of Logan County.

      Hernán Hernán, for plaintiffs in error.

      John A. Price, for defendant in error.
   By the Court.

Lane was plaintiff in the common pleas, and his action was on the official bond of Selders, as constable of Rushcreek township, Logan county, for the -alleged wrongful sale of certain chattels which Lane claimed as exempt, in lieu of a homestead.

It appears that in November, 1878, one Stillwell commenced a civil' action against Lane, before a justice of the peace for the said township, and at the same time an order of attachment was duly issued, which was then levied on the goods named, by the constable, who took them into possession. Lane was then unmarried, and not the head of a family. The action before the justice proceeded to judgment against Lane, and the goods were sold on an order of sale issued thereon.

After the levy of the attachment and before the sale, Lane was married and demanded that the property be set off to him in lieu of a homestead, which the officer refused.

In the common pleas, on the foregoing facts, judgment was given against Lane.

In the district court, on error, this judgment was reversed. To reverse this judgment of reversal, is the object of the present proceeding.

The sole question is: Was the judgment debtor, by reason of his subsequent marriage, entitled to claim the goods as exempt as against the lien of the attachment ?

We are unanimously of opinion that he was not so entitled.

The question involves the construction of section 5441, Revised Statutes, providing an additional exemption in property to the amount of $500 in value, to the head of a family who is not the owner of a homestead. The statute provides that such head of a family “may hold exempt from levy and sale,” etc.

In this case, at the time of the levy, he was admittedly not entitled to the exemption; and his claim, based on his subsequent marriage, is neither within the letter nor spirit of the statute.

Judgment of district court reversed, and common pl(ias affirmed.


text:
    Ward v. Thrustin.
    Error to the District Court of Wood County.

      C. 11. Scribner and J. W. Canary, for plaintiff in error.
    Clay, Bisseil & Gorrill, for defendant in error.
   By the Court.

On June 1, 1866, W. made and delivered to his son-in-law, P., a power of attorney, authorizing P. to. take and retain possession of a farm belonging to W., and conduct the same for his own use and benefit.” On March 16, 1867, W. wrote to P.: “I want you to go ahead and do just the same as if it was your own, for I intend it will be.” P. became indebted to T., and on March 27, 1872, in W.’s name, made to T. a lease of the farm for five years, for a gross rent of $1,050, of which $707.97 was paid by cancelling so much of P.’s debt to T., and the remainder payable in equal installments, in one and two years thereafter. W., as soon as he learned of this lease, revoked said power of attorney, and dispossessed T., who sued for damages.

Held : Neither the power of attorney, nor the letter, nor both together, gave to P. power to make the lease.

Judgment reversed.


author: Martin, J:

text:
    Osborn v. Low.
    1. A valid agreement for extension of time of payment:of a promissory note need not be express, but may be implied and made out by circumstances, in which a right to sue is not reserved.

      2. The payment of usurious interest in advance, and an agreement to pay interest at the legal rate named in the note previously delivered, constitute a valid consideration, for a definite extension of time of payment. And when such agreement is made without the knowledge and consent of the surety, he is thereby discharged. Jones v. Brown, 11 Ohio St., cited and explained.
    Error to the District Court of Montgomery County.
    The facts are stated in the opinion.

