author: By the Court :

text:
    Board of County Commissioners of Hamilton County v. Arnold.

      Collection of taxes — County commissioners no jurisdiction to authorize county treasurer to collect delinquent taxes — Section $858, Rev. Stat. — Delinquent list must be publicly read —Compensation of collectors.

    1. County commissioners have no jurisdiction to authorize a county treasurer to employ a collector to collect personal delinquent taxes under section 2858, Revised Statutes, until they first cause the delinquent list to be publicly read as provided in that section.
    2. An appointment of such collector can be authorized only for the collection of the whole or any part of the delinquent list which has been caused to be so publicly read.

      3. There is no authority under said section 2858, to employ a collector to collect future delinquent lists.
    4. Under said section 2858, the county commissioners must definitely prescribe the compensation of such collectors, before collections are made; and that duty is not performed by prescribing that the compensation shall not exceed a certain amount, or a certain per centum.
    (Decided January 21, 1902.)
    Error to the Circuit Court of Hamilton county.
    The defendant in error presented a claim for $1,582.52 to the commissioners for allowance, for collection of delinquent chattel taxes, from April 30, to May 11, 1900, being twenty-five per cent, commission on $6,330.09 collected. The delinquent taxes collected were all on the delinquent list of 1898 and later years, except $11.47 on the list of 1897 and earlier list.
    The following correspondence and resolution show the only appointment of Mr. Arnold as collector of delinquent personal taxes:
    “Cincinnati, O., November 25, 1898.
    To the Honorable the Board of County Commissioner's, Hamilton County, Ohio.
    Gentlemen — I desire to appoint special collector of delinquent chattel taxes, and beg to request that your honorable board delegate such power to me, as provided in section 2858, Revised Statutes of Ohio, and that such authority be in conformity with previous resolutions of your board, as to compensation, etc., for the performance of duty contemplated.
    Very respectfully,
    Tilden R. French, Treasurer of Hamilton County, Ohio.
    Mr. Breen moved, that the communication be ordered received and filed.
    Linnemann, aye; Breen, aye; Korb, aye.
    RESOLUTION.
    Be and it is hereby resolved, That under the provisions of section 2858 of the Revised Statutes of Ohio, the cofinty' treasurer of Hamilton county, Ohio, is hereby authorized and empowered to employ a collector or collectors for the collection of delinquent personal taxes, such authority to apply only to personal taxes delinquent in any year or years other than a current tax year, which delinquent taxes shall appear on the auditor’s supplement duplicate of delinquent personal taxes, and the compensation to be allowed such collector or collectors, including any or all expenses incident to such collections, shall not exceed twenty-five per centum of the amount so collected and turned into the county treasury, such compensation to be paid from the county fund, upon approval by this board.
    Mr. Breen moved to adopt the resolution.
    Linnemann, no; Breen, aye; Korb, aye.”
    “Cincinnati, December 17, 1898.
    Hon. Board of County Commissioners, Hamilton County, Ohio.
    Gentlemen — I have the honor to inform you that I have appointed Chas. B. Arnold, to be collector of delinquent personal taxes for this office under authority provided in your resolution of November 26,1898, and approved by the Hamilton county board of control, November 29,1898, and that his compensation is fixed at a sum equal to twenty-five (25) per cent, of the collections made by him and paid into the county treasury.
    Very respectfully,
    Tilden B. Fbench, Treasurer of Hamilton County, Ohio.
    And Mr. Breen moved — that the communication from the county treasurer be received and filed.
    Linnemann, no; Breen, aye; Korb, aye.”

      “Office of the Board of Control, Hamilton county.
    Cincinnati, O.,-, 190-.
    The following appears of record in board of control minutes of November 29, 1898:
    On motion of Mr. Engelke, seconded by Mr. Wabnitz, a resolution empowering and authorizing the treasurer of Hamilton County, to employ a collector for the collection of delinquent personal taxes, delinquent in any year or years other than the current year, at a compensation not to exceed twenty-five per centum of the amount so collected and turned into the county treasury, including any or all expenses incident to such collections, was concurred in.
    On concurrence: .
    Mr. Weber, yea; Mr. Engelke, yea; Mr. Wabnitz, yea; Mr. Bauer, yea.”
    “County Treasurer’s Office, Hamilton County, Ohio.
    Cincinnati, November 30, 1898.
    Mr. Charles B. Arnold,
    Sir — By virtue of a resolution passed by the board of county commissioners on November 26, 1898, and approved by the county board of control on November 29, 1898 (such resolution being in conformity with section2858, Revised Statutes of Ohio), you are hereby appointed “collector of delinquent chattel taxes” for this office, at the compensation provided in said resolution (namely, an amount equal to 25 per cent, of collections made by you and paid into the county treasury). Your employment is from this date, and during my term of office as county treasurer.
    Tilden R. French,
    Treasurer of Hamilton County, Ohio.”

      The board of county commissioners referred the claim of Mr. Arnold to the county solicitor, and his opinion being adverse, the board rejected the claim. Mr. Arnold appealed the matter to the court of common pleas, and his claim was there allowed. The circuit court affirmed the judgment, and thereupon the matter was brought here -by the commissioners, seeking to reverse the judgments of the courts below, and the dismissal of Mr. Arnold’s claim.

      Gideon G. Wilson, county solicitor.

      Ottoay J. Gosgrave and Oliver B. Jones, assistant county solicitors, for plaintiff in error.

      Frank F. Dinsmore and Charles C. Benedict, for defendant in error.
   By the Court :

Said section 2858, Revised Statutes under and by virtue of'which Mr. Arnold claims his appointment, reads as follows:

“The county commissioners shall, at their September session annually, cause the list of persons delinquent in the payment on personal property to be publicly read; and they may at any time, if they deem the same necessary, authorize the treasurer to employ collectors to collect the same or any part thereof, prescribing the compensation of such collectors which shall be paid out of the county treasury; and all such allowances shall be apportioned ratably by the county auditor among all the funds entitled to share in the distribution of such taxes.”

The list in this section spoken of is the delinquent list; and the section is mandatory in so far as causing that list to be publicly read. The reading is for the information of the county commissioners, to enable them to judge and determine, from hearing the list read, whether they deem it necessary to authorize the treasurer to employ collectors to collect the list or any part thereof, and to prescribe the proper and reasonable compensation to be paid to such collectors for their services. Without hearing the delinquent list read, they would have no information upon which to determine whether they deem it necessary to authorize the treasurer to employ such collectors; neither could they determine whether the whole list should be collected by collectors, or only a part thereof, and the remainder by the treasurer, as by other statutes provided; nor could they determine Avithout hearing the list read, AA'liat compensation should .reasonably be paid for the collections to be made. So that until the delinquent list is caused to be read, the commissioners can take no step toAvard authorizing the appointment of a collector, and any step taken by them before the reading of such list is absolutely void. The causing of the list to be publicly read is a condition precedent to authorizing the treasurer to employ such collector. It is the manner provided by statute for bringing the question of appointing collectors before them for consideration and determination. Statutes enacted for the protection of the public revenues, are usually not merely directory, but mandatory.

When the delinquent list has been so publicly read, the commissioners may at any time Avhen they deem it necessary, authorize the treasurer to employ collectors to collect the same, or any part thereof; that is, to coliect that list which has been so read, but such employment Avould ho.ld good for that list only and Avould not extend to the next delinquent list. Each delinquent list must be read and an employment made to collect the same, but there can be no employment of collectors to collect future lists. The employment of such collectors cannot be turned into an office to be held to the end of the treasurer’s term, or for any definite period. His employment is to collect the delinquent list Avhich has been read, or some part thereof, and Avhen that is done, his.employment ends.

This section of the statute provides that the commissioners shall prescribe the compensation of the collectors; and the provision is not complied Avith AA’hen the commissioners prescribe that it shall not exceed a certain sum, or certain per centum. They are required to fix definitely and exactly Avhat compensation the collector shall receive. It is their judgment that is to be exercised, and not the judgment o-f the treasurer, though limited by fixed bounds.

In this case it is conceded that the commissioners did not cause the delinquent list to be read. They therefore had no jurisdiction to authorize the treasurer to employ a collector, and the pretended employment of Mr. Arnold Avas void, not only as to the collection of the delinquent list of 1897, but also as to that of the succeeding year '1898, in Avhich substantially all the collections in question were made. It Avas also void for the further reason that the commissioners failed to prescribe his compensation. It cannot be tolerated that he make his collections, and the commissioners fix and alloAV his compensation thereafter. The compensation must be prescribed by the commissioners before the collections are made. The statute not having been complied Avith, it follows that Mr. Arnold is not entitled to receive any money out of any public treasury for the collections by him made, and the commissioners properly rejected his claim. The court of common pleas erred in rendering judgment, in his favor, and the circuit court erred in affirming the common pleas.

The judgments of both courts will be reversed, and judgment rendered in favor of the plaintiff in error, and against the defendant in error.

Judgments reversed, and judgment for plaintiff in error.

Williams, Btjrkbt, Spear, Davis and Shauck, JJ., concur.


source: Caselaw Access Project

author: Shatjck, J.

license: Public Domain

text:
    The American Surety Co. v. Boyle et al.

