author: Bcjrket, J.

text:
    Cincinnati Street Railway Co. v. Altemeier, Admr.

      Action for injury from wrongful death- — Recovery limited to pecuniary loss — No allowance for mental suffering — Competency of evidence — As to aid received from deceased — Rules of street railway as evidence.

    1. While in the trial of a case for causing death by wrongful act, neglect or default, under sections 6134 and 6135, Revised Statutes, the recovery is limited to the pecuniary injury resulting from such death to the beneficiaries, and nothing can be allowed on account of bereavement, mental suffering, or punitive damages, yet any evidence which tends to show the amount of such pecuniary injuries sustained by such beneficiaries, or which tends to show that such beneficiaries received financial aid from the deceased during his life time, and that they would likely have continued to receive such aid, had he lived, i s competent. And for the purpose of showing that such beneficiaries needed and would likely have received such aid from the deceased, the, circumstances, age, health and means of support of the beneficiary, if a parent or next of kin of the deceased, as well as the age, health, disposition and thrift of the deceased may be shown.
    2. Rules adopted by a street railway company for the government of its employes in operating such railway are competent evidence, when relevant, in the trial of a cause for damages for ■ personal injury caused by the negligence of the servants of such company.
    (Decided March 14, 1899.)
    Error to the Circuit Court of Hamilton county.
    The action below was by the administrator of Ear hart A. Altemeier, deceased, against the Street Railway Company for recovery under sections 6134 and 6135, Revised Statutes. The deceased was a minor, twelve years of age, and on the day of his death was a passenger on the street railway. The ear on which the deceased was riding to school was slowing up for the purpose of stopping at the southern entrance to the Avondale school house yard. He stepped off the car and passed immediately behind the rear platform and stepped on to the track upon which a car was passing in the opposite direction, and it ran over him and killed him. The father and mother of the deceased were his next of kin and entitled to a part, if not all, of the money which should be recovered from the Street Railway Company. And upon the trial the father, who was also the administrator, was a witness, and after testifying as to the character of the deceased and as to who were his next of kin, he was asked by the plaintiff’s counsel the following questions:
    “Q. Now, I wish you would tell the jury what your circumstances are, your means of taking care of yourself, and whether you are worth anything in the way of money? A. I ain’t worth anything and I cannot do any work either. My children have supported mea great deal.■
    Q. Ai-e they doing it now? A. Yes, sir.
    Q. And supporting your wife? A. Yes, sir.”
    All of these questions were objected to at the time; objection overruled and exception taken by counsel for the Street Railway Company. The plaintiff below also called John Harris, the superintendent of the Street Railway. Company and proved by him the following rules and order of the company:
    “Rule 17. Stops for passengers. Ascertain, where possible, from every male passenger when he is about to leave the car if it is his wish that you shall stop. You must, in all cases, come to a full stop for ladies, children and elderly persons, keeping a lookout for other teams or cars while landing them, warning them of any danger.

      “Rule 33. Cars on double track. When your car is going to stop on a • line of double track to allow passengers to enter or leave another car, you must not give the bell to start again until you are positively sure that no passenger is entering or leaving your car until the other has started.
    “Special order issued upon Rule No. 33:
    ‘ ‘Cincinnati Street Railway Company,
    Cincinnati, June 30, 1893.
    “Your attention is hereby called to Rule 33 for conductors, gripmen and motormen, and follow instructions and explanations of the same. On a double track, when a car has been stopped for any reason, the advance car in the opposite direction must not pass the same, but must come to a full stop. The men in control of both cars must see there is no likelihood of danger to passengers or those having just left one of the cars before starting. The car which stops first starts first. Numerous complaints have been made that the above instructions are not obeyed. Implicit obedience will be required.
    “By order of the Board of Directors.
    “John Harris, Superintendent.”
    Objection was made to the introduction of said rules and order, which objection was overruled and exceptions taken. Upon the trial of the case a verdict was returned by the jury in favor of the administrator, a motion made for a new trial, which was overruled, and judgment entered on the verdict.
    The circuit court affirmed the judgment, and thereupon a petition in error was filed in this court seeking to reverse the judgments of the courts below.

      Foraker, Outoalt, Granger & Prior and Kitt/redge & Willy, for plaintiff in error.
    This cause was tried at the April term, 1897. In December, 1896, this court decided the case of City of Galion v. Lauer, 55 Ohio St., 392.
    It is difficult to realize, in view of the decision in the above case by this court, how the trial court in the case át bar should have been led to open the door by the ruling referred to, to the admission of the character of evidence objected to.
    The cases cited by this court show that the rule of evidence was in no respect influenced by the fact that the defendant was a municipal, and not a private, corporation. And, while there might be some conflict in the ruling upon the admissibility of evidence of this character by the courts of other states, the overwhelming weight of authority is in accordance with the rule laid down by this court in the case referred to, which had thereby become the settled law in Ohio, prior to the trial of the case at bar.
    In view of the decision of this court it is perhaps a work of supererogation, unless it may be to illustrate the application of the rule to the facts of the present case, to cite the decisions of other courts, but we would refer to the following cases: Overholt v. Vieths, 93 Mo., 422; Shea v. P. & V. B. R. Co., 44 Cal., 414; Mahoney v. San Francisco R. Co., 110 Cal., 471; Illinois Cent. R. Co. v. Baches, 55 111., 381; Illinois Cent. R. Co. v. Slater, 129 Ill., 92; Ala. G. S. R. Co. v. Carroll, 84 Fed. Rep., at 780; Mo., Kan. & T. R. Co. v. Hanning, 43 S. W. Rep., 508; Mannion v. Hagan, 9 Appellate Div. Rep. (N. Y.), 98; Schwanzer v. Brooklyn Heights R. Co., 45 N. Y. Sup., 890.

      The rules of the street railway company which were admitted in evidence, were rules exclusively addressed to its employes, for their guidance in the operation of its ears, and there was no publication of them, or other evidence that they ever came to the knowledge of the deceased.
    The principle upon which this chaimcter of evidence, in our judgment, should have been excluded, is stated with great clearness by the Supreme Court of Minnesota in the case of Fando v. St. Paul City R. Co., 74 N. W. Rep., 166.

      Smith d: Kuhn, for defendant m error.
    The argument of counsel for defendant in error and citations are sufficiently given in the opinion. —[Reporter.
   Bcjrket, J.

In an action by the personal representative for the recovery of damages for death caused by wrongful act, neglect or default under sections 6134 and 6135, Revised Statutes, ‘ ‘the jury may give such damages, not exceeding ten thousand dollars as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought.” The measure of damages is the pecuniary injury to “the wife or husband and children, or if there be neither of them, then to the parents and next of kin” of the deceased. The damages are limited to the pecuniary injury, and nothing can be allowed on account of bereavement, wounded affections, pain or suffering. The money value of such loss, by reason of the death, is the limit of the recovery.

But how shall this pecuniary injury to the survivors be ascertained and measured by the jury? Manifestly it must be determined by the jury from the evidence in the case, and not merely by guess. Such facts should be established in the ease by evidence as will enable the jury to fix the amount of the pecuniary loss to each person entitled to share in the recovery, and the jury should confine the ver die b to the amount of loss so proven. To warrant a recovery at all it must be shown by evidence that in the usual course of events in life the beneficiary would have received financial aid from the deceased had he lived, and the approximate amount of such aid. This may be shown by evidence tending to prove that in the life time of the deceased- he supplied aid, support or financial assistance to the beneficiary and would likely have continued to do so in the future had he lived. The relation of the deceased to the beneficiary may also be shown and his disposition and good will toward him as likely to result in gifts or inheritances, and to that end his age, health and ability to make and save money may. be shown. Grotenkemper v. Harris, 25 Ohio St., 510. It may also be shown that the beneficiary is in such financial circumstances and health as to need the aid of the deceased, coupled with the fact that such aid was to some extent supplied during the life of the deceased, and a reasonable expectation under the circumstances that such aid would continue in the future. In the case of parents it may be shown that they were in circumstances and health requiring that the deceased child should aid them by his services, not only during minority, but thereafter. In such cases the financial circumstances and health of the parents are very important, because a parent in poor circumstances would likely be compelled to depend • largely upon his minor children for support, while a rich parent would receive no financial aid from his minor children, and on the contrary would find them a financial burden upon his hands. A rich parent whose child is a continued finaucial expense to him and who has no reason to expect financial aid from such child sustains little, if any. pecuniary injury from its death beyond the' funeral expenses; while a poor parent, and especially if in bad health, might reasonably expect substantial aid from his child, not only during its minority, but for years thereafter.