      Marshall & Gottschall, for plaintiff in error.
    The payment of usurious interest in advance by the principal to the payee, without the consent of the sureties, releases the sureties.
    It is a well settled principal of law, that if the creditor, by agreement with the principal debtor, or by any other act, precludes himself at law from proceeding against the- principal debtor, the surety is discharged. McGornb v. Kittridge, 14 Ohio, 348, 350.
    The agreement to pay usurious interest and the payment of such interest for a definite time, constitutes a good eonsideration. Blazer v. Bundy, 15 Ohio St., 57, 64.
    A promise by the principal debtor to pay usurious interest, is a sufficient consideration to support an agreement by the creditor to give further time, and operates as a discharge of the surety in the note for the original loan. Wood v. Newkirk, 15 Ohio St., 295 ; Austin v. Dorwin, 21 Vt., 38 ; Tunell v. Boynton, 23 Id., 142 ; Wheat v. Kendall, 8 N. H., 504; Vilas v. Jones, 10 Paige, 76 ; 2 Am. Lead. Cases, 420; Fawcett v. Freshwater, 31 Ohio St., 637; Daniels on Neg. Inst., § 1317; Naff v. Homer, 63 Pa. St., 327; Huff v. Cole, 45 Ind., 300 ; White v. Whitney, 51 Id., 124 ; Myers v. National Bank, 78 111., 257.
    The agreement for extension need not be in writing, nor in any precise words, nor even in express language, but maybe found by the jury from circumstantial evidence of intention. Brooks v. Wright, 13 Allen (Mass.), 72.
    Part payment of a note before maturity and agreement to extend the time, is a good defense and a bar to the action until such time expires. Feck v. Beckwith, 10 Ohio St., 497.
    The inference of an agreement to extend the time on the payment of the two per cent, in advance, is authorized by a general proposition “ that a party receiving the consideration is bound to perform the thing for which the consideration was paid and received.” People's Bank v. Peirsons, 30 Yt., 711-715.

      Young & Young and Thomas O. Lowe, for defendant in error.

      I. The law is, that the contract to delay payment in order to discharge the surety must be (1) a valid one; (2) definite in its terms; (3) founded on a good consideration, such a one as the principal debtor could enforce; one which ties up the hands of the surety, prevents him from paying the debt, stepping into the creditor’s shoes and prosecuting the principal debtor himself. Such a contract (4) made without the sureties’ consent discharges him. But it must have all of these characteristics. Jenkins v. Clarkson, 7 Ohio, 75.
    A controlling question is: Does the contract bind the creditor and prevent him pursuing his remedy against the principal debtor. Byers v. Hussey, 4 Col., 415.
    In the first place, there was no contract binding upon the parties? The indisputable facts are that the only agreement ever made for the extension of time on these notes was made verbally, before their execution and delivery, and that the subsequent actions of the parties were pursuant to this early agreement. This being the case it had no efficacy, and all, parties were at liberty at any time to disregard it, on the familiar principle that all prior or contemporaneous negotiations are lost or merged in the written contract. Parol evidence is incompetent to show terms and conditions variant from, or in addition to, the written agreement executed by the parties, which were agreed to verbally prior to or at the time the contract was reduced to writing. Thurston v. Ludwig, 6 Ohio St., 4; Jones v. Brown, 11 Id., 601.
    Part payment of a debt already due is not a sufficient consideration to support an agreement to extend the time for the payment of the residue. Turnbull v. Brock, 31 Ohio St., 649.
    II. Payment of usury in advance is not a sufficient consideration for an agreement for extension of time. Hock v. Block, 29 Ohio St., 565; Good v. Sutton, Id., 587, 595; 2 Am. L. C., 420; State v. Board of JEd., 35 Ohio St., 519; Vilas v. Jones, 1 Comstock, 274; Hartman v. Daniels, 74 Pa. St., 36; Nightingale v. Meginnis, 34 N. J., 461; Hoivell

      r. Stein, 1 Lea (Term.), 360; Shaw v. Binherd, 10 Inch, 227; Meiswinlde v. Jung, 30 Wis., 361.
    In Me Comb v. Kittredge, 14 Ohio, 348; Blazer v.- Bundy, 15 Ohio St., 57; Wood v. Kewhirh, 15 Id., 295, 299, and in all other eases where it is held that an agreement to pay- or the payment of usurious interest will be a sufficient consideration for an extension, the legal interest was included in the contract; that is to say, the contract was to pay a given rate or- amount of interest, of which part was legal, and so much as was in excess of the legal rate, usurious under our statute; ánd being a valid contract to the extent of the legal rate, was, therefore, a sufficient consideration. But here the legal rate is not included in the usurious payment, but entirely separated from it.
   Martin, J:

The defendant in error Low, was plaintiff below. The original action was in the superior court of Montgomery county, upon a promissory note, a copy of which is as follows:

“ $1,000. • Dayton, Ohio, April 1st, 1876.
“ One year after date we promise to pay to the order of D. B. Low, one thousand dollars, for value received, with interest at eight per cent, per annum, payable at Citizens’ Bank, Dayton, Ohio.
“ Wilkinson & Evans,
“Osborn, Satcamp & Co.”

