author: Scott J.

text:
    Martin et al. v. Elden.
    1. A -witness may be cross-examined as to his examination-in-ehief, in all its bearings, and as to whatever goes to explain or modify what he has stated in his examination-in-chief. The right to cross-examine extends, in any view, to all matters connected with the res gestee.

    2. The denial of such right, upon a trial, is error, for which a judgment may be reversed by a reviewing court, though the cross-examiner does not disclose the answers which he expects to elicit by such cross-examination. The rule requiring such disclosures is not, ordinarily, applicable to what is strictly cross-examination.
    Error to the District Court of Jackson county.
    The original action in this case was instituted by defendant in error, William Elden, who filed his petition in error in the Court of Common Pleas of Jackson county, against, the plaintiffs in error, John M. Martin, his father-in-law, John Stinson, Maria Martin, his wife, and his three sons,.. George Martin, James Martin, and William S. Martin.. In his petition he alleged, in substance, that in June, 1855, he recovered a judgment against the said John M. Martin for $1,057.16, with ten per cent, interest and costs, which was revived in February, 1868, and still remained in full force and wholly unsatisfied, and that execution had been issued thereon, and returned unsatisfied; that said John M. Martin, in 1862 and 1863, purchased sundry lots in the town of Jackson, he paying the full consideration therefor, but fraudulently procuring the title to said lots to be conveyed by the vendor to his father-in-law, John Stinson, to prevent the plaintiff from levyiug an execution thereon, and that Stinson afterward, in August, 1866, conveyed some of said lots to Maria, wife of said John M. Martin, and others of them to George Martin, son of said John M.; that said John M. Martin, in March, 1866, purchased a part of another lot in the town of Jackson, and paid in full the consideration therefor, but, for the same fraudulent purpose, took the title therefor in the name of his son, James Martin; that one of the lots, so fraudulently conveyed to George Martin, was by him subsequently conveyed to his brother, Wm. S. Martin, who mortgaged the-same back to him, to secure the payment of $1,000, with interest; that said mortgage, and the note secured thereby, was held by said George Martin in trust for said John M-Martin. He thereupon asked to have all of said lots subjected to sale for the satisfaction of his said judgment against John M. Martin.
    The defendants answered severally, each of them denying all the fraud charged ; John M. Martin denying that he purchased either of said lots, or paid the purchase money therefor, or any part thereof, and disclaiming any interest therein, except such as he might have as tenant by courtesy in the lots conveyed by his father-in-law to his wife, Maria. Stinson avers that he purchased the lots conveyed to him with his own money and means, and subsequently conveyed a portion of them to his daughter, Maria Martin, by way of advancement, and that the residue of said lots he purchased for his grandsons, George Martin and James Martin, intending to convey the same to them in ease they were successful in raising the money and means to pay the purchase money therefor, and that upon their paying such purchase money from the funds received by them as pay and bounty while in the army, he conveyed said lots to them accordingly. George Martin ■answered, averring that he paid from his own money and means for the lots conveyed to him by his grandfather, and that he was the legal owner and holder of the note and mortgage executed in his favor by his brother, William S. Martin. James Martin answered, denying that John M. Martin had any interest, legal or equitable, in the lots to which he holds the legal title, and averring that the same were purchased for him, and paid for out of his own separate money and means. Maria Martin denies all the fraud charged, and avers that the lots conveyed to her were purchased and paid for by her father, John Stinson, ■as stated in his answer.
    Upon the hearing of the case in the court of common pleas, a decree was rendered for the defendants below. An ■appeal was taken, by plaintiff below, to the district court, where he amended his petition by alleging that the co-defendants of John-M. Martin, knowing him to be insolvent, received moneys, goods and chattels, and choses in action belonging to him, and permitted the same to be held in their own individual names, and thereby became trustees of the same for the benefit of his creditors, and ought to account therefor. Defendants answered denying these .averments.
    Upon the trial of the case in the district court, a decree was entered in favor of the plaintiff below, ordering a sale, for the satisfaction of plaintiff's judgment, and of the ■claims of other creditors who might come in and prove their claims, of all the lots in question, except a part of a lot which the court found was purchased and improved by James Martin, from his own means, and belonged to him. But the court further found, that said James Martin permitted John M. Martin to deposit the sum of $1,300 in bank, and there remain, for the purpose of hindering, delaying, and defrauding the creditors of John M. Martin, .and that he held the same in trust for the benefit of such creditors, and awarded judgment and execution against him for said sum, with interest.

      Defendants moved the court for a new trial, but their motion was overruled, and they excepted.
    The motion for a new trial was predicated on the following grounds:
    1. That the judgment given in this case is against and contrary to the weight of the evidence and the law of the case.
    2. That the court erred in refusing to permit H. L. Chapman to answer certain questions propounded to him on-cross-examination by defendant’s attorney, and in permitting said witness to answer certain questions propounded-to him by plaintiff’s attorney, as will fully appear by a bill of exceptions, marked “A,” and hereto attached as part of this motion, for certainty.
    Two bills of exception were taken on the trial, by defendants below; in one of which is embodied all the evidence offered by the parties on the trial. The other brings on the record certain rulings of the court as to the admission and exclusion of evidence upon the trial. The latter-bill of exceptions is as follows :
    “ The plaintrfij to maintain the issue on his part, called to the witness stand H. L. Chapman, who testified that he was a banker in Jackson, Ohio, and that John M. Martin opened an account with the bank in the name of James Martin, the first deposit being made July 2,1866, and last one 17th of March, a. d. 1869; and that a great many of the deposits up to $150 were made by James, and James-frequently drew money out, but John M. Martin generally attended to it, and took up the checks and had the bank book balanced.
    “On cross-examination the defendants, by their attorneys, propounded to said witness the following questions :
    “ ‘At the time this money of which you speak was deposr ited to the credit of James Martin by John, how did you-come to place it to James’ credit, and what <jid John say about it ? ’
    “ Whereupon, the plaintiff, by his attorney, objected to-the witness answering said questions, which objection was-sustained by the court, and said witness was not permitted to answer said questions, and said testimony ruled out, to which opinion of' the court said defendants, by their attorneys, excepted ; thereupon, the defendants, by their attorneys, propounded to said witness, the following questions, to wit:
    “ ‘How did you come to place to the credit of James Martin money placed there by John M. Martin ? ’ To which said witness answered by saying, ‘ I did it by the instructions of John M. Martin ; ’ and thereupon, the defendants, by their attorneys, propounded to said witness the following question, to wit:
    “ ‘What languagedid John M. Martin use in giving those instructions ? ’

    “Whereupon, the plaintiff, by his attorney, objected to the witness answering said question, which objection was sustained by the court, aud said witness was not permitted to answer said question, and said testimony was ruled ■out; to which opinion and ruling of the court the defendants, by their attorneys, excepted, and prayed the court this their bill of exceptions' in that behalf might be allowed.
    “In the examination-in-chief of said witness, H. L. Chapman, there was propounded to him the following question, to wit:
    “ ‘ What is the present value of the homestead property of John M. Martin, and what is the present value of the houses on the other lots, and of the lots also ?'
    “Whereupon, the said defendants, by their attorneys, objected to the, witness answering said question, which objection was overruled by the court, and said witness was permitted to answer said question, to which said several rulings and holdings of the court the said defendants excepted.”
    The assignment of errors here, draws in question the correctness of these rulings of the court below, as well as the findings of the court upon the evidence.

      Hoffman & Hoffman, for plaintiff in error.

      John W. Okey and J. R. Challen, for defendants in error.
   Scott J.

As to the competency of the question propounded by the plaintiff below, to his witness, Chapman, in his examination-in-chief, it is certainly not easy to perceive any legitimate bearing that an inquiry into the present value of John M. Martin’s homestead property, or as to the present value of the other lots in controversy, could have upon the facts in issue between the parties. It certainly could throw no reliable light on the question of their cost a number of years previously.

We are inclined to think that the question was, at least, not relevant to the issues made by the pleadings ; and that the objection to it should have been sustained..

But whether the answer of the witness (which is shown by another bill of exceptions) was prejudicial to the plaintiffs in error, so as to require a reversal of the j udgment bn account of its admission, we find it unnecessary to determine.

Eor, we are clearly of opinion that the court below erred in refusing to permit this same witness to answer the questions put to him, on cross-examination, by defendants below. Those questions were, in every respect, pertinent and proper. The importance of the right of full cross-examination, of an adverse witness, can scarcely be overestimated. As a test of the accuracy, truthfulness, and credibility of testimony, it is invaluable. It is the clear right of a party cross-examining', to elicit suppressed facts, which weaken or qualify the case of the party examining in chief, or support the case of the cross-examining party. Powell on Ev. 380. “In any view, the right of cross-examination extends to all matters connected with the res gestee.” Wharton’s Law of Ev. § 529. A witness may be cross-examined, as to his examination in chief, in all its bearings, and as to whatever goes to explain or modify what he has stated in his examination in chief. Wilson v. Wagar, 26 Mich. 452.

In the case before ns, the witness, Chapman, on his examination in chief, had testified that John M. Martin had, at a specified time, opened an account in his bank, by depositing therein moneys in his possession, in the name of his son, James Martin. The vital question in the case, was-whether the moneys thus deposited belonged to John M. Martin or to his son, in whose name they were deposited., The plaintiff below was interested in showing that these moneys, in fact, belonged to his debtor, John M. Martin.. Eor this purpose, he proved by the witness, that John M-Martin had the moneys in his possession, which was prima facie evidence of ownership, and that he exercised the rights-of apparent ownership over them, by depositing them in witness’ bank. This evidence, unexplained, would tend strongly to show that John M. Martin was depositing his-own money, for a fraudulent purpose, in the name of his son. To counteract the effect of this testimony, the witness was asked, on cross-examination, to tell what John M. Martin said about the money at the time of depositing it.. The court refused to allow this question to be answered. We think his declarations, made at the time of making the deposit, were, to all intents, as much a part of the res gestae,. as was the fact of the deposit itself.