The jury should be governed by the circumstances of each case as shown by the evidence, and return a verdict for such an amount as the evidence shows the reasonable pecuniary loss to be, and if no pecuniary loss is proven, the verdict should be for the defendant.

It was held in the case of Chicago v. Major, 18 Ill., 349, that this pecuniary loss the jury is to estimate from the facts proven. In Potter v. Railroad Co., 22 Wis., 615, it was held that the verdict of the jury must be based upon the evidence, not that the evidence must create a certainty beyond what is possible in the nature of things, but that in so far as the estimate relates to the future, it should show a reasonable probability that the pecuniary loss would be equal to the amount found by the verdict. And in Steel v. Kurtz, 28 Ohio St., 191, this court held that the amount of damages must be ascertained by the jury from the proofs in the case.

The case of the Illinois Central Railroad Company v. Baches, 55 Ill., 381, cited and relied upon by counsel for plaintiff in error holds that evidence as to wealth or poverty is not competent. The beneficiaries in that case were the widow and children. The seventh and eighth subdivisions of the syllabus are as follows;

“7. In an action under the statute to recover for the death of a person caused by the wrongful act, neglect or default of the defendant, the only question to be determined in estimating the damages, is the pecuniary loss resulting from his death to the widow and next of kin of such deceased person. The feelings of the widow and next of kin, their wealth or poverty, or any other fact than the pecuniary injury, cannot be considered in assessing the damages. The fact that the widow is deformed and disabled can, in no wise, increase or diminish the amount of damages she may be entitled to recover.
“8. In such case the support the widow would have been likely to receive from her husband, had he not been killed, is a proper and the controlling element to be considered by the jury in arriving at the measure of compensation for the pecuniary loss sustained.”

In the case of a widow and children the natural presumption, and in fact duty of the deceased, is to support them, and in the absence of a showing to the contrary, the presumption is that such support would be to the full extent of his ability after supporting himself; and in such cases there is no need of showing the poverty of the widow and children. But in case the .widow and children should be wealthy in their own right, and having before the death of the deceased received little if any support from him, such facts might well be shown in evidence for the purpose of showing that the pecuniary injury was small and thereby reduce the damages. Any fact which tends to show the amount of the pecuniary loss to the beneficiaries is competent evidence, whether it tends to increase or diminish the damages.

The foregoing views are fully sustained by the following authorities, and cases therein cited: Potter v. Railroad Co., 21 Wis., 372; Potter v. Railroad Co., 22 Wis., 615; Johnson v. Railroad Co., 64 Wis., 425; Thoresen v. Railroad Co., 68 N. W., 548 (Wis.); Lockwood v. Railroad Co., 98 N. Y., 523; 92 Hun., 580; 39 N. Y. S., 44; 20 N. Y. S., 477; Railroad Co. v. Crudup, 63 Miss., 291; Cooley on Torts, 2d ed., sections 271 and 272; Chicago v. Powers, 42 Ill., 169; Staal v. Railroad Co., 57 Mich., 239; Augusta Railroad Co. v. Glover, 18 S. E., 406; Railroad Co. v. Leverett, 48 Ark., 333; Barley v. Railroad Co., 4 Biss., 430; Railroad Co. v. Lafferty, 57 Fed. Rep. at 536; Haehl v. Railroad Co., 24 S. W., 737; Railroad Co. v. Dunden, 37 Kans., 1; Opsahl v. Judd, 30 Minn., 126; Cook v. Clay St. R. Co., 60 Cal., 604.

From these considerations and authorities it is clear that the court did not err in admitting the evidence as to the financial condition and means of support of the parents of the deceased. The case of City of Galion v. Lauer, 55 Ohio St., 392, is not in point. In that case the plaintiff himself was injured, and brought his action to recover damages for the personal injuries sustained by him, and it is too clear for argument that the damages would not be increased or measured by the number or ages of his children, or the fact as to whether he was married or single.

In the next place it is urged that the court erred in permitting the plaintiff to introduce the rules of the street railway company in evidence, and also in. introducing the special order of the company as to the observance of the rules. The ground upon which this assignment of error is urged is stated in the case of Fonda v. St. Paul City Railway Company, 74 N. W. Rep., 166, as follows:

‘ ‘The effect of it is that, the more cautious and careful a man is in the adoption of rules in the management of his business, in order to protect others, the worse he is off, and the higher the degree of care is bound to exercise. A person may, out of abundant caution, adopt rules requiring of his employes a much higher degree of care than the law imposes. This is a practice that ought to be encouraged, and not discouraged. But if the adoption of such a course is to be used against him as an admission, he would naturally find it to his interest not to adopt any rules at all.”

The rules and order founded thereon do not in this case require a higher degree of care on the part of the Street Railway Company than the law requires, and therefore, their introduction was not prejudicial. But aside from this consideration we regard the introduction of the rules in such cases as proper and warranted by the weight of author^ ity. The rules by which a street railway company runs its ears are a part of the res gestae inseparably connected with the accident as one of the circumstances surrounding the case, and which are often necessary to a proper understanding of the same. They are not so much in the nature of admissions as a part of the transaction. The rules by which a railway is operated are as much a part of the transaction as the construction and appliances of the cars, motors, machinery and tracks. If their rules require more care of the employes for the safety of passengers than the law requires, it is easy for the court to say so to the jury, and point out what the law requires, and wherein the rules require more than the law, and that to the extent of the excess the company is more careful than is required by law. Such a showing would be an advantage to the company instead of a detriment. If the rules require only what the law requires, no harm can come to the company from their introduction in evidence. But if the rules require less than the law, or if there are no rules at all, then the company might well be held to be negligent for such a state of affairs. It seems, therefore, that the introduction of the rules of the company is not only proper, but would lead to the working out of just results in all cases, sometimes against the company and sometimes in its favor. The fear that the introduction in evidence of- the rules of the company would discourage such companies from making strict rules for the safety of passengers, is more fanciful than real. The company would suffer much more loss from absence of strict rules than from having the rules introduced in evidence, and self preservation would induce such companies to adopt such rules as will reduce accidents to a minimum, whether such rules are received in evidence or not. That such rules are competent evidence is shown by the following authorities: Railroad Co. v. Bates, 4 Vol., 129, Current Series, American Negligence Reports, s. c. 30 S. E. Reporter, 415; Coates v. Railway Co., 62 Iowa, 486; Railway Co. v. Ward, 135 Ill., 511; Railroad Co. v. Williams, 74 Ga., 723.

It has been the constant practice in this state in the trial of railway cases to introduce the rules of the company in evidence, and no injustice has re-suited therefrom so far as known, and no companies are known to have been deterred thereby from making strict rules for the government of their employes in the operation of their cars, whether steam cars or street railway ears.

Judgment affirmed.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    State of Ohio ex. rel. Eberts v. The Ohio State Medical Board.

      Practice of medicine — State regulation of — ' Legal practitioner ” defined — Interpretation of Law.