      Surety upon bond — To indemnify one of several sureties upon replevin bond — Not held'to indemnify cosureties»of indemnified surety — Query as to participation of co-sureties in premium paid by principal.

    1. A surety upon a bond given to indemnify one of several sureties upon a replevin bond, being a stranger to the action of replevin, is bound no further than he agrees to be bottnd, and he will not, by construction and against the terms of his obligation, be held to indemnify co-sureties of the indemnified surety.
    2. When such indemnifying surety, being a surety company, executes its bond in consideration of a premium paid to it by the principal obligor in the replevin bond, the right of co-sureties to recover, whether against the company or the indemnified surety, cannot exceed the amount of the premium paid, that being the extent .of the impairment of the ability of the principal to discharge his primary obligation. Whether there may be a recovery to that extent we do not determine.
    (Decided February 4, 1902.)
    Error to the Circuit Court of Mahoning county.
    Boyle brought suit in the court of common pleas against the surety company, McCurdy and others being cosureties with Boyle upon the replevin bond mentioned in the statement of the case. He sought and obtained a recovery against the insurance company and against McCurdy upon the following state of facts which appear from the pleadings and the special finding made in the court of common pleas: On the 22nd day of November, 1886, the firm of Mc-Gillin & Company commenced an action of replevin in the court of common pleas against the sheriff of Mahoning county and others' to recover possession of chattels which were in the hands of the sheriff. In that action the plaintiffs gave a bond in the sum of $33,964.32, with McCurdy, Boyle and others as sureties for them, the bond being conditioned that McGillin & Company should duly prosecute said action and pay all costs and damages which might be awarded ¿gainst them. Upon the approval of the bond the chattels which were the subject of the action were delivered to the firm of McGillin & Company. Pursuant to a demand made by McCurdy before signing the replevin bond as surety, the members of the firm of McGillin & Company as principals and the surety company as surety, executed to McCurdy an indemnifying bond in the same penal sum as that named in the replevin bond, the same being payable to Mc-Curdy, his heirs, executors, administrators and assigns. The condition of the indemnifying bond is:
    “Whereas in an action now pending in the court of common pleas in the county of Mahoning, and state of Ohio, wherein Edward M. McGillin & Company are plaintiffs, and Eli B. Walker et al. are defendants, the said Robert McCurdy, with others, became the sureties on the bond of the said Edward M. Mc-Gillin & Company, for the penal sum of $33,964.32, in an action in replevin instituted in said court, and which bond is conditioned in substance that the said plaintiffs, Edward M. McGillin & Company, shall duly prosecute the said action, pay all costs and damages which may be awarded against them, a copy ofl which bond and the appraisal thereto attached isi hereto annexed and made a part of this instrument, and,
    “Whereas, the said Robert McCurdy is desirous of being indemnified and saved harmless from loss or damage-arising out his suretyship upon the bond of said Edward M. McGillin & Company, and,
    “Whereas, the said Edward M. McGillin & Company have applied to the said American Surety Company for such bond of indemnity,
    “Now, therefore, ‘the condition of this obligation is such that, if the said Edward M. McGillin & Company shall duly prosecute the said action and pay all costs, and damages which may be awarded against them, and shall and-will truly keep and save harmless the» said Robert McCurdy from loss or damage arising out. of his having entered into and executed-said bond of replevin, as one of the sureties thereon, then this obligation to be void; otherwise to remain in full force- and effect-.”
    The petition in the present case alleges that the» consideration for said indemnifying bond was paid to the surety company by McGillin & Company, it. being the sum of $250. The court finds that the premium Avas paid by McGillin & Company, and that it amounted to the sum of $420. This bond was executed without the knowledge of any of McCurdy’s co-sureties.
    In the action of replevin judgment was rendered against McGillin & Company and in favor of the-sheriff, and thereafter those for whose benefit the sheriff had held the property recovered judgments on the replevin bond for sums which in the aggregate exceeded $25,000. One-fiftlx of the amount of said judgments was paid by Boyle,' and one-fifth by the surety company directly to the persons in whose favor said judgments werg recovered, but on account of McCurdy’s liability as surety in the replevin bond. Other facts were found upon the cross-petitions of other sureties respecting their rights as against Mc-Curdy and the company, but the statement of those facts may be omitted in the present case. Upon the facts so found the court rendered judgment in favor of Boyle against the insurance company for $5,985.68 and costs and against McCurdy for $1,113.62, that being one-fifth of the sum which the surety company had paid for McCurdy’s benefit; the judgment against McCurdy to be satisfied by the full payment of that rendered in favor of Boyle against the surety company. Further finding and judgment was entered against the surety company on account of the liability of other sureties upon the replevin Rond, but it is not material to any questions now considered. On petitions in error filed in''the circuit court.by the surety company and McCurdy the judgments of the common pleas court were affirmed. The same parties now present petitiofis in .error here for the reversal of the judgments of the circuit court and the common pleas court.

      Myron A. Norris; B. F. Wirt and 8. D. L. Jackson, for plaintiffs in error, cited the following authorities:

      Hall v. Cushman, 16 N. H., 462; Bank v. Carroll, 5 Ohio, 208; State v. Medary, 17 Ohio, 554; McGovney v. State, 20 Ohio, 93; State v. Cutting, 2 Ohio St., 1; Hall v. Williamson, 9 Ohio St., 17; Adams v. Flanagan, 36 Vt., 400 Robertson v. Deathridgem, 82 Ill., 511; Oldham v. Broom, 28 Ohio St. 41; Keith v. Goodwin, 31 Vt., 268; Harris v. Warner, 13 Wend., 400; Deering v. Earl of Einchelsea, 2 B. & P., 270; Leggett v. McClelland, 39 Ohio St., 624; Moore v. Moore, 15 Am. Dec., 523; Hampton v. Phipps, 108 U. S., 260; Monson v. Drakely, 40 Conn., 552; Robinson v. Boyd, 60 Ohio St., 57; Camp v. Bostwick, 20 Ohio St., 337; Barbour v. Bank, 45 Ohio St., 133; Horst v. Dague, 34 Ohio St., 371.

      G. F. Arrell,• T. McNamara; R. B. Murray; W. S. Anderson; M. C. McNab Nand King, McYey & Robinson, for defendants in error, cited the following-authorities :

      Niece v. Rogers, 7 Circ. Dec., 671; 14 R., 646; Oldham v. Broom, 28 Ohio St., 41; Cannon v. Connoway, 5 Del. Ch., 559; Berridge v. Berridge, 44 Ch. Div., 168; Bank v. Teeters, 31 Ohio St., 36; Emmitt v. Brophy, 42 Ohio St., 82; Hale v. Wetmore, 4 Ohio St., 600; Barber v. Bank, 45 Ohio St., 133; Stump v. Rogers, 1 Ohio, 533; McConnell v. Scott, 15 Ohio, 401; Voss v. Murray, 50 Ohio St., 193; Parsons on Contracts, 186; Gilbert v. Wymen, 1 Comst., 550; Rodmen v. Hedden, 10 Wend., 498; Lathrop v. Atwood, 21 Conn., 117; 2 Story’s Equity, section 850; Kramer v. Bank, 15 Ohio, 253; Pratt v. Walworth, 8 Circ. Dec., 472; 15 O. C. C., 412.
   Shatjck, J.

The indemnifying bond executed to McCurdy by McGillin & Company with the American Surety Company as surety was in no sense substituted for the bond given in the action of replevin. By executing it the firm of McGillin & Company incurred no obligation additional to that already incurred as plaintiffs in that action and principal obligors in the replevin bond. The indemnifying bond did not contemplate the payment of the damages that might result from the taking of the property, except as the discharge of. that primary obligation of McGillin & Company was suggested as the natural mode by which McCurdy should be saved from his contingent liability as surety. It was, in legal effect, wholly independent of the action of replevin, the bond given in that action being referred to for the sole purpose of identifying the liability against which McCurdy was to be indemnified. Although the amount of the indemnifying bond equals that of the replevin bond it does not exceed the conditional liability of McCurdy. The indemnifying bond is in a sum payable to him without terms indicative of an intention to benefit either the obligees or the other sureties in the replevin bond. The motive for its execution is expressly statd to be McCurdy’s desire that he should be indemnified. The surety company, being a stranger to the action in replevin by which 'McGillin & Company wrongfully took the property which was the subject of the action, is bound no further than it has agreed to be bound, and the obligation defined by the terms of its contract is fully discharged by the indemnification of McCurdy. There is, therefore, no foundation for the judgment against the surety company

