text:
    Sloan v. Hubbard.
    1. Under section 6 of the act of April 13, 1865, “to restrain from running at large certain animals therein named” (S. & S. 7), cattle found running at large may be taken up, whether they are at large with or without the consent or fault of the owner. Within the meaning of the section, the animals named in the act are at large “ contrary to its provisions,” when they are at large without the permission p2-ovided for in the second section of the act.
    2. The right given by the sixth section of the act, to take up and confine animals running at large, is not affected#by the failure of the township trustees to establish a pound under the authority conferred by the supplementaiy act of Api'il 12, 1867 (S. & S. 9).
    Error to the Court of Common Pleas of Trumbull county, reserved in the district court.
    The original action was brought by Hubbard, the defendant in error, against Sloan, the plaintiff in error, to recover the possession of certain cattle, of which Hubbard was owner, and which he alleged was wrongfully detained by Sloan.
    The parties being at issue, the original defendant, Sloan, on the trial, gave evidence to sustain the issues on his part, and, among other things, gave evidence tending to prove that the cattle in question, shortly previous to the issuing of the order of delivery in this ease, were at large on the highway, and were taken up by the defendant, and by him driven to and inclosed in an inclosure in the township where the same were so at large, which inelosure, the proof tended to show, had been built and used as a pound for that township, and that it had been constructed and authorized by the trustees thereof, and there kept and properly cared for by defendant until taken therefrom under said order; that for a considerable time previous thereto said cattle had been kept by plaintiff, except when escaping therefrom, in a pasture ground adjacent to the public highway, between which and the highway the fence was, in a considerable part of it, grossly insufficient to keep cattle, and that the said cattle had', before the time in question, several times escaped therefrom, and that the plaintiff had, before the instance in question, become aware of their so escaping, and of the insufficiency of said fence as aforesaid, and tending to show that plaintiff had been requested to restrain his cattle from so being at large, and that he had not attempted to do so. The defendant having rested, the plaintiff gave evidence tending to rebut the evidence of defendant, and to sustain the issues on his part, and rested.
    The evidence being closed, the defendant asked the court to charge the jury as follows:
    1. That the right of a person to take up and confine cattle, under the 6th section of the act of May 1, 1865, does not depend upon the allowance or sufferance of the owner, •to the cattle runuing or being at large.
    2. That, in this case, if the defendant found the cattle at large, contrary to the provisions of the act of May 1, 1865, entitled “ an act to restrain from running at large certain animals therein named,” he had the right to take them up and confine them, although the plaintiff was ignorant of there being so at large, without reference to the allowance or sufferance of the person in charge.
    These instructions the court refused to give; but, on the contrary, did charge the jury, in effect, that the cattle were not subject to be taken up, unless they were at large with the consent of the owner.
    The court also chax'ged : “ That, if the cattle were so at large by the plaintiff’s allowance or permission, the defendant, if he found them, might take them up and confine them, but that to justify the defendant in this case it must be shown that the inclosure in which he so coxxfined them was a pound of the township, established as such by the txmstees thereof.”
    To the refusal to charge as requested, and to the chai'ge as given, the defendant excepted.

      A verdict was returned for the plaintiff, on which judgment was rendered.
    A petition in error having been filed in the district court to reverse the judgment, the case was reserved for decision by this court.

      George M. Tuttle, for plaintiff" in error.
   White, J.

Whether there was error in the refusal of the court to charge the jury as requested, depends upon the construction of section 6 of the act of April 13, 1865, entitled “ an act to restrain from running at large certain animals therein named.” S. & S. 7.

The section is as follows :

“ That any person finding any animals mentioned in this act, at large, contrary to its provision, may, and any con- . stable or marshal of any city or incorporated village, on view or information, shall, take up and confine the same, forthwith, giving notice thereof to the owner, if known, and if not known, by posting notice describing such animals therein, in at least three public places within the township ; and if the owner does not appear and claim his property, and pay all charges for taking up, advertising, and keeping the same, within ten days from the date of said notices, the said animals may be proceeded with under the law then in force regulating estrays.”

Prior to the passage of this act, the owner of domestic animals, not breachy or unruly, had the right, in this state, to allow them to run at latfge. The rule of the English common law on the subject was declared to be inapplicable to our circumstances, as well as inconsistent with our legislation on the subject of fences. Kerwhacker v. Railroad Co., 3 Ohio St. 172; Railroad Co. v. Waterson & Kirk, 4 Ohio St. 432; Railroad Co. v. Stephenson et al., 24 Ohio St. 48.

By the statute in question, a new' policy is introduced in the state in regard to the restraint of the classes of domestic animals named in the statute. The object of the statute was, in view, doubtless, of tbe improved condition of tbe lands of the state, to abolish the former rule, and take from the owner of such animals the right previously existing of allowing them to run at large.

The first section of the act declares: “ That it shall be unlawful for any person, . . . being the owner or having the charge of any . . . cattle, to suffer the same-to run at large in any public road or highway, . . . or upon any uninclosed land, ... or cause such animals to be herded, kept, or detained for the purpose of grazing the same, on premises other than those owned or occupied by the owner or keeper of such animals, except as hereinafter provided; and every person violating the provisions of this act shall forfeit and pay for every such violation, as peualty therefor, not less than one dollar nor •more than five dollars.” . . .

The exception provided for in the act is found in the 2d section. That section provides : “ That general permission may be granted by the commissioners of any county for any animal named in the first section of this act to run at large in their respective counties; and, in counties where-there is no general permission, township trustees may grant, special permits, and such permission, whether general or special, shall terminate on the first Monday of March in each and every year; and such special permits shall be revocable at the discretion of the township trustees; . . and such special permits shall be directed to individuals,, and for particular animals described therein.”

By section 4, it is declared that it shall be a defense to a, prosecution for the penalty prescribed by the 1st section, to show that the “ animal was at large without the knowledge of +he owner or keeper, and without his fault.”

Section 5 declares, that the owner, or person having the animal in charge, “ allowing the Same to run at large in violation of this act, shall be liable for all damages done by said animal upon the premises of another, without reference to the fence which may inclose said premises.” . .

Under the statute, cattle can be at large, as of right, only by the permission-of the public authorities as provided in. the second section. Except as authorized by that section,, the owners of cattle have no right to have them at large and the public have the right to be protected against their being at large, whether they are at large with or without the fault of the owner.

The object of the sixth section is to invest the public with power to protect itself in the enjoyment of this i-ightr by operating directly against the animal. The section authorizes any person, and requires the officers therein named,, either on view or information, and whether the owner is known or unknown, to take up and coniine any animals mentioned in the act, found at large contrary to its provisions.

It is said, the authority to take up applies only to such animals as are at large with the consent of or by the fault of the owner. "We do not think so. The danger to the public, of mischief from the intrusions of the animals, is-the same whether they are at large with or without the fault of the owner. And the object of this section is to-protect the public against the mischief likely to result from the animals being at large, irrespective of the cause. This being the clear intent of the section, it should be construed so as to effect its object and repress the mischief. Moreover, it is not reasonable to suppose that the legislature, in requiring a public officer to take up animals “ on view,” whether the owner was known or unknown, intended to devolve upon him the risk of being mulct in damages if it should finally turn out that they were at large without the owner’s fault. If the officer should be unable to justify, it would be at the election of the owner whether he would hold the officer liable for the value of the animals, or only for damages resulting from his temporary interference with them.

In the opinion of a majority of the court, therefore, the-animals named, in the act are, within the meaning of the sixth section, at large “ contrary to its provisions ” when they are at large contrary to or not in acccordance with the ■.second section of the act. If the animals are at large un•der permission granted by the commissioners or trustees, as provided by the second section, the records of these bodies will advise the public whether they are at large in accordance with the provisions of the act or not. 67 Ohio L. 104, ■§ 9 ; 2 S. & C. 1567, § 10.

Our present ruling is not in' conflict with the decision in the case of the Railroad Company v. Stephenson et al., supra. 'That was an action to recover for injuring cattle; and as they were at large without the omission of reasonable care •on the part of the owner, it was held that he was not guilty •of contributory negligence.