    One who entered upon the practice of medicine after the taking effect of the act of May 5, 1868, 11 To protect the citizens of Ohio from empiricism, etc.” (65 O. L., 146), without graduation from a school of medicine or procuring a certificate of qualification from some state or • county medical society, and had not practiced continuously for ten years before the passage of the act of May 2, 1885 (82 O. L., 218), is not a “legal practitioner ” within the meaning of section 4403c of the act of February 27, 1896, “ To regulate the practice of medicine, ” (92 0. L., 44).
    (Decided March 14, 1899.)
    In Mandamus.
    The cause is submitted on demurrer to the answer. The relator alleges that he is, and since March 24,' 1877, has been, a resident of Ohio, and since July 20, 1883, a resident of Fayette county; that he is by occupation a physician; that, although not a graduate in medicine or surgery, he has practiced medicine continuously in Ohio since the twenty-fourth day of March, 1877; that in compliance with the provisions of section 4403c of the act of February 27,1896 he did on the twenty-second of April, 1896, furnish to said board an affidavit showing his practice as aforesaid and claiming that at and prior to the passage of said act he was a legal practitioner of medicine under the laws then in force, and requested from the board a certificate showing that he was a legal practitioner of medicine at the time of the passage of said act and entitled to continue in the practice. He further alleges that said affidavit was not contradicted, but was accompanied by the affidavit of a reputable physician showing that the relator had practiced medicine in Ohio for more than ten years. The board rejected the application because not satisfied that the relator was a legal practitioner of medicine on the twenty-seventh of February, 1896. He further alleges that on September 30, 1898, he again applied to the board for such certificate, accompanying his application with his affidavit of the same purport as that previously submitted, and the affidavits of numerous other persons showing knowledge of his having been a practitioner for more than ten years. Said representation were uncontradieted, as he alleges, but at a meeting of the board held October 4, 1898, his application was again rejected in violation as he believes of his rights and of the duties of the board. He prays for a peremptory writ of mandamus compelling the board to grant him a certificate.
    The answer of the board admits that the relator made applications as alleged in his petition an'd that his application of April 22, 1896, was rejected. It alleges that the application of September 30, 1898, was not rejected, but deferred for further consideration and investigation and to await the disposition of indictments which had been returned against the relator in Fayette county; that said action was taken for good cause in view of the rejection of the relator’s previous application and of doubts entertained by the board whether the relator was at the time of the passage of the act a legal or competent practitioner of medicine, such doubts arising from evidence of a substantial character which had been submitted to the board, and the time intervening between said application and the fourth of October not being sufficient for such investigation. The board further alleges that its said action was within the discretion vested in it by said act.
    Gregg, Patten c& Gregg, for the relator.

      Pi. E. Westfall, for the defendants.
   Shauck, J.

The rights of the relator and the duties of the board of medical registration and examination are defined by the act of February 27, 1896 (92 O. L., 44). The pertinent provisions are in the second section of the act amending section 4403c of the Revised Statutes. They describe three classes of persons who, upon application and compliance with the conditions prescribed for their class, are entitled to receive from the board certificates which, when left with the probate judge of the proper county, shall be conclusive evidence of the right to practice medicine:

1. Graduates in medicine from legally chartered medical institutions of the prescribed standing, upon presentation of their diplomas with proof of their identity, are entitled to receive a certificate of the board unless it be refused upon grounds applying to all classes, and relating to the character or habits of the applicant.

2. Legal practitioners of medicine at the time of the passage of the act (Feb. 27, 1896), but not graduates in medicine or surgery, may furnish the board ,an affidavit stating the periods during which and the places at which they have practiced, and the board, if satisfied from such affidavits and from other information which they may receive of the truth of the affidavits, shall issue the certificates.

3. Persons engaged in the practice of medicine, but neither legal practitioners nor graduates in medicine or surgery may present themselves before the board and submit to examination touching their qualifications for the practice of medicine or surgery and the board, if the examination be satisfactory to it, shall issue the prescribed certificate.

The relator does not attempt to bring himself within the first class by alleging that he is a graduate in medicine or surgery, nor does he allege that he presented himself to the board for examination according to the course prescribed for those belonging to the third class. His claim is that his application and the accompanying affidavits and statements bring him within the second class, and that his declaration, that he was a legal practitioner of medicine at the time of the passage of the act entitles him to the certificate of the board without examination.

What constituted a legal practitioner of medicine on the twenty-seventh day of February, 1896? The act of that date affords no answer to the question. It assumes the existence of legal practitioners, but does not define them. A legal practitioner on the twenty-seventh day of February, 3 896, was one who was then engaged in the practice of medicine in accordance with the provisions of the act of May 5, 1868 (65 O. L., 146), which took effect October 1, 1868. The first section of the act provided “that it shall be unlawful for any person, within the limits of said state, who has not attended two full courses of instruction and graduated at some school of medicine, either of the United States or some foreign country, or who cannot produce a certificate of qualification from some state or county medical society, and is not a person of good moral character, to practice medicine in any of its departments for reward or compensation, or attempt to practice medicine, or prescribe medicine or medicines, for reward or compensation, for any sick person within the state of Ohio; provided, that in all cases when any person has been continuously engaged in the practice of medicine for a period of ten years or more he shall be considered to have complied with the provisions of this act, and that where persons have been in continuous practice of medicine for five years or more they shall be allowed two years in which to comply with such provisions. ’ ’ The second section prescribes penalties for practicing medicine in violation of the provisions of the first section.

The relator’s petition shows that he had been engaged in the practice of medicine for nineteen years prior to the making of his affidavit submitted to the board April 21,1896; that is, he did not commence the practice until after the passage of the act of 1868. He was therefore clearly within the purview of the first section of that act and not within the proviso saving the right to practice to those who had been engaged in the practice for ten years to continue therein, and to those who had been so engaged for five years to comply with ihe provisions of the act within two years. The proposition that one might enter upon the practice of medicine in 1877 in violation of the terms of a penal statute, and by persisting in such practice for ten years acquire the status of a legal practitioner cannot be reconciled with the obvious purpose of the statute. That purpose was not to reward, but to punish, the practice which the relator now urges as entitling him to special advantages over other practitioners of medicine. We are aware that in Wert v. Clutter, 37 Ohio St., 347, it was held by a divided court that a recovery of compensation for medical services might be had by one excluded from practice by the purview of the section of the act of 1868, because he had, prior to the time of rendering the services, been engaged for ten years in the practice of medicine partly before and partly after the passage of the act. But the entrance of the relator upon the practice was in violation of the statute. It does not seem practicable to distinguish the eases further nor necessary to approve the concise reasoning of the dissenting opinion in the case cited.

The claim of the relator is not aided by the act of May 2, 1885, for it required a continuous practice of ten years prior to that date to constitute one a legal practitioner.

The relator not having complied with the requirement of the first section of the act of May 5,. 1868, was not a legal practitioner of medicine on the twenty-seventh day of February, 1896, and he is within the third class of applicants described in the act of that date. The petition therefore does not state a cause of action and the demurrer will be sustained to it.

Petition dismissed.


author: Bradbury, O. J.

text:
    Zuellig v. Hemerlie et al.

      Surety — Furnishes principal money to pay debt — Principal to be regarded agent of surety — Subrogation of surety to securities held by creditor.

    1. Where from his own funds a surety furnishes to his principal money to be applied to pay the debt of the principal for which the surety is bound, and the money is thus applied by the principal, the latter in making the payment should be regarded’ as the agent of the surety, and the payment thus made will vest in the surety as complete a right to be subrogated to any securities held by the creditor as would have vested in him had he paid the debt in person.
    2. An action by a surety who has paid the debt of his principal to be subrogated to a mortgage held by the creditor as additional security for such debt is governed by section 4985, Revised Statutes, and will be barred by lapse of time, unless brought within ten years from the time the cause of action accrued. (Neal v. Nash, 23 Ohio St., 483, approved and followed,)
    (Decided March 14, 1899.)
    Error to the Circuit Court of Cuyahoga county.
    This action was brought by the plaintiff in error to be subrogated to the rights of a mortgage creditor to whom, as a surety of the ancestor of defendants in error, he had paid the mortgage debt. The court of common pleas and circuit court found adversely to his claim whereupon he instituted proceedings in this court for relief against the judgment of the latter court. The facts will be stated in the opinion.
    Diohey, Brewer ds Me Goxoan, for plaintiff in error.
    Solders, Rogsett do Knight, for defendant in error.
   Bradbury, O. J.