The defendants had a right, if they could, on cross-examination, t-o repel the prima facie inference, arising from the examination in chief, that John M. Martin was dealing with these funds, as his own, by showing that he professed, to be acting only as an agent for his son, who had sent him the funds for the purpose of being deposited to his credit..

So far as this testimony might'tend to qualify or explain' the testimony in chief of the witness, it was clearly competent, and the court erred in excluding it. Besides, the witness testified that he placed the funds deposited, to the credit of James Martin, “by the instructions of John M. Martin.” He was thereupon asked, on cross-examination, “ What language did John M. Martin use in giving those instructions ?” • The court did not allow this question to b» answered. Eor the fair import of the language used by John M. Martin, he might well be held responsible; but the court refused to hear what he said, and held him bound by the construction put upon his language by the witness.. We find it impossible to justify this ruling of the court, or-to resist the conviction that the plaintiffs in error were deprived of their right of proper cross-examination.

It is claimed, however, that the judgment in question can not be, for that reason, reversed, because it is not shown what the plaintiffs in error expected or offered to prove by way of answers to the questions propounded on cross-examination. But we think this rule can have no proper application to the cross-examination of a witness. The plaintiffs in error did not call Chapman as a witness for the purpose of proving anything. He was a witness called by the adverse party, and they were seeking to extort from him a qualification of his testimony in chief. They can not be presumed to have known what his answer's would be to questions propounded in proper cross-examination.. Nor would they be bound by such answers. The value of a cross-examination, as a test of truth, would be lost in the-case of a crafty and unreliable witness, if the examiner were-bound to disclose, in advance, the purpose and intent of every question asked. As was said by Welch, J., in the-case of Burt v. State of Ohio, 23 Ohio St. 402: “I know of no case where the rule requiring such a disclosure has been applied to a cross-examination.” Where a witness, on his examination in chief, testifies to important facts in favor of the party calling him, we think prejudice to the-adverse party should be presumed to arise from the denial of the right to a fair and proper cross-examination. And for the error of the court below, in the denial of this right,, its judgment will be reversed.

It is, therefore, not essential to a proper judgment in this proceeding, that we should consider the farther error assigned, and inquire whether the findings and decree of the court below were warranted by the pleadings and evidence-in the case. But, in view of another trial, it is proper to-say that we have examined the evidence with a good deal of care, without discovering anything to justify some of the findings of the court.

The court found that James Martin had permitted his father John M. Martin to deposit the sum of $1,300 in his name, in bank, and there remain for the purpose of hindering, delaying, and defrauding the creditors of John M. Martin; that he holds the same as trustee for said creditors, .and ought to be required to account for the same to the •court, and for that sum with interest from September 10, 1872, judgment and execution was awarded against him.

We have looked in vain for the evidence on which this particular finding and judgment can properly rest.

We are also of opinion that the decree ordering the unconditional sale of all the lots in controversy, was not warranted either by the allegations of the petition or the findings of the court. The petition was not filed on behalf of the creditors of John M. Martin generally, but for the single purpose of subjecting the lots in question to the payment of the judgment held by Elden, the plaintiff below.

The petition charged, and the court found no other fraudulent purpose in the conveyances to and by Stinson, than that they were so made to prevent the plaintiff from levying on the lots, and so to hinder him in the collection of his judgment. No other creditors, if there were any, intervened, or were made parties to the suit. The decree should, therefore, in no event, have ordered the sale of more property than would be sufficient to satisfy the plaintiff’s •claim, with interest and costs.

A.s to the weight of the evidence in regard to fraud in the purchase and improvement of the lots in question, as charged in the original petition, we think it proper to express no opinion.

Judgment reversed, and cause remanded.


source: Caselaw Access Project

author: Johnson, C. J.

license: Public Domain

text:
    Harper et al. v. Ampt et al.
    ■Under a special act of the legislature, passed in 1834, a turnpike company was incorporated and organized with a specified capital, divided into shares, each of which was entitled to one vote in the election of nine directors. Part of these shares were owned by the State of Ohio. In the act of incorporation, power was reserved to any future legislature to alter or amend this charter. Subsequently, the act of March 20, 1840 (1 Curwen, 620), and an amendatory act of March 29, 1841 (1 Curwen, 796), was passed, “to regulate elections” in such companies “ where the state is a stockholder,” which acts, when accepted by the company, so changed the charter as to authorize the private stockholders to elect six and the governor of the state to appoint three directors. Held,

    1. That the power reserved to any future legislature to alter or amend the charter, entered into and formed part of it; and the exercise of this reserved power does not impair the obligation of a contract between the state and such company or its stockholders, within the meaning of the constitution of the United States.
    2. The acts of 1840 and 1841 were intended to regulate elections in such companies in which the state was a stockholder, and have no application to elections after the state ceases to be such stockholder, by the sale or exchange of its stock.
    3. The effect of these acts, was to change the mode by which the state, as a stockholder, was represented in the selection of directors. It was a relinquishment, by the state, of its equal right to vote its stock with private stockholders.
    4. The acceptance of those acts by the company, constituted an amendment to the charter, as to the mode of selecting a board of directors, but the legislature was not thereby divested of its reserved power to alter or further amend such charter on that subject.
    5. N either was the power of the state to dispose of its stock, upon such terms or conditions as it saw proper, restricted or abridged.
    6. "When the state, by a sale of its stock, by authority granted for that purpose, ceased to be a stockholder, the governor was divested of his power to appoint three directors, and the transferee of such stock, unless restricted by the act authorizing the sale, became invested with an equal right with other private stockholders to vote his shares.
    7. -The conditions imposed upon purchasers and transferees of stock disposed of by the state, under the amendatory act of January 12, 1859 (4 Curwen, 3165), applied only to sales made under that act, and did not attach to sales and transfers under the original act of 1854, to which it was an amendment (4 Curwen, 2691), nor to those made under the-joint resolution of April 13, 1865 (62 Ohio L. 220).
    Error, to the District Court of Hamilton county.
    The proceeding in the court below was an information ■in quo warranto.

    The relators, Joseph G-. Langdon, James Simpson, A. L. Cosbey, Nicholas Todd, Simon Cochran, and Levi Baker, allege that the -respondents, now plaintiffs in error, are ■usurping the office of Directors of the Cincinnati, Montgomery, Hopkinsville and Clarksville Turnpike Company,, a corporation under an act of the general assembly, passed March 3, 1834.
    They further allege that, at the' annual election for directors of that company, held February 24, 1872, they, as-owners of certain shares of stock, offered to vote their stock, as they were legally authorized to do, for six directors, but that the judges of the election unlawfully refused to receive and count their votes, and that, had their votes been counted, they would have been elected.
    Upon issue joined, the case was heard upon the pleadings and evidence, and the court found, specially, that certain of the relators, to wit, Langdon, Cobley, Todd, Cochran, and Baker, were each the owner of two hundred and ten shares of the capital stock of said company, and, as-such, were entitled to cast a corresponding number of votes at said election for nine directors, which, if received and counted, would have elected the relators instead of respondents. It was further found, that said shares were the same that were formerly owned by the State of Ohio.
    The judgment was that the election, by reason of the refusal to receive and count said votes, was void, and that the-respondents be ousted from all title derived from such election ; but as they constituted the board for the previous year, and, as such, entitled to hold over until a valid election of their successors, they could not be ousted until á valid election was held and a new board duly elected.
    A bill of exceptions was taken, but not properly made-part of the record, and. it is now assigned for error that the district court erred in holding that this stock, formerly •owned by the state, could be voted on an equal footing with other stock of private individuals.

      JButterworth & Vogler, for plaintiffs in error.

      Hoadly, Johnson & Colston, Harmon & Maxwell, and Cowan & Durrill, for defendants in error.
   Johnson, C. J.

As the bill of exceptions is not properly made part of the record, we are not required to examine it.

"We have done so, however, and may say that if it were properly of record the result would not be changed.

The single question is: Can the owners of stock in this company, which was formerly the property of the state, vote the same at elections on an equality with the other shareholders ?

Respondents claim that owners of such stock must hold .a separate election and elect three directors. They base this claim on the provisions of the act of March 20, 1840 (1 Curwen, 619, chap. 467), and the amendatory act of March 29, 1841 (1 Curwen, 796); claiming that upon an accceptance by the company of those acts, the stock then •owned by the state was forever divested of its voting power, even in the hands of private holders, who purchased from the state.

This turnpike company was organized under a special ■charter, granted March 3, 1834 (32 Ohio L. 351). By the 18th section of that act it was provided “ that nothing in this act contained shall be so construed as to prevent any future legislature from altering or amending this act.” The maximum capital was fixed at $300, 000,' and the stockholders were to elect nine directors,” each stockholder having one vote for each share he may ■own.”

In matters not otherwise provided for in this charter, the company came under the general law to provide for the regulation of turnpike companies, passed January 17,1817' (1 Curwen, 466).