The conditions upon which the owner is liable to an action for a penalty or for damages, under the statute, are not necessarily the same as those by which his liability to have his cattle taken up are to be determined. Whether they .are the same or not depends upon the construction of the •several provisions of the statute on which the respective rights are founded. And although willfulness or actual negligence may be a necessary element in an action against the owner, they are not so in respect to the right given by the sixth section to take up cattle found at large.

2. The court also erred in instructing the jury that, to justify the defendant, it must be shown that the inclosure ’in which he confined the cattle was a pound of the township, established as such by the trustees.

The effect of this instruction would be to make the sixth section of the act inoperative, except in townships where the trustees had established pounds under the authority •conferred by the supplementary act of April 12, 1867 (S. & •S. 9). If the trustees had failed .to establish a pound under that act, the authority of the defendant to take up and confine the cattle was as ample as it was before the supplementary act was passed.

Judgment reversed, and cause remanded for a new trial.


source: Caselaw Access Project

author: McIlvaine, J.

license: Public Domain

text:
    Murdock et al. v. Lantz et al.
    1. Where a married woman, seized in fee of an ancestral estate, joins with' her husband in a written agreement to exchange her estate for other-property, and dies before the execution of deeds of conveyance, leaving her husband and brothers and sisters, but no children, surviving: her, the ancestral estate will pass to, and vest in, the brothers and sisters, subject to the life estate of the husband.
    2. In such case the surviving husband succeeds to no interest or estate im the property that was agreed to be conveyed to the wife in exchange-for her ancestral estate, which his creditors can subject to the payment of his debts.
    3. The mere fact that during the lifetime of the wife, the possession of the-property was exchanged in accordance with such agreement, did not prevent the descent of the ancestral estate according to the statute in such ease made and provided.
    4. Proceedings, instituted under section 5 of the act to provide for the execution of real contracts in certain cases (S. & 0. 260), to obtain an order authorizing the administrator to convey lands in execution of a written agreement signed by the intestate while under coverture, are-unauthorized and void for want of jurisdiction.
    6. Such proceedings do not, as matters in pais, estop the parties thereto, who acted under a mutual mistake as to their rights, from claiming-their inheritances under the statute of descents.
    Error to tbe District Court of Vinton county.
    ' The original action, which was in the nature of a creditor’s bill, was brought by defendants in error, against plaintiffs in error, to subject certain real estate, being two-tracts of land, containing, in the aggregate, forty-five and a half acres, alleged to be the property of Owen T. Gunning, to the payment of a judgment against said Gunning- and others. The judgment sought to be thus satisfied was rendered in favor of one Charles Traphagen, and against said Gunning and one Henry S. Hamilton, as principal debtors, and against the defendants in error as sureties-only. The sureties having paid the judgment creditor took an assignment of the judgment, and, being thus subrogated to the rights of Traphagen, prosecuted the original action for reimbursement.
    The sole issue, in the case related to the title and interest of Gunning to and in the forty-five and a half acres ■of land.
    Wesley Pierce and wife, also judgment creditors of ■Gunning, were made parties, and sought like relief.
    On appeal to the district court, the case was submitted upon the pleadings, an agreed statement of facts and certain exhibits, and a decree was rendered in favor of the judgment creditors.
    The following is the agreed statement of facts:

      “First. It is agreed that the plaintiffs, as the securities ■of O. T. Gunning and Henry S. Hamilton, deceased, paid ■oil' the judgment in the amended petition mentioned, and that no part of the same, so paid by them, has been refunded by the said Gunning,' or Hamilton, or any one for them, or for either of them, and that the amount so paid -by plaintiffs, as such securities of said Gunning, upon said judgment was, and there is now due plaintiffs, the sum of $2,261.56, and interest from January 20, 1869, and .$28.24 costs of suit, and that said judgment has been assigned to plaintiffs, and is in full force.

      “Second. That Wesley Pierce and wife recovered a judgment in Yinton county Common Pleas, October 18, 1866, for the sum of $656.70, and costs amounting, with increase costs, to $32.14, which said judgment remains in full force, and is wholly unpaid.
    “ Third. That said Hamilton’s estate is insolvent, and was so at the time of the recovery of said judgments; that said ■Gunning was also, at the time of the recovery of said judgments, insolvent, and had no goods or chattels, lands or tenements, whereon to levy and make such judgments, or either of them, or any part thereof, and has so remained ■insolvent to this time, unless as the heir of his wife, upon her death, as hereinafter stated, he became the owner of ■certain real estate.

      “Fourth. At the time of the recovery of said judgments, the said Gunning was married to Martha A. Gunning, and ■continued to be her husband until her death, on the 26th •day of July, 1870.

      “Fifth. On April 5, 1870, said Martha A. Gunning, in her own right, was the owner by deed of gift, from her father, Patrick Murdock, Sr., of the one hundred and thirty-two and a half acres of land mentioned in the amended petition of plaintiffs, and the defendant, Patrick Murdock (son of Patrick Murdock, Sr.), was then the ■owner of the forty acre tract, and the five and a half acre tract mentioned in said petition, subject' to the life estate of Mary Murdock therein, and on the 5th day of April, 1870, the said Gunning and his wife, Martha, entered into an agreement, in writing, with the said defendant, Patrick Murdock, for the exchange of her said one hundred and thirty-two and a half acres of land for the interest of said defendant, Patrick Murdock, in the forty, and five and a half acre tracts, a true copy of said contract is attached to and made part of the said amended petition, and marked “A,” and that said Patrick was immediately, after the execution of said contract, and before the death of said Martha, put into possession of said one hundred and thirty-two and a half acre tract, and that he and his assigns have ever since held such possession.

      “Sixth. That on July 26, 1870, Martha A. Gunning died intestate, and without issue,.leaving her husband, Owen T. Gunning, surviving her, and leaving also surviving her, her brother, defendant, Patrick Murdock, and her sister, Sarah Grattan — her only brother and sister. That up to said July 26,1870, no conveyance or deed had been made by said Gunning and wife, or either of them, or by said Patrick Murdock, for said real estate mentioned in said petition.

      “Seventh. That on July 26, 1870, after the death of the ■said Martha, the plaintiffs caused an execution to be issued on said judgment, and the same was levied upon said forty, and five and a half acre tracts of land as the property of said Owen T. Gunning, but said five and a half acre tract not being correctly described in such levy, an alias execution was issued-June 2, 1874, and levied upon said tracts,, properly describing them. That on July 28, 1870, an execution was issued on said judgment of said Pierce and ■wife, and levied on said forty, and five and a half acre tracts’ of laud as the property of O. T. Gunning, but said five and a half acre tract not being properly described therein, on June 2,1874, an alias execution was issued, and levied upon both of said tracts, properly describing them. At the time of the said levies, Mary Murdock was in the possession of said two tracts of land so levied upon, and held the same-under her said life estate therein.
    “Eighth. Shortly after the decease of Martha A. Gunning, one George Craig was appointed administrator of her estate, who thereupon filed a petition in the probate-court of said Yinton county, Ohio, asking for authority to-convey said one hundred and thirty-two and a half acres of land to the said defendant, Patrick Murdock, according' to the terms of such written agreement, and such proceedings were had in said suit, that on April 29, 1871, said probate court granted the prayer of said petition, and ordered that said administrator, of said Martha A. Gunning, be authorized to complete said contract, and to deliver to; the said Patrick Murdock a quitclaim deed for said one-hundred and thirty-two and a half acres of land; and, in accordance, with said decree, said administrator executed and delivered to said Patrick Murdock, defendant, a quitclaim deed for said one hundred and thirty-two and a half acre tract, and said deed was accepted by him; and that he, the said Patrick, has since sold said lands, and conveyed' them by deed of general warranty, and converted the proceeds to his own' use. Said proceedings of the pi’obate court are fully stated in the record of the said court, a copy of which is hereto attached, marked ‘ A,’ and made part hereof. That thirty-two days after the delivery of said deed, from said George Craig, administrator, etc., to-said Patrick Murdock, said Patrick sold and conveyed said one hundred and thirty-two and a half acre tract to one T. M. Bay, who held a mortgage upon the same, made to him h}*- said Gunning and wife. Copies of said deeds, from said George Craig, administrator, to said Patrick Murdock, and from said Patrick Murdock to T. M. Bay, are hereto attached and made part hereof, respectively marked ‘ B ’ and ‘ C.’
    “ Ninth. No conveyance of said forty, and five and a half acre tracts was made to Owen T. Gunniug by the said Patrick Murdock, but the undivided one-half thereof was conveyed by him to his sister, the said Sarah Grattan, and subsequently, in the adjustment of some unsettled business between the said Patrick Murdock and his sister, Sarah Grattan, legatees of the estate of their father, Patrick Murdock, Sr., the said Sarah and her husband conveyed to the said Patrick, both said forty, and five and a half acre tracts entire; said deed, from Patrick to Sarah, was dated April 29, 1871, and was a deed of quitclaim; said deed, from said Sarah and her husband to Patrick, was dated October 3, 1872.
    “ Tenth. The costs of said proceedings in the probate court was paid by said Patrick Murdock, at whose instance said administrator was appointed, and said proceedings for the completion of said contract was instituted; and, that aside from the filing of said petition, and procuring the completion of said contract, nothing else was done by said administrator, save to file his account for the-settlement of said estate, which was done and confirmed.
    “ All the foregoing facts are admitted for the purposes of this case only.
    “ It is agreed that this case shall be submitted to the court for final determination upon the pleadings, and the foregoing, and the exhibits hereto attached, as the agreed statement of facts in the case, and such a decree rendered in respect to all the parties in the ease, including Nelson, Richmond, and Brooks, Fahenstoek & Co., who have filed cross-petitions herein, as is legal and right upon such said pleading and facts. “ W. A. Hutchins,
    “ J. M. McGillivray,
    “ Counsel for Plaintiffs.