The sufficiency of the petition is the only question before the court here. The .'material averments thereof are as follows: In the year 1876, Jacob Borger, the ancestor of defendants in error, as principal, and the plaintiff in error as surety, executed a promissory note for $2,000, payable in one year after date, to the Citizens’ Savings and Loan Association of Cleveland, Ohio, and at the same time said Borger, to further secure the same, his wife releasing her right of dower, executed to said association a mortgage on certain real estate in the city of Cleveland, Ohio; that on May 12, 1883, after the note became due the plaintiff in error delivered of his own funds the sum of $2,000 to said Borger, the principal debtor, with which to pay the note, and that Borger, pursuant to instructions of the plaintiff in error, afterwards on June 14, 1883, with the money thus furnished, paid off, took up and retained in his possession said note; that the same was neither assigned to, nor came into the possession of, the plaintiff in error, nor has the mortgage ever been assigned to him.

It clearly appears from the foregoing statement that the plaintiff in error was the mere surety on the note in question; that he furnished the principal debtor with money with which to pay off the same, and that the principal debtor afterwards applied the money to that purpose. In making the payment in the manner stated the principal debtor should be regarded as the agent of the surety, and the payment ascribed to the latter precisely as if the latter had made the payment in person or by the hand of any other person than the principal debtor. The debt thus having been' paid by the surety he in equity became entitled to be subrogated to whatever securities the creditor had for the payment of the same debt. Hill v. King, 48 Ohio St., 75; Dempsey v. Bush et al, 18 Ohio St., 376; Neal v. Nash, 23 Ohio St., 483; Neilson & Churchill v. Fry, 16 Ohio St., 552; Burge on Suretyship, 352, 3; Sheldon on Subrogation, chap. 3; Pom. Eq. Juris., section 1419.

This principle is too firmly imbedded in our system of jurisprudence to require for its support a more extended citation of authorities. In the case at bar the security was the mortgage given to secure the debt.

Upon the fact stated in the petition the plaintiff’s right to subrogation is clear. However, that right accrued at the time he caused the note to be paid, and he suffered eleven years and six months to elapse before he began this action. The vital question, therefore, is not whether the right of subrogation accrued to him, but whether that right has been barred by the statute of limitations.

Many cases can be found where courts of high standing havé held that where a surety pays- a debt of the principal his remedy, at law against the principal, or a co-surety, is by an action on an implied contract of indemnity for money paid for the use of the principal or the co-surety. That such an action would be subject to the limitation fixed by the statute for actions on implied contracts, which in this state is six years is quite clear*. This view of the subject was adopted by this court as early as 1832 in the case of Williams' Admr. v. Williams’ Admr., 5 Ohio, 444, and subsequently approved in Neilson & Churchill v. Fry, 16 Ohio St., 552. This doctrine was approved and applied by this court at its present term. Poe v. Dixon, supra.

In the ease of Neilson & Churchill v. Fry, supra, it seems to have been the opinion of the majority of the court that the right of a surety to be subrogated to the rights of a creditor would be barred whenever his action at law for contribution would be barred, that is, by the limitation of six years. This view of the question finds considerable support both in reason and authority. J0oyce v. Joyce, 1 Bush, 474; Johnston v. Belden, 49 Ia., 301. By a still later case, however, Neal v. Nash, 23 Ohio St., 483, this court held that where a surety in a judgment against himself and his principal, pays the judgment debt, an action brought by him against his principal to be subrogated to the rights of the judgment creditor, is limited by our statute to ten years. This holding, if adhered to conclusively determines the question before us, for if the right to be subrogated to a judgment lien is limited to ten years, it would seem to follow as matter of course that the right to be subrogated to a mortgage lien would be subject to the same limitation, both being rights to equitable relief which have no other specific limitation attached to them by our statute, and therefore fall under the provisions of section 4985, Revised Statutes, which reads as follows: ££An action for relief not hereinbefore provided for can only be brought within ten years after the cause of action accrues.”

Counsel for plaintiff in error, however, contend that the holding in Neal v. Nash, 23 Ohio St., 483, that the limitation of ten years applied to the right of a surety to be subrogated to a judgment lien of the creditor, was obiter. It is true that the judgment rendered by this court in that case (Neal v. Nash, supra) did not necessarily depend on the holding that the ten years’ limitation applied. More than six and less than ten years had elapsed after the surety in that case (Neal) had paid the judgment to which he desired to be subrogated and the bringing of the action to obtain the subrogation, and therefore it was indispensable to his relief that his right of action should not be barred by the six' years’ limitation,' and this court in maintaining this contention must of necessity so held. But as the facts in that case show that less than ten years had elapsed before the payment of the judgment and the bringing by the surety of the action for subrogation, it is obvious that the court having held that the right of action was not barred in six years, it became immaterial to the surety whether the ten years’ statute applied to his case, or whether he could have maintained an action for subrogation at any time before the presumption of payment, owing to the lapse of time had attached to. the judgment. Whatever the court might have held as between these two last periods of limitations, as his case did not fall within either of them, the holding could not affect him. Therefore, the contention of plaintiff in error that the holding of this court in that case (Neal v. Nash, supra), as to the application of the ten years’ limitation was obiter, finds support íd the facts of the case. That case, however, may be regarded as a direct authority for the doctrine that although an action at law upon the implied promise arising where a surety has paid the debt of his principal may be barred in six years after the payment, yet thereafter the surety may maintain an equitable action to be subrogated to any securities held by the creditor, notwithstanding the action at law has been thus barred.

Still further, although the holding under consideration in Neal v. Nash, supra, may in strictness be obiter, nevertheless it bears the impress of having been deliberately reached after full consideration by the able judges who then composed the court, and should not be lightly disregarded by us their successors, when the question is again presented for consideration as the record before us does. By this action the plaintiff in error not only seeks to be subrogated to the rights of the creditor in the mortgage, but when this is done also to have the mortgage enforced for his indemnity.

By our practice the statute of limitations may be invoked by a general demurrer where the lapse of time appears on the face of the petition. Sturges et al. v. Burton et al, 8 Ohio St., 215; Keithler v. Foster et al, 22 Ohio St., 27; Vose v. Woodford, 29 Ohio St., 249, 250; Valley Railway Co. v. Franz, 43 Ohio St., 625.

As the petition in the case before us discloses that the action was begun more than ten years and less than fifteen years after the cause accrued, it .is obvious its sufficiency in this respect depends upon which period of limitation is applied. If- the plaintiff’s right of action is limited to ten years from the accrual, it is barred. If he had fifteen years, it is not barred. The latter doctrine, i. e. that an action to be subrogated to any securities is not barred by the statute until an action on the security itself would be barred, rests upon the assumption that the act of payment by the surety ipso facto accomplished a complete subrogation; and upon the correctness of this assumption the plaintiffs contention depends. He contends through his counsel that the act of paying the debt of his principal of itself ipso facto, subrogated him to the rights of the creditor in the mortgage given to secure the debt, and that he is entitled to the same period within which to bring an action to foreclose it that the mortgagee himself would have had, which in this state is fifteen years. Kerr v. Lydecker, Admr., 51 Ohio St., 240.

This view of the question finds some support in certain declarations and expressions found in some of the text writers and in the opinions of some careful and able judges. In Tutt v. Thornton, 57 Texas, 35, it is held that “The payment of a note by a surety is not, as between himself and the principal, an extinguishment of the same, and his right of action against the principal, is upon the note, and not on an implied assumpsit.”

If a surety who pays a note may at law sue directly upon the note itself it would seem to follow that the period of limitation fixed by statute for actions on such instrument would be applicable. This holding therefore may be regarded, if not a direct authority,- at least as in line with, the doctrine for which plaintiff in error contends. Sublett’s Admr, v. McKinney, 19 Tex., 438.

