text:
    Union Insurance Company of Dayton v. McGookey & Moore.
    1. Where there is nothing in the terms of a policy of insurance which requires the truth of the representations in the application therefor to he-averred as precedent to a right of action on the policy, a good cause-of action may be made in a petition founded on the policy, without, setting forth the application and averring the truth of the representations therein; but the' falsity of such representations, where they are such as to invalidate the policy, may be set up hy way of defense.
    2. Where it is provided in a fire policy that the insurer, in lieu of paying for a loss in money, may rebuild or replace the property destroyed, such provision is in the nature of a condition subsequent, available only at the option of the insurer. It is therefore unnecessary to aver in the-petition, in an action on the policy for the amount of the loss, that the insurer refuses to rebuild or replace the property destroyed.
    3. Where a policy requires notice of a loss to be given to the insurer immediately after the fire, such notice is a condition precedent to a right, of action on the policy; hut in such action, under the provisions of section 121 of the code, it is a sufficient averment of the performance of the condition for the plaintiff to state in his petition that he has performed all the conditions on his part to be performed.
    4. Although a demurrer to a petition for want of a material fact is erroneously overruled, if the fact is properly put in issue by the subsequent pleadings and the case is tried thereon, the judgment can not be reversed for error in overruling the demurrer.
    7. A general assignment of error, that the judgment was rendered for the-wrong party, strictly raises only the question whether the proper judgment has been rendered upon the pleadings and findings of fact;, but where all the evidence is properly embodied in the record, it necessarily raises the question of law as to whether there is any evidence-tending to sustain the finding of facts. If there be such evidence, and the proper judgment has been rendered on the pleadings and facts-
    5. The district court, on error pending therein, may, but it is not required-. to, consider errors in the record not assigned; therefore, a judgment of affirmance by the district court will not be reversed for error not assigned in that court.
    6. The correctness of a verdict of a jury or finding- of facts on the evidence-is not necessarily brought in review hy a general assignment of error, that the judgment was rendered for the wrong- party. To require such review, the overruling of the proper motion for a new trial must be assigned as error. found, where there is no other assignment of error, an affirmance of the judgment by the district court is not erroneous.
    •8. Where an agent of an insurance company, acting within the general scope of the business intrusted to him as such agent, fills up in his own language an application for insurance from the statements of the insured fully and truthfully made, receives the premium, and issues a policy duly executed by the insurer on such application, the insurer will not be permitted, when a loss happens, to defeat the policy by denying the truth of the application nor the authority of the agent in the transaction, although he has transcended his authority, unless the insured is chargeable with knowledge of his having exceeded his authority.
    Error to the District Court of Wood county.
    The case is stated in the opinion.

      'William Craighead, for plaintiff in error :
    1. The petition is insufficient for that it does not show •that notice and proof of loss were given in accordance with the requirements of the policy. Inman v. Insurance Co., 12 Wend. 52 ; Railway Passenger Insurance Co. v. Burwell, 44 Ind.; McCann v. Ætna Insurance Co., 3 Neb. 198 and 391; Doyle v. Phœnix Insurance Co., 44 Cal. 264; Mitchell v. Home Insurance Co., 32 Iowa, 421; Campbell v. Monmouth, 58 Me. 430 ; Edwards v. Baltimore Insurance Co., 3 Gill (Md.), 176; St. Louis Insurance Co. v. Kyle, 11 Mo. .278; Peoria Insurance Co. v. Lewis, 18 Ill. 553 ; Trask v. State Fire Insurance Co., 29 Penn. St. 198; Inland Insurance and Deposit Co. v. Stauffer, 33 Penn. St. 397; Whitehurst v. North Carolina Insurance Co., 7 Jones, L., N. C. 433; Davis v. Davis, 49 Me. 282.
    2. The plaintiffs, having given a copy of the policy, ¡should have averred that the policy was issued upon a survey and description, and set forth the same with the copy ■of the policy, averring the performance of all conditions precedent, and that such survey and description were in all respects true and correct; or, that the policy was not issued on any survey aud description, and that the plaintiffs ■performed all the conditions precedent.
    3. The petition discloses an option of the company to pay the damages or rebuild. It should go farther and aver that the company had not given notice of its intention. Morrell v. Insurance Co., 33 N. Y. 45; Beals v. Insurance Co., 36 N. Y. 525 ; Insurance Co. v. Comick, 24 Ill. 455.
    4. The policy is invalid and not obligatory on the company, for the reason that it never was subscribed by the president and attested by the secretary of the company, which the charter of the company requires.
    The company is the mere creature of the act to which it owes its existence. It is precisely what the incorporating-act has made it, derives all its powers from that act, and is-capable of exerting its faculties only in the manner which the act authorizes. Head v. Providence Insurance Co., 2 Cranch. 167; Andrews v. Union Insurance Co., 37 Me. 226;. William v. Cheney, 3 Gray, 215; Western v. Genesee Insurance Co., 12 N. Y. 258 ; Henning v. United States Insurance Co., 47 Mo. 425; Saffor v. Wickhoff (Walworth Chancellor),. 4 Hill, 446; Angel & Ames on Cor. (9th ed.) § 291; 1 Phillips on Insurance, 9 ; Utica Insurance Co. v. Kipp, 8 Cow.; Perkins v. Washington Insurance Co., 6 Johns. Ch.; Bartholomew v. Bently, 1 Ohio St. 37; City of St. Louis v. Clemmens, 43 Mo. 395 ; Angel & Ames (9th ed.), 287; Insurance Co. v. Hurd, 19 Ohio, 177; Insurance Co. v. Kelly, 24 Ohio St. 364.
    I contend that the provisions of the policy make the-policy and the survey and application one contract, and. that the covenant by the plaintiffs in the survey and application makes all the answers therein contained part of the contract and warranties on the part of the assured. American Insurance Co. v. Gilbert, 27 Mich. 429.
    An express warranty is a stipulation inserted in writing on the face of the policy, on the literal truth or fulfillment of which the validity of the entire contract depends. Angel on Insurance, § 140; Am. on Insurance, 577; 6 Wend. 488; 2 Hall, 140; 7 Wend. 751; 5 Hill, 188; 7 Hill, 122.
    The burden of proving compliance with an express warranty, whether affirmative or negative, in a policy of insu- ■ 'ranee, rests upon the assured. McLoon v. Commercial Insurance Co., 100 Mass. 172.
    Misrepresentation renders the contract void on the ground of fraud. Non-compliance with a warranty is an express ■breach of contract. 2 Duer on Insurance, 751; 8 Peters, -557.
    This case presents to the court a much different • and stronger case than that of the Protection Insurance Co. v. Hamar, 2 Ohio St. 452.

      R. & T. E. Waite, for defendant in error:
    There is no dispute but that the giving of the notice •of loss and the discovery of the particular amount, and perhaps other acts were conditions precedent to be performed by the insured before their right of action accrued; -and no suit could be commenced before the expiration of ■sixty days after the proof was furnished. The pre-cise date when the notice of loss was given was immaterial, so long as it was given in due time; but when the particular account was “delivered in” was important to establish the time when the right to bring the action had commenced. Doyle v. Phœnix Insurance Co., 44 Cal. 264.
    As to the claim that the plaintiffs having given a copy ■of the policy, should have averred that the policy was issued upon a survey and description and set forth the same with the copy of the policy, and averring performance and the truth of the survey and description, we say : “It was •not for the plaintiffs below to make out in their petition a prima facie cause of action on the policy as if it was legally presumed to have been obtained by fraud, or by the nonperformance of conditions precedent to its execution, but upon the contract of insurance as it was executed.- If the •defendant desired to object to their right of recovery thereon because of any act prior to its execution, he should have pleaded it by way of defense, and not ask plaintiffs to anticipate such defense by denying that it could be made.”
    This very question was fully discussed in Lounsbury v.
      Protection Insurance Co., 8 Conn. 459; Daniels v. Insurance Co., 12 Cush. 416; 28 Ill. 235 ; Insurance Co. v. Carpenter, 4 Wis. 20 ; 5 Blatchf. 347.
    As to the claim that the petition should have averred that the company had not given notice of its intention to rebuild, etc., see Insurance Co. v. Phelps, 27 Ill. 71.
   Day, J.

The action was brought by the defendants in ■error, on a fire policy. In the court of common pleas they obtained a judgment against the insurance company. To reverse that judgment, the company took the ease, on error, to the district court, where the judgment was affirmed, and this petition in error is prosecuted to reverse the judgments of the courts below.

The only error assigned here is, that the district court ■erred in affirming the judgment of the common pleas. This briugs in review the errors assigned in the district court; they were as follows: 1. That the court of com-

mon pleas erred in overruling the demurrer of the company to the original petition; 2. That the facts set forth in that petition were not sufficient in law to maintain the action; 3: That the judgment of the common pleas ought to have been given for the company, and not for the defendants in error.

The demurrer to the petition was a general demurrer, therefore the first and second assignments of error raise precisely the same question, viz: Were the facts alleged in the petition sufficient in law to maintain the action ?