It is not less evident that the terms of the indemnifying bond afford no foundation for the judgment against McCurdy. While the bond was for his indemnity only, it was for his full indemnity, and his right thereto is denied by the judgment against him, or a liability must be asserted against the surety company beyond the stipulations of its contract. If, as is the case of the surety company, McCurdy’s relations to the transaction were those only which are defined by the indemnity bond this would be an end to the inquiry.' But he is one of five sureties on the replevin bond, and it is insisted that out of that relation there arose an obligation to his co-sureties which, upon the facts found, is a full justification for the judgment against him. The doctrine invoked is tha't one of several sureties -who receives an indemnity froin the property of the principal is deemed to hold it for the equal benefit of all the sureties. It is true that this doctrine does not depend upon express contract. It is the creature of equity to be applied Avhen, and only Avhen, its application is justified by the equitable considerations Avhich gave rise to it. It is said to be applicable in this case because, although the indemnity came from the surety company, a stranger to the replevin bond, and in the discharge of the obligation which Avas imposed upon it by the indemnity bond, the premium Avas paid by the principal in the replevin bond. Assuming that McCurdy is amenable to the rule invoked notwithstanding his refusal to execute the replevin bond until indemnified, the field of necessary inquiry is bounded by tAvo familiar rules. On the one hand, a surety deriving indemnity from, the property of the principal obligor is charged with respect to it as trustee for his co-sureties; and, upon the other, a surety may obtain indemnity from a stranger to the obligation and retain it for his sole protection. In vieAv of its peculiar facts it cannot be said that this ease is clearly comprehended Avithin either of those familiar rules; and in the absence of definite authority Asm are obliged to resort to a consideration of the reasons upon which those equitable rules are founded. The case does not permit us to présume either that McCurdy demanded this indemnity for the benefit of the obligees or of his co-sureties in the replevin bond, or that liis co-sureties consented to Ms obtaining indemnity for bis sole benefit. Tbe surety Avho receives indefimity ffom tbe property of tbe principál is treated as a trustee for bis co-sureties either because of tbe presumption that be obtained it for tbe equal benefit of all, or because tbe diminution of tbe property of the principal, and tbe consequent diminution of bis ability to discharge bis primary obligation, Avould operate as a fraud upon the co-sureties if tbe special indemnity is obtained without their consent. On tbe other band tbe surety who obtains special indemnity from a stranger to the obligation is not charged as a trustee for bis co-sureties because no injui*y is done them, tbe ability of tbe principal to discharge bis primary obligation not being diminished. Tbe right of a surety to procure indemnity for bis sole benefit is, therefore, restricted only by tbe requirement that it must not be obtained to tbe prejudice of bis co-sureties. Counsel for tbe defendants in error quote numerous comprehensive statements of tbe doctrine Avhich bolds an indemnified surety to be a trustee for bis co-sureties, but if limited to tbe facts considered they are all consistent Avith this vícav. Tbe character of tbe transaction is determined by its substance and not by a mere incident. Leggett v. McClelland, 39 Ohio St., 624. There is nothing of substance in the transaction here ■considered except that in consideration of the premium y>aid to it and by a contract AAdiose force is Avholly expended in defining the liability of one and tbe commensurate rights of tbe other, tbe surety company assumed tbe place of McCurdy with respect to bis liability as surety upon the replevin bond, •the liability of tbe co-sureties being in no way affected except as the ability of McGillin & Company to discharge their primary liability was diminished by the payment of the premium. What appears, therefore, to be the controlling question suggests an inevitable answer.' What possible injury resulted to the co-sureties of McCurdy beyond the amount of the premium paid?

Furthermore, the judgment against McCurdy implies that the surety company is liable to those with whom it entered into no engagement. Remembering that the indemnifying bond is for the full indemnity of McCurdy, it is evident that if he should be required to pay the amount of the judgment against him he would, by the terms of his bond, have a valid demand against the surety company on account of that payment, with the obvious result that by indirection the company would be held bound to indemnify those for whose liability it has neither received a premium nor assumed an obligation.

We have examined Gibson v. Sheehan, 28 L. R. A., 400, which is said to have influenced the opinions of a majority of the judges of the circuit court in the present case. Analysis shows that it applies a general rule to a case which is not comprehended by it because not within its reason. It was evidently supposed to be supported by Hampton v. Phipps, 108 U. S., 260, which is inconsistent with it, holding, as it does, that the general doctrines under consideration are to be applied or rejected according to the dictates of the reasons upon which they rest, and applying those doctrines in that case to the denial of the right of participation. Whether the co-sureties of Mc-Curdy are entitled to maintain an action for their proportion of the premium paid we do not determine. That question is not properly presented, the allegations of the petition and' the findings of the court in that regard being inconsistent, and counsel omitting the question from the larger view of the case which they have presented.

Judgments of the common pleas and circuit courts reversed and judgments for the surety company and McGurdy.

M’inshald, C. J., Bukket and Davis, JJ., concur.


author: Davis, J.

text:
    Unger v. Unger.

      Son in possession of real estate — Under parol contract from father — Without intending to waive any rights — Contracts with lessee by which son becomes' tenant of father — Such contract is waiver of son’s parol contract with father.

    Where- one who was in possession of real estate under a parol contract from his father to corivey the land to him if he would move on and improve the land, having performed the terms of the parol contract, subsequently, without intending to waive any of his rights, but without being induced by fraud, signed a contract with his father, by which contract he became a tenant of the latter, closing all former controversies and disputes, and in which contract the land is spoken of as the father’s land and in which the lessees covenant “to take good care of the farm as if it were their own,” and also covenant to abide by and with the contract, the signing of and acceptance under the lease, by the lessee, is a waiver of his rights under the parol contract to convey, and he is not entitled to specific performance of such parol contract.
    (Decided February 4, 1902.)
    Error to the Circuit Court of Paulding county.
    .4. G. Robeson and Snook é Savage, for plaintiff in error.

      Holland <£ Willis, for defendant in error.
   Davis, J.

The views which we entertain in regard to one of the assignments of error in this case render it unnecessary to consider the others. The defendant in error began the action in the court of common pleas to obtain specific performance of an alleged parol agreement by Isaac Unger, the defendant, to '■convey to John J. Unger, the plaintiff, the land described in the petition, if John J. Unger would move upon and improve the land. ' It was alleged that the plaintiff had performed all the conditions on'his part; and that a certain subsequent lease from the defendant to the plaintiff and his brother was obtained by fraud. The defendant, Isaac Unger, denied that lie ever made any such agreement or promise, and admitted that he leased the eighty acre tract described in the petition by a written lease entered into January 27,1898, but denied that the contract of lease was fraudulently made. The court of common pleas dismissed the petition.

On the hearing of the case in the circuit court the court found from the evidence that the- defendant entered into a contract Avith the plaintiff to convey the land in question; that the plaintiff has kept and fulfilled on his part all and singular the terms and conditions of the contract so made; that the plaintiff had so performed on his part prior to January 27, 1898, on which date the contract of lease was signed by- the plaintiff at the request of the defendant, but that said lease was not procured by fraud. The court also found that the plaintiff did not, at the time of signing the lease, or by signing it, intend to waive or surrender any claim, right or interest in or to the land in controversy. The court overruled a motion by the defendant for judgment in his favor upon the facts as found by the court, but gave a decree for the plaintiff as prayed, and this is assigned as error.

The theory on which this decree seems to have been made is that the finding of fact, that the plaintiff in signing and accepting the lease did not intend to waive any of his rights in the land previously acquired, necessitates the legal conclusion that he did not thereby waive his claims and acknowledge a superior title. But this cannot be .correct reasoning. When one man kills his friend unintentionally, it does not follow from the fact that he did not intend to kill, that he did not do so. It may well be, as found by the circuit court, that the plaintiff did not intend to waive his claim to this land; but if he nevertheless, by a written contract, made, without fraud, acknowledged- a paramount title in the' defendant, he cannot be heard to say that his admissions and covenants thus solemnly made are meaningless or of no effect. 1-J.e must abide by the terms of the agreement which he has made. Indeed the parties to this instrument, which they expressly term a “contract and agreement,” “agree to abide by and with this contract.” By it the defendant “agrees to let unto the second parties (the plaintiff and his brother) the use of his farm.” This is an assertion of a paramount title in the defendant, and is inconsistent with the ,claim of ownership in the lessees or either of them. The letting is “for the term of one year from March 15, 1898, on the following terms, to-wit: Levi Unger to have the north half of the above described farm and John J. Unger (the plaintiff) to have the south half of the above described farm, providing they pay one-fourth (NjJ of the tax, etc. To have the use of all the land cleared, etc. To take good care of fruit trees. To take good care of farm as if it were their own, etc.”

These stipulations are manifestly inconsistent with the idea of title or right of possession in either of the lessees, and with tjhese before us it seems impossible to believe that if the plaintiff intended to assert a right of possession with a right to enforce a conveyance in fee, he would accept the mere use of the property for a limited time upon the conditions prescribed. Finally this contract expressly took the place of all other claims and settled all former controversies and disputes. “The first and second parties agree to live in peace and harmony with each other and also with the first party, etc. Also all past controversies to be forever hushed and all disputes to be settled by the first party.”

: In short, the written contract conclusively shows that the plaintiff had abandoned the parol contract on which he now claims. He elected to be a tenant of the defendant, and is estopped from asserting a claim which is inconsistent with the landlord’s title. The possession of the plaintiff after the making of the lease is referable to the lease, and lias so continued to be ever since.

The decree of the circuit court is reversed and judgment rendered for the plaintiff in error.

Williams, Burket, Spear and Shauck, JJ., concur. Minshall, O. J., absent.


author: Speak, J.

text:
    Williams v. Donough.

      Insurance benefits not liable to attachment — Section 3631-18, Rev. Stat. — Passed as act of April 27, 1896 — Invalid, because in conflict loith section 2 of article 1 of the constitution — Constitutional law.