      “ O. E. Moore,
    “ Levi Dungan,
    “ Counsel for Defendant, Murdock.”
    The following is a copy of the agreement referred to .in the agreed statement of facts:
    “ Agreement between Patrick Murdock and 0. T. Gunning and Martha A. Gunning. The parties agree to exchange property, as follows: Patrick Murdock to give a quitclaim deed to Martha A. Gunning for the land formerly owned by Wm. Iioffhines, situate in Clinton township, Vinton county, Ohio, being the part of section 4, township 10, and range 17, containing forty acres, more or less, and for the brick house and lot in which now live Mary Murdock and said Gunnings. And said O. T. Gunniug and Martha A. Gunning agree, in consideration of above, to give to said Patrick Murdock a quitclaim deed to the land in Clinton township, Vinton county, Ohio, sitúate in section 9, township 10, range 17, containing one hundred and thirty-two and a half acres, more or less, being a paid of the old “ Craig farm,” and now owned by said Martha A. Gunning. Patrick Murdock agrees, further, to pay a mortgage on said one hundred and thrrty-two and a half acres, of $1,200, given to T. M. Bay. Gunning agrees to pay interest on same, due 26th April, 1870, being $120. Patrick Murdock and O. T. Gunning also agree, among themselves, to cancel and settle herein all claims that each may have against the other, arising from their being partners in the firm of Gunning & Murdock, but the balance now owed by said firm to be paid by both equally, share and share alike. It is understood that the deeds above be made as soon as possible hereafter.
    “ The above agreement entered into this 5th day of April, 1870.

      [U. S. Rev. “ O. T. Gunning,

      Stamp. “ Martha Gunning,
    25 cts. canceled.] “ Patrick Murdock.”

      The pleadings and other exhibits do not affect the case as above stated. It is now alleged, for error, that the decree below should have been in favor of the plaintiffs in error.

      DeSteiguer, Jewett, ‡ Slattery, for plaintiffs in error:
    The agreement, being that of a married woman, was void both in law and equity. 1 Parsons on Contracts, 345-6; 15 East. 607; Littlefield v. Shee, 2 B. & Ad. 811; Meyer v. Haworth, 8 A. & E. 467; Eastwood v. Kenyon, 11 Id. 438; Watkins v. Halstead, 2 Sandf. 311; Waters v. Bean, 15 Geo. 358 ; Needles v. Needles, 7 Ohio St. 432; Phillips et al. v. Graves wife, 20 Ohio St. 371; Dunlap v. Mitchell, 10 Ohio 117; Swasey § Co. v. Antram § Co. 24 Ohio St. 87; Edwards v. Edwards, 24 Ohio St. 413; 1 Parsons on Contracts, 366; Butler v. Buckingham, 5 Day, 492; Watrous v. Chalker, 7 Conn. 224; Bressler v. Kent, 61 Ill. 426 (14 & 224); Draper v. Stouvenel, 35 N. Y. 512; Kidd v. Conway, 65 Barb. 158; 3 Leading Cases in Equity, 90; Slater v. New, 49 Miss. 307; Young v. Paul, 2 Stockton Ch. 402; Clark v. Reins, 12 Grattan, 98; Evans v. Kingsbury, 2 Randolph 120; Watts v. Kinney, 3 Leigh, 272; Brush v. Kingsley, 14 Ohio, 20 ; 13 Ohio St. 131.

      W. A. Hutchins and J. M. McGillivray, for defendants in error:
    I. The making of the contract of exchange, the placing the plaintiff in error in possession of the one hundred and thirty-two and a half acres, and the other acts of said par-ties in relation to said contract, created in said Martha A. Gunning an equity in said forty, and five and a half acres, and said equity, upon her death, descends to her heir O. T. Gunning. Lessee of Avery v. Dufrees, 9 Ohio, 147; Livingston v. Newkirk, 3 Johns C. 316; S. & S. Stat. 304, § 1.
    II. As to mutuality.
    1. Mrs. Gunning was bound in equity. The distinction between a wife’s “ general estate,” and her “ separate estate,” no longer exist. Phillips v. Graves, 20 Ohio St. 372;
      Levi v. Lari, 30 Ohio St. 147. 2. And specific performance at the time of Mrs. Gunning’s death would have been decreed even as against her. Bain v. Bickett, 1 C. S. C. R. 164; Salisbury v. Hotch, 2 Y. & C., chap. 62 ; Hout v. Hout, 20 Ohio St. 119; Farley v. Palmer, 20 Ohio St. 223; Hostetter v. Grant, 18 Ohio St. 126; Shoenbergerv. Zook, 34 Pa. St. 24; Parsons on Contracts, 412; Edwards v. Edwards, 24 Ohio St. 414.
    III. The probate court had jurisdiction. 1 S. & C. 260, § 5. It is a court of record and its findings and decrees import absolute verity. 3 Ohio St. 498; 16 Ohio St. 456; 13 Ohio St. 446.
    IY. The doctrine of estoppel applies. 2 Story’s Eq. Jur., •§ 1546; 11 How. 326; 2 Ohio. St. 559; 5 Ohio St. 318; 13 Ohio, 400; 22 Ohio St. 584; 3 Lansing, 14; 22 Ohio St. 190; 15 Ohio St. 64; 8 Ohio, 529; 54 N. H. 398; 52 Ga. 183; 5 Ohio, 195 ; Id. 452 ; 7 Ohio, part 1, 228; 11 Ohio, 478; 8 Ohio, 107 ; 12 Ohio St. 240.
   McIlvaine, J.

The claim of the plaintiffs below was, that Mrs. Gunning died seized of an equitable fee in remainder to the forty, and five and a half acres of land, which vested in her husband upon her death, and thus became subject to the payment of his debts.

It is not disputed, that if Mrs. Gunning died possessed of any estate in the forty, and five and a half acre tracts, the same, being non-ancestral property, passed to and vested in the husband absolutely at her death. Nor is it disputed, on the other hand, that if she died seized of any beneficial interest in the one hundred aud thirty-two and a half acre tract, that it, being an ancestral estate, passed to and vested in her brother and sister upon her death, subject, however, to the life estate of her husband.

It is a conceded fact, that prior to the 5th day of April, 1870, Mrs. Gunning was seized as of an estate in fee simple of the one hundred and thirty-two and a half acre tract, and had no interest, legal or equitable, in the forty, and five and a half acre tracts. The question, then, is, how were her relations to these several parcels of land affected by the written agreement .entered into on that day for an exchange? There can be but one answer to this question, namely: That, by reason of her coverture, the agreement, as to her, was absolutely void. In respect to such agreements, as the one under consideration, the disability of a married woman has in nowise been removed by our legislation. The contract being void, she did not thereby part with any interest in the one hundred and thirty-two and a half acre tract, or acquire any in the forty, and five and a half acre tracts. Nor did the possession taken by her brother, Patrick Murdock, at all affect her estate in the one hundred and thirty-two and a half acres, either in law or in equity; so that, at her death, the title to this tract of land passed to and vested in her brother and sister, subject to the life estate of her husband; and the brother and sister, as heirs of Mrs. Gunning, were no more obligated by this agreement than ■was Mrs. Gunning in her life-time. This possession, being without right, was subject to be determined at the will of Mrs. Gunning, or her heirs after her death.