The petition is claimed to be defective in four particulars. 1. That the survey on which the policy was issued, was omitted in the copy of the policy which is made a part of the petition. 2. That it is not averred that the company had refused to rebuild or replace the property destroyed by fire. 3. That the averment of notice of the loss to the company, is insufficient to 'sustain the action. 4. That there is no averment of ownership of the property by the insured, either when the policy was issued, or at the time of the loss.

The policy was copied in the petition, and showed' that it was made on a written survey or application, which was made a part of the policy. It is claimed that the application should also have been copied in the petition, accompanied with an averment of its truth, and the performance of all conditions precedent. It is averred in the petition that the insured performed all the conditions of the policy to be performed on their part. Nothing in the-terms of the policy requires the truth of the representations in the survey to be averred in the petition as a condition precedent to a right of action on the policy; but the-falsity of such representations, where they are such as invalidate the policy, may be set up byway of defense; a good cause of action on the policy may therefore be show n without setting forth the survey or application. Guardian M. L. Ins. Co. v. Hogan, 80 Ills. 35 ; Troy Fire Ins. Co. v. Carpenter, 4 Wis. 20; Herron v. Peoria M. & F. Ins. Co., 28 Ills. 235; Lounsbury v. Protection Ins. Co., 8 Conn. 459..

The company contracted by its policy to make the insured good, to the amount of $3,000, for any loss by fire-they might sustain on the insured property. But, by one-of the conditions annexed to the policy, it was provided that it should be at the option of the company to rebuild- or replace the property lost or damaged. The only breach alleged in the petition is the refusal of the company to pay the amount duly proved to be lost. It is claimed that the-petition is defective in not alleging that the company had refused to rebuild. This claim is not well founded, for this-provision was inserted for the benefit of the company, on its election so to do, to rebuild in lieu of paying the amount of the loss. It was merely an option to be exercised by the company, in the manner provided in the policy, within a reasonable time, on giving notice to the insured within thirty days after the proofs of loss are given to the company. At most, the exercise of this option could only create a condition subsequent, which might defeat a recovery of the amount stipulated in the policy to the insured. It was a mere privilege of the company, to be asserted by it as a defense to such recovery. Howard F. & M. Ins. Co. v. Cornick, 24 Ill. 455.

As to tlie notice of the loss given by the insured to-the company, there is no question but that there is a sufficient averment of the making of the preliminary proofs’ of the loss, and transmitting them to the company, as required by the policy. But it is claimed that the provision-of the policy, that, in case of loss, the insured “ are forthwith to give notice thereof to the company,” was not complied with. It appears from the petition, that the notice of loss which accompanied the preliminary proofs was not given until more than a month after the fire. This notice ■was a condition precedent to the right of action, and, if not given before that which accompanied the preliminary proofs, might be fatal to a recovery on the policy. But the question on the demurrer is, not how the fact of notice stood, but was it sufficiently averred in the petition ? The giving of notice of the fire to the company, being a condition precedent to be performed by the insured, must be-averred; but, under section 121 of the original code, “ in pleading the performance of conditions precedent in a contract, it is sufficient to state that the party duly performed all the conditions on his part.” It is averred in the petition, that the insured “ performed all the conditions on their part to be performed.” This-was sufficient to answer the requirements of the code, and, under its provisions, to put the company upon their answer to controvert the fact.

The petition contains no direct averment that the insured were the owners of the property,' either when the policy was issued or at the time of the loss. The insured property is, however, described in the policy, which is a part of the petition, as “ their one-story stave factory,” and there is an averment that they had sustained a loss by the fire of $3,000. . The sufficiency of the petition, in this respect, may at least be doubted. But, in view of the state of the case, it is quite immaterial whether the petition, in this respect, be regarded as sufficient or not; for, if it be insufficient, the defect was cured by the subsequent pleadings and proceedings in the case.

After the demurrer was overruled, the company answered the petition as if the ownership of the property by the insured was stated with sufficient clearness therein, and specifically denied that the defendants in error owned the lost property when the policy was issued, or at the time of its loss, and denied that they had lost any thing bjr the fire; and the issues thus made were tried upon the evidence.

Furthermore, the company answered denying the execution of the policy by the company; the payment of the premium therein mentioned; and that the insured had performed all the conditions of the policy to be performed on their part; and set up thirteen separate defenses, in which, and in the several replies thereto, all the matters in which the petition is alleged to be defective, except that relating to the option of the company to re-build, were fully set up; so that the defects in the petition, if any there be, were supplied by avermeuts in the answer and reply ; and, upon proper issues made thereby, were fully tried upon the evidence; therefore, the alleged defects of the petition worked no prejudice to the rights of the company. The •case could not have been more fully Hied on its merits, upon any form of the pleadings, than it was, as shown by the record, upon the issues as they were made in the case. The judgment, then, can not be reversed on account of any possible defect of the petition. Davis v. Hines, 6 Ohio St. 743; Dayton Insurance Company v. Kelly, 24 Ohio St. 345.

The only remaining error assigned in the district court was, that the judgment of the common pleas was rendered for the wrong party. It was said in Levi v. Daniels, 22 ■Ohio St. 38, that, strictly upon this assignment, it can only be inquired whether the judgment was warranted by the ■findings upon the issues of fact. The case was tried to the •court, and all the issues were found for the plaintiffs below. Upon this finding, the judgment was unquestionably given .for the right party. Nor is this denied; but the correctness of the finding is questioned. To determine that, re-quires a review of tlie findings of fact upon the evidence. This can be done only upon exceptions taken to the overruling of a motion for a new trial, on the ground that the finding was not sustained by the evidence. This motion was made, and overruled; thereupon, the proper bill of exceptions was taken, embodying all the evidence. But the ■overruling of this motion was not assigned'for error in the ■district court; nor was that court necessarily required to review the overruling of the motion, under the general .assignment of error, that the judgment was for the wrong party; for, although it might do so, it is well settled that a reviewing court is not bound to review any part of the record which is not specifically designated and complained ■of as erroneous. Adams v. The State, 25 Ohio St. 584; Levi v. Daniels, 22 Ohio St. 38; Davis v. Hine, 6 Ohio St. 473.

If, then, the review of the finding of the common pleas • on the evidence, as presented by the overruling of the motion for a new trial, was merely á matter within the dis- ■ cretion of the district court, it may be that court affirmed the common pleas without such review; and since that might properly be done, it can not be affirmed that the district court erred in not reversing the judgment, for error ■of the common pleas in overruling the motion for a new trial. Moreover, it is a well settled rule of the Supreme Court, not to consider errors which have not been assigned in the district court; for, otherwise, the rule that the party ■complaining must first go to the district court upon errors within its jurisdiction, would be practically dispensed with. Davis v. Hines, 6 Ohio St. 478.

Although it is undoubtedly correct, as a general rule, that the assignment of error, that the judgment was ren•dered for the wrong party, strictly, brings in question only the propriety of the judgment rendered on the facts found by the court or jury; still where, as in this case, all the evidence is properly brought upon the record, it must be subject to the qualification, that an examination of the ■evidence is required, to see if it tends to support the finding; for, if it does not, a judgment, rendered in accordance-with such finding, may manifestly be for the wrong party, and always must be erroneous, unless sustained on some ground independent of the findings of fact. Although the-correctness of the finding of facts upon the evidence may not be brought in review under the general assignment of error, still, as held in Turner v. Turner, 17 Ohio St. 449, what the evidence tends to prove is a matter of law; and,, where the evidence is all spread upon the record, a judgment can not be maintained under this assignment, if there is no evidence tending to prove the facts necessary to sustain it.

6. The case was submitted to the court, and fully tried upon the evidence, which was admitted without objection by either party. Without reciting the evidence, which is voluminous, it is sufficient to say, that it clearly tended to-sustain the finding of the court, on the issues of fact, in favor of the insured. Indeed, it fully warranted the court in so finding, if the company was, in law, estopped from denying the authority of its agent to issue the policy on which the suit was brought, and from alleging the falsity of the application on which the policy was issued.

- The evidence tended to prove that the agent who took the application and issued the policy, was a general agent of the company; that the policy, with others, was signed by the proper officers of the company, and sent to the agent in blank, to be filled up, countersigned, and issued by him. at his discretion; that, upon a full and truthful-statement of all the facts by the insured, the agent filled up the application himself, in his own language; that it was signed, and the premium paid by the insured, under the belief, as they were instructed by the agent, that it was alL right, aud that the property was insured; that the agent' personally knew all about the insured premises; that the insured acted under the direction of the agent, who was acting within the general scope of his authority; and that the insured had no knowledge of any limitation or want ■of authority, in fact, on the part of the agent to issue the policy.

The case is not one of an agent of a mutual insurance company, nor of an agent with authority merely to receive and forward applications to the company; but the agent held out by the company as its general agent, and intrusted with policies, executed in blank, to be filled up, ■countersigned, and delivered by him. It is true the agent was not authorized, in fact, to issue policies of the class issued in this case, without the approval of the company, but the evidence tends to prove that this was concealed from the insured by the agent, and was uukiiown by them.