This doctrine that a surety who has paid a note or other security may sue upon it directly in an action at law we think is in conflict with the weight of authority and with principle. His remedy is upon the implied contract of indemnity. Ford v. Keith, 1 Mass., 139; Bunce v. Bunce, Kirby (Conn.), 137; Powell v. Smith, 8 Johns. (N. Y.), 249, 251; Smith v. Sayward et al, 5 Me., 504; Hulett v. Soullard, 26 Vt., 295; Joyce v. Joyce’s Admr., 1 Bush (Ky.), 474. It is certainly in conflict with the doctrine declared by this court in Williams’ Admr. v. Williams’ Admr., 5 Ohio, 444, and in Neilson & Churchill v. Fry, 16 Ohio St., 552. Nor does it find any support either in the opinion of Judge Minshall who wrote the opinion of this court in Hill v. King, 48 Ohio St., 75, or in syllabus of the case. Subrogation there is not considered as a fact accomplished by the payment of the debt by the surety, but simply as a right that may be enforced by a civil action. Where a surety who pays a debt of his principal takes from the creditor an assignment of the securities the creditor held, there arises no necessity for an appeal to equity, for the surety, by the concurrent acts of himself and the creditor, has become vested with the legal title to the securities, and under our system of jurisprudence may sue on the securities in his own name. According- to the doctrine that generally prevails, and as we think the better doctrine, where, he has not taken this precaution, a surety cannot maintain an action at law on the security, for at law the payment extinguishes the security whatever its nature may be, whether a note, a judgment or a mortgage. In such case it is those principles peculiar to our system of equitable jurisprudence that preserve the securities for the benefit of the surety and subrogate him to the rights of the creditor. This right of subrogation thus arising is purely and simply a creature of that system of jurisprudence to which it owes its existence. But for that system which we call equity, the right of subrogation would not arise.

. It is not a substantive tangible right of- such nature and character that it can be seized and held and enjoyed independently of a judicial proceeding. It is a right in action only, that is, it must be established by a judicial proceeding. For this purpose under our system resort must be had to a civil action. By the commandment of our Code of Civil Procedure as well as by those rules of plead-

ing which have existed immemorially, the party is required to state the facts which show the right. Strictly speaking, there are two distinct causes of action in such cases: one consists of those facts that show the right of the plaintiff to be subrogated to the rights of the creditor in the securities held by the latter; the other consists of those facts which show that the security may be enforced against the principal. In the natural order of precedence the party must establish his right to be subrogated to the security before he can be permitted to enforce it. If the facts alleged and upon which the right of subrogation depends are denied they must be established by proof as in any other civil action. In the case before us if the right of subrogation is not established the action fails and no relief can be granted.

We think, therefore, its primary purpose was to establish this right. The relief thus sdught is clearly and undeniably equitable. It does not fall within any of the specific limitations prescribed by our statutes, and must be governed by the general provision of section 4985, Revised Statutes, which provides that all actions for “relief not hereinbefore provided for shall be brought within ten years after the cause of action accrued.”

Many cases can be found that bear upon the questions involved in this opinion, the decisions of which harmonize with the conclusion we have reached. Among them may be cited, Thayer v. Daniels, 110 Mass., 345; Bullock v. Campbell, 9 Gill (Md.), 182; Stone v. Hammell, 83 Gal., 547; Ward v. Henry, 5 Conn., 595.

The determination of the question of the statute of limitations adversely to the contention of the plaintiff in error defeats his right of recovery, and renders unnecessary any consideration of the .question respecting a defect of parties.

Judgment affirmed.


author: By the Court.

text:
    Farmer v. The Findlay Street Railway Company.

      Corporation liability — For personal injury — Repair of street railway tracks — Law of negligence.

    Although one driving a team of horses upon a public street has knowledge that a street railway company has negligently removed the pavement from its tracks and conducting wires, he is not to be charged with negligence if he drives upon the exposed track and wire, not voluntarily, but because his horses are partially beyond his control.
    (Decided March 14, 1899.)
    Error to the Circuit Court of Hancock county.
    Farmer brought suit in the court of common pleas to recover for injuries to his horse caused by the negligence of the company in removing a brick pavement and leaving the street for a long time in an unsafe and dangerous condition by reason of the exposure of its tracks and conducting wires. The answer denied the negligence of the company and alleged that the horse was injured by reason of the negligence of the plaintiff himself. The plaintiff replied denying the plaintiff’s negligence. On the trial plaintiff introduced evidence of a substantial character tending to show that the company intending to make repairs tore up the pavement within and along its tracks piling the bricks along the sidewalk, and leaving the tracks and conducting wires open and exposed for a time much longer than that required for the making of the repairs. That there was an. unobstructed way on either side of the tracks between it and the curb of not less than twenty-five feet. That the plaintiff with a knowledge of the condition of the street attempted to drive his team of two horses along the portion of the street so unobstructed and between the track and the curb, and while so driving the horses became excited and partially beyond plaintiff’s control and got upon the track one of them having its foot caught and held by a conducting wire whereby it was seriously injured. At the conclusion of the plaintiff’s evidence the court on motion of counsel for the company directed the jury to return a verdict for the defendant. A judgment was rendered upon the verdict so returned and the plaintiff’s motion for a new trial was overruled. This judgment was affirmed by the circuit court.

      Jason Blackford & Byal, for plaintiff in error.
    I. The Street Railway Company was clearly negligent in removing the paving in December and leaving it open between tracks until April 1st. It is a duty imposed by law that in the construction or repairs of their tracks they must restore the street without unreasonable delay, so as to be fit for ordinary travel and traffic. It was moreover wholly unnecessary for them to leave this wire that caused the breaking of the horse’s leg to be exposed at all, for any time. Worster v. The 42d St. R. Co., 50 N. Y., 203; Wasmer v. The R. R. Co., 80 N. Y., 212; Sheldon v. W. U. T. Co., 52 Hun., 591; Weiser v. Broadway, etc., 10 C. C., 14; 6 Cir. Dec., 215; Lawrence v. Pendleton St. R. R. Co., 1 C. S. C. R., 180; Bowen v. Detroit, 20 N. W., 559.
    II. There was no contributory negligence shown by the cross-examination of the plaintiff’s witnesses. The claim made by the defendant was that the plaintiff knew the condition of the street at the time his horses got into this place when the paving had been removed, and that it was daylight and he ought to have kept out of it. The court said that if the horses were under the control of the driver he should have kept them out of this place, and if they were not under control, the plaintiff was negligent and caused his own injury. On this reasoning the court instructed the jury that the plaintiff could not recover.
    In this three errors at least occur:
    ' First — The jury should be permitted to say whether there was any negligence on the part of the plaintiff contributing to his injury.

      Second — The evidence did not show that the horses were not under the control of plaintiff; and

      Third — It would not be proof of negligence on the part of the plaintiff if the horses were not under his full control at the immediate time. Blair v. The P. & L. E. R. R. Co., 37 Bull., 59. Robinson v. Grey, 28 Ohio St., 241; B. & O. R. R. Co. v. Whitacre, 35 Ohio St., 627; L. S. R. R. v. Fitzpatrick, 31 Ohio St., 479.
    What was the negligence of which the plaintiff' was guilty? Not in the hitching up of the horses, for they were properly hitched. Not in driving dangerous horses, for these were well broken. Not in voluntary driving into this broken up street, for he did the best he could to keep out of it.
    Plaintiff did nothing at all to bring about this accident, and did all he could to prevent it. If the street railway company had closed up this paving within any reasonable time after it was opened in December, or had even kept this small wire safely covered, the horse would not have been injured.
      C. C. & C. R. R. v. Elliott, 4 Ohio St., 474; Hogg v. Zanesville, 4 Ohio, 410; R. R. Co. v. Shultz, 43 Ohio St., 270; R. R. Co. v. Staley, 41 Ohio St., 118.
    It would be the same if the horses had been actually running away, unless the defendant should show that they were a vicious pair of horses, or were unbroken, or had been left standing carelessly, or some other negligence of like character. Thomas on Neg., 1180; Brown v. Collins, 53 N. H., 442; Smith v. Smith, 2 Pick., 621; Murdock v. Warwick, 4 Gray, 178; Baltimore & C. R. Co. v. Cassell, 66 Md., 419; Bell v. N. Y. C. & H. R. R. Co., 29 Hun., 561; Laughlin v. St. Ry. Co., 28 N. E., 873; Wallace v. Detroit, 58 Mich., 231; Bowen v. Detroit, 54 Mich., 496; R. R. Co. v. Cunningham, 39 Ohio St., 327; Kelley & Sons v. Howell, 41 Ohio St., 438; Stockstill v. R. R. Co., 24 Ohio St., 83.