Nor do we find anything in the record, occurring after the death of Mrs. Gunning, which has vested in Owen T. Gunning any interest in the forty, and five and a half acre tracts. The proceeding in the probate court had no relation to these parcels, and as to the one hundred and thirty-two and a half acre tract, the action of the court, as well as the action of the administrator under its orders, were wholly ineffectual to transfer the title, for the want of jurisdiction in the court to entertain the proceeding. That court, no doubt, assumed jurisdiction under section 5 of the act of June 1, 1831, entitled “ an act to provide for the execution of real contracts in certain cases ” (Swan & Critchfield, 260), in connection with section 3 of the Probate Court Act (Swan & Critchfield, 1213). The subject matter of the proceeding authorized by these statutes is a “ contract in writing,” which implies that it must be entered into by a person capable of binding him or herself by contract, and does not embrace an agreement, although in writing, of one whose agreement is void for want of capacity to contract.

We think the question arising here is one of jurisdiction, and not of mere irregularity; but, were it otherwise, the proceeding is intended to operate alone upon the legal title, and, if the jurisdiction of the court were conceded, it appears in this ease that the legal title to the one hundred and thirty-two and a half acres was not transferred, at all, as the deed which the administrator of Mrs. Gunning assumed to execute, under the order of the probate court, was not attested by two witnesses, as the statute in such case made and provided requires.

Inasmuch, therefore, as the heirs of Mrs. Gunning are not estopped from claiming the one hundred and thirty-two and a half acres, either by the record or the deed, neither are they estopped in equity by matter in pais ; for the simple reason that whatever acts have been done by them in respect to her estate or her supposed contract for the exchange of lands, the same were done under a mutual mistake as to their rights ; and as the creditors of Owen T. Gunning have not in any wise been prejudiced thereby, equity can find no footing for the enforcement of an estoppel.

And, again, it is quite clear that the creditors of Gunning may not claim an equity as against Murdock, which Gunning himself could not enforce. Now, as between Murdock and Gunning, it would seem clear enough that the former, not having performed the contract on his part, could not enforce performance on the part of the latter; and it would also seem that if performance on the part of Murdock were tendered, still, on the grounds of public policy, equity would not compel specific performance of a husband’s contract for the conveyance of his wife’s land, even to the extent of his own interest therein. Slater v. New, 49 Miss. 307 ; Young v. Paul, 2 Stock. Oh. 402 ; Clark v. Reins, 12 Grattan, 98; Evans v. Kingsbury, 2 Randolph, 120; Watts v. Kinney, 3 Leigh, 272 ; 3 Lead. Cases in Eq. 90. But however that may be, Gunning has not performed the contract on his part. The title to the one hundred and thirty-two and a half acres has not been conveyed to Murdock, or tendered — not even to the extent of Gunning’s life estate ; and the legal or equitable estate to the remainder is not in him or under his control. lie could not, if he were willing, perform the agréement of himself and wife to Murdock. And, surely, in this state of the case, Gunning would have no standing in equity against Murdock to enforce the conveyance of the forty, and the five and a half acres to him. And if not, his creditors have not.

Judgment reversed, and cause remanded to the district court for such further proceedings as may be authorized.


author: By the Court.

text:
    Larney v. City of Cleveland.
    1. Where a greater pun ishment may he inflicted on a conviction for a second or subsequent violation of a criminal law, than for the first, the fact that the offense charged is a second or subsequent offense must be averred in the indictment or information, in order to justify the increased punishment.
    2. A sentence of imprisonment “ to commence after the expiration of former sentences ” is too uncertain and indefinite. See 18 Ohio St. 47; 22 Ohio St. 405.
    Error to the Police Court of the city of Cleveland.
    The plaintiff in error was convicted upon an information founded on an ordinance of the city declaring certain offenses, and providing that any person convicted of any such offense “ shall be fined in any sum not exceeding fifty dollars, or imprisonment at hard labor in the work-house, or both, at the discretion of the court, such imprisonment for the first offense not to exceed thirty days; for the second offense, ninety days; for the third offense, six months, and for the fourth, and each subsequent offense, one year.” The plaintiff in error was sentenced to pay a fine of fifty dollars, and to be imprisoned for the term of six months. “ The sentence to commence after the expiration of previous sentences have expired or otherwise disposed of according to law.”
    It does not appear in the information that the offense charged was other than the first offense committed by the plaintiff in error against the provisions of the ordinance; although testimony was offered on the trial showfing that the defendant was, before that time, twice convicted for the like violation of the ordinance. Nor does it appear in the record what “ previous sentences ” were referred to by the court at the expiration of which the present sentence was to commence.
    [The Court of Common Pleas and District Court of Cuyahoga county have refused to give relief.]

      John W. Heisley and William Clark, for plaintiff in error:
    The information should contain an averment that the defendant had been convicted of a former offense to justify increased punishment. 1 Bishop Cr. L., § 573; 2 Met. 413 ■ 2 Selden, 50; 9 Conn. 560.
    The sentence was too uncertain and indefinite. Williams v. The State, 18 Ohio St. 46; Pickett v. The State, 22 Ohio St. 405.

      W. H. Birney, prosecuting attorney, for the defendant in error.
   By the Court.

The judgment below must be reversed.

1-. Under the ordinance, six months’ imprisonment can be imposed only upon conviction of the third, or subsequent, violation of the ordinance, and in order to support such sentence, the information should show that, at least two previous violations of the ordinance had been committed by the defendant. The rule, and the principle upon which it is founded, are well stated by Mr. Bishop : “ "Where the offense is the first, or is prosecuted as such, the indictment need not charge it to be the first, for this is presumed. But if it be the second or third, and the sentence is to be heavier by reason of its being such, the fact thus relied oh must be averred in the indictment; because, by the rules of criminal pleading, the indictment must always contain an averment of every fact essential to the punishment to be inflicted.” See 1 Bish. Cr. L., 6th ed., § 961, and eases there cited. The same rule applies to an information.

2. The terms of the sentence were too uncertain and indefinite. Williams v. The State, 18 Ohio St. 47; Picket v. The State, 22 Ohio St. 405.

Judgment reversed, and cause remanded to police court.


author: Okey, J.