The evidence tends to show that whatever fault .there was in the transaction, was wholly that of the agent, not of the insured; but of the company, and that the insured in good faith honestly performed all things by them to be ■done, to effect a valid insurance. If, then, either party must suffer from the mistake or fault of the agent, it must be the party whose agent he was; for “ an agent acting within the general scope of his authority binds his principal, notwithstanding he may have departed from his instructions, provided the party with whom he contracts had no knowledge of these instructions.” Flanders on Fire Ins., 174, 190.

It is an undoubted principle, that whoever for the purpose of deriving a benefit in a transaction, by his acts or declarations induces another, who relies thereon, to change his position, is precluded from defeating the transaction, by repudiating such acts or declarations; for the law enforces the rule of good morals as a rule of policy, and estops a party from denying what can not be denied without a breach of good faith. Beardsley v. Foot, 14 Ohio St. 414; Douglass v. Scott, 5 Ohio, 197. Accordingly, the current of the more modern decisions, is, that, where an agent of an insurance company, acting within the general scope of the business intrusted to him as such agent, fills up, in his own language, a written application for insurance, from ;the statements of the insured, fully and truthfully made, receives the premium and issues a policy, duly executed by the insurer, on such application, the company shall not be-permitted, when a loss happens, to defeat the policy by denying the truth of the application, nor the authority of the agent in the transaction, although he has transcended: his authority, unless the insured is chargeable with knowledge of his having exceeded his authority.

An adherence to this role, whenever consistent with the-facts and rules of law on which it is based, will prevent frauds against which, in many cases, no ordinary vigilance-could guard. Ætna Insurance Co. v. Maguire, 51 Ill. 342; Malleable Iron Works v. Phœnix Insurance Co., 25 Conn.. 465 ; Lightbody v. North American Insurance Co., 23 Wend 18; Insurance Co. v. Wilkinson, 13 Wall. 222; Massachusetts Life Insurance Co. v. Eshelman, 30 Ohio St. 647 ;: Plumb v. Cattaraugus Insurance Co., 18 N. Y. 392; Rowley v. Empire Insurance Co., 36 N. Y, 550; Combs v. Hannibal Sav. Insurance Co., 43 Mo. 148; Westchester Fire Insurance Co. v. Earle, 33 Mich. 143; Franklin v. Atlantic Fire Insurance Co., 42 Mo. 457; Woodbury Sav. Bank v. Charter Oak Insurance Co., 31 Conn. 517; Com. Insurance Co. v. Ives, 56 Ill. 402; Carroll v. Charter Oak Insurance Co., 40 Barb. 292 ; Pechner v. Phœnix Insurance Co., 65 N. Y. 195;, Gloucester Man. Co. v. Howard Fire Insurance Co., 5 Gray,. 497; Ayres v. Home Insurance Co., 21 Iowa, 185 ; Bartholomew v. Mer. Insurance Co., 25 Iowa, 507; Hingston v. Ætna Insurance Co., 42 Iowa, 46 ; Beal v. Park Fire Insurance Co., 16 Wis. 241; Mentz v. Lancaster Fire Insurance Co., 79 Penn. St. 475.

We can not say, upon the record as it comes before us, but that the court of common pleas was justified in holding that the case falls within the rule, and that therefore the proper judgment was rendered. It results, then, that the-judgment of the district court must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Collins v. Davis.
    Error to tbe District Court of Belmont county.

      J. H. Collins, for plaintiff in error.

      W. 8. Kennon, Alexis Cope and George B. Okey, for defendant in error.
   By the Court.

C. recovered a judgment against D., in tbe court of common pleas.

On error to tbe district court, D. obtained a reversal of this judgment, and the case was remanded for a new trial. "Without objection by C., it was again tried in the common pleas, C. being present, prosecuting his action, and judgment rendered in favor of D. Afterward C., upon leave granted, and upon the record of the district court, filed a petition in error in the Supreme Court, to reverse said judgment of reversal.

Held: That C., by again trying the case in the common pleas, on its merits, without objection, waived the right to prosecute error to reverse said judgment of reversion.

Petition in error dismissed.


author: Ashburn, J.

text:
    Burrows v. Cosler.
    Where, under the statutes in force in 18G8, contiguous territory was attached to a town corporation for road purposes, a street commissoner of the town might lawfully enter upon and take from the lands situate near a public road needing repair, in such territory! material required and necessary to repair such road, although the land from which the material was taken was in another and different road district.
    Error to the District Court of Greene county.
    Plaintiff in error, who was plaintiff below, commenced an action against defendant for trespass to real estate, before a justice of the peace. Such proceedings were had in the case that it was appealed into the court of common pleas. There plaintiff filed his petition, alleging, substantially, that the defendant had committed a trespass on his land, by unlawfully entering thereon, aud digging and carrying away gravel, sand, etc., to his damage, ninety dollars.
    Defendant answered, admitting that he had entered . plaintiff’s close and carried away the quantity of gravel, sand, and dirt alleged in the petition, doing no more damage than was necessarily incident to a careful and “judicious ” entry thereon lawfully to remove the gravel, etc. Defendant, by way of justification, alleged that at the time of the supposed trespass he was acting as street commissioner for the corporation of the town of Eairfeld, under an appointment made by the municipal authorities thereof; that by agreement lawfully entered into between the municipal authorities of the town of Eairfield and the trustees of Both township, Greene couuty, Ohio, certain territory, lying contiguous and adjoining the town, but outside the corporation limits, had been attached to the corporation to form a road district in Both township; that a portion of a public roadway was within the territory so annexed to the corporation for road purposes, and was in need of repair; that defendant, while acting as such street commissioner, and in the performance of his duty as such officer, entered upon the land of plaintiff, took gravel, etc., for the needful repair of the roadway in his district, and without the corporation limits; that the gravel, etc., was used in the repair of the roadway in the district over which he had supervision, contiguous to and adjoining the town of Eairfield; that the land of plaintiff, from which the gravel, etc., was taken, was woodland, unincumbered by crops of any kind, and was situate near that portion of the public road upon which the gravel, etc., was deposited and used by defendant, and was the only land near the road at the place repaired, and where the gravel, etc., was used, unoccupied and unimproved; that, on the dexnand of plaintiff, defendant, as street commissioner, gave plaintiff certificates for the gravel, etc., taken from Ms land and used in the repair of the road, all of which he ■accepted, except one dated September 6, 1869. Defendant denies all and singular the other allegations in the answer, and prays for a judgment for costs.
    To this answer plaintiff filed his reply, in which he says: ■“ that the close of the plaintiff into which the defendant unlawfully broke and entered, and from which he took gravel, sand, and dirt, as alleged in the said petition, was ■not situate within the corporate limits of the said village •of Fairfield, nor within the limits of the contiguous territory attached to the said village for road purposes, but the ■same was situate wholly and entirely within the limits of another and different road district. Plaintiff’ admits that he received from the defendant a statement purporting to show the quantity of gravel, dirt, and sand, taken by him •iron the plaintiff’s premises, but he denies that he received •or accepted the same in payment of the said gravel, sand, .and dirt so takeu, or in satisfaction or in discharge of the ■supposed trespass, or of the damages he had sustained by reason of the committing thereof.”
    To this reply a general demurrer was interposed. The demurrer was sustained, and the case taken to the district .court on petition in error.
    It was assigned for error in the district court: “that the •court of common pleas erred in sustaining the demurrer to ■the reply, and in giving judgment for defendant.”
    Proceedings in error are prosecuted here to obtain a reversal of the judgments of the lower courts, and to that .end it is assigned for error: 1. That the district court •erred in affirming the judgment of the court of common pleas in sustaining the demurrer to plaintiff’s reply. 2. That defendant, as street commissioner of the town of Fairfield, had no power or authority to enter upon and take gravel, etc., from the premises of plaintiff, the same 'being without and beyond the limits of his road district.

      H. F. Howard, for plaintiff in error.

      C. W. Dewey, for defendant in error.
   Ashburn, J.

The assignment of error on the action off the court of common pleas in sustaining the demurrer to the reply to the answer, raises the only material question in this case.

It may be stated thus : Had a street commissioner of an incorporated village, under the laws in force in 1868, where contiguous territory had been attached to the corporation for road purposes, authority to enter upon lands situate in another and different road district, but near to the part of the road to bo repaired, and take therefrom material necessary to repair the road in his district and within such attached territory?

We think he might lawfully do so.

Under the general act regulating roads and highways,, township trustees were required to divide their respective-townships into suitable road districts, and annually makes.uch alterations therein as they might deem proper. It also provided that there should be elected annually, in each road district, by the resident electors, a super visor therefor.

The act of April, 1867 (S. & S. 889), supplementary to-the act to provide for the organization of cities aud incorporated villages, etc., authorizes village municipal authorities and township trustees to attach to a village corporation, contiguous territory for road district purposes, and jfiaces the roads in such attached territory in charge of a municipal -supervisor, denominated a street commissioner, with authority to direct the two days labor on the roads, due from the residents, and collect penalties for non-performance of labor as provided in the statute regulating roads and highways.