Upon said note are the following endorsements :

“ April 14th, 1877, received on the within note interest in full to April 1st, 1877. D. B. Low.”
“April 6th, 1878, received on the within note interest in full to, April 1st, 1878. . D. B. Low.”
“Received on the within note, interest up to April’lst, 1879. D. B. Low per C. M. Low.”

The plaintiffs in error, Osborn, Satcamp & Co., were sureties and answered that the plaintiff by successive agreements with the principal makers in April of the years 1877, 1878 and 1879, extended the time of payment for one jmar on’each occasion, and thereby discharged the sureties.

The reply was a general denial of the averment of the answer. On the trial of this issue in the superior court, judgment was rendered against the sureties. .A motion for a new trial on the ground that the verdict was contrary to; the evidence, was overruled, and a bill of exceptions con-, taining all the testimony was allowed.

On error to the district court the judgment was affirmed.' And to reverse the .judgment of the district court this case, is here.

The material facts are not controverted, and are as fol-: lows: In April, 1876, Low loaned Wilkinson & Evans $1,000 upon a verbal .agreement that the loan should be at; the'rate of ten per cent, per annum, of which, the usuriour two per cent, was to be paid in advance, and that they were to have the money as. long as they wanted it by paying at the end of each year..the accrued interest and the usurious two per cent, in advance; and thereupon the note sued on payable one year after date with 8 per cent, interest from date was delivered, and the usury, $20, paid down.

In April, 1877, the. note having matured, the principals paid the accrued 8 per cent, interest and also $20, being the usurious two per cent, interest for’ the second year.

In April, 1878, the. second year having expired, they paid the accrued 8 per cent, interest for that .year, and also the same- usurious .two per cent, interest in advance for another year. .

In April, 1879, at the end of the third year, they paid their interest due on the note for that year at the rate of 8 per cent.

The extensions and the agreements therefor were made without the knowledge .or. consent of the sureties. No express agreement for,, an extension was made after the delivery of the note.

The assignment of error relied on is that the verdict of the jury is contrary to the evidence. The burden was on the. sureties to prove that one, at least, of the extensions granted by tbe creditor was upon a definite agreement founded on a sufficient consideration. We are of opinion that the acts of the parties after the maturity of the note, fully evidence such agreements.

The repeated payments of accrued interest at the legal rate and of usury in advance for the ensuing year,' are of themselves evidence of the intention of both parties to effect extension of the time for the successive annual terms. They are acts so deliberate and precise as to exclude even a suspicion of inadvertence or mistake. And when unaccompanied by a reservation of a right to sue, they possess all the elements of a contract

Payment of the usury in advance and the agreement to pay the legal rate stipulated in the note, constitute a valid consideration. Fawcett v. Freshwater, 31 Ohio St., 637, and the Ohio cases there cited.

We thus find, independently of the parol agreement made at the inception of the loan, a valid contract for extension made by the creditor with the principal debtor without the knowledge or consent of the sureties. And this discharges them unless the implied agreement is overcome by the testimony. That such contract need not be express and may be established by circumstances admits of no doubt. The principle is stated by Parker, C. J., in Bank v. Colcord, 15 N. H., 119, as follows: “ The reception of the interest in advance at several times furnished evidence of a contract to delay, and there is no evidence of a reservation of a right to sue on any of these occasions. This also would have operated to discharge the defendant if without his assent and there had been no subsequent transaction to which he was a party.”

Defendant in error claims that the record shows no binding contract, and that this case is identical with Jones v. Brown, 11 Ohio St., 601. It is true the parol agreement was merged in the note. Whether in an issue like this it is competent evidence as a mere circumstance to show the intention of the subsequent acts and assist in raising a presumption of agreement we need not determine. For the sole purpose of fortifyiug the presumption already raised from tbe acts of the parties in this case it was unnecessary, and hence in a very strict sense inadmissible in chief.