text:
    Jewett v. Valley Railway Company.
    1. "When ten per cent, of the capital stock of a railroad company has been subscribed, and the corporation has been fully organized under the general acts relating to railroad companies, assessments on subscriptions to the capital stock may he made and enforced, although the whole amount of such stock, mentioned in the certificate of incorporation, may not have been subscribed.
    2. If a statute in force at the time a subscription to the capital stock of a railroad company is made, authorizes an extension of the line of the road, the subsequent exercise of such power by the company will not affect the subscription.
    3. Where a railroad company changes aterminus of its road from one county into an adjoining county, under the act of 1872 (69 Ohio L. 163), the mere fact that the route to the new terminus, selected by the company, passes through a portion of a third county, will not invalidate existing subscriptions to the capital stock.
    4. Where qne having possession of an agreement to take shares in the captal stock of a corporation, after subscribing in good faith for shares of such stock, induces others to subscribe on the faith of his subscription, and subsequently, without the knowledge of the other subscribers, alters the paper by reducing the number of his shares, and delivers the instrument in that condition to the secretary, who is also a director of the company, this will not affect the liability of one thus induced to subscribe, although, at the time of such delivery, the person making the alteration explains the same to the secretary, who makes no objection thereto.
    Error, to the Court of Common Pleas of Cuyahoga county. Reserved in the district court.
    The action was brought July 6,1874, on the subscription of A. A. Jewett to the capital stock of the Yalley Railway Company, and the questions presented relate to the validity of certain defenses interposed by him.
    The Yalley Railway was incorporated under the laws of this state, with a capital stock of three millions of dollars, divided into shares of fifty dollars each; and, subsequently, the capital stock was increased.
    By the certificate of incorporation, dated August 17, 1871, the northern terminus was fixed at Cleveland, Cuyahoga county, and the southern terminus at Bowerstown, Harrison county, the road passing through the counties of Cuyahoga, Summit, Stark, Tuscarawas, Carroll, and Harrison.
    On April 24, 1872, more -than ten per cent, of the capital stock having been subscribed, a board of directors was elected, of which board N. P. Payne was a member; and, thereupon, the company was fully organized, said Payne being elected its secretary. -,
    In January, 1873, a public meeting of persons interested in the road was held at Cleveland, and John Huntington, among others, was appointed to obtain subscriptions to the capital stock. The subscription book placed in his hands contained the following:
    “ We, the undersigned, hereby respectively subscribe to and agree to take of the capital stock of the Yalley Railway Company the number of shares, of fifty dollars each, set opposite our respective signatures, five dollars on each share payable at the time of making such subscription, and we each agree to pay the residue of our said respective subscriptions in such installments, and at such times and places, and to such person or persons, as may be required by the directors of said company, provided said railroad be constructed through, and along the Cuyahoga valley from Tinker’s creek to Cleveland, Ohio.”
    Huntington and Vm. Gabriel & Son, and other persons, subscribed that agreement, each taking one hundred shares; and, thereafter, about the middle of January, 1873, Jewett, at the request of Huntington, and on faith that the subscription'of Huntington and Gabriel & Son were genuine for the full amount of one hundred shares each, subscribed the same agreement for a like number of shares.
    Huntington obtained other subscribers to the stock, and in the spring of 1873, returned the book to N. P. Payne, who was still secretary and a director. The book contained two alterations in the number of shares, which are explained in the testimony of Mr-Huntington as follows :
    “ Mr. Gabriel’s son William changed their subscription with my consent, and I changed that opposite my own name. It was done before I handed the book in. In my case I changed it from one hundred to twenty, and he changed it from one hundred to sixty. There were pretty near all the subscriptions down when those changes were made. ... I stated to him (Payne) that as we had obtained several thousand dollars more of subscriptions than had been assigned to us by the meeting to procure, I felt at liberty to reduce the amount of my- subscription and allow Gabriel to reduce his.”
    Payne accepted the book without objection, but it does not appear that the alteration was communicated to auy other person.
    The subscription of Huntington was placed on the books of the company at twenty shares, and that of Gabriel & Son at sixty shares, and stock was issued to them for such reduced number of shares.
    Neither the alteration nor the acceptance of the book in its altered form, was known to any of the other subscribers for stock.
    There had been no previous arrangement with Huntington and Gabriel & Son, or either of them, that they were not to be held for the full amount of their subscriptions; nor does it appear that there was any expectation on the part of either of them, at the time they subscribed, that they or either of them would be relieved from any part of their subscriptions.
    On February 3,1873, the directors located the line of the road along the valley route from Cleveland, Cuyahoga county, to Canton, Stark county, and that is “ through and along-the Cuyahoga valley from Tinker’s creek to Cleveland, Ohio,” as mentioned in the contract of subscription.
    The road is mainly graded from Cleveland to Akron, and a large quantity of work has .been done on the route. More than $800,000, have been expended, and large liabilities are outstanding.
    The arrangement for connection with another road at Bowerstown having failed, it became desirable to change the southern terminus of the road from Bowerstown, in Harrison county, to Martinsville, in the adjoining county of Belmont; but the least expensive', and, in fact, only practicable route for the road from Bowerstown to Martins-ville required it to pass from Harrison county into Jefferson county, and through a portion of that county into Belmont county; and that route and change of terminus were adopted by the holders of a majority, in amount, of the stock subscribed, at a meeting regularly held for the purpose, on September.23, 1874, under the act of 1872 (69 OhioL. 163), and the proper certificate was made. That statute, which has been repealed and re-enacted with changes (72 Ohio L. 70), was as follows:
    “That whenever any railroad incorporated, under any general law of this state, shall desire to extend either of the termini of the line of their railroad to and into any county of this state, adjoining the one in which either of their termini may be, the president and directors of said railroad company may submit the question of such extension and change of terminus, to a meeting of the stockholders of said company, to be called for that purpose; and if the holders of a majority in amount of said stock, in person or by pr^xy, shall so determine, then the said president and directors be, and they are hereby empowered and authorized, to make out a certificate of the fact, naming the place of the new termini or terminus of said road, which shall be attested as provided in the act of which this is supplementary, in ease of original certificates, and file it in the office of the secretary of state, and .such certificate shall have all the force and effect of an original certificate, and such extension shall, to all intents and purposes, be considered and held to he a part of the original line of said railroad.”
    The whole of the capital stock, specified in the certificate of incorporation, has never been subscribed.
    Calls were made for the whole amount, subscribed, and the action below was to recover of Jewett the whole amount of his subscription — $5,000, and interest. A verdict was rendered against him for $5,948.40, and judgment was entered thereon. On error, from the court of common pleas to the district court, the ease was reserved for the decision of this court.
    The general statute of 1852 (50 Ohio L. 274), relating to private corporations, contains the fallowing, among other provisions :
    “ Sec. 9. ... So soon as ten per centum on the capital stock shall be subscribed, they (the corporators) may give notice for the stockholders to meet at such time and place as they may designate, for the purpose of choosing seven directors, who shall continue in office until the time fixed for the annual election, and until their successors are chosen and qualified. ... A majority of said directors shall form a board, and he competent to fill vacancies in their hoard, make by-laws, and transact all business of the corporation. . . . The directors chosen at any election shall, so soon thereafter as may be convenient, choose one of their number to be president, and shall appoint a secretary and treasurer of the corporation.”
    “ Sec. 6. An installment of five dollars on each share of stock ($50) shall be payable at the time of making the subscription, and the residue thereof shall be paid in such installments, and at such times and places, and to such persons, as may be required by the directors of such company.”
    “ Sec. 14. Such company shall have power to borrow money on the credit of the corporation, not exceeding its authorized stock, at a rate of interest not exceeding seven per cent, per annum, and may execute bonds or promissory notes therefor, in sums of not less than one hundred dollars, and to secure the payment thereof may pledge the property and income of such company.”
    By section 4 it is provided: “ Said corporation shall be authorized to construct and maintain a railroad;” and by section 7, the directors have power to sell any stock at public auction where an assessment on the shares remains unpaid for sixty days. See, also, 1 S. & C. 271 et seq.

      Marvin, Hart&¡ Squire, for plaintiff in error:
    No assessment can be made until all the capital stock is subscribed. 6 Pick. 23 ; 34 Md. 316 ; 35 Iowa, 115 ; 39 Maine, 511; 40 Maine, 172; 9 Mich. 274; 28 Mich. 272; 32 N. II. 36.3 ; Green’s Brice’s Ultra Vires, 105, 109; 31 Ohio St. 23. Change of terminus released subscribers. 72 Ohio L. 70; Const., art. 2, § 28; 8 Mass. 263; 10 Mass. 384; 5 Hill, 383; 9 Ind. 358; 10 Ind. 93; 1 Am. L. Reg. 154; 31 Penn. St. 317; 18 N. J. Eq. 178; 9 Ohio, 136; 6 Ohio St. 119; 10 Ohio St. 57; 19 Wall. 241.

      W. J. Boardman, for defendant in error :
    When the directors are elected and the corporation organized, assessments on stock may be made, though the whole number of shares mentioned in the certificate have not been subscribed for. 1 S. & O. Stat. 276, et seq.; 51 Miss. 829 ; 15 Ohio St. 225, 328; 9 Mich. 272 ; 18 Ind. 452; 46 Ind. 31 ; 41 Ind. 174; 11 Kansas, 412, 436; 4 Oregon, 261; 11 N. Y. 102 ; 7 Barb. 166 ; 72 Penn. St. 465. Change of terminus authorized. 69 Ohio L. 163; Redfield on Railw. (5th ed.) 309; Pierce on Railwi 94; 13 Allen, 29; 10 Mass. 38; 1 Kern. 114; 14 N. Y. 336; 26 Ohio St. 223; 16 N. J. Eq. 13; 3 Zab. 321; 13 111. 511; 17 111. 429; 19 111. 174; 20 111. 654; 21 111. 93, 291; 1 Hust. 149; 22 Conn. 456 ;• 28 Conn. 289 ; 30 Maine, 547; 36 Miss. 572 ; 27 Yt. 420; 10 Barb. 261; 22 Mo. 291; 15 111. 511; 4 Bissell, 78. The change in the subscription book did not affect Jewett’s liability. Pierce on Railw. 73; Redfield on Railw. 171; Red. Am. R. Cas. 138; 12 Ind. 376; 24 Yt. 465; 12 Wis. 176; 34 N. II. 124; 1 Otto, 45 ; 31 Penn. St. 489; 17 Ohio, 187; 1 Peters, 46.
   Okey, J.