Under the provisions of “ an act to authorize a loan of the public credit by the State of Ohio,” etc. (1 Curwen, 330), commonly known as the “ Plunder Law,” passed March 24, 1837, the state became the owner of the stock •now in controversy. As such owner, the state was, like all other stockholders, entitled to cast one vote, for each share,, for nine directors, at the same election with other stockholders. This continued until the act of March 20, 1840 (1 Curwen, 620), was passed, regulating the elections in railroad, turnpike, canal, and slackwater navigation companies, “ when the state is a stockholder.” In that act the state proposed to surrender her right to vote as other stockholders, and reserve in lieu thereof the power in the governor to appoint three directors out of the nine, leaving' the other six to be. elected by the private stockholders.

By the 4th section of the act of 1840, the option was given to such companies to accept this change in six months, but if not accepted, then the governor in person,, or by proxy, should represent and vote its stock, “ at all elections of directors and other officers, under the restrictions imposed by the charter of such company upon any other stockholder owning an equal amount of stock.”

This act was amended in some particulars, not material to notice in this case, March 29, 1841 (1 Curwen, 796).

The “ Plunder Law ” was repealed March 17, 1840 (1 Curwen, 619).

Erom the time the state became a stockholder, until the-acceptance by the company of the changes proposed by the-acts of 1840 and 1841, the rights of the state were the same as individuals as to voting at all elections, and the object of these statutes of 1840 and 1841, was to surrender this-equal right, if the companies consented thereto, and confer upon private stockholders the exclusive power to elect six directors.

If the company did not accept the terms of these acts of 1840 and 1841, as therein prescribed, the state would continue to vote as other stockholders. Assuming that this company did so accept, the effect was to change the mode of selecting a board of directors, while the state continued to be a stockholder. It constituted an amendment of the act of incorporation as to elections, and deprived the state of its right to vote for nine directors, substituting in lieu thereof a power to appoint three uf the nine. Such amended charter was, by the power reserved in the original charter itself, subject to amendment. One amendment, like this, did not exhaust this power reserved, to a future legislature to alter or amend, whenever such legislature might think the public welfare demanded it.

Again, when the state became a stockholder with individuals it, like all other stockholders, possessed the power of alienation as absolutely as any private holder. This power of sale was untrammeled and might be exercised, whenever the state saw proper. There was nothiug in the charter of the company nor in the act under which this stock was subscribed, nor in these acts of 1840 or 1841, which limited the inherent power of the state to dispose of its stock, with or without conditions imposed on the transferee. These acts of 1840 and 1841 apply only “ where the state is a stockholder.” It was intended as a regulation in chosing directors while the state owned stock. "When the state ceases to be a stockholder, the reason for the statute ceased, and the act, by its express terms, ceased to apply.

After acceptance of the acts of 1840 and 1841, the state, through its legislature, possessed complete power—

1. To alien its stock with or without conditions imposed on the transferee.

2. To alter or amend the charter as to the mode of elect-ting directors, or to make any other amendment within the object and scope of the corporation, for the better regulation of such company. It can not be said, that such an amendment violates any contract within the meaning of the federal constitution.

The power reserved to alter or amend the charter entered info and formed part of the terms of the contract, and the stockholders held their chartered privileges subject to its exercise. In matter of Reciprocity Bank, 22 N. Y. 1; Lee, Oliver & Co., 21 N. Y. 1; Buffalo & N. Y. R. R. v. Dudley, 4 Kern. 336; Hyatt v. Whipple, 37 Barb. 595; The City of Roxbury v. The B. R. R. Co., 6 Cush. 424; Sherman v. Smith, 1 Black. 587; Mayor, etc. v. Norwich R. R., 109 Mass. 183; Field on Corporations, §§ 48 to 54.

Under the act of 1837, commonly called the “Plunder Law,” the state had become the owner of stocks in numerous railroad, canal, turnpike, and other companies, organized for the internal improvement of the state.

The state exercised its right to alien its stock by a series of statutes.

The first to which our attention is called, relating to turnpike stocks, is the act of May 1, 1854 (4 Curwen, 2651).

It authorized an exchange of such stock for the funded debt of the state, or a sale to the highest bidder, but imposed no limitations upon the holder, as to his power to vote such stock, when the state ceased to be a stockholder.

An amendatory and supplementary act was passed January 12, 1859 (4 Cur. 3165), by which they were to be sold, in lots of not less than ten nor more than fifty shares.

In this act, for the first time, conditions were imposed on the stock in the hands of purchasers from the state.

Section 4 provided that “ The shares now owned by the state shall not entitle the person or persons to whom the same may be transferred, by virtue of this act, to vote at the annual election for directors now provided for in the charter of said company;” but authorizes such transferees to meet at the same time and place as other stockholders, and elect three directors. The respondents insist that this act governs in the present case.

The fact that this condition is expressly imposed on the holders of such stock, and that they are divested of the right to vote as provided for in the original charter, is conclusive proof that the legislature did not suppose that the .acts of 1840 and 1841 had so changed the character of this •stock as to destroy its voting power when not owned by the state. The conditions imposed by the act of 1859 applied only to transferees by virtue of that act. It did not -extend to transferees by virtue of the act of May 1, 1854, nor to those holding under subsequent legislation.

The next legislation authorizing a sale is the joint resolution of April 13, 1865 (62 Ohio L. 220).

The fund commissioners were authorized to sell for cash at their market value, or if there be no market value, at such price as they may deem equal to the market value, all stocks owned by the state in turnpike companies.

This resolution contains specific provisions as to notice' •of sale, price, etc., and requires the commissioners to first offer it at public auction, in lots of not less than ten nor more than fifty shares, and if all is n<5t thus sold, then to offer in lots to suit purchasers at private sale.

Unless we examine the bill of exceptions, we can not know under which of the three statutes the stock of relators was sold or exchanged. ' Whether the relators derived title under the act of 1854 or of 1859, or the joint resolution of 1865, we are not advised. In the absence of that knowledge, we are not warranted in assuming that the purchase was under the act of 1859. For aught we know from the record, outside of the bill of exceptions, relator’s title accrued under the act of 1854 or under the joint resolution of 1865. If under either, they hold their stock freed from any limitations on their equal right to vote it.

The bill of exceptions, if examined, shows they purchased under the joint resolution of 1865.

Although the conditions imposed under the amendatory act of 1859 only apply to transferees under that act, yet plaintiffs in error claim it was still in force, that the resolution of 1865 did not repeal it, and that no sale could be made under this joint resolution to which the conditions of the fourth section of the act of 1859 would not apply.

We do not assent to this view. The acts of 1854 and 1859 were a delegation of power to the fund commissioners to dispose of the stock owned by the state. By these acts-they were 'clothed with the power to sell or exchange this-stock. The act of 1859 stood unrepealed, and there was nothing to prevent a sale thereunder, if purchasers could be found. It had been in force for six years, and under it, doubtless much of the most valuable stocks owned by the state had been sold, and it became necessary, in order to dispose of the less salable, that more liberal terms should be offered.

Hence the powers of the fund commissioners were enlarged, and the terms modified by the joint resolution of 1865. The commissioners could sell all or part only of the stock. If part remained unsold, the power of the governor to appoint three directors remained. • This would be a denial of the right of transferees to elect three directors under the act of 1859.

One or two other questions are made, but as the term of office for which the directors were elected has long since expired, they are of no practical importance.

Judgment affirmed.

Scott, J., dissented from the seventh proposition of the syllabus and from the judgment in the case.


author: Ashburn, J.

text:
    Clark v. Bayer.
    1. As a general rule the parents are entitled to the custody of their minor children. When they are living apart, the father is, prima facie, entitled to that custody, and, when he is a suitable person, able and willing to support and care for them, his right is paramount to that of all other persons, except that of the mother in cases where the infant child is of such tender years as to require her personal caro; but in all cases of controverted right to custody the welfare of the minor child is first to-be considered.

      2. The father's right is not, however, absolute under all circumstances. He-may relinquish it by contract, forfeit, it by abandonment, or lose it by being in a condition of total inability to afford his minor children necessary care and support.
    3. Where the father and mothoi', living apart, by agreement transfer the-care and custody of their infant children to the grandfather of the children, in consideration that he will receive, care, and provide for them, and in pursuance of such agreement he does take them in charge, the custody of the grandfather is lawful, and he has legal capacity to maintain an action for damages against one who wrongfully takes, or causes them to he taken from his custody.