By section 3 of the first above named act (S. & 8. 662), supervisors of roads are authorized to enter upon any uncultivated or improved lands, unincumbered by crops, near to or adjoining a public road to be repaired, to cut and carry away any timber, except trees or groves on improved! lands planted or left for ornament or shade, or to dig or-cause to be dug and carried away any gravel, sand, or stone, that may be necessary to make, improve, or repair-such road. Section 27 provides that when timber, stone,, or gravel is taken by a supervisor for the purpose of repairing a road, he shall, on demand of the owner, etc., give-him a certificate showing the number of loads of stone or gravel taken, the value thereof, with the time and purpose-for which the same was taken, and further provides how the same shall be paid for.

The authority of a supervisor in taking the material; contemplated by the statute to repair roads in his district,, is not limited exclusively to the lands situate therein. By a fair construction of the statute, the supervisor may, when necessary, in a proper discharge of his official duty, enter upon any uncultivated or improved lands, unincumbered by crops, situate near to or adjoining the public road to be-repaired, and take therefrom the necessary material, although such lands are situate in another and different road district. The only restriction as to locality, is, that the lands he may lawfully enter upon for material, shall be near to or adjoining the road in his district where the repairs are needed and to be made. The phrase near to,” as-used in the statute is relative and used in contradistinction to remote. Its practical application is -to be determined by the facts and circumstances in each particular-case.

As we understand the pleadings and argument of plaintiff in error, he admits that a street commissioner is authorized to enter upon any uncultivated or improved lauds,, unincumbered, etc., situate in the attached contiguous territory, and take therefrom material necessary to repair the i’oads in such territory. If he can do this, and we have-no doubt but that he has such power, it is derived by necessary implication from the law regulating the duties and conferring authority on supervisors of roads. Ilis power-springs out of the nature of the duties imposed upon him and the needs of the public in analogy to the express-power, in that respect, conferred by statute upon supervisors, by name such. 'While the manner in which a street •commissioner may perform his duties is regulated by municipal ordinance, his power to procure material necessary to keep in repair for general use the roads in his district, located in the territory attached to the corporation, is not derived from that source, but from the general statute by necessary implication. Over such roads, the street commissioner, for the time being, is clothed with the functions •of a supervisor, charged, in respect to keeping them in repair, with like duties, and, we think, with like power over material necessary for repairs.

No question of eminent domain is made in this case, and, therefore, no such question need receive consideration in •disposing of it.

After a careful examination of the statutes bearing on the question, we couclude that the lands of plaintiff in error are subject to the same public burden and servitude in furnishing material necessary to keep in repair the public roads in the territory attached to the corporation, and, under the supervision of a street commissioner, that they would be were the same roads under the charge of a supervisor, by name such.

Judgment affirmed,.


author: Scott, J. Johnson, C. J.,

text:
    Jones v. Lloyd.
    1. Where a widow elects not to take under the will of her deceased husband, she can take nothing in virtue of the bequests made to her by the will, in lieu of dower.

      2. While a will should be read and construed by the light of the circumstances under which it was executed, yet such circumstances can affect its construction only when it appears that they were known to the testator at the time of its execution.
    3. The term heirs, when used in a will, is flexible, and should be so construed as to give effect to the manifest intention of the testator as ascertained by a due consideration of all the provisions of the will.
    4. Where a testator makes a provision for his wife, in lieu of dower, and directs that, in the event of her claiming dower, the balance of certain-personal property bequeathed for her support “shall be shared equally among my heirs,” the words “ my heirs," will be construed as meaning my next of kin, or, my heirs according to the statute of distribution, exclusive of my wife; though his wife, in case of intestacy, would, under the statute, have taken all such personal property.
    5. Hence, where the brothers and sisters of the testator are his next of kin, and are recognized as such by the statute of descent and distribution, after the wife, they are to be regarded as the legatees under such will-—in case the widow declines to accept its provisions.
    Error to the District Court of Gallia county.
    David E. Jones, beiug seized of certain non-ancestral* real estate, by the first item of his will devised the same* to his wife, Rachel, for life, together with the stock, household goods, furniture, provisions, and other goods and chattels which might be thereon at the time of his decease;, but on condition : First. That she would reside on the property and keep it in repair; and, Second. That she would remain his widow; otherwise, she was to receive but her dower in said property. The next item in the will was as-follows: “ I do hereby bequeath to my said wife all my personal property, amounting to two thousand dollars ($2,000), the principal of which is to be kept in the hands of my executor of my personal property, the interest to go-for her support; but if, at any time, she desires her dower-set off, then the balance is to be shared equally among my heirs.”
    The testator had no children or lineal descendants at the time of making his will, but had several brothers and sisters living, and his wife was in a state of pregnancy. The ■will was made October 14, 1871; testator died November 10, 1871; and, on the twenty-fifth of the same month, the will was duly probated. On the fifteenth day of December, in the same year, the testator’s widow was delivered of a still-born child. She has never elected to take under the will of her late husband, and declines to do so. She demands of the administrator with the will annexed, of her husband’s estate, the proceeds of all the personal properry thereof subject to distribution ; while the brothers and sisters of the testator claim that she is only entitled to a widow’s distributive share of one-third, and that they are entitled to the residue, as donees under the will.
    Iu order to obtain a construction of the will which ■ should determine the conflicting claims, the administrator filed a petition in the Court of Common Pleas of Gallia ■ county, making the widow, and the brothers and sisters of the testator, parties. The questions made were in regard to the effect of the second item of the will, which relates only to the personal property.
    The case coming into the district court by appeal, the foregoing facts, in so far as they are not shown by the pleadings, were found by the court from the evidence. And from’these facts, that court held and adjudged that, -“Rachel Jones, as wife and relict of the testator, is the ■person, who, by the terms of said will, is .entitled to take, receive and have, the personal property bequeathed and given under the second item or clause of said last will and testament of said David E. Jones ; ” and directed the administrator to pay over to her the balance or residue referred to in said second item or clause.
    The brothers and sisters of testator are here seeking, by petition in error, to reverse the judgment or decree, on the ground that, upon the facts found and shown by the record, the judgment of the court should have been in their favor.

      Simeon Nash, for defendant in error:
    David E. Jones made his will October 14, 1871, which is set out in the petition. He died about November 10, 1871, leaving Rachel Jones, his widow, enciente of a child, which was afterward born dead and not alive. The will was probated, but the widow refused or did not elect to take under said will.
    These facts are found stated in the petition and finding -of the court. The court decides that the widow took the «estate under the will, though she had not elected according -to law to take under the same.
    Under this state of facts, we claim that the widow was entitled only to such share as she would have been entitled to in case David E. Jones had died leaving children ; and that his brother and sister were entitled to the share of the •estate which the children would have taken, if he had died intestate leaving children.
    The court decides she took the whole estate under the will, though she had not elected to take under it.
    The statute in force at the date of 1871, when Jones ■died, is found in 2 S. & C. 1623, § 44. It is as follows: “If the widow fail to make such election, she shall retain her dower and such share of the personal estate of her husband as she would be entitled to by law in case her husband had died intestate, leaving children.”
    The first error committed by the court was in ruling that the widow took this estate, although she had not made an •election to take under the will; having failed to make her •election to take under the will, she was entitled to only what she would have been entitled if her husband had died intestate, leaving children — one-half of first $400, and one-third of the balance. And, so far as the real estate is con•cerned, she was only entitled to her dower and no more, and he having died leaving no living child, the balance of the estate went by descent to his brothers and sisters, the persons making this application.
    The prior statute did not contain the words “leaving ■children,” and hence widows declined to take under a will, and claimed the whole estate under statute of descents. And this amendment was, added to prevent such an outrage, which was substantially denying to a man without children to make a will. No one supposed after that that any such decision asís here made could be made again, and no one ever dreamed of giving the widow what the will gave her, where she failed to elect to take under it.

      Samuel A. Nash, for defendant in error:
    Without a will, this estate, real and personal, no child having been bora alive, would have gone to the widow as the heir at law of her deceased husband. The “ husband or wife, relict of such intestate,” take the estate by force •of the statute of descent, the same as the children, the-brothers and sisters, father or mother, etc. S. & S. 305, 307. Heirship in Ohio is settled by positive statute. The-person upon whom the statute casts the estate is the heir at law. The “next of kin” are not mentioned until after all the enumerated persons have been exhausted. Subdiv. 6 of see. 2.
    That the “husband or wife, relict of such intestate,” take as “heirs,” and by the law of the state come tinder the definition of “heirs” as properly and legally as children, or any other person upon whom the estate is cast, has been the language and decisions of our courts ever since the legislation existed in the State. Ferguson v. Stuart’s Ex’r, 14 Ohio, 140; Brower v. Hunt, 18 Ohio St. 312; Crane v. Doty, 1 Ohio St. 282; Davis v. Boggs, 20 Ib. 559; 28 Ib. 191.
    When a testator dies, seized and possessed of an estate-that “ came not by descent, devise, or deed of gift,” and there be no children or their legal representatives, but a-wife or husband survives, and devises and bequeaths his-entire estate to his “ heirs,” such surviving husband or wife-will take the estate under the will as the proper person and legatee described in the will. Ferguson v. Stuart’s Ex’r, 14 Ohio, 140; Townsend v. Townsend, 25 Ohio St. 448; Steel v. Kurtz, 28 Ohio St. 191.
    In the construction of a will, the heir is not to be disinherited, if such a construction can be avoided. “ The heir is not to be disinherited unless by express words, or by necessary implication,-and that implication has been defined to be such a strong probability that an intention to the contrary can not be supposed.” 1 Dawson on Wills,. 465; Crane v. Doty, 1 Ohio St. 282; Jarman on Wills, 315; 37 Penn. St. 9, 23.