Three questions are presented : 1. Can assessments be made and enforced on subscriptions for shares of the capital stock of a railroad corporation before the whole amount of stock, mentioned in the certificate of incorporation, has been subscribed ? In the absence of both legislation and express agreement on the subject, they can not. Salem Mill Dam Corp. v. Ropes, 6 Pick. 23; Hughes v. Antietam, etc., Man. Co., 34 Maryland, 316; Peoria, etc., R. Co. v. Preston, 35 Iowa, 115 ; Thompson’s Liability of Stock., § 120 ; Eield on Corp., § 80. In most states, however, provision has been made by statute; and it is well settled that “ contracts must be expounded according to the laws in forcé at the time they are made, and the parties are as much bound by a provision contained in a law as if that provision had been inserted in and formed part of the contract.” Smith v. Parsons, 1 Ohio, 236-242; Mansfield, etc., R. Co. v. Brown, 26 Ohio St. 223 ; Hoagland v. Cincinnati, etc., R. Co., 18 Ind. 452; 46 Ind. 31. The statutory provisions on this subject differ very widely, as will appear in the cases cited; and, where that is the fact, the decisions made in one state, though proper to be considered, may be a very unsafe guide in another. The office of the court in this case is, indeed, simply to ascertain the intention of the legislature. Boston, etc., R. Co. v. Wellington, 113 Mass. 79; Hunt v. Kansus & M. Bridge Co., 11 Kansas, 412 ; Wellamette Freight Co. v. Stannus, 4 Oregon, 261.

A careful consideration of the enactments set forth in the statement of this case, and other cognate statutory provisions, leaves with us no doubt that when ten per cent, of the capital stock has been subscribed, the company may organize by the election of directors, who may “transact •all business of the corporationand, looking to the duties imposed on the directors, it is clear that the residue of the stock, beyond the ten per cent, to be paid at the time of making subscription, must “ be paid in such installments, and at such times and places, and to such persons as may be required by the directors of such company,” though the whole amount of the capital stock may not have been subscribed. And this conclusion is strengthened by Chamberlain v. Painesville, etc., R. Co., Ashtabula, etc., R. Co. v. Smith, 15 Ohio St. 225, 328 ; Emmet v. Springfield, etc., R. Co., 31 Ohio St. 23 ; Clarke v. Thomas, ante, 46.

The terms of the subscription on which this suit was brought are in harmony with the statutory provisions, as we have construed them ; and hence the fact that the whole of the capital stock had not been taken afforded no answer to this action.

2. Was the company, in changing the southern terminus of its road from Harrison county into the adjoining county of Belmont, authorized to adopt a route passing through a portion of Jefferson county, which adjoins. Harrison and Belmont? The authority conferred by the act is “ to extend either of the termini of the line of their raiffoad to and into any county of this state adjoining the one in which either of their termini may be.” (69 Ohio L. 163.) There is no limitation as to the point in the adjoining county where the new terminus may be fixed, nor does the statute, in terms, confine the new route to the two counties. The object in limiting the new terminus to the adjoining county was, doubtless, not to prescribe the route by which the new terminus might be reached, but to prevent such change in the l’oad as would make it, substantially, a new enterprise. Where authority is given to do a specified thing, but the precise mode of performing it is not prescribed, the presumption is that the legislature intended the party might perform it in a reasonable manner. If the deviation into Jefferson county had been made with any other object than to adopt the cheapest and most practicable route, a different question would be presented, but such is not the fact..

While statutes of this character are not viewed with the-liberality we extend to some enactments purely remedial,, the rule applicable to penal enactments should not be applied to them. Applying the just and reasonable construction this act should receive, we find within it authority to-the company to adopt the route in question ; and such change could not affect subsei’iptions made subsequent to-the passage of the statute.

3. Do the alterations made in the subscription book afford any defense ? The general rule ought to be, and is,, that a subscription to the capital stock of a railroad corporation, obtained by fraud, can not be enforced; and the rule prohibiting parol evidence to vary the terms of a writing, has no-application where a subscriber offers such a defense. Eield on Corp., § 90. But “ a secret agreement entered into between the directors of such corporation and a subscriber for' shares in its capital stock, that he may within a specified time reduce the number of shares thus subscribed for, the-subscription being held out as bona fide for the full amount,, in order to induce others to become subscribers, is void, as-a fraud upon the other subscribers; and the original subscription may be enforced for its full amount between the corporation and subscriber.” White Mts. R. Co. v. Eastman, 34 N. H. 124. Here not only was there no arrangement for a fictitious subscription, but it is fair to say that Huntington and Gabriel & Son each expected, at the time they subscribed, and at the time the other persons subscribed the-same contract, to pay for one hundred shares. The subsequent alterations were unknown to the other subscribers,, who had taken shares in the full belief that the subscription of Huntington and Gabriel were genuine. The fact- that the alterations were explained to Payne, a director, is of no importance; for to give effect to them, even if Payne had expressly assented, would, under the circumstances, be a fraud on the other stockholders; and holding, as we do,. that the alterations were mere nullities, it follows they .afforded no defense to Jewett.

Other matters were presented for our consideration; but this disposes of all questions to which it is necessary specially to refer’.

Judgment affirmed.


author: MoIlvaine, J.

text:
    Crooks et al. v. Crooks.
    1. A deed for the conveyance of land executed by a husband to his wife, without the intervention of a trustee, and intended as a suitable provision for her, though void at law, may be enforced in equity.
    '2. But such deed will not be enforced in equity to the prejudice of the rights of creditors or of children for whom no provision has been made.
    :3. Where a child complains against such provision for the wife, the burden of showing that no provision had been made in its favor rests upon the complainant,

      A. Where the grantor delivers his deed to a third person to be delivered by him to the grantee at the death of the grantor, without reserving to himself any control over the instrument, and such deed is delivered accordingly to the grantee, the title passes to the grantee upon such last delivery, and, by relation, the deed takes effect as of the date of the first delivery.
    ■ Error to the District Court of Mahoning county.
    The original action was brought by plaintiffs in error, as heirs at law of James Crooks, Sr., against the defendant in ■error to recover the possession of twenty-five acres of land. They also prayed for the sale of the land as upon partition •among themselves, subject to the dower estate of the defendant, and that a certain deed from James Crooks, Sr., to the defendant, under which she claims title, should be ■declared void and of no effect.
    The defendant, by way of answer and cross-petition, set up the facts hereinafter stated as the findings of the district court, and prayed to be quieted in her possession, and that the claim of right and title in the plaintiffs should, under the order of the court, be released to her.