    Section 3631-18, Revised Statutes, which provides that the benefits rendered by associations organized ■ under the act of which that section is a part, entitled "an act regulating fraternal beneficiary societies, orders, and associations,” passed April 27, 1896 (92 O. L. 360), shall not be liable to be appropriated in any way to the debts of the members or beneficiaries, confers privileges upon some of a class not enjoyed by others of the same class, and is invalid because in conflict with section 2 of article 1 of the constitution.
    (Decided February 4, 1902.)
    Error to the Circuit Court of' Hamilton county.
    The plaintiff in error, who was plaintiff below, obtained a judgment before a justice of the peace against the defendant, for $200 and costs. Proceedings in aid of execution, under section 6680, sub. 1-5, Revised Statutes, were taken to enforce the judgment against the defendant, and Ivanhoe Council, No. 284. of the Royal Arcanum, located in the city of Cincinnati, and the Supreme Council of the Royal Arcanum, a corporation having its principal place of business in the city of Boston, in the state of Massachusetts. On motion of the defendant .the justice dismissed the proceeding in aid of execution, - on the ground that the fund sought to be reached ivas exempted under section 3631-18, Revised Statutes. Appeal was then taken to the common pleas, and the Royal Arcanum brought in by interpleader. The fund was the proceeds of a membership certificate held by one John O. Donough, deceased husband of defendant. By consent the court fixed the interest of the defendant in the fund owing by the Arcanum at $1,350; and further ordered that $400 be retained and held to await the final disposition of the case, and the balance, including the remainder of the fund, be distributed to the defendant and the children of the said deceased. Thereupon, on hearing, the court sustained the judgment of the justice dismissing the proceedings and awarding judgment for defendant. This judgment was affirmed by the circuit court. Plaintiff brings error.

      Ed. II. Williams., for plainti ff in error.
    Section 3G31-18, Revised Statutes, is unconstitutional because: 1. It has the effect, if operative, to destroy the property of the creditor (the debt) by, in effect, transferring it to the debtor, in violation of section 1, article 1, of the constitution; and impairs the obligation of a contract, and so violates section 28, article 2, of the constitution. 2. It grants special privileges to some of which others of the same class are deprived, and so conflicts with section 1 of article 2 of the constitution. 3. It deprives the creditor of due process of law in violation of section 1G of article 1 of the constitution.

      Matter of Jacob, 98 N. Y., 98; Dennis v. Moses, 40 L. R. A., 302; Board of Education v. Blodgett, 31 L. R. A., 70; Cooley’s Constitutional Limitations, 6 ed., page 484; Darcey v. San Jose, 104 Cal., 645; State ex rel. v. Hammer, 42 N. J. L., 439; Gulf C. & S. F. R. Co. v. Ellis, 165 U. S., 159; State v. Hancock, 48 Atl. Rep., 1023; Sutton v. State, 33 L. R. A., 589; State v. Hammer, 42 N. J. Law, 439; Elkhart Mut. Aid Assn. v. Houton, 103 Ind., 286; State v. Bankers & M. Asso., 23 Kan., 499; Ill. Masons Ben. Soc. v. Winthrop, 85 Ill., 479; Same v. Baldwin, 86 Ill., 479; Commonwealth v. Weatherby, 105 Mass., 149; Wiggins v. Knights of Pythias, 31 Fed. Rep., 122; Sup. Lodge K. of H. v. Nairn, 60 Mich., 44; State Ins. Co. v. Horner, 14 Colo., 391; Holden v. Hardy, 169 U. S., 366; 10 Am. & Eng. Ency. Law (1 ed.), 307; Werner v. Bumbury, 30 Mich., 201; Turnpike Co. v. Parks, 50 Ohio St., 568; C. J. Marshall in Sturges v. Crowninshield, 17 U. S. (4 Wheat.), 198; McMillan v. McNeil, 17 U. S. (4 Wheat.), 213; Ogden v. Saunders, 25 U. S. (12 Wheat.), 213, and Bronson v. Kinzie, 42 U. S. (1 How.), 311.

      Byron M. Clendening, for defendant in error.
    The section is not unconstitutional but is a proper exercise of legislative power, in that it candes out the humane policy of protecting the weak and needy, and wisely refusing to extend exemption protection to the strong and undeserving, and is not different from many other provisions for exemption to be found in the statutes of the state whicli have not been successfully attacked as unconstitutional.
    Sections 5427, 5428, 5429, 5430, 5431, 5434, 5435, 5436 and 5441, Revised Statutes; McConville v. Lee, 31 Ohio St., 447; McComb v. Thompson, 42 Ohio St., 139; Scars v. Hanks, 14 Ohio St., 298; Harvey v. Harrison, 89 Tenn., 470; Mason v. State, 58 Ohio St., 30, 48; Schillinger v. Boes, 85 Ky., 367; Jewell v. Grand Lodge, 41 Minn., 405; American Legion of Honor v. Perry, 140 Mass., 580; Ballou v. Gile, 50 Wis., 614; Bank v. How, 65 Minn. Rep., 189; Brown v. Balfour, 46 Minn., 68; Austin v. McLaurin, 1 N. Y. Sup., 209; Eadie v. Slimmon, 26 N. Y., 9; Barry v. Insurance Co., 59 N. Y., 587; Barren v. Brummer, 100 N. Y., 374; Leonard v. Clinton, 33 Supreme Court Rep. N. Y., 288; Vilvon v. Marsonin, 18 Lower Canada Jurist, 251; Saunders v. Robinson, 144 Mass. Rep., 309; Shillinger v. Boes, 85 Ky. Rep., 357, Syl. 3.
   Speak, J.

The question, and the only one brought to this court, is as to the exemption claimed by the defendant and allowed by the courts below. Is the statute allowing it constitutional ?

The Royal Arcanum is such a society or association as is defined by the act of April 27, 1896, 92 O. L., 360 (sections 3631-11 to 23, Revised Statutes, being a part of the general laws relating to life insurance companies), and having complied with the requirements of said act, is entitled to conduct its business in the state. It is a fraternal beneficiary association, organized and carried on for the sole benefit of its members and their beneficiaries. The section providing exemption is as follows: “The money or other benefit, charity, relief or aid to be paid, provided or rendered by any association authorized to do business under this act, shall not be liable to attachment by any trustee, garnishee, or other process, and shall not be seized, taken, appropriated or applied by any legal or equitable-process ; or by operation of law,to pay any debt or liability of a certificate holder, or of any beneficiary named in the certificate, or any person who may have any rights thereunder.”

In support of the contention that the attempted exemption is invalid, three propositions are advanced: First, that the debt due from the defendant to the plaintiff is property which, by the constitution, he has an inalienable right to acquire, possess and protect, and the section quoted, if operative, takes the property of the creditor and transfers it to the debtor. Second, that the act unlawfully discriminates in favor of certificate holders in these associations, or their beneficiaries, giving to them advantages and privileges which are not accorded to holders of certificates or policies of other associations of a similar character, viz.: ordinary life companies, and other beneficial associations; and third, that the section unlawfully discriminates in favor of these fraternal associations by permitting them to offer advantages to members denied to ordinary life companies and to associations not organized under this act.

1. The debt, it is true, is in a sense property. But the realization of advantage from the debt, when not accorded voluntarily by the debtor, depends upon the will of the law-making power. It may provide adequate laws for the full collection of debts, or it may omit to do so; it has power, within limits of the constitution, to declare what property shall be exempt from the force of the collection laws, and when that power has been lawfully exercised, the effect is to make the law a part of subsequently executed contracts. In the present case it does not appear that the debt was incurred prior to the passage of the act recited. This point, therefore, seems not well taken.

2. Does the section unlawfully discriminate in favor of certificate holders or their beneficiaries? It may conduce to clearness of understanding to recur to the ground on which the exemption of property from execution is sustained. Generally, if not universally, legislation of this character is based upon the ground of an enlightened public policy, as tending to preserve the family home, thus fostering the family relation, and in that way promoting the general welfare. This is done by exempting within reasonable limits, the homestead of the head of a family, and, in a similar way, certain articles of personal property necessary- to the use and enjoyment of such homestead; and even, in some instances, money in a limited amount, arising from the sale of property where there is no homestead. As stated before, these privileges are accorded, not as matter of favor to the individual; not for the benefit of the impecunious only, but apply to all alike who are of the classes and in the situation included, and are justified by considerations of the general good. So, in some instances, are the tools of workmen exempt; this on the ground that to take away his implements of labor is to take away his capacity to maintain himself and those dependent upon him, and thus tend to make them a burden upon society. This does not imply that the exemption is granted to the person as a favor; it imports the exact opposite. Such acts, when based upon proper classification, have been sustained on the ground above indicated, but acts which seek to select particular persons, supposedly needy and deserving, and make, in form of exemptions, donations to them, have generally not been sustained, and clearly ought not to be, for there is no power in a law-making body to bestow mere charity where it works a practical denial of justice to creditors. Such selection is open to the objection that it is the attempted exercise of purely personal and arbitrary power; it undertakes to arbitrarily separate some persons from others upon which, but for such limitation, the act would operate, and thus form a class, not upon any reasonable basis of difference of characteristics, capriciously, but as matter of will and not of reason.