      There is absolutely no word in this will from which an implication can be raised that any person, other than his heir, as fixed by law, was intended by the testator.
    The question, then, is not so much that the testator did not mean his wife, as who did he intend ?
    The testator bxecuted his will, and died, knowing that a child was to be born to him, and if born alive, would be his heir. It can not be supposed that he intended to disinherit his child and heir. But if he intended these plaintiff's in error, his brothers and sisters, then he did intend to disinherit his child. No person or persons are mentioned, or remotely alluded to, in the will but his wife. The child, born alive, 'would have taken under the will (sec. 41, 2 S. & C. 1623); being born dead, the widow must take as next in succession.
    It is objected that the widow can not take under the will, because she did not elect so to do, as provided by statute.
    Such election was not necessary. A widow refusing or neglecting to take under her husband’s will is entitled to the same proportion of his personal estate as if he had died intestate, which, if he leave no children, is the whole. 2 lb. 444.
    Mrs. Jones is not claiming as widow, but as heir. There is no provision that the heir must elect, and the failure of the widow to elect does not affect her rights as heir. The statute applies solely to the widow. Carder v. Commissioners, 16 Ohio St. 366.
   Scott, J.

In construing the will before us, it is our duty to give effect to the intention of the testator when clearly ascertained from its language, if such intention be consistent with law and public policy. Looking to the general scheme of disposition disclosed by the will, we think it apparent that the purpose and intention of the testator was to make what he judged to be a suitable provision for the support of his wife during her life; but subject to eertain conditions, to which, if she should decline to accede, and should prefer to claim her statutory rights of dower, etc., then she should be remitted to those statutory rights alone, and should take nothing by his will. In carrying out this purpose, by the first item of his will he devises all the real estate therein mentioned to her for life, but if she declines this gift clogged with the conditions annexed thereto, then he says “ she is to receive but her dower in said property.”

Coming then to the second item of the will, which is the one here in controversy, we find that it relates to all his personal property, other than the household furniture, goods, etc., embraced in the first item, and that it consisted probably of money, notes, bonds, etc., of fixed and readily ascertainable values, for he says it amounts to two thousand dollars. He directs the principal of this sum to be kept in the hands of his executors, the interest arising from it to be applied to his wife’s support; and then adds that “if at any time she desires her dower set off” (that is, if she asserts her statutory right to dower, including the distributive share of this two thousand dollars, awarded to her by the statute), “then the balance is to be shared equally among my heirs.” We think the language leaves no room for doubt that the testator did not regard his wife as his heir, and that he intended aud willed that if his wife chose to assert her right under the statute to the widow’s share of this two thousand dollars, then, after giving her such share, “the balance” (or residue thereof) should be distributed equally among other persons, whom he designates as his heirs. The word “ heirs ” is a flexible one, and when used in a will, should be so construed as to give effect to the manifest intention of the testator. It has often been properly held to mean “ next of kin,” and should be so understood whenever the context so requires. 2 Redfield on Wills, 67. The sense in which the term “ heirs ” is used in a will is always open to inquiry. Bailey v. Patterson, 3 Rich. Eq. Cases, 156; Evans v. Godbold, 6 Ib. 26.

In ascertaining the intention of the testator, no account can be taken of circumstances which clo not appear to have been known to him when the will was made. Hence, the fact that his wife was pregnant when t'he will was executed, can not affect its construction, unless it appear that this was known to him, or was at least suspected by him at the time. In this case, the fact of such knowledge or suspicion is not alleged in any of the pleadings — not even in the answer of the widow — and is not found by the court below. And the language of the will very strongly negatives the idea of such knowledge or suspicion on his part. The will not only contains no reference to the possible pregnancy' of the wife, which would be singular if the fact were known to, or suspected by, him; but the bequest is, that “ the balance is to be shared equally among my heirs.” This language indicates clearly that the testator supposed he would have not less than two, or if force be given to the word “ among,” then not less than three heirs. Are we to presume from this language, that, without any reference to the subject in the will, the testator not only supposed his wife to be pregnant, but that she would bring forth twins, or triplets ? The mere fact that the widow was, two months thereafter, delivered of a dead child, however premature such delivery may have been will not justify the inference that the testator was aware of the pregnancy when the will was made; especially, when the language of the will indicates the contrary.

But suppose the testator was aware of his wife’s pregnancy, when the will was made; yet, if it clearly appear that he did not regard her as an heir, then, in a bequest to his heirs, she can not be regarded as a legatee. And in ascertaining who are designated by the term “ heirs,” she must be excluded from the number.

■ The testator left four brothers and two sisters surviving at his death, and even if he knew his wife to be pregnant, he could not know that, she would be delivered of a living child. He bequeathed a certain sum “ to be shared equally among his heirs.” Now, if it appear, as we think it does, that his wife was not to be regarded as an heir of his personalty, it makes no difference whether we consider the words my heirs,” by which the legatees are described, as meaning “ my next of kin,” or “ my heirs (according to the statute of distribution), exclusive of my wife.” The bequest is in either case, under the facts of this case, to the testator’s brothers and sisters. Eor the posthumous child not having been born alive, they were his next of kin, and were also his heirs, under the statute of descent and distribution, if his wife is not to be regarded as his heir. We can have no doubt, from the language of the will when applied to the facts shown by the record, that by his “ heirs ” the testator meant his “next of kin,” whether children or brothers and sisters. Rachel Jones, the widow, having elected not to take under the will of her husband, must be remitted to her statutory rights as a widow. The statute in force at the time of her husband’s death gives her dower, and such share of the personal estate of her husband as she would be entitled to by law in case her husband died intestate, leaving children. S. & C. 1624, § 44. A prior statute provides that if an intestate shall have left a child, the widow shall be entitled, upon distribution, to one-half of any sum not exceeding four dollars, and to one-third of the residue of the personal estate subject to distribution. S. & C. 601, § 175.'

The judgment of the district court must be reversed, and proceeding to render such judgment as that court should have rendered, we direct and adjudge that of the moneys coming into the hands of the administrator, under the second item of testator’s will, and remaining after payment of debts, and costs of administration, distribution to be made as follows, to wit: First. The costs of this suit, including the costs of this proceeding in error, shall be fully paid. Second. That of the remainder of said fund, one-half of the first four hundred dollars, together with one-third of the residue, shall be paid to the said widow, Rachel Jones, and that the residue of said fund be equally distributed among the brothers and sisters of said testator, share and share alike.

In regard to the property devised by the first item of the will, which, as we understand it, is not here drawn in question, and was not passed upon by the court below, we express no opinion.

Johnson, C. J.,

dissented from the fourth and fifth points in the syllabus, and from the judgment.


author: Day, J.

text:
    Edgar v. Richardson.
    A wife deserted her husband, and after being defeated by him in an effort to obtain a divorce, went to parts unknown, and remained away about three years. On her return to the neighborhood of her husband, she declared that during her absence she had obtained a divorce, but declined to tell where she had been. A few years after, her husband, with a view of marrying again, if she had obtained a divorce, sent a messenger to inquire of her as to the truth of the matter relating to the alleged divorce, to whom she stated that she went away to procure a divorce without interference from her husband, and that she did obtain a divorce, and hoped he would marry again. Soon after, he communicated this information to the defendant, a'nd they were married; and, about the same time, his first wife also married again, and lived with her second husband. A few years later, the first husband died, childless and intestate; thereupon, his first wife, claiming to be his heir, conveyed a tract of land, of which he died seized, to the plaintiff, who brought this action against the second wife to disposses her of the land; and, on the trial of the case, the first wife testified that she never procured a divorce. Held:

    1. That the admissions of the first wife, that she had obtained a divorce, though relating to a matter of record, were, as against a party claiming under her, admissible in<evidence.
    2. A finding upon such evidence — corroborated by her conduct — in accordance with the truth of such admissions, though contradicted by her unsupported testimony, would not be clearly against the evidence, and therefore could not be regarded by a reviewing court as erroneous.
    Error to the District Court of Wood county.
    The original action was brought in the Court of Common Pleas of Wood county, in 1866, by the plaintiff, William Edgar, to recover of the defendant, Fidelia Richardson, forty acres of land in her possession. The plaintiff averred, in his petition, that he was the ownei of the land and entitled to its possession. The defendant answered, averring that her name is Eidelia Edgar, and denied the averments of the petition. At the trial a jury was waived, and the case was tried to the court which found the issues for the defendant, and rendered judgment in her favor. The plaintiff moved for a new trial, on the ground that the judgment was against the law and the evidence; the motion was overruled; to which the plaintiff excepted, and brought all the evidence on the record. The case was taken by the plaintiff, on error, to the district court, which affirmed the judgment. To reverse these judgments, the present petition in error is prosecuted.
    The case, as disclosed by the bill of exceptions, is substantially, as follows: Both parties claim title under John Edgar who died childless and intestate. Ills title to the ■land was'such that, under the statute, it descended to the wife, relict of the intestate. In 1841, he was married to Sarah Ann Dubbs, who survived him and conveyed the land to the plaintiff; this constitutes the plaintiff’s title to the land.
    To defeat this title, the defendant relies on the following facts: After the marriage of Edgar and Sarah Ann, they lived together about fourteen years, when Edgar took up his residence on the land in question, in Wood county; but bis wife refused to live with him, and after about a year, applied in Lucas county for a divorce. Edgar opposed the divorce, and she was defeated. She then went away and remained for about three years, when she returned to her father’s house, in the neighborhood of her husband, in Wood county, and said to her relatives and acquaintances that during her absence she had obtained a divorce, but then, and ever afterward, refused to tell where she was during that time. Edgar continued to reside on his farm, and Sarah Ann, soon after her return, made Toledo her place of residence, where she stated and caused it to be believed that she had obtained a divorce from John Edgar. After waiting a few years, Edgar desired to marry if he could be made certain that a divorce between him and Sarah Ann had been obtained. Accordingly, Edgar sent the father of Sarah Ann to Toledo to ascertain from her the truth about her having obtained a divorce. She assured her father that she went away and did not let Edgar know where she was, so that she could obtain a divorce from him, and did obtain a divorce, and showed him some papers to confirm it; and, on being told that Edgar desired to marry again, she said that she wished he would marry again. Soon after this occurred, Edgar communicated what he had done and the information obtained to Fidelia Richardson; thereupon, on the 28th day of May, 1862, he and Fidelia were married, and lived together as husband and wife until his death in 1866. About the same time that Edgar married Fidelia, Sarah Ann married one McEessick, with whom she has ever since lived as her husband. The plaintiff excepted to the admission of the evidence. proving the statements of Sarah Ann about her having obtained a divorce from John Edgar.
    To rebut the evidence introduced by the defendant, of the admissions of Sarah Ann that she had procured a divorce from Edgar, the plaintiff gave in evidence the deposition of Sarah Ann McEessick that she married John Edgar in 1841, and never was divorced from him.

      Tyler § Meehan, for plaintiff in error:
    There is no proof in this case showing that Sarah Ann was divorced in fact at the time of her husband’s death. But it is said that because Sarah Ann neglected to disclose her whereabouts during her absence, that she must be presumed to have obtained a divorce.
    To that we say that Sarah Ann swears positively that she was never divorced from John Edgar (Record, 12). Neither did defendant in error ask her vdiere she was during her three years’ absence on cross-examination. She may have reasons best known to herself for not making this matter known to husband and friends.

      But we claim that even if Sarah Ann had obtained a divorce during her absence, it being admitted that her husband had no notice, it would be utterly void; for it is well settled that where one of the parties to a marriage goes into another state or county for the mere temporary purpose of obtaining a divorce, and obtains it, the other party having no notice of the proceedings, and not having appeared therein, the divorce so obtained is void and of no effect. And if a party who thus obtains a divorce enters into a formal marriage with another person, the marriage is alike void. McGifferty v. McGifferty, 17 How. (N. Y.) 18; s. c. 31; Barb. 69; Hoffman v. Hoffman, 55 Barb. 269; s. c. affirmed, 46 N. Y. (Sick.) 30; Shannon v. Shannon, 4 Allen, 134; Smith v. Smith, 13 Gray, 209; 25 Mich. 24; Cox v. Cox, 19 Ohio St. 502.
    Neither will the record of such divorce work an estoppel ; as where the defendant was a non-resident and the recital was that he had notice of the pendency of the suit. Downer v. Shaw, 22 N. H. 277; Shulton v. Tiffin, 6 How. 163; Watson v. New England Bank, 4 Met. 346; Wescott v. Brown, 13 Ind. 83; Harshey v. Blackman, 20 Iowa, 161. So, notwithstanding such divorce (if ever obtained, which we deny), Sarah Ann remained the “wife relict” of John Edgar, and as such the lands descended to her on his death.
    It will also be noticed that at the time Sarah Ann is said to have made the representations relied on as constituting an estoppel in pais, she had no estate or interest in the lands in controversy, except an inchoate right of dower in case her husband conveyed the same without her joining in the deed.
    This being the ease, the only question presented is: Will acts or conduct amounting to an estoppel in pais by a party having but a contingent interest in lands at the time of the acts or representations relied on as the predicate of the estoppel, furnish a court of equity sufficient ground on the happening of the contingency to turn the estate from vesting in the party guilty of the false representations, and give it to the party claiming to be deceived.
    At common law where a person having no title conveyed by feoffment, fine, recovery, or lease, by indenture, and afterward acquired title, it was held that the after-acquired title would feed the estoppel created by the conveyance, and convert the same to an interest in the grantee, so as to conclude the grantor and all persons claiming under him. If one having no title to land conveys the same with warranty by deed, which is duly recorded, and afterward acquires a title and conveys it to a stranger, the second grantee is estopped to aver that the grantor was not seized at the time of his conveyance to the first grantee. White v. Pattern, 24 Pick. 323; McCluskey v. McEvey, 9 R. I. 528; 11 Am. R. 295, and cases there cited; Douglas v. Scott, 5 Ohio, 195.
    But while this is true as regards deeds with full covenants of warranty, mere grants, releases, or quitclaims never possess the high function of transferring an after-acquired title or interest, the warranty to feed the estoppel being wanting. Lessee of Kinsman v. Loomis § Wood, 11 Ohio, 475; Comstock v. Smith, 13 Pick. 116; Blanchard v. Brooks, 12 Pick. 67; Biglow on Estoppel, 346.
    So, then, if a party be not estopped from claiming an after-acquired title even as against his quitclaim deed and payment of purchase-money, how can it be said that he is estopped from claiming such after-acquired title or interest by acts or conduct amounting to an estoppel in pais only? It was held, in the case of Gonzales v. Hukill, 49 Ala. 260 (20 Am. R. 283), where a husband and wife conveyed land as the husband’s, neither having any title or interest in the land at the time of the conveyance, “ that the wife was not estopped from setting up against the grantee a title to such land thereafter acquired by her.” We claim that in order to make an estoppel in pais effectual, the party sought to be estopped must be the owner of the property at the time the estoppel is said to have arisen, and that the very acts or conduct out of which the estoppel is to arise must be in reference to the identical property or thing claimed.
    Por in order to constitute an estoppel by conduct the.following elements must be present:
    1. The action of the party alleging the estoppel must have been influenced by the acts or conduct upon which the estoppel is sought to be based.
    2. It must have been made with the intention that the other party should act upon it.
    3. The other party must have been induced to act upon it.
    4. The act out of which the estoppel is to arise must have been performed by the party against whom it is to be set up, with full knowledge of his rights. Biglow on Estoppel, 480.
    But in this case it will be noticed that every element necessary to constitute an estoppel in pais is wanting. Sarah Ann was not the owner of the property claimed at the time she is said to have made the false representations. She never by word or act influenced the conduct of Pidelia as to the property claimed, nor was Pidelia in the neighborhood at the time she is said to have reported that she was divorced. So, in order to maintain the position contended for on behalf of defendant in error, this court must hold that the representations made by Sarah Ann had the effect of divorcing her from her husband. Nothing short of this can prevent the estate from vesting in her on the death of her husband as his “ wife relict.”
    Sarah Ann being a feme covert at the time, even if she was the owner of the lands in controversy as her separate estate, she could not be deprived of the same by conduct amounting to an estoppel in pais; for she would not be es-topped by her deed if it was not executed in conformity with the statute, and what she can not do directly, she can not do indirectly. Todd v. Pittsburg, Fort Wayne and Chicago R. R. Co., 19 Ohio St. 514; Miller v. Hine, 13 Ohio St. 565; Glidden v. Strupler, 2 Smith (Penn.), 400 ; Stevens v. Parish, 29 Ind. 260; Lowell v. Daniels, 2 Gray.

      This doctrine is equally well settled by the English courts, that a married woman can not divest herself of her estate except in the mode pointed out by the statute. Jackson v. Hobhouse, 2 Merivale, 282; Nicoll v. Jones, 36 L. J. Eq. 554.
    Her deed or contract not in conformity with the statute is utterly void, and as such can not operate to estop her, and there can be nothing in such case upon which an estoppel in pais can operate to give efficiency to a deed or other contract not binding under the statute. Biglow on Estoppel, 485.
    If the married woman had no title when she conveyed, but afterward acquired the title, and is neither by common law nor statute estopped by covenants or recitals, upon the principle of estoppel by deed, how shall she be bound upon the principle of estoppel in pais ?