      Upon appeal to the district court, the cause was heard upon testimony, on consideration whereof the court found the following state of facts, to wit:
    That about the year 1827, Anthony Osborn, Jr., then husband of defendant, for $400 obtained from his father a ■deed of conveyance of fifty acres of land, which includes the twenty-five acres described in the petition; that half ■of the $400 remained unpaid; that Anthony, Jr., about two years after receiving said deed, died, leaving said defendant as his widow, and two minor daughters; that defendant, without taking out letters of administration on his estate, or having anything set off to her as widow, or for years support of herself and family, sold off the per.sonalty, and with the proceeds paid the remaining debt due for the land; that without applying to have her dower set off in said land, she continued with her young daughters, supporting herself and them in the possession of said land for a period of about seven (7) years, when she married James ■Crooks, Sr., the father of James Crooks, Jr., and others, plaintiffs herein; that said James Crooks, Sr., with his four minor children, went to live with said defendant (his wife) and her two minor daughters, on said fifty acres, and said James Crooks, Sr., and defendant occupied said fifty acres thenceforward and supported their two sets of children ; that said James Crooks, Jr., one of the plaintiffs, married one of said daughters of defendant, she being one of the heirs of Anthony Osborn, Jr., and entitled to half of said fifty acres, subject to the dower right of defendant, ■said daughter, without having had partition or possession ■of said fifty acres, died, leaving a daughter (grand-daughter ■of defendant), to whom, after her marriage with one Calvin Osborn, by amicable arrangement with said James Crooks, Sr., and defendant, the east half of said fifty acres was set off, leaving the west half of said fifty acres, where the homestead dwelling-house of defendant and James Crooks, Sr., was situated, being the twenty-five acres in ■dispute, still in the occupancy of said James Crooks, Sr., and his wife, said defendant; that said James Crooks, Sr., in further consideration of $255, received a quitclaim deedi from Mary Ann McMillin, wife of Charles McMillin,. daughter of defendant and heir of Anthony Osborn, Jr., of her interest in said land ; that said James Crooks, Sr.,, and defendant (husband and wife) continued to live in said homestead on said twenty-five acres, where she has lived ever since her first husband’s death, and until the death of James Crooks, Sr., which occurred April 13, 1871, and defendant has remained in possession ever since his death and is still in possession ; that previous to the death of said James he made, executed, and acknowledged in due-form of law, stamped and stamp canceled to said defendant as grantee, a warranty deed in fee simple of said homestead, twenty-five acres of land described in the petition, a copy of which deed is substantially given in the petition, the nominal consideration of which is stated therein at five dollars ; that the witnesses thereto, after the apparent date of the deed, in the fore part of March, 1871, at the request of said James Crooks, Sr., grantor, went to his house, and tñere, in his presence, witnessed said deed, and the same was then handed by grantor to defendant to take care of, but nothing was then paid by defendant to him, nor was it then acknowledged nor was any notary or officer present; that afterward, in a few days, Singleton King, the-notary, went to the house of Crooks and defendant and took the acknowledgment of said deed, and made and sealed his certificate; that when said deed was so completed, the same was then put by Crooks into the hands of said King to keep safely till needed; that said King kept the same till the death of said Crooks, and soon after, in a few days, defendant called on said King for said deed, and said King delivered the deed to defendant, and told her to-put the same on record, which she did accordingly on the 20th of April, 1871, and the same was recorded in the proper office and handed to her after record, and she still holds said deed.
    The court further finds that no actual consideration in money or property passed from said defendant to her said husband at the time of the making of said deed or the delivering to said King to keep. During said trial, said defendant, in her own behalf, was offered, sworn, and testified ■as a witness, and was inquired of as to matters occurring before her husband’s decease, in relation to said deed and the making thereof, to which plaintiffs objected. Said defendant testified that said James Crooks, Sr., in the presence of said King, handed said deed to King, and told him to keep it safely till it was needed — till the proper time ■came; that said James stated in the presence of a Mrs. Irwin and another that he intended to give his wife all he ■had; what little he had left; that she would need it; that ■he had no money to give her, and nothing to compensate •her for her care of him in his sickness, but this property; to which allowance to testify to said matters, and to which testimony as given by defendant, the plaintiffs excepted.
    The court finds that the facts as above stated, and natural love and affection, constituted the motives, and the only motives, which induced the said James Crooks, Sr., deoeased, to execute said deed to his said wife.
    The court further finds that said James Crooks, Sr., made said deed and delivered the same to said King to hold and keep till his decease, for the purpose of being delivered to •said defendant, by said King, after his decease; that he intended to give said property to the defendant; intended that she should have the same at his- decease, and took this mode of giving and transferring the same to her and investing her with title.
    The court find that said deed was delivered to her by said King, after the decease of said James, according to the intention, purpose, and direction of said James Crooks, the .-grantor, and was recorded as such, and that the deed so made, delivered, accepted by defendant, and recorded, was not void, but was and is valid and sufficient as a conveyance to said defendant. It is therefore considered, adjudged, and •ordered that said petition be dismissed; that said defendant be quieted in her title ; and that said plaintiffs pay the costs of this suit, to be taxed, and this cause is remanded to the court of common pleas for execution. To all which rulings, findings, decision, judgment, and order the plaintiffs-except.

      Thomas W. Sanderson, for plaintiffs in error:
    The grantor, at all times during his lifetime, had complete control over the deed. There was, then, no delivery of the deed, such as was necessary to pass title. Beevard v. Neely, 2 Sneed (Tenn.), 164; Cook v. Brown, 34 N. H. 460; Johnson v. Farley, 45 N. H. 505; Brown v. Austen, 35 Barb. 341; Prutsman v. Baker, 30 Wis. 644; Shirley v. Ayers, 14 Ohio, 310; 12 Wend. 105.
    The intention of the grantor that no present title should pass, but that it should remain in him till after his death,, withdraws the case from the effect of Foster v. Mansfield, 3. Met. 412, and cases following it.

      B. F. Hoffman, for defendant in error: u

    I. A conveyance made by a husband to his wife, without-the intervention of a third person or trustee, where suitable- and meritorious, and not in fraud of creditors, will be upheld in equity. Huber v. Huber, 10 Ohio, 373; Wood v. Warden, 20 Ohio, 518; 12 Ohio, 371; 3 P. Wms. 337; 3 Paige, 452; 15 Vt. 537; 44 Penn. St. 43; Story v. Marshall, 24 Tex. 305; Wells v. Wells, 35 Miss. 638; Barker v. Gone-man, 13 Cal. 9; 28 Miss. 717; Deming v. Williams, 26 Conn. 26; Dale v. Lincoln, 66 Ill. 24; 41 Ind. 339; 35 Ind. 181;. 39 Ind. 528; 44 N. Y. 27; 23 Ark. 507; 10 Minn. 50.
    II. The deed took full effect on delivery to Mary Crooks, and the title related back to the delivery to King. Morse v. Slosson, 13 Vt. 296; Belden v. Garter, 4 Bay, 66; Ruggles v. Lawson, 13 Johns. 285; 2 Mass. 447; 9 Mass. 307; 28 Conn. 446; 22 Ind. 36; 4 Abb. 315 ; 34 N. Y. 92; Demesney v. Gravelin, 56 Ill. 93.
   MoIlvaine, J.

In respect to contracts between husband' and wife, the doctrine of the common law, that the legal-existence of the wife is merged in that of the husband,. operates, with all its consequences, in this state, notwithstanding our statutes, which, to some extent, enlarges the capacity and rights of married women. Wherefore, a deed for the conveyance of land executed by a husband to his wife, without the intervention of a trustee, is void at law; nor can a court of equity regard it as effectual to transfer the legal title. And further, it may be said, that where such deed is intended as a pure gift, it is wholly invalid, even in equity, for the reason that equity will not complete an unexecuted gift, on the ground that, being unsupported by a consideration, it is devoid of equity.

But where such deed of conveyance is fouuded upon a good and sufficient consideration, a court of equity will enforce it according to the intention of the parties,'where the .same can be done without prejudice to the rights of others. Huber v. Huber, 10 Ohio, 371; Brookbank v. Kernard, 41 Ind. 339; Cardell v. Ryder, 35 Vt. 47; Tyler on Infancy and Coverture, § 357, et seq. And, in such eases, it is sufficient that the consideration be a meritorious one ; as, for instance, where the conveyance is in the nature of a settlement, and was intended to be a reasonable provision for the support of the wife. Wells v. Wells, 35 Miss. 664; Hunt v. Johnson, 44 N. Y. 27 ; Wilder v. Brooks, 10 Minn. 50 ; Hills v. Downton, 5 Vesey, Jr., 557; Shepard v. Shepard, 7 Johns. Oh. 57 ; Sims v. Rickets, 35 Ind. 181; Thompson v. Mills, 39 Ind. 528.

Upon such consideration, however, the conveyance will . not be perfected by a court of equity to the injury of creditors or to the prejudice of children for whom no provision has been made. But if any provision be made for a child, though by a stranger, and, if a daughter, by her marriage, it would seem that such child could not be heard to complain against the settlement.

In the case before us, some of the complainants are married daughters of the grantor, and all are well advanced in life — the youngest being more than thirty-five years of age at the death of the grantor — and, although unadvised as to their pecuniary circumstances, when the fact, that they were all maintained, and provided for, in infancy, upon the land in dispute, is considered in connection with the interest which the wife of the grantor had in the land before her marriage with the grantor, and the manner in which he acquired his title, we doubt whether the equities of the children, although unprovided for, are equal to those of the wife. But however that may be, a majority -of the court are satisfied that a child, who complains against such settlement on the wife, must show that he or she has not been provided for. And on this point, the record before us being silent, we can not assume that the grantor, in making this settlement upon his wife, failed in his duty toward any of his children.