It is to be noticed that the sections by favor of which the Arcanum is doing business' are classified under the head of life insurance companies. This because it is understood that such associations have one of the characteristics of ordinary life companies; that is, they are organized for the sole benefit of their members and beneficiaries'; they make provision for the payment of benefits in case of death, and the fund from which the payment of such benefits is to be made shall be derived from assessments, dues or other payments collected from the members. While, therefore, the Arcanum is a voluntary fraternal association, having features of a secret society, and perhaps some others not usually found in the ordinary life company, such as the payment of sick and disability, benefits, its obligation for payment of death benefits is a contract by which the association, for a consideration, promises to make a certain payment of money upon the destruction or injury of something in which the member has an interest, to-wit: his life. And whatever may be the terms of the payment of the consideration by the assured, or the mode of estimating or securing the payment of the sum in case of loss, and although the object of the insurer in making the contract is benevolent and not speculative, such a contract is a contract of insurance. May on Insurance, 4th ed., section 1; Commonwealth v. Weatherby, 105 Mass., 149.

Now the section quoted (3631-18), provides a sweeping, absolute exemption of the money or other benefit going to the certificate holder or beneficiary from seizure for any debt or liability. No such exemption is provided with respect to any ordinary life policy, nor with respect to a certificate of an association doing business on the weekly payment or industrial plan, although it must be manifest that the characteristics and condition of the people who will be benefited by one contract in no essential differs from those who may be benefited by the other. And the same is true when comparison is made with other benevolent associations authorized by our statutes. It follows that the provision for exemption is an attempt to make an arbitrary classification by selecting a few of a class and conferring upon them privileges and benefits not conferred upon others coming within the same class, and is, therefore, invalid. The vice lying at the bottom of the whole scheme is that the exemption is made to depend, not upon the condition or characteristics of the recipient of the benefit, but upon the source from which the benefit is to be derived. It discriminates unequally in favor of one set of beneficiaries as compared with persons receiving money from other sources; thus favoring some beneficiaries as compared with other like beneficiaries, and at the same time, and by the same provision, denying that relief to some creditors, which, by other enactments, is accorded to others of like kind. In a word, the section fails to protect equally those who are the recipients of property, and fails to protect equally those who have the right to resort to the laws for the enforcement of claims against property, and is, therefore, in conflict with section 1, article 2, of the constitution. Coal Co. v. Rosser, 53 Ohio St., 12; State v. Ferris, 53 Ohio St., 314.

3. If the conclusion stated in' the preceding paragraph is correct, it follows inevitably that the section under review not only discriminates unreasonably between individuals of the same class, but that it also unreasonably discriminates between corporations of the same class. It affords to these fraternal orders the privilege of offering to the public an insurance contract the proceeds of which, no matter what the amount, are wholly exempt from the debts of the member or beneficiary, while no such privilege is accorded to any other organization having authority to make an insurance contract.

It is possible that other exemption statutes of this state have been sustained which bear some resemblance to the section in question, but we are not aware of any decision of this court which has upheld a statute containing the peculiar vices found in the section under review.

The judgments of the circuit court and of the common pleas will be reversed and the cause remanded to the latter court to be there further proceeded with according to law as on appeal.

Reversed.

Bbkket, Davis and Shauck, JJ., concur.

MiNSHALh, C. J., absent.


author: Burket, J.

text:
    Brown et al. v. Fowler et al. Brown et al. v. The Ohio Oil Company et al.

      Oil and gas lease with granting, habendum, condition subsequent and surrender clauses — One dollar consideration for lease applies to each clause — Habendum clause for two years — Or as long as gas or oil is found — Not to exceed Uoenty-five years —Lease terminates absolutely in two years, no gas or oil being found — Condition that lessee shall pay one dollar per acre xmder certain delays to drill, null and void, when — Right of lessee to surrender lease — Contracts and their interpretation.

    1. An oil and gas lease with a granting clause, a habendum '' clause, a condition subsequent, and a surrender clause, was given in consideration of one dollar paid: Held — that the one dollar so paid was paid for the whole lease, and applied to each clause thereof, so that there was a sufficient consideration, not only for the lease, but also for each clause, and every part thereof.

      2. There being no.time for the lease to run stated in the granting clause, the habendum clause was, to have and to hold the same unto the said lessee, his heirs and assigns, for the term of two years, and as long thereafter as oil or gas is found in paying quantities, not exceeding in the whole twenty-five years, and no oil or gas having been found on the premises within said two years: Held — that the lease terminated absolutely at the end of two years, and that the right to drill ceased at the end of that time, unless there was an extension of the time found in other parts of the lease.
    3. Further along in the lease the following appeared: “In case no well shall be drilled on said premises within twelve months from the date hereof, this lease shall become null and void, unless the lessee shall pay for further delay at the rate of one dollar per acre at or before the end of each year thereafter, until a well shall be drilled.” Held — that the payment of one dollar per acre, could in no event have the effect to extend the lease beyond the two years mentioned in the habendum clause, and no oil or gas having been found within the two years, the right to drill under the lease ceased at that time.
    4 Said lease also had the following clause: “It is agreed that the lessee shall have the right at any time to surrender this lease to lessor ^or cancellation, after which all payments or liabilities to occur under and by virtue of its terms, shall cease and determine, and the lease become absolutely null and void.” Held — that this clause, when taken in connection with the granting and habendum clauses, does not create an estate at will. Held also that as the consideration of one dollar paid for the whole lease was also a paj^ment for this clause, the lease is not void for want of mutuality.
    5. Another lease in every respect like the above, except that instead of the clause as to drilling a well within twelve months, had the following clause as to that matter: “In case no well shall be drilled on said premises within two years from the date hereof, this lease shall become null and void, unless the lessee shall pay for the further delay at the rate of one dollar per acre at or before the end of each year thereafter, until a well shall be drilled.” No well having been drilled, and no oil or gas found within the two years mentioned in said cause, the payment of one dollar per acre could in no event have the effect to extend the lease, or the right to drill, beyond the term of two years mentioned in the habendum clause, unless the parties should by a further contract extend the. time.
    6. No oil or gas having been found, within the two years, said clause is too indefinite to supply the terms of an agreement for a further extension of the lease, or for further time in which to drill.
    7. That which is made certain in one part of a written instrument,' cannot be overcome or changed by words in another part, unless such other words are of equal or greater certainty.
    (Decided February 4, 1902.)
    Error to the Circuit Court of Harrison county.
    These'two cases were heard and considered together and will be so reported.
    The following written instrument Aims duly executed and recorded:
    “Agreement made this eighth day of December, A. D. 1S96, betAveen Catherine Fowler and Jeremiah Fowler, her husband, of the township of North, county of Harrison, and state of Ohio, lessor, and H. A. Snyder, lessee, Avitnesseth, that the lessor, in consideration of one dollar, the receipt of which is hereby acknoAAdedged, does hereby demise and grant unto the grántee, his heirs and assigns, all the oil and gas in and under the following described tract of land, and also the said tract of land for the purpose and AA’ith the exclusÍAre right of operating thereon for said oil and gas, together with all the rights of AATay, the right to lay pipe lines on and OA’er and to use Avater from said premises, and also the right to remoAre, at any time, any property placed thereon by the lessee, Avhich tract of land is situated in the township of North, county of Harrison, and state of Ohio, and is bounded and described as follows, to-wit:

      “North by lands of Jeremiah Arbaugh; east by lands of widow Arbaugh; south by lands of William Donaldson; west by lands of Canaga, containing twenty acres, more or less.
    “To have and to hold the same unto the lessee, his heirs and assigns for the term of two years from the date hereof, and as long thereafter as oil or gas is found in paying quantities thereon, not exceeding in the whole the term of twenty-five years from the date hereof, yielding and paying to the lessor, the one-eighth part of all the oil produced and saved from the premises, in tanks or in pipe lines to the lessor’s credit, and should any well produce gas in sufficient quantities to justify marketing, the lessor shall be paid at the rate of one hundred and fifty dollars per year for each well, so long as the gas therefrom is sold.
    “In case no well shall be drilled on said premises within twelve months from the date thereof, this lease shall become null and void, unless the lessee shall pay for the further delay at the rate of one dollar per acre at or before the end of each year thereafter until a well shall be drilled. Such payments may be made in hand or by deposit to the lessor’s credit in the Scio Bank.
    “It is agreed that the lessee shall have the right at any time to surrender this lease to lessor for cancellation, after which all payments or liabilities to accrue under and by virtue of its terms, shall cease and determine and the lease become absolutely null and void.
    “It is understood that all the terms and conditions between the parties hereto shall extend and apply to their respective heirs, executors, administrators and assigns.
    “Witness the hands and seals of the parties.
    Catherine Fowler, [seal.]
    J. Fowler, ' [seal.]
    H. A. Snyder. [seal.]'’
    This instrument was duly assigned by Mr. Snyder, and came by successive assignments to the plaintiffs in error, also plaintiffs beloAV, and all the assignments Avere duly recorded.
    Catherine Fowler and her husband on the 26th day of November, 1898, claimed that the above lease was void, and on that day executed another lease of the same premises to one George Gillmore, which lease Avas duly recorded, and on the 9th day of December he notified the holders of the first lease not to do any more work on said premises. Thereupon on December 15, 1898, the plaintiffs in error commenced an action against him and the Fowlers to enjoin them from drilling upon said premises for oil and gas, and the defendants filed a cross-petition to enjoin the plaintiffs from operating on said premises. The case Avent to the circuit court on appeal and upon the trial in that court there was a separate finding of facts and conclusions of law, the facts upon which the case turns being as íoUoavs :
    “4. No oil or gas well had been drilled by the lessee, H. A. Snyder, or his assignees, on said leased premises within two years from- the date of said lease, and no oil or gas had been found thereon, nor had said lessee or his assigns taken any possession or done any work on said premises, until about the tenth day of November, 1898, when the Scio Oil and Gas Company then owning said lease, began to place thereon materials for tlie erection of a derrick, and continued the work thereon from time to time, and had erected thereon a rig for the purpose of drilling for oil and gas prior to the eighth day of December, 1898, but had not begun to drill, and no well had been completed on said leased premises, nor could be drilled and completed by the eighth day of December, 1898, nor had oil or gas been found thereon prior to said eighth day of December, 1898, but the Scio Oil and Gas Company, after tendering the same to one of the lessors, Jeremiah Fowler, deposited in the Scio Bank, Scio, Ohio, the sum of forty dollars, .to the credit of the lessors, on the first day of December, 1898, to pay for the further delay in drilling a well on said premises for two years after the-eighth day of December, 1897.
    “6. That the lessors refused to accept said sum of forty dollars, so deposited in payment of the further delay in drilling a well on said leased premises, and the same still remains on deposit, as stated, in the Scio Bank.
    “7. That on the twenty-sixth day of November, 1898, the said defendants, Catherine Fowler and Jeremiah Fowler, claimed that said lease was void by reason of the facts found and stated in finding number 4 hereof, and thereupon executed another indenture of lease on the same premises for oil and gas purposes, to the defendant, George Gill more, who had full knowledge of the character, nature, effect and literal terms of said former lease of December 8, 1896, to H. A. Snyder.”
    The lease to George Gillmore is conceded to be valid in case the former lease for any cause had become invalid.

      The circuit court held the first lease invalid and the second one valid, and rendered judgment in favor of the Fowlers and Mr. Gillmore, ■ and thereupon the holders of the first lease came here seeking to reverse the judgment of the circuit court.

      Edward McBweeny and 1). -A. Hollingsworth, for plaintiffs in error.
    The question of the sufficiency of consideration, or in other words, the lack of mutuality, is raised merely by construction or implication upon the face of the instrument.
    The deed acknowledges the receipt of one dollar consideration, and the circuit court in its first finding of fact, finds that a valuable consideration was paid, as therein set forth. The grantors, for the consideration expressed, did “demise and grant unto the lessee, his heirs and assigns, all the oil and gas in and under the described land * * * with the exclusive right of operating thereon for oil and gas, together with all the rights of way,” etc.
    No authority is cited for the proposition that such a grant is void, as a merejmdum pactum, in the absence of equitable grounds for relief. No authority can be produced to- sustain this contention. The paper designated as Exhibit’ “B” is not executory in its character; but purports to be an executed grant and demise, by apt words in the present tense) of “all the oil and gas;” and leaving out the habendum and other subsequent clauses, would pass a fee simple estate therein. Northwestern O. Nat. Gas. Co. v. Browning, 8 Circ. Dec., 188; 15 C. C. R., 84.
    A seal to an instrument imports a consideration, or renders proof unnecessary. The presumption is, that what is executed with so much deliberation, .and solemnity is founded upon sufficient cause. Anderson’s Dictionary of Law, edition of 1890, “Seal,” page 927. Storms v. United States, 94 U. S., 84; 6 Am. & Eng. Ency. Law (2 ed.), 682, “Consideration;” lb., pages 684 and 762, “Specialties,” and note 4.
    A deed purporting to be for consideration can not be contradicted by the grantor by evidence that there was no consideration. Hammond v. Woodman, 66 Am. Dec., 219; Thompson v. Thompson, 68 Am. Dec., 638. Parol evidence as to the consideration can be received only when it is offered for some purpose other than that of defeating the conveyance. Maupin on Marketable Titles to Real Estate, page 383n.

      Quare, whether a deed under seal is required to name any consideration. Thompson v. Thompson, 17 Ohio St., 649.
    One dollar may be a sufficient consideration. Skerrett v. Presbyterian Society, 41 Ohio St., 606.
    Even in those states where specialties may be impeached under statutes, changing the common law rule, a deed will be good without consideration where none was intended by the parties. 6 Am. & Eng. Ency. of Law (2 ed.), 795, 796.
    Parol evidence is admissible to show an additional consideration to the one expressed; Vail v. McMillan, 17 Ohio St. Rep., 617, but it is not admissible to show a different kind of consideration from that expressed in the deed. Holmes v. Sullivan, 9 Re., 499; 14 Bull. 167.
    Want of mutuality is no defense to an executed contract. Given v. Hodge, 55 Pa. St., 504.
    But even when a contract is executory, mere inadequacy of consideration or value.is not in itself a sufficient reason to refuse to specifically enforce it. Whether the bargains of persons, competent to deal with their own affairs are wise or unwise, are considerations not for courts of justice, but for the parties themselves to deliberate upon. Railroad Co. v. Railroad Co., 98 Ala., 400; 39 Am. St. Rep., 74.
    Want of mutuality in a contract is no defense to an action thereon, if it was in the nature of a continuing offer which the other contracting party has accepted, and he has performed everything which the contract left him an option of performing. Water Co. v. Lumber Co., 39 Am. St. Rep., 284.
    In suits upon unilateral contracts, the defendant is held bound, if he has had the benefit of the consideration for which he has bargained. Cooper v. Wheel Co., 34 Am. St. Rep., 341.
    Our contention is this, that we must give effect to all the language of the lease, if possible, and that we should adopt a construction that will be harmonious and consistent. It is a cardinal rule of interpretation that the court should gather the intention from the “four corners of the 'written instrument.” In other words, the construction must be upon the whole instrument and not upon disjointed parts of it. Rule 8, Elphinstone’s Interpretation of Deeds, 36; citing Wolfe v. Scarborough, 2 Ohio St., 361; Wager v. Wager, 1 Serg. & R. (Pa.), 374; Jackson v. Blodget, 16 Johns, 172; Richardson v. Palmer, 38 N. H., 218; Jackson v. Myers, 3 Johns., 388; McCoy v. Bixbee, 6 Ohio, 310; Kelley v. Mills, 8 Ohio, 325; Chamberlain v. Railway Co., 15 Ohio St., 225; Railway Co. v. Railway Co., 44 Ohio St., 287; Shep. Touchstone, 87; section Elphinstone, 77; Throckmorton v. Tracy, 1 Plow., 161; Ib. Elphinstone, section 77; Evans v. Vaughn, 4 B. & C., 266; Hilbers v. Parkinson, 25 Ch. D., 203; Elphinstone, section 39; Thomp

      son v. Hatch, 3 Summ., 176; Elphinstone, rule 10, 47; Kerr on Real Property, 1048, section 1197, Hoffman v. Mackall, 5 Ohio St., 124; Elphinstone, section 36; Rickman v. Carstairs, 5 B. & Ald., 663; Monneypenny v. Monneypenny, 9 H. L. C., 146; Bobo v. Wolf, 18 Ohio St., 463; Hutcheson v. McNutt, 1 Ohio, 14; White v. Sayre, 2 Ohio, 110; Sloan v. Biemiller, 34 Ohio St., 492; Worman v. Teegarden, 21 Ohio St., 380; Coal Co. v. Mining Co., 40 Ohio St., 559; 25 N. J. L. Rep., 106; Railroad Co. v. Railway Co., 44 Ohio St., 287; Heywood v. Heywood, 66 Am. Dec., 277; 7 Ency. of Law (2 ed.), 118, “Contracts;” Foley v. McKeegan, 66 Am. Dec., 107; Conwell v. Pumphrey, 68 Am. Dec., 611; Whitton v. Whitton, 75 Am. Dec., 163.
    Counsel for the defendants appear to think that the land would be “tied up” and kept undeveloped at the pleasure of the lessee if our contention be correct; but authorities are numerous in Pennsylvania, Ohio and elsewhere, in which it is held that the lessee can be compelled-to drill a reasonable number of wells upon the land and to protect the same from drainage by surrounding operations. Ohio Oil Co. v. Hurlbut, 7 Circ. Dec., 321; 14 C. C. R., 144; Kleppner v. Lemon, 38 Weekly Notes of Cases (Pa.), 388; Harris v. Ohio Oil Co., 57 Ohio St., 118.
    It is quite evident that the same trouble, in reference to the failure to operate the lease, which counsel' for defendants apprehend, might arise, even though oil or gas should be obtained within the two years; because the lessee might neglect to drill a sufficient number of wells to protect the territory from drainage ; but the authorities, above cited, as well as others which might be produced, abundantly show that the lessor has his remedy to compel the lessee to operate the land; and that courts of equity afford ample protection for this purpose. Besides, self interest is always a strong factor with the lessee, as well as with the lessor; and acts as a spur to promote proper development; and the implied covenant is a sufficient protection, and indeed, in most' cases, is about the only protection which thé lessor requires, to secure himself in the proper development of the land.
    In this case, the parties have stipulated as to what shall constitute due diligence. They have made their agreement in writing covering this question. No other or different agreement appears from the evidence than that disclosed by the writing.
    In so far as the construction which the defendants • ask, amounts to a forfeiture, -it is not favored.
    Nothing less than a clear expression of intention that a provision shall be such, will make it a condition upon which the continuance of an estate depends. And where causes of forfeiture are expressed, other causes are not to be inferred. Barringer and Adams Law of Mines and Mining in the United States (1897 ed.), page 148.
    The rights of the parties should be determined by the writing itself.
    The rights and remedies of the parties to an oil or ggs lease, must be determined by the terms of the written instrument, and the law applicable to one form of lease may not be, and generally is not applicable to another and different form. Such leases are contracts, and the terms of the contract with the law applicable to such terms must govern the rights and remedies of the parties. Harris v. Oil Co., 57 Ohio, St., 118; Effinger v. Lewis, 32 Pa. St., 370; Homer v. Leeds, 25 N. J. L., 106.