      J. A. <& E. V. Bope, for defendant in error.
    It is not contended or claimed that the defendant company in any manner directly contributed to the injury. If there was any fault whatever upon the part of the company it was in not having its men at work placing back the brick between the rails; but the testimony tends to show that the weather was extremely cold, with falling weather and the men could not work; that they had commenced the relaying of their track about two miles north of where the accident occurred and were working southward. Whether the railway company was engaged in this work, or whether it was being done by some contractor — whether it was done by the city of Findlay, the evidence does not disclose.
    But we respectfully submit and claim that under no possible view of the case can it be said or held that this condition of the track was proximate the cause of the injury, or that the injury was proximately produced by any act of the company.
    Negligence is the gist of the action, and if there is no actionable negligence, the plaintiff, of course cannot recover.
    The mere fact of an injury or accident does not raise a presumption of negligence. Like any other fact or issue it must be affirmatively proved. If there was any negligence at all it was upon the part of the plaintiff in his careless or negligent driving, or in the manner in which he had his horse hitched to the carriage by which he failed to keep his team upon the thirty feet of unobstructed paved highway, or by which the horse was permitted or caused to become unmanageable, plunging over upon the track of the defendant compauy.
    By what process of reasoning can it be said that the company by any act whatever contributed to or caused the injury to the horse? Or by what process of reasoning or upon what authorities can it be claimed that the act of the company in repairing its track was the proximate cause of the injury? The Railway Co. v. Krouse, 30 Ohio St., 223; Ry. v. Kasson, 49 Ohio St., 230; Sherman & Redfield on Negligence, 4th ed. section 61, 96, 99; The Wabash, St. L. & Pacific Ry. Co. v. Lock, 2 Am. State Rep., 193; The Coal Co. v. Estievenard, 53 Ohio St., 44; The Cincinnati St. Ry. Co. v. Murray, 53 Ohio St., 571; Thomas on Negligence, 379; Whitaker’s Ohio Code of Evidence, 425 Titus v. Lewis, 33 Ohio St., 304.
   By the Court.

The instruction assumed that the plaintiff having full control of his horses voluntarily drove into the danger of which he had knowledge, and from which the injury to the horse resulted. There was, however, evidence of a substantial character tending to show that he did not have full control of his team and did not voluntarily drive upon the exposed track and wire. Whether he did or not should, upon the evidence, have been submitted to the jury.

Judgment of the evrcuit court and court of common pleas reversed.


text:
    Blum et al. v. Blum et al.

      Descent of realty — Curtesy of husband — Not permitted as against children of wife “by a former marriage” — Act of March 1,1869.

    B”' the terms of the proviso of section 17 of the act regulating descents, as amended March 1, 1869 (66 0. L., 21), a surviving ' husband is not entitled to an estate by the curtesy in lands of his deceased wife as against her children ‘ ‘by a former marriage, ” although her former marriage was to the same man.
    (Decided March 14, 1899.)
    Error to the Circuit Court of Stark county.
    Plaintiffs in error filed their petition in the court of common pleas against the defendants in error for the partition of real estate in the city of Canton described in the petition, alleging that they and the defendant Louis E. Blum were the children and heirs-at-law of Elizabeth Blum who had died intestate and seized in fee of said premises, that upon her death the said children each became seized in fee of one-third thereof, and that the defendants were in possession of the premises to the exclusion of the plaintiffs. They prayed for the assignment of dower to the defendant, John N. Blum, as the surviving husband of Elizabeth, and for an account of rents and profits and a partition of the premises. The answer of John N. Blum, without alleging facts substantially different from those alleged in the petition, prayed that the petition be dismissed upon the ground that by the statute in force at the time of the death of Elizabeth, June 18, 1870, he as her surviving husband became entitled as tenant by curtesy to an estate for life in the premises. It is not necessary to say more of the additional pleadings than that they raised issues to which the facts found by the court were- relevant. The cause was tried on appeal to. the circuit court where the following facts were found:
    This day this cause came on to be heard upon the pleadings and the evidence, and the court being fully advised in the premises, find that Elizabeth Blum died June 18, 1870, intestate, seized in fee simple of the premises described in the petition herein, leaving the plaintiff, Alice A. Sponhour, and the defendant, Louis E. Blum, children by her first marriage to the defendant, John N. Blum and the plaintiff, Norman C. Blum, child by her last marriage to the same John N. Blum, her surviving husband, she having married the said John N. Blum twice.
    And the court further find that said Elizabeth Blum and John N. Blum were first married in 1857; and that May the 30th, 1864, and after the birth of Louis E. Blum and Alice Sponhour, they w;ere divorced for the aggressions of the husband, and that the custody of said children, Alice A. Sponhour and Louis E. Blum, was awarded to her; and that on the twenty-third day of September, 1866, said Elizabeth Blum and John N. Blum were again united in marriage, and lived together until said eighteenth day of June, 1870, during which time the plaintiff, Norman C. Blum, was born, when said Elizabeth Blum died.
    And the court further finds that said real estate did not come to said Elizabeth Blum by deed of gift or devise from the surviving husband, or from any ancestor of his. And the court further find that said Alice A. Sponhour and said Louis E. Blum were not children by a “former marriage” as contemplated by the statutes of Ohio, at that time in force; that said marriage of John N. Blum and Elizabeth in 1857 was not a “former marriage” to that of the same parties, when they remarried on the twenty-third day of September, 1866; that a “former marriage” within the meaning of that statute means a marriage to a different person than the first husband and who is not the father of the first set of children of the intestate.
    And the court further find that said John N. Blum, as surviving husband, is entitled to an estate by the curtesy in said real estate and that so long as he lives no partition thereof can be had.
    It is therefore ordered and adjudged that the petition in this case be dismissed at the costs of plaintiffs. To all of which said plaintiffs except.
    Plaintiffs in error seek a reversal of the judgment of the circuit court, insisting that said judgment was not warranted by the facts found.

      Nat. O. (& J. 8. McLean, for plaintiffs in error.
    This case depends entirely upon the construction of the statute as to curtesy as it was on June 18, 1870, when said Elizabeth Blum died. 66 Ohio Laws, 21.
    This section has many times been construed by the courts, and always to the exclusion of the surviving husband from curtesy- in the deceased wife’s real estate under such circumstances. Tilden v. Barker, 40 Ohio St., 411; Clark v. Harlan, 17 B., 320; Bruner v. Briggs, 39 Ohio St., 478; Denny v. McCabe, 35 Ohio St., 580.
    The “former marriage” and “the issue by such former marriage” cannot be disputed in this case. It is true the second marriage of Elizabeth Blum was to her former husband, from whom she had been divorced. But, that was an absolute divorce, and the parties were by it, as completely separated and free from marital obligations as though John N. Blum had never married her.
    She was awarded the sole custody and control of the children, and John N. Blum was no longer, to her or to her children, more than a stranger. Her second marriage to him, made their first a “former marriage” in every sense, and. these children “issue by a former marriage.”
    The property involved herein was purchased by Elizabeth Blum, April 13, 1866, of Phillip Stuerhof, for $180.00, while she was divorced from John N. Blum. Neither John N. Blum, nor any one else, contributed anything towards the property or for its purchase.
    Elizabeth Blum, as soon as divorced, began tailoring and made money and paid for it, and obtained the deed for it, from her father, all before her second marriage to John N. Blum. Bruner v. Briggs, 39 Ohio St., 482.
    Where the husband pays alimony, he is not chargeable with necessaries for the children whose custody and care were awarded to the mother. Hare v. Gibson, 32 Ohio St., 38.
    All reason for curtesy was removed»

      “Curtesy,” statutory estate — in derogation of the common law and statutes must be strictly construed. 39 Ohio St., 516; 40 Ohio St., 411, Denny v. McCabe, 35 Ohio St., 576; 111 U. S., 722; 18 Ohio St., 462.
    It would be inequitable to allow; the surviving husband, John N. Blum, with another wife (Sarah J. Reeves), and another set of children, to occupy said premises to the exclusion of these plaintiffs these many years, and they to enjoy the rents and profits to the exclusion of the children of Elizabeth Blum. It would be an outrage upon justice, and such is not the law. Section 5774, Revised Statutes of Ohio; West v. Weyer, 46 Ohio St., 66; Cahoon v. Kineon, 42 Ohio St., 190.