The case of Jones v. Brown, supra, was substantially like the case in hand with the significant exception that the note taken by the creditor was payable immediately. There were the same parol agreement and yearly extensions, and similar annual payments of usury in advance and of accrued interest. The court held that whilst the creditor received in advance the usury for the first year he effectually reserved a right to sue by taking a note payable immediately; and as there was no express promise made at the beginning of the subsequent years, the same intent to indulge, with a right to sue reserved, obtained as in the first year.

In the case at bar the record affirmatively shows that there was no such reservation made at the time the note was given, or on any subsequent occasion.

The district court therefore erred in affirming the judgment of the superior court.

Judgment reversed.


author: Dick man, 5.

text:
    Collins v. Collins.
    A testator, by his last will, gave and devised to his wife, during her natural life in lieu of her dower, the farm on which they then resided; and provided, that all the household goods of which he might be in possession at the time of his decease should remain in possession of his widow during her lifetime. He then gave and devised as follows: “ At the death of my said wife, the real estate aforesaid, and such part of my household goods as may then remain unconsumed and unexpended, I give and devise to my two sons, Silas and William Collins, and their heirs. If, however, either of my said two sons should die, leaving no children at their decease, then the share of said property above devised to such deceased son, is to go into the possession of the surviving son. If, in case both of my two sons, Silas and William Collins, should'die leaving no heirs, then the property above described to be equally divided among my heirs.” — Held:
    1. That by the will of their father, Silas and William each took a vested remainder in fee simple in one undivided half of the lands, defeasible \ipon tlie contingency of the death of either, leaving no children at his decease, and leaving the other brother to survive him.
    2. That upon the death of Silas, leaving children at his decease, and William, his brother to survive him, the vested estate in fee simple of William in one undivided half of the lands, was no longer subject to be divested by the contingency expressed in the will.
    Appeal. Reserved in the District Court of Noble County.
    The original action was commenced in the court of common pleas of Noble county, by William Collins, against John Collins and others, to obtain a construction of the will of Finley Collins deceased, and to ascertain the interest which the plaintiff takes under that will. The action was appealed to the district court and by the district court reserved to this court. Finley Collins died on or about the 13th day of October, 1854. On the 29th day of September, 1854, he executed his'last will and testament in words and figures following, to wit:
    “In the name of the Benevolent Father of all, I, Finley Collins, of Brookfield township, Noble county, Ohio, do make and publish this, my last will and testament.
    “ Item First. I give and devise to my beloved wife in lieu of her dower, the farm on which we now reside, situate in Brookfield township, Noble county, Ohio, and also seventy-seven acres, more or less, situate in Spencer township, Guernsey county, Ohio, in all, three hundred and sixty (360) acres, more or less, during her natural life time; and all the household goods that I am in possession of at my decease áre to remain in the possession of my widow during her life time. At the death of my said wife, the real estate aforesaid, and such part of my household goods as may then remain unconsumed and unexpended, I give and devise to my two sons, Silas and William Collins, and their heirs. If however, either of my said two sons should die, leaving no children at their decease, then the share of said property above devised to such deceased son, is to go into the possession of the surviving son. If, in case both of my two sons, Silas and William Collins, should die leaving no heirs, then the property above described to be equally divided among my heirs.
    “ Item Second. I devise and bequeath to my son, John Collins, five dollars; to my son, Michael Collins, five dollars; to my son, Ira Collins, ten dollars, to my son, Jacob Collins, five dollars.

      '■'•Item Third. I devise and bequeath to my daughter, Sarah Smith, five hundred dollars; and to my daughter, Hannah Johnson, five hundred dollars; and to my daughter, Mariah Barnes, five hundred dollars; and to my daughter, Margaret Spencer, five hundred dollars; and to my granddaughter, Mariah Jane Nickerson, two hundred and fifty dollars; and to my grandson, Wm. Finley Nicker-son, two hundred and fifty dollars.
    “Foregoing named sums to be paid in the manner following, viz.:
    “ My sons, John, Ira, Michael and Jacob, to be paid at my decease; my daughter, Sarah Smith, to be paid in one year from my decease; my daughter, Hannah Johnson, to be paid in two years from my decease; my daughter, Mariah Barnes, ;to be paid in three years from my decease; my daughter, Margaret Spencer, to be paid in four years from my decease; and my two grandchildren, Mariah Jane and William Finley Nickerson, in five years from my decease.
    “ Item Fourth. I also devise and bequeath to my daughter, Mariah Barnes, and her heirs, the house and lot, with all the appurtenances belonging thereto, in the town of Cumberland, Guernsey county, Ohio, known as the stone ■touse, in which the said Barnes now lives.