      Persons may contract in the form of an option. Ray v. Gas Co., 138 Pa. St., 576; McMillan v. Philadelphia Co., 159 Pa. St., 142; Wills v. Manufacturers Nat. Gas Co., 130 Pa. St., 222; Glasgow v. Chartiers Oil Co., 152 Pa. St., 48; Cochran v. Pew, 159 Pa. St., 184.

      Liggett v. Shira, 159 Pa. St., 350, and kindred cases; but all these cases are distinguishable from our case, in this respect, that the instrument in this case contains no covenant.
    In the case at bar, as we have argued, the lease was not limited to two years, but it could be extended by the payment of rental indefinitely, up to the maximum of twenty-five years, unless, in the meantime, by reason, of surrounding oil developments, it should become necessary to protect the lines of the lease. In this latter event, we would concede that the lease might be forfeited, but not without noice and after a reasonable time thereafter had been given to begin operations.
    If the lease expired absolutely in two years, then the rental clause was meaningless. No rent would become due or payable until after the lease expired. A construction which thus nullifies a material part of a written instrument, and this at the expense of the plain meaning of the parties, is certainly not admissible. We do not find any case in Ohio exactly in point, except an unpublished opinion of Judge Thompson of the United States circuit court at Columbus, in which he sustains the first lease, in an able opinion filed in the case of Brown & Myers v. Allegheny Oil Co. [unreported]. We think the circuit court also erred in the rejection of testimony offered on the trial of the case.

      Walter G. Bhotwell; Jno. B. Chapman; James W. Lee; Eugene Mackey and B. Bchoyer, Jr., & Hunter, for defendants in error.
    There can be no question of one fact; the purpose of the lessee in making the lease to Snyder was simply and solely to secure the development of this land. Other than the promise of this, they received no consideration for this incumbrance of their land but one single dollar. Ohio Oil Co. v. Hurlbut, 7 Circ. Dec., 321; 14 C. C. R., 144.
    Snyder and his assignees were bound to proceed with diligence to develop this land. It is not enough for them to say that oil had only recently been discovered at Scio and that the owners of this lease had thousands of acres there, all needing development. This lease stands by Itself. , A well was to be drilled upon, this land within twelve months. The term of the lease was only two years. Within that time the lessee must have a well completed or quit.
    It is claimed this lease continues as long as he pays the rental, not exceeding twenty-five years — and if tbis is true it must be claimed that this twenty acres of land, in the midst of a great oil field, may be withheld from development entirely, for twenty-five years, by the payment of a paltry rental of one dollar per acre, per year. Certainly a startling proposition!
    Whatever the term this land can be held under this lease, it must be fixed by one or the other of two clauses of the lease itself. There is nothing else in the lease that says anything about how long this land shall be held by the lessee. Detlor v. Holland, 57 Ohio St., 492.
    This same question has been settled again by this court. Gas Co. v. Tiffin, 59 Ohio St., 420; Gas Co. v. George, 161 Pa. St., 47.

      We contend that this lease expired by limitation upon the expiration of the two year terms, by reason of the failure upon the part of the lessee and his assigns, to have a well thereon within the two years, which was actually producing oil or gas in paying quantities. No such well was drilled, and the circuit court so found. We think the authorities interpret the material features of this lease exactly as contended for by the defendants. Riddle v. Mellon, 147 Pa. St., 30; Bettman v. Harness, 42 W. Va., 433; Bryan on Petroleum and Natural Gas, 159; Gas Co. v. Tiffin, 59 Ohio St., 420.
    This so-called lease to Snyder is a contract entirely without mutuality and is void. State v. Baum, 6 Ohio 383; Turnpike Co. v. Coy, 13 Ohio St., 84; Chitty on Contracts, 15.
    Counsel for defendants also cited:

      Brooks v. Kunkle, 24 Ind. App., 624; Glasgow v. Chartiers Oil Co., 152 Pa. St., 48; Packer v. Noble, 103 Pa., 225; Huggins v. Daley, 99 Fed. Rep., 606; Bettman v. Harness, 42 W. Va., 433; Dumper’s Case, 1 Smith L. C., 109; Oil Co. v. Oil Co., 86 N. Y., 638; Eclipse Oil Co. v. South Penn Oil Co., 47 W. Va., 84; 2 Bl. Comm. 145; 4 Kent Comm., 111; Washburn Real Property, 505; Coke’s Institutes, 55 A; Trees v. Eclipse Oil Co., 47 W. Va., 107; Chamberlain v. Parker, 45 N. Y., 569.
   Burket, J.

As the terms of the two leases are the •same,- except the paragraphs as to drilling the first well, the Fowler lease will be first considered in full, and then the Minard lease in so far as the paragraph as to drilling the first well causes that lease to differ from the Fowler lease.

It will be noticed by a careful examination of the Fowler lease, that it has a granting clause, a habendum clause, a condition ■ subsequent or defeasance clause, and a surrender clause. The price paid, or consideration for all these clauses, that is for the whole lease, was one dollar, the receipt of which is acknowledged in the lease.

The instrument grants the oil and gas, and also the land for the purpose of operating thereon for said oil and gas, and it is therefore a lease, and not merely a license. Woodland Oil Co. v. Crawford, 55 Ohio St. 161.

The length of time for which the grant is made is not stated in the granting clause, but, as was held in Martin v. Jones, 62 Ohio St., 519, 525, the habendum clause makes definite the granting clause as to time. The words in the habendum clause are: “To have and to hold the same unto the lessee, his heirs and assigns for the term of two years from the date hereof, and as long thereafter as oil or gas is found in paying quantities thereon, not exceeding in the whole the term of twrenty-five years from the date hereof.”

This clause means that the term of the lease is limited to two years, but that if within the two years oil or gas shall be found, then the lease sháll run as much longer thereafter as oil or gas shall be found in paying quantities; but if no oil or gas shall be found within the two years, the lease shall at the end of the two years terminate, not by forfeiture, but by expiraion of term; and after the expiration of said two years no further drilling can be done under the lease; and even if oil or gas or both shall be found wdthin the two years, the whole term of the lease must termínate at the end of twenty-five years from the date of the lease. Detlor v. Holland, 57 Ohio St., 492.

So that, by the aid given by the habendiom clause to-the granting clause, the length of the term of the lease is settled and definitely fixed.

After the length of the term of the lease is thus definitely and certainly settled, comes the condition subsequent, or defeasance clause which says: “In case no well shall be drilled on said premises within twelve months from the date thereof, this lease shall become null and void, unless the lessee shall pay for the further delay at the rate of one dollar per acre at or before the end of each year thereafter until a well shall be drilled.”

This clause clearly means that the lease may be made to~ terminate in less time than two years, that is at the end of twelve months, by a failure to drill a well on the premises within the twelve months; but that the lessee may prevent such termination of the lease at the end of twelve months by paying for further delay at the rate of one dollar per acre, at or before the end 'of each year thereafter, until a well shall be drilled. That is, the payment must be made at or before the end of the second year of the lease, and the further delay cannot be beyond the term of two years fixed as the lifetime of the lease. And the words “until a well shall be drilled,” mean until a well shall be drilled within the two years, the term of the lease. So that this clause cannot have the effect in any event to extend the lease beyond the two years definitely and certainly fixed in the habendum clause.

If this is not the clear construction of this clause, then its mfeaning is doubtful, and uncertain; and the uncertainty of this clause cannot in legal effect have the force to overcome the certainty on the same subject in the habendum clause. Certainty in one part of an instrument will always prevail over uncertainty on the same subject matter in other parts. True an instrument must be considered and construed as a whole, taking it by the four corners as it were, and giving effect to every part; but when one part is certain on a given subject, and all the other parts are uncertain on that subject, the certain will prevail over the uncertain, even though there seems to be a general indefinite intention pervading the whole instrument to some extent inconsistent with such certainty.

Next comes the surrender clause in these words:

“It is agreed that the lessee shall have the right at any time to surrender this lease to lessor for cancellation, after which all payments or liabilities to accrue under and by virtue of its terms, shall cease and determine and the lease become absolutely null and void.”