    We further claim, that even if the descent had been cast on Sarah Ann, and that her acts and conduct amounted to an estoppel in pais, that it would not have the effect of divesting her of the legal title; because that would be permitting an estoppel resting in parol to transfer the title contrary to the statute of frauds.
    It was held, in the case of Hayes v. Livingstone, 34 Mich. 384, Cooley, C. J., that, “ under the statute of frauds, it is not permissible that an estoppel in pais should work a transfer of the legal title to land.” See also Parker v. Barker, 2 Metc. 423 ; Swick v. Sears, 1 Hill, 19; Davis v. Davis, 26 Cal. 23. This question is distinctly met in Doe v. Walters, 16 Ala. 714, and Mills, v. Graves, 38 Ill. 455-466; in the former case, it was said by Dargan, C. J., delivering the opinion of the court, that, “the title to land can pass only by deed, and an estoppel at law which works a divesture of title can be created, in my opinion, only by as high evidence.” And in the latter case, Walker, C. J., says: “Had the acts which Avere proved constituted an estoppel, it would have been simply an equitable right incapable of assertion in a court of law.” Blake v. Fash, 43 Mich. 302; Ryder v. Flanders, 30 Mich. 334, 336.

      James JR. Tyler, also for plaintiff in error :
    We claim the law of the case to be this :—

      First,. — The best evidence of a divorce having been decreed at any tii^e prior to the decease of John Edgar, between said John Edgar and Sarah Ann, is the reeord of an action for divorce, showing a decree dissolving the marriage contract. And, that secondary evidence of the divorce is inadmissible unless the defendant first shows that said reeord once existed and is now lost or destroyed.

      Second. — We claim that the weight of evidence as given shows that no divorce was ever granted, and, that the said Sarah Ann is the widow relict of said John Edgar, deceased; and that Fidelia Richardson never was his lawful wife.

      Third. — It may be said that Sarah Ann is now estopped by her declaration as to the divorce. To this we may assume that there is no proof whatever that Fidelia acted upon or acquired any rights in consequence of, or did anything upon the faith of said representations.

      Fourth. — Again, we claim that positive acts of encouragement, which might 'operate to estop one sui juris will not affect one under legal disability (as is a married woman). We refer the court to the case of Glidden v. Strupler, 52 Penn. 400.

      James Murray, also for plaintiff' in error.

      F. ¿f1 JD. K. Hollenbeck, for defendant in error:
    We hold, upon two grounds, that the plaintiff must fail to recover.
    1. That Sarah Ann, the grantor of plaintiff, is estopped from denying her acts, declarations, or admissions, which were designed to influence the conduct of the defendant, and did influence it, and when such denial will operate to the injury of the latter.
    We do not claim that a divorce can be worked out by estoppel, but we do claim that a married woman is estopped by her acts, declarations, or admissions, in so far as they affect property rights or interests, the sanie as though she were a male person or a feme sole.

    2. That a divorce in fact is proved by the best evidence which, was possible for the defense to adduce.
    I. A party is estopped from denying his or her own acts, declarations, or admissions, which were designed to influence the conduct of another, and did influence it, when such denial will operate to the injury of the latter. Pickard v. Lears, 6 Ad. & E. 469; Hutton v. Rosseter, 31 Eng. L. & E. 231; Kinney v. Farnsworth, 17 Conn. 355; Pierson v. Wheeler, 17 Conn. 345; Roe v. Jerome, 18 Conn. 138; Middletown Bank v. Jerome, 18 Conn. 443; Martin v. Angell, 7 Barb. 407; Whitacre v. Culver, 8 Minn. 133; Douglas v. Scott, 5 Ohio, 194-197; Bocock v. Pavey, 8 Ohio St. 281.
    The particular intention or design with which the declarations are made or acts done, is not material, so that the natural consequence of the words or conduct influences another to change his or her condition. Broom’s Legal Maxims, 219, and authorities cited; 1 Green. Eq. § 207, and authorities cited; Hicks v. Cram, 17 Vt. 449; Rangely v. Spring, 8 Shep. 130; Otis v. Sill, 8 Barb. 102; Hall v. Fisher, 9 Barb. 17; Edmondson v. Montague, 14 Ala. 370 ; Lawrence v. Brown, 1 Selden, 394; Carpenter v. Stilwell, 12 Barb. 128; McClellan v. Kennedy, 8 Md. 230; Morris Canal Co. v. Lewis, 1 Beasley (N. J.), 323; Mitchell v. Reed, 9 Cal. 204; Preston v. Mason, 25 Conn. 118; Thompson v. Thompson, 9 Ind. 323; Quirk v. Thomas, 6 Mich. 76; Manufacturer’s Bank v. Hazard, 30 N. Y. 226.
    A party is estopped from introducing evidence of facts inconsistent with an admission which he has made, where the opposite party has acted upon such admission, and would be injured by a disproval of its truth. Hawley v. Griswold, 42 Barb. 18.
    II. Sarah Ann Edgar and John Edgar were divorced from each, other.
    In this, as in every other, the best evidence of which the case is susceptible, must be adduced if practicable. And in this, as in every other, the rule is applicable, that, where the best evidence can not be obtained, secondary evidence will be let in. We can not adduce the record evidence of the divorce for the reason that Sarah Ann will not disclose where she was during her three years’ absence, and it was during that time, as she says, the divorce was obtained. That, we hold, is sufficient ground to let in secondary evidence.
    What then is the evidence ? Briefly this : She made an effort in the Lucas Common Pleas to obtain a divorce, but being opposed by her husband, John Edgar, she failed. She then left Toledo, and went to parts unknown to her father and friends, and remained concealed from them during at least three years. To the day of the trial of the cause, she did not disclose, even to her father, where she was during those years. When chided by her father for not informing him of her whereabouts during that time, she answered that she did not let them know where she was, as John (her husband) kept bothering her to come and live with him, and also that she might obtain a divorce from her husband, and not be again defeated by his opposition. She then declared to her father that she had obtained a divorce while absent, and exhibited a paper, which, she stated, contained the evidence of the fact. She also declared to Frank Dubbs and Wm. C. Lathrop, of Jackson township, that she was divorced, and to the latter, that she was going to marry again. She informed her friends at Toledo that she was divorced, and, in accordance with her statement to Lathrop, she did marry McKessick, years before the death of Edgar, and has lived and cohabited with him from thence hitherto.
    There can be no doubt that, generally, declarations and conduct like these, on the part of one in interest, would legally establish the fact sought. Can there be any reason why they should not in this case? Gaines v. Relf and others, 12 Howard (U. S.), 472; Carroll v. Carroll, 20 Texas, 721.

      James B. Tyler and II. H. Dodge, in reply :
    As to secondary evidence of the divorce. It is admitted that this could not be introduced without accounting for the absence of the record.
    “ Even the admission of a fact by a party, unless solemnly made, and as a substitute for other proof, does not supersede direct proof of matter of record by which it is sought to affect him.” 1 Greenl. on Ev., § 86.
    The reason is, that the record, being produced, may be found irregular and void, and the party may be mistaken. 1 Greenl., § 86; Scott v. Clare, 3 Campb. 236; Jenner v. Joliffe, 6 Johns. 9; Welland Canal Co. v. Hathaway, 8 Wend. 480; 1 Leach Cr. C. 349; 2 Leach Cr. C. 625, 635.
    It is said by counsel for defendant, that, “ Sarah Ann McKessick will not disclose where she was during her three years’ absence, and it was during that time that the divorce was obtained.
    It is a sufficient answrnr to this to say that when Mrs. McKessick was on the stand, the defendant neither asked her where she was during that time, nor has he taken any means whatever to find out.
    It is proved that she was in Portage county a part of the time, and they have not even searched the records there.
   Day, J.

The errors assigned present two questions: 1. Did the court err in permitting the defendant to prove admissions of the grantor to the plaintiff, that she and her husband, John Edgar, were divorced; 2. If not, is the judgment unsustained by the law and the evidence.

The plaintiff sought to establish his title to the land in dispute through a deed to him from Sarah Ann Edgar; he was, therefore, in privity of estate with her; and, for that reason, her admissions before the conveyance, which would have been admissible against her had she been plaintiff- in the action, were admissible against him. 1 Greenl. Ev., § 189.

He could recover only upon the strength of her title, which depended solely upon her being the wife relict of John Edgar, deceased. To establish that fact, the plaintiff proved that Sarah Ann married Edgar in 184.1, and that he died in 1846 without issue. The plaintiff rested on the presumption that she continued to be the wife of Edgar until his death. To rebut this presumption, the defendant was permitted to prove, by said Sarah Ann’s admissions during the time she claimed to be Edgar’s wife, that she had procured a divorce.