      4. In such ease the grandfather, being entitled to the custody of the minors,. was also entitled to their services, and, in an action for damages against one who wrongfully took them from his possession, it is sufficient to allege, as to loss of services, that the wrongful taking was to' deprive him of their “possession and services,” without alleging actual loss of services.
    5. In actions for damages, arising from the wrongful act of a married-woman, husband and wife must be joined as defendants. If in the commission of the tort she acted under marital coercion, and such fact does not appear on the face of the petition, her defense in that respect must be made by answer.
    Error to the District Court of Pickaway county.
    Plaintiff commenced his action by filing the following-petition :
    The said Edward B. Clark says, that at the time of the-commission of the wrongs hereinafter stated by the defendants, be bad two grandchildren, to wit, Edward J.. Clark and Ada H. Clark, who were the children of the-plaintiff’s son, Edward E. Clark, Jr.; that on or about the 21st day of August, 1872, the father and mother of said children, then living separate and apart, and not being in a condition to take care of the said children, Edward J. and Ada H., who were both minors, under the age of five years, transferred the care, custody, and possession of said children to the plaintiff’, and wholly renounced and abandoned all right as parents to the custody and possession of said children, in favor of the plaintiff; and at the same time, in consideration of the said transfer and abandonment, the plaintiff’ accepted the care, custody, and possession of said children, in order to bring up, maintain, protect, and educate his said grandchildren as his own children; and, in consideration of the matters just stated, the plaintiff', at the time aforesaid, and in the county aforesaid, took said children to his own home, where he had the sole care and custody of them, and was supporting them and bringing them up as his own children ; and from said date until the 26th of April, 1873, the plaintiff and his family did take care of and support, maintain, instruct,, and expend money upon the said children for the purpose of discharging his duty as a parent toward them ; nevertheless, the defendants well knowing the premises, and intending, at the date last named, to deprive the plaintiff of the custody, possession, and services of said children, and to injure him, wrongfully, without consent or authority, and forcibly took possession of said children at said county, and carried them out of .said county into other counties in this state and concealed them, one of them being concealed by them at Columbus and the other at Cleveland, in Ohio ; and the plaintiff says that he was put to great loss of time and expense of money in searching for said children ; that he was engaged for the period of two weeks in searching for them, and employed officers to aid him, and a lawyer to prosecute suits, in order to obtain possession of the said children ; and he incurred liabilities in regard to the said matter to the amount of two hundred dollars; and he says that while the said children were so absent from his custody, and hidden, they were neglected, abused, and ill treated, by the persons who had them in their hands, so that they became feeble and sick, and the plaintiff was obliged to nurse, take care of, and endeavor to cure them; and the plaintiff alleges that the defendants, at the times aforesaid, -were, and yet are, husband and wife. To the damage of the plaintiff in the sum of five thousand dollars, and for which sum he asks-a judgment.
    Defendants demurred, and assigned the following reasons therefor : 1. “ The plaintiff has. not legal capacity to sue.” 2. “ There is a misjoinder of parties defendant.” 3. “ That the petition does not state facts sufficient to constitute a. cause of action.”
    The court of common pleas sustained the demurrer, whereupon plaintiff obtained leave to amend his petition. Failing to amend, at the next term of that court the petition was dismissed. The ease went to the district court on petition in error, and there the judgment of the court below on the demurrer was affirmed. The proceedings here are to obtain a reversal of the judgments of the district court and of the common pleas court.

      Henry F. Page, for plaintiff in error:
    The plaintiff has a right of action independent of the question whether the children were capable of rendering-services or not. Ashley v. White, 2 Ld. Raymd. 953; Chamberlain v. Railroad, 1 Exch. 780; Coe v. Platt, 6 Exch. 752; 1 S. & C. 457; State v Ruhl, 8 Clark, 447; Moritz v. Garnhart, 7 Watts, 302; 2 Hilliard on Torts, 525; Kirkpatrick v. Lockhart, 2 Brev. 276; Wodell v. Coggshall, 2 Met. 89.
    Courts, in the exercise of a sound discretion, may withdraw an infant from the custody of either father or mother,, and place the care and custody of it elsewhere. State v. Barrett, 45 N. H. 15; State v. Smith, 6 Me. 462; 2 Kent’s Com. 205.
    A father may delegate or abandon or be deprived of his authority over his child; and the public policy does not forbid this, but in many cases requires it. 2 Kent’s Com. 194, n. d.; Day v. Everett. 7 Mass 144; Hewson v. Dezzert, 8 J. R. 332.
    It appears, from the last preceding case, that a contract for the transfer of the services of the child may be binding on the parties, and yet not binding on the child. See also Hurd on Hab. Corp. 537; Schouler’s Horn. Rel. 343; State v. Smith, 6 Greenleaf, 462; Fowler v. Hallenback, 9 Barb. 310; Com. Gilke, 1 Phil. 144; 8 Leg. Intell. 86; 5 Penn. Law J. 30; Pool v. Gott, 14 Law Rep. 269; Com. v. Hamilton, 6 Mass. 273; State v. Scott, 30 N. H. 274; 10 Allen, 270; 34 Beav. 266; 3 Am. L. R. 578; Spear v. Davis, 38 Ind. 271; Com. Dougherty, 1 Leg. Gazette Rep. 63.
    This is the true distinction in this case. So far as the child is concerned, the contract is voidable {not void), at the option of the child, if of sufficient age, or of the courts, in their discretion, when a case arises. But so far as the adult parties to the contract are concerned, the contract is valid. This is precisely what the court say in the case just cited from 8 J. R. 432.
    Why should a stranger be pei'mitted to set at defiance, with perfect impunity, the wishes and most sacred feelings of the parties, and the best interests of the infant ?
    But this arrangement and contract, made between the nearest relations of the children for their benefit and advantage, is challenged hy a stranger and wrong-doer.

    In this case the parents were unable to support and take care of the children. They had been virtually abandoned.
    Under the circumstances, the public authorities would have been compelled to take charge of and support them.
    Was it not better that the father should transfer the custody of his children to the grandfather, who may be supposed to have some affection for them, than to send them to the poor-house, to be supported by the expense of the county ?
    But if the grandfather, under these circumstances, can not maintain an action against a mere wrong-doer, if he is to be told that this arrangement, made by the family for the benefit of the children, is against public policy and void, then he would do better to cast the burden of their .support upon the county. Is this public policy?
    The following case is cited for its analogy: Harper v. Luffkin, 7 B. C. 387; Addison on Torts, 905.
    As to the joinder of husband and wife, see 1 Chitty’s Pl. 93 (13 Am. ed.); 2 Lev. 63; Reyworth v. Hall, 1 Vent. 93; 3 B. & A. 688; 2 Sounders Pl. & Ev. 573; Roadcup v. Sipe, 6 Gratt. 212; Wagoner v. Bill, 19 Barb. 321; 1 Hilliard on Torts, 513; 2 Bacon’s Abr. 61.

      Harrison & Olds, and A. T. Walling, for defendant in error:
    Did the court of common pleas err in sustaining the demurrer to the petition of said plaintiff?
    It is not averred that the children alleged to have been abducted had been adopted by or apprenticed to the plaintiff, or that they were his servants or his wards. The fact that he was the grandfather of the children (whose father was living) was wholly immaterial. He had no higher rights to their care and custody on that account than if he had been to them a stranger in blood. 1 Blackstone’s Com. *452 ; 2 Kent, *203 ; Reeves’ Dom. Rel. *283.
    The father, while living, is entitled to the services of the minor child, and is charged with its care, custody, and maintenance.
    Eor reasons of public policy, the father can not divest himself of his paternal obligations, or transfer his paternal rights to another, except in the modes provided by law. An agreement made in any other way, by which the father surrenders custody of his child to another is- not binding. Reg. v. Smith, 17 Jurist. 24; Peo. v. Mercin, 3 Hill, 399; Hunt v. Hunt, 4 G. Green (Iowa), 216; Vansittart v. Vansittart, 4 Kay & Johns. 62.
    We submit that, in this state, these natural rights and obligations can only be transferred through indentures of apprenticeship or legal adoption, with their requisite formalities, or by the order of some court of competent jurisdiction. Not otherwise can the grandfather or any one else assume them, either with or without the consent of the father.
    In this case the plaintiff' was under no legal obligation to support, maintain, or care for these children, nor had he any natural or legal right to their custody. Whatever trouble or expense he incurred in providing for them, or in pursuing and recovering them, he incurred voluntarily, and he can not make them the basis of a recovery against the-defendants.
    The right of action for the abduction of the children, if in any one, is in the father.
    It is not alleged that the plaintiff contracted with the* father to take charge of and maintain the children. If there was such a special contract, and, by reason of the-abduction or concealment, or ill-usage of the children, the-plaintiff was put to increased expense in searching for and curing the children, still he could not recover. The damage is too remote and indirect. Anthony v. Slade, 11 Metcalf, 290.
    ' But the parent could not recover in this case for the reason that there is no averment of any loss of service. Addison on Torts, 902; Eager v. Grimwood,, 1 W. H. & G. Ex. 61; Magee v. Holland, 3 Dutcher (N. J.), 86; Dennis v. Clark, 2 Cush. 347.
    As to the joinder of husband and wife, see Reeve’s Dom. Rel. *92; Sisco v. Cheeney, Wright, 9.
   Ashburn, J.

It is claimed the errors assigned on the-record do not raise the question on the demurrer.

The manner in which errors are assigned should not induce a court of review to overlook questions of real merit, in -a case. Reviewing courts are not required to embark on a voyage to discover errors not specifically assigned. Where, however, the real question in a case is manifest, as in this case, the question will not be overlooked.

The demurrer is special and general. Three grounds of demurrer are alleged.

I. Plaintiff has not legal capacity to sue.

II. Misjoinder of parties defendant.

III. The petition does not state facts sufficient to constitute a cause of action.

In discussing the first question on the demurrer, the third cause will be considered to a considerable extent.

I. Plaintiffs legal capacity to maintain this action.”

If plaintiff had the lawful right to and actual custody of the infants at the time of the alleged wrongful act of defendants, he has legal capacity to sue. As we understand the argument of counsel for defendants, they claim the father of these minor children, only, has a right of action.

In this country there is quite a uniformity in the decisions in relation to the rightful custody of infant children. The general spirit of modern adjudged cases on this subject, both in England and the States, does not essentially differ. As a general rule, the father is considered as being entitled to the custody of his minor children, and in case of his death or incapacity, the mother. In cases of controverted custody, the present and future interests of the minor controls the judgment and directs the discretion of courts. While the legal rights of parents are to be respected, the -welfare of the minor is of paramount consideration. If necessary to attain that end, the custody of minor children will be taken from their parents, or refused to them. Hurd on Habeas Corpus, 528 ; Tyler on Infancy, etc., 283.