      Charles C. Upham, for defendants in error.
    Now we don’t claim that this estate came to Elizabeth Blum by deed of gift from the said John N. Blum, her surviving husband, nor by devise or gift from his ancestors, so the question is, what is meant by this language, ‘ ‘leaving issue by a former marriage,” and our contention is the words former marriage means a marriage to some man other than the surviving husband. This question has never • been squarely passed on by the Supreme Court of this state, and the following cases Tilden v. Barker, 10 Ohio St., 411; Clark v. Harlen, 17 B., 320; Bruner v. Briggs, 39 Ohio St., 478; Denny v. McCabe, 35 Ohio St., 580, do not touch the point in controversy, because most of those were where a woman had been married to one man leaving issue, and afterwards married another man, different from the first husband, and then claimed curtesy as against the issue of the first marriage. Great stress is laid by plaintiff in error, in his brief, on the fact that there was a divorce originally between these parties We claim that the re-marriage of these two people entirely obliterated all effect of the divorce, and left them as if they had been married all the time, and no divorce ever granted between them. In construing that statute, the court will look at the reasonableness of the language and the intention of the legislators when passing the same. Henry v. Trustees, 48 Ohio St., 671.
    The purpose of the legislature in passing the statute cutting the surviving husband out of curtesy of property that didn’t come to his wife by deed or gift, either from himself or ancestors, as against the issue of said wife by a former marriage, was, that he was in no wise responsible for the care and maintenance of the children of a former husband. The law then very properly steps in and says, as you are not liable for the care and maintenance of some other person’s children, we will not let you step in and take any benefit of their property, but the case at bar is entirely different, these children were his. He was, at all times, bound to maintain and support them as much as he was bound to maintain and support the child born after his second marriage to the said Elizabeth Blum, deceased. That being the fact, the reason for the distinction between this second marriage and his first marriage, and the intention of the legislators as to a former marriage, fails.
   By the Court.

It is admitted that the question presented is to be determined by the provisions of the act of March 1, 1869 (66 O. L., 21) amending section 17 of an “act regulating descents, etc,” The section thus amended is as follows: ,

“Nothing in this chapter shall be so construed as to affect the right which any person may have to any estate by curtesy or in dower, in any estate of anyx deceased person, and surviving husbands whether there be issue born during the coverture or not, shall be entitled to the estate of their deceased wives by the curtesy; provided, however, if any deceased wife leaves issue or legal representative of such issue by a former marriage, her surviving husband shall not be entitled to an estate by the curtesy in the interest of .such issue, or legal representative of such issue, in her estate, unless the estate came to the deceased wife, by deed of gift from the surviving husband, or by devise or deed of gift from his ancestors, ’ ’

Counsel for the defendants in error contend, and the circuit court held, that in a ease presenting the facts here found the phrase “a former marriage” in the proviso of the act should be read “a former husband.” That position is not well taken. The terms of the statute are entirely free from ambiguity. It is not a remedial statute indicating a purpose to which the natural meaning of some of its terms may be deemed subordinate. It is a legislative declaration of a rule of public policy whose clearly expressed terms should be enforcd by the courts. The surviving husband is entitled to curtesy as against the child of the second marriage, but to no interest whatever as against the children of the former marriage.

Judgments of the circuit court reversed, and cause remanded to the court of ‘common pleas for further proceeding in accordance with this opinion.


author: Williams, J.

text:
    Miller et al. v. Albright.

      Equitable lien of vendor — For unpaid purchase money for land sold and conveyed — Paramount to judgment liens recovered against vendee, when — Effect of knowledge by jtidgment creditor as to record of title to land — Result of delay in enforcement of vendor's lien.

    1. The equitable lien of a vendor for the unpaid purchase money for land sold and conveyed is paramount to the liens of judgments recovered against the vendee on debts contracted by him after his deed has been placed upon record, although the creditors were without notice of the equitable lien ; and this priority is not affected by the levy on the land of executions issued on the judgments.
    2. Actual knowledge by a judgment creditor, when his debt was contracted, that the title to the land appeared of record in the name of the vendee, and his expectation to look to the land as a means of satisfying the debt, create no equity superior to that of other creditors without such knowledge. In contemplation of law all have notice of what the record discloses, each stands on an equality with the others in this respect, and the liens of all alike are subordinate to that of the vendor.
    3. Delay in the enforcement of the vendor’s lien from mere indulgence does not postpone it to the liens of judgment and execution creditors. It subsists against the vendee as long as the debt for the purchase money is not paid or barred, and so continues against judgment creditors, who succeed only to the interest of the vendee in the land, which is, what is left after the purchase money is paid.
    (Decided March 14, 1899.)
    Error to the Circuit Court of Paulding county.
    Action to enforce vendor’s lien. Judgment below giving tlie lien priority, affirmed. The case is sufficiently stated in the opinion.

      Snook c& Wilcox, for plaintiffs in error.

      Hiram, Glen, for defendant in error
   Williams, J.

The question in the case is whether, upon the following state of facts, the vendor’s lien asserted by the defendant in error is entitled' to priority over the liens of certain judgments recovered against the vendee by the plaintiffs in error.

On the second day of July, 1883, the defendant in error, Solomon Albright, then the owner of a tract of 1 and m Paulding county, sold and conveyed it to William Albright for the price of six hundred dollars, for which the purchaser gave his three notes, payable in four, five and six years, respectively, from that date. The deed was placed on record and the purchaser went into possession. The notes having become due and being unpaid, Solomon Albright, on the sixth day of November, 1895, brought the action below to recover judgment on the notes and enforce his lien on the land. From 1890 to 1893, William Albright became indebted to L. Miller and J. B. Baxter jointly, and to F. W. Hyman, and Emmett Barnes severally, in various small amounts, upon which judgments were recovered in 1894, and 1895, and executions issued on them were levied on the land. The judgments of Miller and Baxter were recovered in the court of common pleas, and those of the other two creditors before justices of the peace, and transcripts-were filed with the clerk on which the executions were issued. These judgment creditors were made parties to the action brought by Solomon Albright, in which they set up their respective liens and asked that they be given preference over the lien of the plaintiff. The indebtedness upon which the judgments were rendered accrued while the debtor appeared of record to be the owner of the land, and the creditors were without knowledge that the purchase price of the land was unpaid; and, in an action brought by them a judgment was obtained setting aside as fraudulent a conveyance made of the land by' their-debtor; but Solomon Albright was not a party to that suit, nor does it appear that he had any knowledge of it, nor that any further proceedings were had after the deed ■was set aside.

The existence and validity of the plaintiff’s lien are undisputed; but its priority is contested on the grounds, (1) that by the levy of their executions the judgment creditors obtained an advantage at law; and (2) that they have the better equity because credit was given the vendee by them on the faith of his apparent ownership of the land, and, by reason of the delay of the vendor in the enforcement of his lien.