This evidence was objected to, on the ground that a divorce is a matter of record an(j can not be proved by secondary evidence. This objection loses much of its force from the fact that the person who made the admissions, and whose interests were affected thereby, refused to disclose where the record could be obtained, thus putting it out of the powrer of the defendant to prove the alleged divorce by the record if it existed; therefore, the admissions of Sarah Ann, were, by reason of this concealment, the best evidence attainable by the defendant.

But admissions of a party relating to the contents of written instruments, in general, are not regarded as secondary evidence, and though they relate to a record, if the place where it can be obtained be coueealed by the party, they should form no exception to the rule.

The competency of such admissions as primary evidence, it is true, has often been denied, but the weight of authority, both in England and America, favors such admissibility. In Earle v. Picken, 5 C. & P. 542, it-was said by Mr. Justice Parke: “ What a party says is evidence against himself, as an admission, whether it relate to the contents of a written paper, or to any thing else.” In Smith v. Palmer, 6 Cush, 513, it was observed by the judge delivering the opinion of the court, that “ a party’s own statements and admissions are, in all cases, admissible in evidence against him, though such statements and admissions may involve what must necessarily be contained in some writing, deed, or record.” Accordingly, it was held in that case, that admissions of a party relating to a matter of record, were admissible. In Slatterie v. Pooley, 6 M. & W. *664, which is the leading case on the subject, Parke, B., said: “ There have been many reported decisions, that whatever a party says, or his acts amounting to admissions, are evidence against himself, though such admissions might involve what must necessarily be contained in some deed or writing; for instance, a statement by a party, or one under whom he claims, that an estate had been conveyed to, or from such person, or that such person filled the character of assignee, which only could be by deed, or the like.” This extract from Baron Parke, not only maintains the principle in question, but it shows that it equally applies to the admissions of persons in privity with the party.

In Regina v. Basingstoke, 14 A. & E. 611, it was held by the Queen’s Bench, that the same principle applies to the acts of a party which amount to an admission of matters relating to written instruments; and, in delivering his opinion, Patterson J., said: “■ Slatterie v. Pooley” establishes that, if a party by words admits the contents of a written document, such an admission is legal evidence against him; not as secondary evidence of the contents of the written instrument, but as original evidence. Such an admission is like an estoppel, and as is well put in a note to the case of the Duchess of Kingston, in Smith’s Leading Cases, it is used, ‘ not to supply the absence of the ordinary instruments of evidence, but to supersede the necessity of any evidence by showring that .the fact is already admitted.’” Upon this principle, it is, that the admissions of a party, or of those under whom he claims, are admitted, in connection with other evidence, to raise an estoppel; “ and so, too, has it been held, that an admission -which is of the same nature as an estoppel, though not so high in degree, may be allowed to establish facts, which, were it not for the admission, must have been proved by certain steps- appropriated by law to that purpose.” 2 Whar. Ev., § 1086.

It is claimed in the ease before us, that the admissions of the person under .whom the plaintiff claims, in connection with other evidence, worked an estoppel, and was con-

elusive of the fact that she had obtained a divorce, and so was not the wife relict of John Edgar, deceased, and, if they do not rise to so high a degree, that they are admissible as evidence, to be considered in determining whether she had in fact-obtained a divorce. But the question we are now considering, is not the weight and value of the testimony ; it relates solely to its admissibility. Upon that point, the principle of the case of Slatterie v. Pooley, has been followed in Wolverton v. The State, 16 Ohio, 173; Loomis Adm’r. v. Wadhams, 8 Gray, 557; Taylor v. Peck, 21 Grat. 11; Howard v. Smith., 3 Scott’s N. E. 574; Murray v. Gregory, 5 Weis. & Hurl. 468; Pritchard v. Bagshawe, 11 Com. B. 459.

Having shown that admissions of a party, relating to matters contained in written instruments or records, are not excepted from the general rule allowing such 'admissions to be given in evidence, the point under consideration falls within the principles announced by Mr Justice Catron, in delivering the opinion of the court, in the case of Myra Clark Gaines v. Relf, 12 How. (U. S.) 472, 530, as follows:

“ If Zulime was now before the court, claiming her marital interest in Clark’s estate, her declarations made during the alleged coverture tending to show that she was not the wife of Clark, but of Desgrange, would be admissible against her; and if'so, they are also admissible against any one who asserts the same title derived from her, after the declarations were made. Such a case is an established exception to the rule of evidence, excluding declarations of third persons not parties to the record. A declaration emanating from the claimant of any estate, which afterward comes to the parties on the record, by descent or purchase, affecting adversely the estate acquired, may be given in evidence against the party to the record who claims the estate.”

. There was, then, no error in admitting the evidence of the admissions of Sarah Ann, the grantor of the plaintiff, made during her alleged coverture, tending to show that she was not the wife relict of John Edgar, deceased.

The remaining question alises upon the overruling of the motion for a new trial. The ground of the motion was, that the judgment was against the law and the evidence.

The plaintiff made a prima facie case, entitling him to recover. If, therefore, the judgment in favor of the defendant can be sustained at all, it must be upon the ground that the evidence was such as to warrant the court in holding, either that Sarah Ann was in law estopped from denying her declarations, that she was divorced from her husband, John Edgar, or that she had in fact obtained such divorce.

The court made no special finding of facts from the evidence ;' therefore, in looking to the evidence, we must, as a reviewing court, assume, in support of the judgment, the facts tó be what the evidence would finally warrant the court to find as the facts of the case.

It is clear that Sarah Ann undertook, and intended to induce the belief, in whatever neighborhood she resided, that, during her absence of three years in parts unknown, she had obtained a divorce. It is also quite clear, that, after waiting in doubt about the matter for five years, John Edgar, desiring to marry again, if he might lawfully do so, sent her father to learn from her what he might rely upon as the truth about her having obtained a divorce ; that she sent back to him assurances of having obtained a divorce ; and that she intended to induce him to believe it, knowing that he might, in reliance on such belief, materially change his condition. The evidence further leaves the strong impression that both Edgar and Eidelia Richardson believed, and upon the faith of Sarah Ann’s declarations consummated their marriage.

It is true that Sarah Ann had no direct communication with Eidelia; but she undoubtedly intended that her assurances of a divorce sent to Edgar should be communicated, as they in fact were, to the woman he desired to marry. The very object of such assurances was to induce his majh riage; and, from the nature of the transaction, it must have been equally her intention that another should be influenced thereby.

Though Sarah Ann did not directly bring about the marriage of Edgar and Fidelia, the court was warranted in finding, from the evidence, that she induced them to believe that, as against any marital right of her’s, they might lawfully marry.

Having acted upon her assurances, and in accordance with her expressed wishes, a strong case was made, which, but for reasons not affecting the substantial justice of the case, called for the application, as against lier, of the principles of the law which would estop her from denying the truth of her declarations.

But, conceding that the declarations of Sarah Ann do not strictly rise to the degree of an estoppel, or can not be regarded as conclusive, still the question remains, whether the court was clearly unwarranted in finding, from the evidence, that Sarah Ann had been divorced. This question is left to be determined solely upon her own acts and declarations during the alleged coverture, and her testimony in the case. But the point for our determination, as a reviewing court, azising upon this state of the ease is, not whether such divorce had in fact been obtained, but whether a finding by the court below that it had, would be clearly unwarranted by the evidence.

In support of a finding that the divorce had been obtained, there are the declarations of Sarah Ann, strenuously persisted izz during a series of years, that it had been obtained. These declarations are corroborated by undisputed facts. She tided to get a divorce with the knowledge of Edgar; after she was defeated by him, she went to parts unknown, avowedly for the purpose of getting a divorce; she was absent during a period sufficiently long to get it; she exhibited to her father papers to show that she had; she induced her husband to marry again; she married again herself. If not divorced, she knowingly was instrumental in bringing herself and her husband into a state of bigamy, and two other persons into that of adultery. Surely, since she concealed the place where the divorce was obtained, a stronger case to establish a divorce, as against her, could not be made. But now, to establish her heirship to the property of the decedent, she has, in a distant state, given her deposition that she never obtained a divorce. In the light of the evidence in the case, her testimony in a matter affecting her own interest can not be regarded as conclusive.

Her declarations may not rise to the degree of an estoppel against her to deny the truth of her declarations. Nor was the court below estopped from regarding her declarations, supported, by the corresponding acts of her life for many years, as more convincing than her testimony now given to win the estate left by the husband she deserted, and, if her declarations be not true, had fraudulently led into the belief that, as against any marital claim of her’s, he might safely die intestate. We can not say that manifestly the court would not be warranted in finding in accordance with her declarations, corroborated by the acts of her life'. Clearly such a finding would be supported by evidence— evidence, too, the truth of which Sarah Ann can not deny without impeaching her own credibility, and can deny only for the purpose of obtaining what, injustice, should be denied to her.

Since, then, the court of common pleas would not be clearly unwarranted in finding, from the evidence, a state of fact that would in law sustain its judgment in favor of the defendant, the judgment of the district court affirming that of the common pleas must be affirmed.

Judgment affirmed.