When the question of custody arises between the father and mother, or between either of them and another, as to rightful custody, and the minor is of an age to make an intelligent and discreet choice, courts will respect the minor’s election. When the child is too young to exercise judgment in making a choice, courts are never restrained by any supposed absolute right of custody in either parent, but will direct the custody where the best and highest interests of the infant will be subserved.

It sometimes happens that parents have abandoned their minor children, or by act and word transferred their custody to another. In such cases, where the custodian is, in every way, a proper person to have the cafe, training, and •education of the infant, and the court is satisfied its social, moral, and educational interests will be best promoted by remaining in the. custody of the person to whom it was transferred, or received, when abandoned, the new custody ■will be treated as lawful and exclusive.

After the affections of both child and adopted parent become engaged, and a state of things has arisen which can not be altered without 'risking the happiness of the child, and the father wants to reclaim it, the better opinion is that he is not in a position to have the inferierance of a court in his favor. His parental rights must yield to the feelings, interests, and lights of other parties acquired with his consent.

In this case, for the purposes of the demurrer, it is admitted the father and mother were not in a condition to take care of their infant children, and for that reason transferred the care and possession of both minors to plaintiff, and wholly renounced and abandoned all right, as parents, to the custody of the infants to the plaintiff; that plaintiff .accepted and took upon himself their care and custody; that defendant knowing these facts, and intending to deprive plaintiff of the custody, possession, and services of the minors, and to injure him, wrongfully, without consent or authority, forcibly took possession of the minor children, and carried them out of Pickaway county into other counties 'in the state, and there concealed them, etc.

Upon this state of fact, plaintiff, who is the grandfather •of the minors, stood to them, in loco parentis, with title to their custody, which no-one could forcibly question with impunity. If these children had been but domestic animals, plaintiff had a lien upon them, which the owner would have been bound to discharge before he could assert a right to their custody. As against a wrong-doer, plaintiff had lawful ■right, if forcibly taken from his possession, to recover them .at the costs of the tort-feasor.

Questions, as to the rightful custody of minor children, Nave generally, in this country, been made in proceedings in habeas corpus, where alleged illegal restraint was the chief question for consideration. As however, the decisions, in such cases, and the clear expressions of judges, have a direct bearing upon the rights of parents and others to the rightful custody of minors, a brief allusion to a few of them will tend to show the spirit of the law and blaze the way to a correct conclusion.

The State ex. re. Lynch v. Bratton, decided by the Supreme Court of Delaware, reported in American Law Reg. (N. S.), vol. 15, 859, is a case in which there was a contest for the custody of infant children between their father and grandmother. Relator intermarried with Emma Bratton, daughter of respondent, and to them three children were born. The father and mother were divorced, and the custody of the •children awarded to the mother. In 1870 ,the mother and children went to live with respondent, and resided with her until 1873, when the mother of the infants died, committing the care and custody of her children to respondent, who accepted the charge. In 1876, relator commenced proceedings to recover possession of his minor children.

After a full and careful review of the authorities, the court held that while the father has prima facie right to the custody of his minor children, his right is not an absolute and unqualified right. “He may relinquish or forfeit it by contract, by his bad conduct, or by his misfortune in being unable to grant proper care and support.”

Where the father asserts his legal right, and the welfare of his minor child is involved, courts are not embarrassed in asserting their power, in a discreet judgment, as to its proper, and for the time being, lawful custody. In the case of the State v. Smith, 6 Greenlief, 462, the relator was the father, and the respondent the grandfather of the minor, Parris, J., said: “From an examination of the authorities, I consider the law as well settled that it is in the sound •discretion of the court to alter the custody of these minor children or not, and that the father can not claim them as matter of right.”

To the same effect is Dumain and wife v. Guynne, 10 Allen, 272. Chapman, J., said: “ But there are cases where the policy of the law is best promoted by the separation of children from one or both of their parents.”

In Cone v. Dougherty, 1 (Pa.) Leg. Gaz. 63, cited in note to Hurd on Habeas Corpus, 550, in Pennsylvania, it was held, “ that a parent might relinquish the right of custody of his child by parol. Where a father gave the-care of his infant daughter to a sister of its deceased mother, and afterward only visited it about once a year, and never contributed to its support, and after a lapse of eight years, claimed custody of the child, such facts were held to establish the abandonment of the father’s right.” See also Waldren, 13 Johns. 418. See U. S. v. Green, 13 Mason, 482; Mercier v. The People, 25 Wend. 101; Gusweiler v. Dodez, 4 Ohio St. 615; Ex parte Peter M. Shumput, 6 Rich. 344.

An English case (Lyons v. Blenkin, Jacobs, 245) is in harmony with the American decisions. Lyons, first by habeas corpus, and finally by petition in chancery, sought to recover the custody of his three minor children from defendant, who was the husband of their aunt. The father, verbally and by act, had transferred his three minor children to the custody and care of their maternal grandmother, who accepted the custody and charge. By her will she provided an estate for them and her own daughter, Mrs. Blenkin, and appointed by her will her daughter as. guardian of the minor grandchildren, and custodian of their persons and the estate devised to them by the testatrix. The aunt took charge of the minors, cared for, and educated them for several years, when, on account of differences between the father and aunt, he commenced proceedings to recover the custody of his children and their fortunes.

After a patient and full investigation, the lord chancellor says (p. 262): “It is always a delicate thing .for a court to interfere against parental authority, yet we know that the ■courts do it in cases where the parent is capriciously interfering in what is clearly for their benefit.” After remarking upon the fact that the father had voluntarily placed his children in the custody of their grandmother, and acquiesced in the possession of the aunt after it was transferred to her by the will of the grandmother; that they had formed habits, associations, and attachments under her roof and supervision, he further says (on p. 264): “ I have not, in my judgment, a ease before me that can justify me in removing these children from the custody in which they .are, or from the course of education in which they have been placed and have hitherto gone on.” The custody of the aunt thus acquired was held to be superior to the right of the father.

After a thorough review of this question, Mr. Hurd, in his valuable work on Habeas Corpus, says (p. 537): “Why then may he (the father) not transfer to auother person the right of custody, where he may thus abandon or forfeit, especially where the interests.of the child are not prejudiced by the arrangement ? And how can the court pronounce that- custody which is held under a fair agreement with the parent, and not injurious to the welfare of the child, to be an illegal restraint?” It is lawful custody until set aside by superior recognized legal right. See also Tyler on Infancy, etc., 284.

The statute defining and punishing child stealing (S. &C. 457) provides : “ That every person who shall maliciously, or forcibly, or fraudulently, lead, take, or carry away, or ■decoy, or entice away any child under the age of ten years, with intent unlawfully to detain or conceal such child from its parent or parents, or guardian, or other person having the lawful charge of such child, shall, upon conviction thereof, be imprisoned in the penitentiary, and kept at hard labor, not more than seven years and not less than one year.”

The legal effect of the facts alleged in the petition, and admitted to be true for the purposes of the demurrer, brings plaintiff’s possession of the minor children named in the petition within the scope and meaning of the statute-making child stealing a felony. Plaintiff had the lawful charge of the children, and the spirit of this statute would rather aid than disturb the common-law right of action for damages for their wrongful abduction. Plaintiff, occupying, by contract founded upon sufficient consideration, the-protecting relation of the parents toward the minors, was vested with legal capacity to institute and maintain, in his own name, an action for damages against oue who wrongfully and forcibly takes them from his care.

From authority and reason, the following propositions may be stated generally:

1. As a general rule the parents are entitled to the custody of their minor children. When the parents are living-apart, the father is, prima facie, entitled to that custody, and where he is a suitable person, able and willing to support and care for them, his right is paramount to that of all other persons, except that of the mother in cases where the infant child is of such tender years as to require her present care; but in all cases of controverted right to custody, the welfare of the minor is first to be considered.

2. The father’s right is not, however, absolute under all circumstances. He may relinquish it by contract; forfeit it by abandonment; lose it by being in a condition of total inability to afford his minor children necessary care and support.

3. Where a father and mother, living apart, by agreement transfer the care and custody of their infant children to the grandfather of the children, in consideration that he will receive, care, and provide for them, and in pursuance of such agreement does take them in charge, the custody of the grandfather is lawful, and he has legal capacity to maiutain an action for damages against one who wrongfully takes, or causes them to be taken, from his custody.

II. It is urged, under the second branch of the special demurrer, that if the taking of the infants should be unlawful, the tort is alleged to have been committed jointly, by- husband and wife, and in such case coercion of the husband will be presumed. For this reason it is claimed the demurrer should have been sustained as to the wife.

It would, perhaps, be sufficient on this branch of the demurrer, to say that the code does_ not recognize the misjoinder of parties defendant as cause for demurrer. It is only where there is a defect of parties plaintiff or defendant that a demurrer may be interposed. Code, § 87.

The doctrine of the law, however, is adverse to the claim made by counsel in argument, as we think will clearly appear from an examination of the following authorities. Wright v. Leonard, 11 C. B. (N. S.), 258, 266; Keyworth v. Hill and wife, 3 B. & A. 685; Barns v. Harris et al., Busbee, 15; Bishop on Laws of Married Women, vol. 1, §§ 42, 43; vol. 2, §§ 255, 256.

The general rule may be stated thus, in actions for damages, arising from the wrongful act of a married woman, husband and wife must be joined as defendants. If, in the commission of the tort, she acted under marital coercion, and such fact does not appear on the face of the petition, her defense must be made by answer.