      “Item Fifth. I devise and bequeath to my two sons, Silas and William Collins, all my stock of every kind, with all the farming utensils of every description that I may be in possession of at the time of my decease.
    “ In testimony whereof, I have hereunto set my hand and seal, this twentieth day of September, 1854.”
    The will was duly admitted to probate, and now remains of record in the probate court of Noble county.

      Besides his widow, Margaret Collins, who died about the 1st day of September, 1862, Finley Collins left sundry heirs at law, who are named as defendants in the action.
    The plaintiff, an heir at law of Finley Collins, is the William Collins named in said will. His brother Silas Collins, also named in said will, died on or about the 28th day of December, 1864, intestate, leaving to survive him, his widow, and Edward W. Collins, aged twenty years, and Finley S. Collins, aged eighteen years, his only children and heirs at law, who are named as defendants in the action.
    On the 28th day of June, 1865, the plaintiff filed in the court of common pleas of Noble county, a petition, in which he demanded partition of the lands and tenements referred to in said will, as the premises on which the said testator resided, situated in said county of Noble, and, in said case, caused the said Edward W. Collins and Finley S. Collins to be made parties defendant; and such proceedings were afterwards had in that ease, that a part of said lands and tenements was duly and regularly set off to the plaintiff for his interest therein, to wit: One hundred and twenty-six acres thereof, more or less, which said partition was duly confirmed in said court, and the plaintiff was put in possession of the premises set off to him.
    The plaintiff, William Collins, claims, that he is the owner, in fee simple, of the said lands and tenements so set off to him, while the other heirs of Finley Collins insist, that the interest of William is only a life estate.
    John E. Planna and Belford & Obey, named as defendants in the action, come in by answer and cross-petition, in which they set up judgments against the plaintiff, and also assert, that by reason of the cloud cast upon the title of the plaintiff in the lands in question, by the other heirs, he is unable to sell or incumber the same, and for the same reason, they cannot sell the same on execution.
    The court of common pleas held, that the plaintiff was not entitled to any relief; and dismissed his petition, and the cross-petitions of John E. Hanna and Belford & Okey.