The theory upon which courts of equity afford relief in ■cases of this kind is this : It being clearly shown that the husband intended to make a reasonable provision for his wife, as it was his duty to do, and having, as he believed, accomplished that purpose by executing and delivering the ■deed, equity will treat him as trustee of the legal title for the wife’s benefit; and, consequently, the heir upon whom such legal title may be cast by descent, must also be regarded as trustee upon the same trust.

It is also contended, on the part of plaintiffs in error, that, aside from the question of the incapacity of the parties by reason of the relation, of husband and wife, .the deed in dispute is void for want of delivery, end, being without a valuable consideration, as distinguished from a meritorious one, can not be enforced as a covenant to convey. The grantor, without reserving or intending to retain any control over the instrument, delivered it to a third person, to be by him delivered to the grantee at the death of the grantor. The depositary accepted the deed for the grantee, and at the death of the grantor delivered it to the grantee. "We think this was a good delivery to the grantee, whereby the title passed by relation, as of the date when the deed was delivered to the depositary. Hatch v. Hatch, 9 Mass. 307; Foster v. Mansfield, 3 Met. (Mass.) 412; Hathaway v. Payne, 34 N. Y. 92; Morse v. Slason, 13 Vt. 297; Merrills v. Swift, 18 Conn. 257 ; Church v. Gilman, 15 Wend. 656.

While we do not approve of the form of the decree be low, vve do not find any error in the record for which it should be reversed.

Judgment affirmed.

Boynton, J., dissented from the third proposition of the .syllabus.


author: Gilmore, C. J.'

text:
    Dille v. The State.
    1. The constitutional right of a person accused of felony “to appearand defend in person and with counsel,” can not be denied, or its exercise unreasonably abridged; but the court may limit the argument of the accused or his counsel, provided that the accused is not thereby deprived of a fair trial.
    :2. On the trial of one charged with a felony, eleven witnesses were examined, and the evidence, which occupied half a day in its delivery, was circumstantial and conflicting. The accused was defended by two counsel, who were limited, by the court, to thirty minutes in the argument to the jury: Held, That this was an abuse of power, which prevented a fair trial.
    Error to the Court of Common Pleas of Hardin county.
    The plaintiff in error was indicted for burglary and lar■ceny, and on a plea of not guilty was tried, convicted, and •sentenced to the penitentiary.
    On the trial, a bill of exceptions was taken, setting out. .all the evidence and the rulings of the court that are complained of.
    It appears that the evidence was entirely circumstantial; the only evidence that directly tended to connect the defendant below (plaintiff in error) with the crime charged, was the alleged fact that certain tracks that were made in ■the “ dark black soil ” under the window, through which ■¡the burglarious entrance was affected, were made by the defendant’s boots. On this point much testimony was introduced, and, to say the- least, this testimony was of such a character as to leave it fairly debatable whether or not the tracks were made by the defendant’s boots. In addition, the state introduced a good deal of testimony tending to show the whereabouts of the defendant the evening before the burglary, his conduct about the store that was burglarized, and in reference to some of the goods that-were afterward stolen. Also to prove that the stolen goods-were found the day after the burglary in several places,, some in houses, and some in the woods in the direction of the place the defendant boarded, a half mile distant from the place where the burglary was committed. Also that the burglary was not discovered till between six and seven o’clock in the morning (June 22d). This is the general character of the testimony given by the seven witnesses for the state.
    The defendant introduced four witnesses whose testimony tends to account for his whereabouts during the night of' the burglary, and also tends to prove that the boots that were supposed to have made the tracks in question were not worn by the defendant on the night of the burglary. The bill of exceptions shows that the “ hearing of said testimony occupied one-half day; and, thereupon, the court limited the argument to the jury to half an hour on each side, which was all the time occupied by counsel, to all of' which said defendant excepted.” The defendant was defended on the trial by two attorneys of the bar of the court-in which the trial took place.
    The form of the verdict is : “We, the jury in this case, find the defendant guilty of burglary, and of larceny in thesnm of twenty-five dollars.”
    The error assigned and principally relied upon is, that the court erred in limiting counsel for defendant to one-half hour in which to argue said cause to the jury.

      Johnson ‡ Seney, for plaintiff in error.

      Isaiah Pilliars, attorney-general, for defendant in error-
   Gilmore, C. J.'

The only question that will be noticed in this ease is, did the court err in limiting the two counsel of the defendant to thirty minutes for the argument of the cause to the jury ?

The question is an important one. The three most important constitutional rights which a person accused of felony has, are, (1) a trial by jury, (2) compulsory process for obtaining witnesses in his favor, and (3) the assistance of counsel on his trial.

These are secured to him, in proper cases, not only in the federal, blit also in the state, courts, by constitutional provisions. Article 3, section 2, and articles 5 and 6 of the amendments to the constitution of the United States, and sections 5 and 10 of the bill of rights in this state. As to the importance of the first, see section 1780 of Story on the Constitution. But, important as this right is, it would be powerless to fully accomplish its objects, without the aid of the concomitant rights of compulsory process for witnesses and the assistance of counsel. These rights, like that of trial-by jury, were only secured to the people of England,, from whence we borrow them, by long and persistent efforts.

The fact that we came into possession of them as conceded rights, ought not to cause us to underrate or forget their importance. On the contrary, we should admire and commend the wisdom and humanity of those who made the last two as well as the first of these rights, the subject of both federal and state constitutional provisions, and it is our duty to see that they are not impaired or denied to any one entitled to the benefit of them.

Section 10 of the bill of rights, among other things, provides that, “ in any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel.”

The discretion which the courts of England exercised in the trial of a party accused of felony, when he was entitled to neither witnesses nor counsel, and when the court as.sumed to act as Ms counsel, can not be exercised by the courts of this state.

The onus of determining, within the prescribed rules of practice, what is, or is not, necessary and essential to the ■defense, is now devolved on the accused or his counsel, and in determining these, their judgment, and especially that -of counsel, is certainly entitled to due consideration by the ■court. •

The court has no discretionai’y power over the right itself for it can not be denied. And hence it has no right to prevent the accused from being heard by counsel, even if ■ the evidence against him be clear, unimpeached, and conclusive in the opinion of the court. Rut the exercise of the right is subject to judicial control to the extent that is necessary to prevent the abuse of it. This point seems to be so well settled in this country, that it is needless to cite authorities from other states upon it.

In Weaver v. Hie State, 24 Ohio St. 584, two days were •occupied in taking the testimony, and, during the progress ■of the trial, the court had adjourned over Christmas - day, .and also adjourned that one of the jurors might attend the funeral of a relative. The court, against the protest of the defendant’s counsel, limited the argument to five hours on ■each side. The defendant’s counsel took twenty minutes in addition, without interruption by the court. It was held that this was not an abuse of the power of control by the •court. This holding is still approved, and if even a fourth part of the time that was allowed for argument in that case had been given in this, a majority of the court would hold that the court did not err in this case.

It is the practice in this state, so far as I know, to allow a person accused of felony, to be heard by two counsel if he •so desires. If a prisoner is unable to employ counsel, “the court shall assign him counsel, not exceeding two, who shall have access to the accused at all reasonable hours.” This may be regarded as an expression of legislative intent •on this subject.

There were seven witnesses for the state, and four for the-defendant. Half a day was occupied in taking the testimony. It was entirely circumstantial, and there was serious conflict in it. Under these circumstances, when the defendant’s liberty was at stake, and an ignominious punishment threatening him, he was entitled to be heard, in a. reasonable manner, by both counsel whom he had employed for his defense. His counsel sufficiently indicated, that in their judgment the thirty minutes allowed for argument was insufficient, by promptly protesting against it,.- and the defendant saved his right by excepting to the limitation at the time it was imposed. Finding, as a majority ■of us do, that the limitation upon the argument was such an-abuse of the power of judicial control over the subject, as deprived the defendant of a fair trial, the judgment must be reversed, and cause remanded for a new trial.

Judgment accordingly.