III. At common law, a parent has an action for the seduction of his child, to whose services he is entitled. Analagous to the injury occasioned by seduction, is that of the abduction of a minor child from its father, or one having it in lawful char-ge. To l-ecognize the doctrine that one standing in loco parentis, clothed with the lawful custody of an infant under five years old, has no legal capacity to sue or maintain an action for damages, either general or special, against the child thief, would be an unwarranted restriction upon the common-law rights of the citizen. It would be no less restrictive, to hold that no action can be maintained for such course, by reason of the fact that the infant, because of its tender years, is unable to render any valuable services. The action rests upon the right to service, and not upon actual services.

Plaintiff, in substance, charges that these minor children were wrongfully taken from his possession, by defendants, to deprive him of tlieir “possession and services.” He avers he was at a large expenditure of time and money in recovering possession of them; that the infants, while in the custody of defendants, were “ neglected, abused, and ill-treated, so that they became feeble and sick,” requiring great care, extra nursing, etc., to restore them to their customary health, and that this extra burden was occasioned to him by the wrongful acts of the defendants.

We are not at liberty, in view of the admitted facts, to presume, as suggested by counsel for defendants, that defendants acted at the instance of the father of the infants. If he was consenting to the stealing of them, as now advised, the court, looking to the interests of the minors, and the legal rights of plaintiff, would assert its power to protect the grandfather against the tortious acts of the father as well as those off strangers. The custody of the grandfather was legal, and one who would interrupt that relation should do so through the courts. If the father, he should have entered through the straight gate of the law to obtain possession of his children, and not have attempted to climb over it in some other and wrongful way. Jones v. Cleghorn, 54 Ga. 15.

On demurrer, an averment that the wrongful act complained of was done to. deprive plaintiff of the services of the minors, without averring their ability to serve him, or the nature of the services of which he was deprived, is sufficient on the question of per quod servitium amisit.

Plaintiff, in loco parentis, in asserting his lawful custody to the infants, against one who has unlawfully taken them from his possession, can recover, as compensatory damages, the expenses necessarily incurred by him in reclaiming,' and in nursing them through any sickness occasioned by the wrongful act of defendants, or that was occasioned through their agency. Dennis v. Clark, 2 Cush. 347; Moritz v. Garnheart, 7 Watts, 302; Kirkpatrick v. Lockhart, 2 Brev. 276; Martin v. Payne, 9 Johns. 387; Hewett v. Prine, 21 Wend. 78; 2 Addison on Torts, 1094.

The right to the custody of the infants, and their services as an incident thereto, is the gravamen of the action. Actual loss of services is not an essential allegation to ■enable plaintiff to maintain his action.

But whether damages, other than compensatory, may be recovered, we do not' say, for the reason that such question is not necessarily before us now for determination^

Judgment reversed and cause remanded.


author: Wright, J.

text:
    Black v. Hill.
    1. In construing a will, extrinsic evidence may be received to show the circumstances under which it was made. The testator having used the phrase “ my two farms,” such evidence may be introduced to show the situation of the land, and the manner in which it had been used and treated, in order to ascertain whether a disconnected piece of woodland was in fact a part of one of the “ two farms,” so as to pass under the devise.
    '2. Testimony having been received, subject to objection, some of which was incompetent, a court of error will not reverse, if there is enough of that which was competent to sustain the findings of the court.
    Error to the District Court of Logan county.

      William Lawrence and Joseph Lawrence for plaintiff:
    I. The land in controversy did not pass by the will, but descended to the wife, as heir.
    1. This is so on authority and construction. Barre v. Wick, 19 Ohio, 335; Jackson v. Schauber, 7 Cowan, 187; Roosvelt v. Fulton, 7 Cowan, 71; 1 Redfield on Wills, 425, 426, note v. Allen v. Allen, 18 How. U. S. 385. The two tracts conceded to be two farms satisfy the words of the will, and it can not be extended to include other land. Mann v. Mann, 14 Johns. 14. There is no ambiguity to be explained. Hiscocks v. Hiscocks, 5 M. & N. 368; Bodman v. Am. Tract Soc. 9 Allen, 449; Painter v. Painter, 18 Ohio, 265; Wigram on Wills, 188, prop. 7; Hawkins on Wills, 9; 1 Redfield on Wills, 539, 573.
    2. It is impossible to annex the detached land to either or both the farms. If it is included in “ my two farms,”' it must be because it is either (1) one of the “ two farms,'”' or (2) a part of one, or (3) a part of the two.
    (1) It is certain it is not one of the “ two farms.” There are two farms without it.
    (2) It is not a part of either one of the farms. Neither the will nor the evidence so points it out. If it can be a part of either one, of which one is it a part? If we can not be informed to which farm it belongs, it can not belong to either. “ That is certain which can be rendered certain,” and per contra, that which can not be rendered certain is not certain. Broom Legal Maxims, 416.
    (3) It is not a part of the “ two farms.” That is a physical impossibility. It is detached from both. It is impossible to say what portion belongs to one or the other. If one farm had been devised to Culbertson and one to Kizer, who would take it ? .The legal effect of the devise must be the same whether the two farms be given to two-persons or one to each.
    3. The word “ farm ” can not include two separate tracts. The word farm has a different signification in England and America. In England, leased land is farm, and to this might be common appendant, appurtenant, etc. But here a farm is not necessarily held of a superior. But in both countries, so far as the land is concerned, it is a compact body. English : 3 Greenlf. Cruise Real Prop. 272; 2 Black. 317; 1 Bouvier’s Law Dic. 513, title “farm.” American : Taylor v. Baggs, 20 Ohio St. 516; Bunker v. Lock, 15 Wis. 635; Burrill Law Dic. 605; Doolittle v. Blakesley, 4 Bay, 265; Foster v. Woods, 16 Mass. 116; Leland v. Stone, 10 Mass. 461; Richards v. Dutch, 8 Mass. 506; Aldrich v. Gaskell, 10 Cush. 155; Jarman on Wills, 713; 17 Texas, 593.
    It has been held, as to homesteads — 1 Am. Law Reg. (September, 1862), 653; True v. Morrill, 28 Vt. 672; Walters v. People, 18 Ill. 194; S. C., 21 Ill. 178 — “ Land can uot be appurtenant to land.” Morgan v. Mason, 20 Ohio, 409; Go. Lit. 152a; 11 Rep. 52; Broom Legal Max. 198; 1 Redfield on Wills, 648, 649, § 51. The case of Com. v. Carmolt,
      2 Binney, 238, involved a question as to right to take toll, not the construction of a devise or definition of a farm for purpose of grant. The case in 10 Cushing, 155, involved only a question of latent' ambiguity. The definition of “farm” in 2 Greenleaf’s Cruise, book 4 [267], 341 §41, improperly adopted by Bouvier, because not an American-idea of farm, applies to the condition of England; yet, in section 40, it is shown that a detached parcel of land will not pass by the grant of a messuage and appurtenances. 1 Inst. 5b; Smith v. Martin, 2 Saund. 400; 6 Term R. 345. In England, farm was “land held upon farme,” by a tenant, and to these commons might‘be attached. 2 Black-317 ; 33 Shepperd Touchstone, 93; Plowden, 195.
    This does not apply to allodial titles.
    II. The parol evidence was improperly received. Taylor v. Boggs, 20 Ohio St. 516; Mann v. Mann, 14 Johns. 14; Thomas v. Thomas, 6 Term R. 677; 1 Greenlf. Ev. § 295n; 3 Stark Ev., part 4, 1010; 6 Greenlf. Cruise, 190, §§ 45-47; 1 Redfield on Wills, 425, 426n, 435, 570, 648 § 51; King v. Ackerman, 2 Black, U. S. 408; Weather head v. Bascerviller, 11 How. U. S. 329; Hiscocks v. Hiscocks, 5 M. & N. 368; It would imperil titles to permit them to rest on such evidence, and defeat the policy of the statute of frauds. Baldwin v. Snowden, 11 Ohio St. 203.

      J. B. McLaughlin, Duncan Dow, and J. Duncan McLaughlin, also, for plaintiffs in error:
    The incompetent evidence received was :
    1. Testator’s declaration of intention to devise any certain thing; or his declarations that he had devised this or that. 1 Greenl. Ev. 282a, 2826; 1 Redfield, 569, § 18, n. 67; 2 Ohio St. 380.
    2. Opinions of witnesses as to what constituted testat02*’s farm.
    3. The testator’s statements as to what constituted his-farm, without giving his identical words, for the witness might have misunderstood him.
    The testatoi’’s intention will govern ; but it must be judged, exclusively, by the words of the will as applied to-the subject-matter and the surrounding circumstances. 1 Redfield on Wills, 430, 431; 2 Ohio St. 380; 3 Greenl. Cruise, 196, secs. 45, 47.
    As to what passes by the word “farm,” see 5 Pick. 512-518; 6 Met. 529; 2 Hilliard on Real Property, 338, 343, 345.

      West, Walker & Kennedy, for defendants in error, filed a brief, but it did not reach the hands of the reporter.
   Wright, J.

Mary Black, in 1868, began an action in the Court of Common Pleas of Logan county, to recover a tract of sixty acres of land. Mary Black was widow and sole heir, and defendants, Hill and Kizer, devisees, under the will of Alexander Black, who died in 1866. The second clause of his will is as follows : “ I give and bequeath unto Mary Elizabeth Culbertson (now Hill), and Emma Francis Kizer, my two farms, to be equally divided between them, and to their children, if they should live to have any children.”