      Bedford Obey and Gceorge B. Okey, for plaintiff in error.
    1. The court will observe that by the first clause of the first item of the will, the lands of the testator are devised to his widow for life. . ■
    2. That by the second clause of that item, the testator devised to his sons, Silas and William, at the death of the widow, an estate in fee simple, in clear, concise and unequivocal terms — in language so plain that, standing alone, there could be no controversy about its meaning. w
    3. That according to the terms of the third clause of the same item, that if either Silas or William die leaving no children at his decease, his share shall go into the possession of his survivor.
    4. That by the provision of the fourth clause of the same item, if both Silas and William die leaving no heirs, the property shall be equally divided among the heirs of the testator.
    5. That there is no other clause in the will, by force of which the estate given to Silas and William, or either of them, may be cut down or taken away.
    6. How far the vested remainder in fee, given in the second clause of the first item to Silas and William, is liable to be cut down by the third clause of that item, is manifest. One of the brothers must die leaving no children to survive him, but leaving to survive him the other brother. As Silas died leaving children to survive him, the contingency upon which the estate could be cut down is clearly impossible.
    7. Nor is there any more doubt concerning the fourth clause of that item. That was a contingency upon which the property was to be equally divided among the heirs of the testator, to wit, the death of loth Silas and William without heirs. As Silas died leaving children, the contingency can never happen. Hence, in the language of the court in Jeffers v. Lanipson, 10 Ohio St., 101-104, looking to the first item, “We are of opinion, that by this language, a remainder in fee, (after the determination of the life estate of the mother) was vested immediately ir (Silas) and (William), in equal moieties of the premises in common ; such vested remainder, however, being subject to be divested in the contingency expressed.” And we have shown that the contingency is rendered impossible. And we think that this brief, but as we submit perfectly fair analysis of the first item of this will, read in the light of the material facts we have stated, ought to put an end to this controversy. But the importance of the case demands an examination of the authorities and some further remarks concérning the language of the will.
    8. The language of Lord Brougham in Thornhill v. Hull, 2 Clark & Finnelly, 22-36; s. c. 8 Bligh., N. S., 88, referred to in Strong v. Lemer, 10 Ohio St., 93-98, and cited with approbation in Parker v. Parker, 13 Id., 105-110, but only the recognition of the law as briefly stated by Mr. Jarman in Rule XII, is clear and strong. Jones v. Colbeek, 8 Yes., 42; Blakiston v. Heasleivood, 10 C. B. (70 Eng. C. L.), 544; Croly v. Weld, 21 Eng. L. & Eq., 425, 426; Hearle v. Hicks, 1 Clark & Finnelly, 20, 24; Carriganv. Kilman, 1 Brad. Sur., 208; Brown v. Lyon, 6 N. Y. (2 Selden), 419, 420; Redfield on Wills (4th ed.), 434; Rev. Stats., § 5970.
    9, The word “heirs,” in the clause’wherein the property is devised to Silas and William Collins, cannot be read as “ children ” as claimed by defendants’ counsel. It certainly cannot be so read when used in other parts of the will, and the case must be a strong one to change the meaning of that word in the devise to Silas and William. But even if it could be, the case is no better for defendants. Niles v. Gray, 12 Ohio St., 320. No one doubts that the devise to Silas and William, standing alone, clearly imports a fee. We do not deny, however, that in a clear case the word “ heirs ” may be read “ children.” King v. Beck, 15 Ohio, 559 ; (Jollier v. Collier, 3 Ohio St., 369. But in such ease the intent to use the words not in their strict legal sense must, in the language of Lord Alvanley, “ appear so plainly that no one can misunderstand it.” 3 B. and P., 620. “ General and clearly established rules of construction must be followed, as much as statutory requirements.” Redfield on' Wills, (4th eel.), 422, citing Lord Hale in King v. Melling, 1 Ventr., 231; Wilmot,’ J., in Long v. Laming, 2 Burrow, 1110, 1112; Wilmot, J., in Doclson v. Grew, 2 Wilson, 322; 2 Jarman, 761.
    “ The general rule deducible from the cases, in regard to departing from the natural import of the words, is, that it is not to be done, where there is any doubt in regard to that being the intention of the testator,” 1 Redfield on Wills, (4th ed.), 450; Thompson v. Whiteloclc, 5 Jur. N. S., 991; Campbell v. Raiodon, 18 New-York, 412 ; Guthrie’s Appeal, 37 Penn. St., 9. In the latter ease the court say: “Admitting now, with Mr. Hayes, that the word ‘ children ’ may be construed to mean ‘ heirs of the body,’ yet there must be, as he says, an express warrant for this change of its legitimate meaning, under the hand of the author of the gift. The intention to use' it as a word of limitation, contrary to its natural import, must be rendered clear by„the words of the grantor or testator himself. Conjecture, doubt, or even equilibrium of apparent intention, will not suffice.” To the same effect is Mr. Jarman’s Rule XVII; De Beauvoir v. De Beauvoir, 15 Sim., 163; S. C. on appeal,. 3 Ho. Lds. Gas., 524-557.