The supposed classification of the liens of vendors suggested in argument, into those existing before, and those arising when the conveyance is made, and denominating the latter a grantor’s lien as distinguished from the former, is critical, but unimportant, and can serve no useful purpose in solving the question before us. Until conveyance made the vendor retains his whole estate in the land, which cannot properly be called a lien. True; he may tender. a conveyance and look to the land as a security for the purchase money, and enforce payment by subjecting the land, or any property of the vendee, to sale for that purpose. But, as said by a learned author, it is a complete misuse of legal terms to call the interest of the vendor a lien when it is the full legal estate. The lien proper of the vendor arises only upon conveyance, and in that sense the term is generally employed and. well understood. It was observed by Read, J., in Brush v. Kinsley, 14 Ohio, 21, 23, that: “Before the legal title passes from the vendor on a contract for the sale of land, there is no such thing as a lien. The vendor’s remedy, in such case, is upon the contract, either to enforce specific performance, or in an action at law. The vendee cannot compel a relinquishment of the legal title until he has clothed himself with the equity by the payment of the purchase money. ” The superiority of the vendor’s lien in that, its proper sense, over the liens of judgments recovered against the vendee, though recovered on indebtedness contracted without notice, whatever the rule may be elsewhere, has been maintained in this state from an early period in its history; certainly as early as Patterson v. Johnston, 7 Ohio, 225. The absolute justice of the lien against the vendee and those who take under him with notice, is indisputable. Common honesty requires that one who buys land of another should pay for it, or, if he does not, that the land should be held for whatever he fails to pay. In equity the vendee holds the legal title in trust for the vendor, and has no beneficial interest in the land except to the extent of any excess that may remain after full payment of the purchase money. And, it is a well established rule that the lien of a judgment attaches only to such beneficial interest in land as the judgment debtor has at the time of its rendition; and, when the rule is not otherwise affected by statutory regulation, as in cases of mortgages and other instruments which become effectual against third persons only on proper registration, the judgment lien is subject to all equities concerning the land which could be successfully asserted against the debtor. This rule is declared in Tousley v. Tousley, 5 Ohio St., 87, where it is said that so far as the statute goes in giving a judgment creditor preference over mortgages not perfected by delivery to the recorder, “his rights are absolute, but for everything else he is remitted to general principles, and on general principles it is very clear that he acquires a lien only upon the interest of his debtor, and is bound to yield to every claim that could be successfully asserted against him.” Hence, the lien of the vendor must be as effectual against the judgment creditor who simply succeeds to the interest of the vendee in the property, as it is against the vendee himself. The vendor and the party holding the judgment being equally meritorious creditors, the former has the better equity, because so much of the land as is necessary to pay the amount due him on the purchase price is in equity his property, which ought not to be taken for the payment of another’s debt. The levy of an execution issued on the judgment adds nothing to the dignity of the lien, or the equity of the creditor. It is merely a step in the enforcement of the judgment or for the preservation of the lien, and has no other effect than to limit the lien to the property levied on when that is sufficient to satisfy the judgment. The levy, like the judgment, reaches nothing more than the interest which the debtor has in the property. In Boos v. Ewing, 17 Ohio, 500, where a vendor’s lien was given preference over judgment liens, not only had executions been levied, but the land had been sold by the sheriff and the proceeds were in the hands of the court awaiting confirmation of the sale. The court said, “the land it is true has been levied upon and sold on the execution, yet the sale is not confirmed nor the money paid into the hands of the judgment creditor. Ib is yet in the custody of the court, where it is held for the use of the one having the better claim. The vendee, creditors, and purchaser are in court. None of them have any desire that the sale should be set aside. They, together with the complainant, wish it confirmed. Why should the court refuse then to do what equity requires, and secure complainant the benefit of his lien in this form, and to the creditors the surplus? Certainly' he came not too late to preserve his equitable right, because he came before confirmation and in time to prevent it if necessary; and in time also to prevent the bidder at sheriff’s sale from placing himself in the condition of a purchaser without notice. Before confirmation he might interfere, after that it would perhaps be too late.”

Nor, is it perceived how the equity of the judgment creditors in this case was enlarged by the decree setting aside the fraudulent conveyance made by their debtor. The decree left the title in the debtor as if the conveyance had not been made, subject to the liens as they had theretofore existed, and the order of their priority was not disturbed.

Creditors of the vendee who become such while the title appears of record in his name presumably extend credit to him on the faith of his property responsibility; and the claim that they acquire an equitable right to have the land applied to their debts in preference to that due the vendor who by the execution and delivery of the deed enaoles the vendee to obtain credit, rests, it is contended, on the principle that a loss which must fall on one of two innocent parties from the act or default of a third person, should be borne by him who has been instrumental in producing the condition which caused the loss. This has always been forcibly urged as a serious objection to the allowance of a vendor’s lien as against creditors without notice, and it has prevailed in some jurisdictions, but not in this state. If it were an original question here it would challenge the most careful consideration. The objection lies equally to all equitable liens of which there is no record, or actual notice, and in some measure has received legislative approval. It has been so far adopted in our legislation as to deny priority to equitable and unrecorded mortgages over judgment liens, but as yet the rule which has hitherto prevailed with respect to vendor’s liens remains mndisturbed. This is not without significance as a legislative recognition of the rule, especially in view of its long continued application in this state within the cognizance of the legislative body whose province it is, rather than of the courts, to make a change if one were deemed advisable. The rights of a vendee under a contract of purchase before conveyance, stand on much the same footing as those of a vendor after conveyance. In each case the one holds the land in trust for the other; and the vendee, to the extent that he has paid the purchase money, is preferred to creditors of the vendor who without notice of the unrecorded contract of purchase extend to him their credit, and recover judgments against him while the legal title remains in him. White v. Denman, 1 Ohio St., 111, 112; Lefferson v. Dallas, 20 Ohio St., 68. In both instances the parties deal with specific property, while general creditors do not, though they have actual knowledge of the recorded title, and have the property in view as a means of enforcing collection of the debt. Their position is essentially different from that of a purchaser. It is obvious that actual knowledge by a judgment creditor when the indebtedness due him was incurred, that the title to the land appeared of record in the name of the vendee, and an expectation to look to the land as a means of obtaining satisfaction of his debt, can give him no greater rights than those of other creditors without such knowledge or expectation. In contemplation of law all have notice of what the record discloses, and tlieir expectations are immaterial; each stands on an equality with the others in this respect, and the liens of all alike are subordinate to that of the vendor»

There is then nothing in the case that takes it out of the established rule which accords preference to the lien of a vendor for unpaid purchase money over judgment and execution liens, or that should deprive the defendant in error of the relief awarded him, unless some ground for doing so is to be found in his delay in instituting the action below. The three purchase money notes matured in July, 1887, 1888 and 1889, respectively, and the action was commenced in November, 1895, a period of something over six years, after the maturity of the last note. It is not shown . nor charged that the plaintiff by any act or declaration caused anyone to believe the debt had been paid, nor that' the delay was from any bad faith or improper motive, nor otherwise than from mere indulgence of the debtor. That the purchase money was payable in installments instead of a gross sum is unimportant, and no action could be brought until one of the notes matured. The debts due the plaintiffs in error on which their judgments against the vendee were recovered, were contracted at different times between 1890 and 1894, and whatever of foundation there is for the supposed equity they seek to maintain, grew out of the fact that credit was given the vendee in reliance on his apparent record title, and the equity therefore arose, if at all, at the time the debt was contracted, and not from anything that occurred subsequent to that time; so that, it must necessarily be as strong in favor of one who became a creditor of the vendee within a year or a-month after the maturity of the purchase money, as it is in favor of one becoming a creditor any number of years afterward, short of the statutory bar. And, as observed by Burnett, J., in Tiernan v. Beam, 2 Ohio, 383, 387, it is not readily seen “by what rule of construction a limitation can be applied to the equitable, that does not equally affect the legal right. The security for the debt should be as permanent as the debt itself. They ought to exist and expire together. The object of the one was to insure the enjoyment of the other. The lien was intended to prevent one man from enjoying the property of another without consideration. ” In Patterston v. Johnston, supra, the lien of a vendor was upheld and. given preference over judgments against the vendee after a period much longer than in this case had elapsed between the time the deed was recorded and the contracting of the debts on which the judgments were recovered, as well as between the maturity of the purchase money and the bringing of the action.

The lien subsists against the vendee until the debt for the purchase money is paid or barred; and there is no reason why it should not so continue against judgment creditors who succeed only to the property interest which the vendee has in the land. The plaintiff’s debt was not barred, nor his equity stale; and the judgment below directing its payment out of the proceeds, of the land, in preference to the claims of the plaintiffs in error is

Affirmed.

Minshall, J., dissents.