The matter in controversy is, what passed under the phrase, “ my two farms.” Maiy E. Culbertson and Emma Francis Kizer were nieces of testator. Emma, he took at her father’s death, in 1859, and brought her up; Mary Elizabeth Culbertson also had lived with him some twelve or fourteen years, and it was entirely natural for him to wish to provide for them, having no children of his own, and having given an ample support for his wife.

It appears from the evidence, that Black died seized of 186| acres of ground, known as the “ home farm,” where he lived many years. This farm was made up of a series of different tracts, bought at different times. 120 acres was bought in 1830; 40 acres in 1837; 25 acres in 1852, and then one and oue-half acres besides.

In 1844, testator bought ninety-one acres, known as the “ Kanaga ” farm, and east of and adjoining the “ home farm.” Upon the Kanaga farm he went to live in 1865, .and there he died in 1866. The sixth clause of the will says : “ It is my will that Mary Black, my wife, shall have-the use of this farm that we now live on as long as she-lives.” It is, therefore, apparent from the will itself, that the Kanaga tract constituted one farm, and it is to be determined, what was the other farm within the meaning of the words used in the will.

Upon the east side of a road or highway lay the “ home-farm,” and twenty-four rods from it, on the other side of the same road, lay a tract of sixty acres of woodland, bought by the testator in 1831. The question is, is this sixty acres part of the home farm, so that it passes with the other land, under the phrase “ my two farms,” as used by the testator. Mary Black claims that it does not, and that it, therefore, belongs to her, as her husband's heir. There is no specific devise of this sixty acres, no residuary clause, and unless it passes under the phrase “my two-farms,” the testator herein is intestate, and his widow entitled. Upon the trial of the cause a large amount of evidence was heard, claimed by plaintiffs to be incompetent.. It is thus set forth in their brief:

1. “ Testator’s declarations tending to show his intention to make the devise, and that he had devised the sixty acres,, to Culbertson and Rizer.

2 “ Opinions of witnesses as to what constituted testator’s farms, and that they included the sixty acres.

3. “ Testator’s statements and acts tending to show he-regarded the sixty acres as part of his farm.”

The testimony was all heard, as the record shows, subject to exception, but against objection. The question, however, really is, not -whether incompetent testimony was received, but was there competent testimony to sustain the finding of the court. Mayer v. Lun, 22 Ohio St. 62.

As to what parol evidence is competent, in connection with the words of a will, we gather from Boggs v. Taylor, 26 Ohio St. 604, the fóllowing principle: When the evidence is to show in what sense the testator had formerly and habitually used them, it is competent. This is the-language of Judge Welch in delivering the opinion of the-majority of the court. Nor do I understand the dissentient opinion to be adverse to the conclusion to which we have arrived in the present case. That opinion says: “ Any evidence tending to show whether the entire body of land -constituted, in fact, two farms, or only one, was pertinent and material. Whether there were two farms or only one, was a question of fact upon the evidence.”

The case before us is, was the sixty acres part of one of the “two farms,” and evidence to show this fact was clearly competent. There is proof tending to show that the sixty acres was used as part of the “ home farm.” The testator purchased it for the purpose of supplying wood, of which there was a deficiency upon the place he occupied. When the “ home farm,” or parts of it, were rented, the tenants were at liberty to, and did, use the sixty acres to pasture animals and obtain wood for fuel and fencing; and the testator spoke of it as being part of the “home farm,” and used it as an adjunct to the main body — as something useful and convenient, to the enjoyment of the whole.

“ By the conveyance of a farm will pass -a messuage, arable land, meadow, pasture, wood, etc., belonging to or -used with it.” I Bouv. Law Dic. 574, and authorities there cited.

“The word (farme or feme), called in Latin firma, is a compound word, 'and doth comprehend many things, and, •therefore, by the grant of a farme will pass a messuage and such lands, meadow, pasture, woods, etc., thereunto belonging or therewith used; for this word doth properly signify a capital or principal messuage, and a great quantity of demesne thereunto appertaining.” Sheppard’s Touchstone, 93.

The case of The Commonwealth v. Carmalt, 2 Binney, 238, is not in point, as far as the facts are concerned, and yet the remarks of the court are useful as showing the meaning of language.

A turnpike act provided that the company should not take toll from any person when passing from one part of .his farm to another, along said road. A man lived on the turnpike upon six acres of ground, which he farmed, and he had another lot of ten acres about a quarter of a, mile off, not on the turnpike, but to travel which was necessary to go from one place to the other. The question was, should the man pay toll-? The court say that, in order to show there were two farms, “it must be shown that it is impossible for two parcels of land, not contiguous, to be parts of the farm.”

The court also say: “ It is very common for the proprietors of'farms to have a piece of woodland, not contiguous to their place of residence, but appurtenant to it. I see no reason why these different parcels of land should not be reckoned as one farm. There are many cases where a farm consists of detached parcels of land.”

Whether or not the land in question passed by the devise must be ascertained by the intention of the testator, to be gathered from the terms he has used, interpreted by the light thrown upon them by all the surrounding circumstances. In construing a devise, expressed in brief descriptive words like the present, we are almost necessarily constrained to look beyond the will, to resort to evidence aliunde, to ascertain what the description embraces. The will calls for and requires such evidence, in order to apply ■such description to the estate intended. It may be that, when so applied, only one particular tract of land is found which will answer'the description, and no ambiguity remains. But if the evideuce still leaves in doubt what was intended, it is a latent ambiguity, and then, by the established rules of law, evidence aliunde, including parol evidence, is admissible, showing the circumstances under which the estate was devised, how it was used, held, and ■occupied by the testator, the manner in which he was accustomed to regard it and speak of it. Aldrich v. Gaskill, 10 Cush. 155. Much evidence of this sort was introduced in the present case, and submitted to the court, to draw all such inferences from it, as a jury would be required and warranted to draw, upon the just weight of the evidence; and upon a fall consideration of this evidence,, we are of opinion the sixty acres did pass by the devise.

As has been seen, this word farm is a word of large import, both in England and America. It is a collective word, consisting of divers things'gathered into one; as a messuage, land meadow, pasture wood, common, etc. It does not follow that all the parts must be necessarily contiguous to constitute one whole, if the use and occupation of them by the testator is such as to show that they all composed one thing. Contiguity is not the sole controlling fact; it is only one of a series of facts leading to a result, and it may have more or less weight in determining that result.

The testator bought- the home farm in separate parcels. There was no reason for calling the said parcel bought as a part of the “home farm,” except that the testator so-treated and used it, and so with the second and third parcels. By parity of reasoning, if he treated and used the sixty acres as part of the same body, it must be held to be such. This he did.

The evidence in the case is quite voluminous, and no report of it could be made within reasonable limits. Doubtless much of it was incompetent, but eliminating all this, enough remains to show that the testator meant, as the court below held, that this sixty acres of woodland should go to the devisee.

Judgment affirmed.


text:
    Singree v. Welch and wife.
    1. A release of the wife’s inchoate right of dower is a valid consideration' for a conveyance of property to her.
    2. Such conveyance will not be held fraudulent and void as to the husband’s creditors, unless the amount of consideration received is so dis-proportioned to the value of the wife’s contingent dower as to be unreasonable.
    3. So great is the difficulty of estimating the worth of contingent dower rights, so uncertain and imaginary are the values which are the neces-sary elements of the computation, that the court will not pronounce the transaction fraudulent from the fact that the wife insisted upon and received a sum greater than her dower, if the facts do not show mala fides in her or her husband.
    Error, to the District Court of Morgan county.

      Lucius P. Marsh, for plaintiff in error:
    I. The contingent right of dower of the wife does not afford a sufficient consideration to support the deed; the conveyance is therefore voluntary, and void as to creditors. Weaver v. Gregg, 6 Ohio St. 550.
    II. If the deed to the wife is supported by a sufficient consideration, the title taken by her may be avoided by his creditors, who were such when the conveyance was made, where there are insufficient assets, exclusive of the land, to pay debts. This question is discussed in Schouler’s Domestic’s Relations, 278.
    III. If her contingent right of dower might be the subject of bargain and sale between husband and wife, the price she received was so much beyond the value of such right that it was inequitable, and she might not therefore hold the land against his creditors.

      H. L. Jones, for defendant in error,
    claimed that an inchoate right of dower was such a valuable interest in land as to be the subject of bargain and sale. 2 Scribner on Dower, 5-9. And that unless the amount the wife, Mrs. Welsh, received for her contingent right of dower was disproportionate and unreasonable, the sale should be sustained.
   Wright, J.

In 1868 James Singree recovered, in Morgan county, two judgments against James Welch, and, in 1872, filed in the common pleas of that county, the petition in this case, to subject equities in real estate.

Welch owned some land in Illinois, supposed to be worth $2,500 or $3,000, which was mortgaged for $1,200. lie agreed, to trade this land with John McLucas, Welch to receive eighty-six acres in Morgan county, and some personal property. One-half of this eighty-six acres was to pay the Illinois mortgage, and was deeded to the mortgagee; the other half, forty-three acres, is what is. sought to be subjected to the payment of the judgments. The trade having been consummated, when it came to making deeds, Mrs. Mary Welch refused to sign the Illinois deed, unless the forty-three acres, now in dispute, was deeded to her. This was done. It is claimed that this was a fraudulent conveyance to the wife, and that the land should be subjected to the payment of the judgments, which were for a debt, contracted prior to the deed to the wife. Both the court of common pleas, and the district court, on appeal, found there was no fraud, and dismissed the petition.