      John M. Amos, for defendants in error.
    Had Silas died without issue, there could, we think, be no controversy. William would succeed to the estate, during life, and at his death, if he have children, the object of the testator would be attained by his wise provision for his grandchildren. But Silas died leaving these two sons. ' William is as yet childless. If he die without issue, his brothers and sisters cannot succeed to the estate, for the will plainly provides that only in^the contingency of both William and Silas dying without issue can they succeed. This cannot happen.
    “ Since the death of Silas, partition of the estate was made between the sons of Silas and the plaintiff.” There was no ground for William to contest in that action. The provisions of the will were plain as to Silas, there was no ambiguity, because he left children. Are they not equally plain if William die leaving no children? During the life of William no contingency can arise to interfere with his possession or rights under the will, except his inability to pledge the estate for debts.
    Referring to the sixth point of plaintiff’s argument, by reading — “ One of the brothers must die, leaving no children to survive him but leaving to survive him the other brother,” or his children, we discover the. mind of the testator, otherwise, why should any provision be made for the disposition of the property, in the case of the death of both Silas and William, “ leaving no heirs ” [children ] ? The testator seems to have fully realized that he could preserve the estate no further than to his grandchildren.
    The object of the testator seems to have been to so entail the estate as to prohibit either of his sons, William and Silas, from doing exactly what William now seeks to do, and thus t« preserve the estate in fee to the children of these sons, or of either of them if the other died rVithout XbblXG*
    Both William and Silas took possession at the death of their mother under the provisions of the will; at the death of Silas, his sons, Edward W. and Finley S., received their moiety of the estate by partition, under the further provisions of the will,- thus all the provisions of the will have been peaceably carried out, except the last one, which yet remains contingent upon the death of William “leaving no heirs” (children).
    We therefore maintain that the plain interpretation of the will, under the rules and precedents, so fully cited in plaintiff’s argument so far as it relates to William and Silas and their children is that testator intended to create and did create an estate tail, and that the children of Silas Collins inherit the estate now in possession of William, in fee should he die “leaving no heirs” (children).
   Dick man, 5.

The question of construction involved in this case, grows out of item first of the will of Finley Collins, which reads as follows:—

“ I give and devise to my beloved wife in lieu of her dower, the farm on which we now reside, situate in Brook-field township, Noble county, Ohio, and also seventy-seven acres, more or less, situate in Spencer township, Guernsey county, Ohio, in all, three hundred and sixty acres, more or less, during her natural lifetime; and all the household goods that I am in possession of at my decease, are to remain in the possession of my widow during her lifetime. At the death of my said wife, the real estate aforesaid, and such part of my household goods as may then remain unconsumed and unexpended^ I give and devise to my two sons, Silas and William Collins, and their heirs. If, however, either of my said two sons should die, leaving no children at their decease, then the share of said property above devised to such deceased son, is to go into the possession of the surviving son. If, in case both of my two sons, Silas and William Collins, should die leaving no heirs, then the property above described to be equally divided among my heirs.”

It is claimed on the part of William Collins, the plaintiff in error, that by the will of his father, he and his brother Silas each took a vested remainder in fee simple in one undivided half of the lands, defeasible upon the contingency of the death of either, leaving no children at his decease, and leaving the other brother to survive him. It is contended however in behalf of the children of Silas Collins, that the testator intended to create and did create an estate tail, and that they will inherit in fee, the estate set off to William by partition, should he die leaving no children. We do not so construe the words of the will. The testator in the first instance gave to his wife a life estate in the homestead farm. At her death, he devised the real estate so given to her, to his two sons Silas and William Collins “and their heirs.” If we pause at this point, and do not consider the subsequent clauses of item first of the will, there can be no doubt as to the meaning of the language of the instrument, or as to the intention of the testator. The two sons, in plain and unmistakable terms, each took a vested remainder in fee simple in one undivided half of the lands, determinable however upon a certain event. The words of inheritance used to vest the estate in the sons, standing alone, are to receive that construction and interpretation, which a long series of decisions has attached to them, unless it is very certain they were used in a different sense, and there is no pretence of such certainty in the present case. The fee simple' devised was not indefeasible, but subject to be divested upon the contingency expressed. In the event that either of the sons should die leaving no children at his decease, his share of the property was to pass into the possession of the surviving brother. The survivor would take the propert}r, after the determination of the estate in fee simple by way of executory devise. But Silas having died, leaving at his decease two sons, his only children and heirs at law, the contingency upon which his vested remainder in fee simple would be divested, became impossible, and his children are now the owners in fee, of the moiety of the lands which was set off to them in the partition proceedings. Moreover, while the death of Silas, leaving children at his decease, fixed the title of his share of the lands in his offspring, and thus destroyed the limitation over, that event had the effect of relieving William’s vested remainder in fee simple, from a liability to be defeated. If William should die, leaving children at his decease, no one could question their right, as heirs at laAV, to a fee in their father’s share. And if he should die without leaving children at his decease, there would be no surviving brother, as designated in the Avill, who could take possession of his share by way of executory devise. No contingency provided for by the testator, can uoav arise, which can curtail the fee. simple estate of William, as vested by the plain and concise words of his father’s will. Following the well-settled rules for the interpretation of wills — for the construction of written instruments — and searching for the testator’s intention in the language contained within the “ four corners ” of his will, we can find no satisfactory reason for suppleme uting the words “ go into the possession of the surviving son ” with the words “or his children,” or other equivalent words not used by the testator. And it is only by thus supplying language, upon the assumption of its intended use by the testator, that the children of Silas can make good their claim to the lands set off to William, upon the event of his dying without leaving children at his death. Furthermore, while there can be no “surviving son” in the person of Silas, into whose possession William’s moiety of the lands can go, the contingency upon which it might go to the heirs of the testator, has become impossible. The death of both Silas and William, leaving no heirs, is an event which can never occur, and hence the provision of the will for dividing among the heirs of the testator the real estate described in item first has become entirely inoperative.

The manifest intention of the testator was that his two sons, William and Silas, should together occupy the farm, and equally enjoy its avails during their joint lives. And with this in view he bequeathed to them all his stock of every kind, with all the farming utensils of every description of which he might be possessed at the time of his decease, and also such part of his household goods as might remain unconsumed and unexpended at the demise of his wife. He was doubtless aware that if either of the two sons should die, leaving children, a partition of the farm would become expedient if not absolutely necessary, and in such an emergency as the children would become the absolute owners of their ■ father’s share, a sense of justice and a desire for impartiality as between the two sons would prompt him to vest in his surviving son an estate equal in quantity to that of the brother’s children. And such indeed was the operation of his will — it being so drawn that by the death of Silas, with children surviving him, the instrument became inoperative as to its subsequent limitations, and per force gave a fee simple to William.

It would, therefore, be a forced construction to hold that the testator by his will" created an estate tail in William and Silas. Estates tail are not favored in this country, but are in fact, either prohibited or, as in our own state, very essentially limited and curtailed. The presumption is against the intention to create them, and that presumption must be overcome by language entirely free from ambiguity. It is insisted that the testator, when he made the devise to “ Silas and William Collins and their heirs,” intended “heirs of their bodies,” or “their children”; and that in providing that the property “devised to such deceased son is to go into the possession of the surviving son,” he meant the surviving son or “ his children,” thus giving William’s share to the issue of Silas in the event of William’s death without children. As we have hereinbefore in effect said, such an interpolation of language and such a departure from the legitimate import of words are not necessary to a proper construction of the will, and are not to be resorted to unless authorized — as they are not in this case — by the clearly expressed intention of the testator. If he had designed to give the two sons only a life estate with limitations over, it would have been very easy to use the ordinary language adapted to that purpose. When devising the farm to his widow, “during her natural lifetime,” the testator failed not to use the appropriate words for such a devise. That he did not ignore the word “ heirs ” as a word of inheritance absolute, is evident from the fact that in his bequests of pecuniary legacies it is omitted because unnecessary, while it is employed when he wishes to give the stone-house and lot in fee simple to his daughter Maria Barnes.

In our view, by clear and unequivocal terms in the second clause of the first item of the will, William took a vested remainder in fee simple in one undivided half of the homestead farm; and, as the contingency upon which his estate might be divested became impossible, it cannot be cut down to a life estate by any construction given to the subsequent clauses. As held in the case of Thornhill et al. v. Hull, 2 Clark & Finn., 22. “It is a rule of the courts, in construing written instruments, that when an interest is given or an estate conveyed in one clause of the instrument in clear and decisive terms, such interest or estate can not be taken away or cut down'by raising a doubt upon the extent and meaning and application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate.”

The judgment of the court of common pleas must be reversed, and the will construed as prayed in the petition and cross-petitions.

Judgment accordingly.