Fraud is not presumed, in courts of justice, but it must be proven, and to make such proof evident, counsel for plaintiff in error argues thus. Mrs. Welch refused to sign the deed for the Illinois lands, conveying her dower, unless one-half of the Morgan county lands, or forty-three acres, were deeded to her. The Illinois land was worth $3,000; her dower therein, considering the ages of her husband and herself, was worth little over $200, therefore she got, for her release of dower, this forty-three acres, said to be worth $1,000, a value so disproportioned to her dower interest, as to be a fraud on her husband’s creditors.

Before we can set aside such a transaction as this, we must certainly be able to see that there was some fraud, either in intent or in fact, in the husband, directly or indirectly. If the facts themselves do not make a case of fraud, an intent or purpose of fraud, on the part of any other person than the husband,' would be nothing to the purpose. Now as to the original transaction, or contract for the trade, there could have been uo fraud either in fact or intent, as far as the husband was concerned. He sold his land in Illinois, and a large part of the proceeds went to pay his debts. So for, at least, he acted with propriety. Then, in payment, he also received some sheep, hay, corn, and personal property, thus bringing within this state assets which would be liable to the payment of his debts. We can not, therefore, see in this, any evidence of fraud.

But, after this agreement for trade had all been completed, and when deeds were to be executed, the wife, in order to protect her rights, insisted that she would not sign, unless the lands in question were conveyed to her. Had she not a right to do this? Was. there any power, legal or otherwise, or any consideration, moral or equitable, that would coerce her signature against her will? It can not be said, in this state at least, that a married woman is not a free agent as to her separate property and dower lights. Is she otherwise circumstanced than would be a man called upon to sell his real estate ? If he insists upon a price, which may be disproportioned in point of value, and that price is given, can any one charge him with fraud ? Had not this Woman the right to say : “ You may have my signature upon my own terms, otherwise you shall not have it at all.”

But, it is said that such a holding might enable an embarrassed husband, to secure to himself independence, through the agency of his wife, while his creditors remained unsatisfied. To this it might be sufficient to reply, that in the case before us, no trace of the husband’s influence in this direction anywhere appears, and it is not even claimed in argument. In fact, the impression left upon reading the record is, that the stand the wife took was not induced by the husband, for it seems that he had already made the trade, and only when the deed was taken to her for execution, did she first make her terms known. This would seem to be the fair interpretation of her own testimony. And right here it might be well to allude to the advantage a trial court has over a court of error, in seeing and hearing wituesses. A small knowledge of human nature would enable a court, with the parties before them, to determine, as between husband and wife, who exercised control, and whether or not the wife was a mere passive instrument, in the hands of a master mind, to perpetrate fraud. Both were witnesses, and the plaintiff did not ascertain from them that there was any concerted arrangement upon the subject. But it is not necessary to leave the matter here. Eor the purposes of this case it may be conceded, that if the wife claimed and received for her rights, in her husband’s estate, an amount so entirely dis-proportioned to its value, as to be altogether unreasonable, and shocking to the moral sense, she might be held, as in the nature of a trustee for her husband’s creditors, and'the remarks already made may be considered as subject to this limitation. Is there then sirck- a disproportioued ratio of values as to indicate a fraud ?

It is claimed, as has been said, that the Illinois land was worth $3,000 her dower therein was worth, say plaintiff’s counsel, only $230, and she received the forty-three acres supposed to be worth $1,000. In the first place, it will be seen that all these figures are estimated merely, based upon probabities of life and death. Had her husband died the day before he sold the Illinois land, her dower therein might have been much more then the amount estimated. That is, had the land been in this state. But it was not. It was in Illinois, and what the dower laws of that state are, we do not know as the record does not show. Eor aught we can tell,, she may have been entitled to a half, in. fee or for life, or any other amount. Therefore the estimates of counsel are entirely at fault, when they attempt to put a value upon "a dower right, not knowing what that right is. It may be that in Illinois, in a certain event, she might have had a homestead, in addition to her dower.

What estimate can we make of the value of her rights in Ohio? The eighty-six acres in Morgan county, exchanged for the Illinois lands, seems to have been valued at $2,500. She therefore had an inchoate right of dower in all this. A part is sold, with her consent, leaving only the forty-three acres, worth $1,000, and this is all the husband has. What rights had his creditors in this property? Clearly they could not touch his homestead, of $500. So that there is only left as against creditors, in point of fact, $500 liable to debts. This she receives, as the consideration for her release of her entire interest in all her husband’s property. It is an error therefore to say that as against creditors, she has received $1,000. When we consider how uncertain all estimates must necessarily be as to the value of her inchoate interests, depending upon contingencies that make it almost impossible of certain ascertainment, we are unable to say that the consideration of $500 is so grossly inadequate as to amount to a fraud. At all events two courts, with the witnesses before them, have been unable to arrive at such a conclusion, and we can not say that they clearly and palpably erred as against the evidence.

We have adopted the figures generally as used by plaintiff’s counsel, and not averring their absolute accuracy, they at least are not exaggerated in favor of the wife. Nor have we taken into account the Illinois mortgage of $1,200, for in case the husband satisfied this mortgage, her dower would extend to the whole. This he did. And again, if she signed that mortgage without receiving any consideration, she might have been justified in claiming a recompense for it, in the trade subsequently made.

Counsel claim that the contingent right of dower does not afford a sufficient consideration to support the deed, and it is therefore voluntary and void as to creditors, referring the court to Weaver v. Gregg, 6 Ohio St. 550, the language of which is: “ She has a contingent possibility of interest in it, which may be released, but no property, no actual interest in it, which is the subject of grant or assignment.” If she may “ release ” her dower, she may certainly do so for a consideration, and refuse to do it without one. 2 Scribner on Dower, 7.

In Weaver v. Gregg, it was held that a sale in partition cut off the wife’s inchoate right of dower, and the reason given is that dower is not the result of contract, but the creature of positive law, founded on reasons of public policy, and subject, while it remains inchoate, to such modifications and qualifications as legislation may impose. We can very easily understand that if the legislature have given dower, the legislature may take it away, but no law has yet said that a married woman can be compelled to sign a deed. The fact that this inchoate right may be cut off by certain judicial proceedings, such as partition, or appropriation for public purposes, does not tend to show that the right is not a valuable one. Every body knows that it is, for people will not buy real estate without a proper release. The fact that the wife may never realize anything from it, by reason of dying before her husband, does not prove it worthless, any more than the prospects of an heir are worthless in view of the contingency of his death before his ancestor.

In Quarles v. Lacy, 4 Munf. 251, it is held as follows : “Although it is not competent to a husband, after his marriage, to defeat or obstruct his creditors, by selling or exchanging his property and taking a conveyance of the money or other property received therefor, to the use or for the benefit of his wife and family (such conveyances being deemed voluntary and fraudulent as to creditors); yet the case -may be otherwise in relation to so much of such money or other property as goes to compensate the just interests of the wife. If, theretofe, the wife relinquish her right of dower in other land, in consideration of such conveyance, the value of such dower ought to be saved to her in opposition to the claims of her husband’s creditors.” In this case the transaction was at the instance of her husband. Ballard v. Briggs, 7 Pick. 533; Nims v. Bigelow, 45 N. H. 343; Ward v. Grotty, 4 Met. (Ky.), 59.

In Hoot v. Sorrell, 11 Ala. 386, the syllabus is: “ Where the wife, as an inducement to release her contingent right of dower, stipulates for the settlement of personal property to her separate use, which is worth half as much as the lands are sold for, the transaction will not be adjudged void, in the absence of proof implicating the wife in a want of good faith, merely because the property settled is of greater value than the consideration given for the settlement.”

This case was fully argued and elaborately decided, and it was held that the release of contingent dower, clearly is sufficient consideration for a settlement, and that although she received more than the value of her dower, even had it been a vested interest, this alone can not be held to be fraudulent. “ Her contingent right could only be acquired by her relinquishment. If in good faith she placed an estimate upon it, far beyond its true value, we know of no warrant for the imputation of maleé fides. It can not be predicated of the disparity in value between what she yielded up and what she received in return. The difference is not, under the circumstances of the case, so great as to shock the common sense of mankind and furnish iu itself conclusive evidence of fraud. If fraud is not a necessary deduction, then the irregularity between the property settled and the consideration for the settlement will not authorize a court of equity to set it aside.”

The court further say : “ If the wife, in relinquishing her contingent interest, may stipulate for an equivalent, what rule inhibits her from making the best bargain she can, consistently with honesty and fair dealing ? Equity will not adjust with the most exact scales (even were it possible) the relative value of the interest renounced, and the money or other thing given for it. The difficulty of estimating the worth of a right of dower, which may or may not attach the uncertain, immaginary, and fluctuating value of land in this county, all considered, should induce much hesitation before any tribunal would pronounce against a transaction like the present, merely because the wife received an immediate interest of greater market value than her dower would have been, had it actually vested in possession. ¥e repeat that she might not thus have appreciated it. The effect of fraud, in fact, would be to divest the wife even of an equivalent; the proof, therefore, should be most convincing to establish it.” Harvey v. Alexander, 1 Rand. 219; Caldwell v. Bower, 17 Mo. 564; Taylor v. Moore, 2 Rand. 573; Garlick v. Strong, 3 Paige, 440.

In view of the whole case, therefore, we are unable to discover that a fraud has been perpetrated, with that entire clearness which would justify us in interfering with the findings of the court below, and the judgment will be affirmed.

Judgment affirmed.