It is urged by counsel for defendants- in error in both cases that this in legal effect makes the lessee a mere tenant at will — his own will — and it being a tenancy at will as to one party, it is so as to both, and that the lessor by giving the second lease exercised her will and terminated the lease.

It is conceded that a tenancy at the will of one party, is a tenancy also at the will of the other.

But this lease does not create a tenancy at will. Blackstone defines an estate at will as follows: “An estate at will is where lands and tenements are let by one man to another, to have and to hold at the will of the lessor.” 2 Blackstone, 145. This definition is adopted by Kent, vol. 4,110, and by writers generally, but it has been so extended as to also include estates at the will of the lessee. Doe v. Richards, 4 Ind., 374. The land under this lease was not let to have and to hold at the will of the lessor, but on the contrary, to have and to hold for the term of two years. The term of two years is definite and certain, and cannot be disregarded in the construction of the lease, and this surrender clause cannot have the force to destroy the two years term and make it a tenancy at will.

The term of two years certain and this surrender-clause are not inconsistent, full force can be given to both. This surrender clause is an option, intended to enable the lessee to terminate the lease before the end of the term if it shall appear that there is no oil or gas in that territory. Under this clause the lessee can terminate the lease before the end of the term by surrendering the lease, and under the defeasance clause he can do the same by failing to drill a well and failing to pay for further delay. The right to terminate the lease in either of said ways is a valuable right to the lessee, and he paid for both by paying the one dollar mentioned as the consideration for the whole lease. Such options in contracts are sustained by courts. Thayer v. Allison, 109 Ill., 180; Woodland Oil Co. v. Crawford, 55 Ohio St., 161. The error of construing a condition subsequent, or an option, as creating the term of the lease, when that has been created by the granting and habendum clauses, has caused many decisions to be rendered whose soundness may well be doubted.

This clause gives the lessee his option, and for which he has paid, to hold the lease to the end of the term, or surrender it sooner. It is always the right of a person holding an option for which he has paid to surrender it before the expiration of the time, or to hold it for the full time; but the person who gave the option canot compel a surrender before the expiration of the full time.

It is also urged by counsel for defendants in' error in both cases that the lease is void for want of mutuality. Granting that the lease was made for the purpose of operating thereon for oil and gas, and that an exclusive right to so operate was granted to the lessee, there is no want of mutuality. The lessee on his part paid one dollar, of which the lessor acknowledged receipt, and the lessee on his part made the demise, and because the lessor has performed his part in full and does not promise to do anything further, it is claimed that there is no mutuality; the claim being that mutuality requires that an obligation must rest on each party to do, or permit to be done, something in consideration of the act or promise of the other.

This is too narrow a definition of mutuality. One party may perform his part in full at the making of the contract and thereafter have nothing to do, or permit to be done, — having already done his part— and the other party in consideration of what has thus been done, binds himself to do, or permit to be done, something in behalf of the party who has thus fully performed.

A promise to perform can be no stronger than performance itself; and where one party promises to perform his part of a contract and the other performs his part at the making of the contract, both are bound and there is mutuality. The one who has performed is bound to permit his performance to stand, and the one who has not performed, is bound to perform his part, so that both are mutually bound. Performance on part of one will sustain a promise to perforin on t'he part of the other. Where there is no performance and no promise to perform on one side, a promise to perform on the other side is without consideration, and without mutuality, and such a contract can be held void on either or both grounds.

In this lease the lessee paid one dollar for the lease, for the exclusive right to operate for oil and gas, and thereby fully performed his side of the contract; and the lessor granted that right under the terms and conditions of the lease, and thereby a contract was made, and the party on one side received the one dollar in full, and the party on the other side received the demise, and then both were mutually bound, and both bad to trust to the future for the realization of the purpose for which the lease'was made.. So that there is no want of mutuality, and in that respect the lease is valid.

From the findings of fact it appears that no well was drilled on the premises in the Fowler lease, and no oil produced within two years, from the date of the lease, and as the payment deposited in the bank on the first day of December, 1898, had only the effect to keep the lease alive until the eighth day of December, 1898, it follows that the lease terminated on that day by reason of expiration of the term of two years expressed in the lease, and that from and after the eighth day of December 1898, the plaintiffs in error had no right to drill upon the Fowler lease, or occupy the lands under that lease for any purpose. This disposes of the controversy as to the Fowler lease, and what is said above as to the granting clause, the habendum clause, and the surrender clause in the Fowler lease, is also applicable to the Minard lease, because as to those matters the two are the same. What is said above as to the construction of instruments when one part is certain, and another part on the same subject uncertain, is also applicable to the Minard lease.

In the case of Brown v. Oil Company, supra, the lease is on one hundred acres of land and was executed on November 12,1896, by one Minard and wife to said H. A. Snyder, and came to said plaintiffs in error by assignments, and all were duly recorded. The lease was for two years, and was upon the same blank form as the Fowler lease to Snyder, and was word for word the same as the Fowler lease, except the date, the description of the lands, and the paragraphs as to when a well should be drilled.

On February 3, 1899, the Ohio Oil Company took a lease of the same premises for oil purposes, and the same was duly recorded, and is conceded to be valid if the first lease by Minard and wife to Snyder is invalid.

The petition for injunction by plaintiffs in error was filed February 15, 1899, and the same legal proceedings were had as in the Fowler case, and upon trial on appeal in the circuit court the material.facts found are as follows:

“4. No oil or gas well had been drilled by said lessee, H. A. Snyder, or his assignees, bn said leased premises within two years from the date of said lease, and no oil or gas has been found thereon; nor has said lessee or his assigns taken any possession or done any work on said premises within said two years, but, on December 22, 1898, the Scio Oil and Gas Company, then the owner of the lease in question, deposited in the Scio Bank to lessor’s credit the sum of one hundred dollars to pay for the further delay in drilling a well on said premises for another year.

“5. That the lessors refused to accept said money so deposited, and the same still remains on deposit as stated, claiming that said lease had been forfeited and was void.

“8. That the defendant, The Ohio Oil Company, upon procuring its said lease, immediately began operations to drill for oil on said premises, and was, at the time of the commencement of this action, actively engaged in such work.

“9. That the plaintiffs herein, upon hearing of the execution of said lease to the Ohio Oil Company and its action thereunder, immediately commenced this action, and, on February 16,1899, caused a temporary injunction to be issued against defendants, and thereupon the plaintiffs began a well on said premises under their lease, and continued such operations until stopped by the temporary injunction allowed against them on the cross-petition of defendants on February 20, 1899.”

Said lease taken by the Ohio Oil Company contains the. following:

“This lease is taken with full knowledge of a prior lease executed by Daniel Minard to H. A. Snyder on the premises dated November 12, A. D. 1896, which lease the grantors have here declared to be null and void.”

The circuit court rendered judgment in favor of defendants in error, also defendants below, and thereupon plaintiffs in error brought the case here seeking to reverse the judgment of the circuit court.

Can this lease be ruled differently from the Fowler lease? The granting and habendum clauses being the same as in the Fowler lease must be construed the same, and that construction is, that no drilling could be done after the expiration of the two years term of the lease, unless oil or gas should be found within the two years. No oil or gas having been found within the two years, the term of the lease expired at the end of the two years, and the provision as to the continuing of the lease thereafter as long as oil or gas should he found in paying quantities, not exceeding twenty-five years, never became effective, and the term was limited to two years as effectually as if the two years term had alone been mentioned in the habendum clause.

The term of the lease being thus definitely fixed at two years in the habendum clause, the condition subsequent, or defeasance clause, is added as follows: “In case no well shall be drilled on said premises within two years from the date hereof, this lease shall become null and void, unless the lessee shall pay for the further delay at the rate of one dollar per acre at or before the end of each year thereafter, until a well shall be drilled.”

At first blush, aptd without having considered the construction of a like lease in which the first well was to be drilled within one year, there would be an inclination to hold that under this subsequent clause, in case no well should be drilled within two years, further time in which to drill might be had by paying one dollar per acre at or before the end of the year next after the two years, but upon a more careful examination of that clause, and the rules of construction applicable to such cases, it is clear that such is not the proper construction of the lease.

By the clear, certain and fixed terms of the granting clause, as made definite by the habendum clause, there being no oil or gas found in two years, the lease was to end at the expiration of that time, and after that time there was no right to drill. With this certainty as to the end of the lease, and as to the end óf thé right to drill, can the words of this subsequent clause, which says that if no well shall be drilled in two years, the lease* shall become null and void, unless the lessee shall pay for further delay one dollar per acre by the end of the next year, have the force and effect to extend theterm of the lease, and give further timein which to drill? We think not. The lease and right to drill were to terminate definitely at the end of two years, clearly so stated in the habendum clause, and the provision in the subsequent clause that the lease should become null and void in case no well should be drilled within two years, was not intended to fix a different, or longer period for the termination of the lease, than that fixed in the habendum clause, but left the period as fixed in that clause. There was no need of saying that the lease should become null and void if no well -should be drilled in two years, because by the force of the habendum clause the lease and right to drill would terminate at the end of two years, if no well should be drilled within that time as oil or gas could only be found by drilling a well, and therefore the two years in this subsequent clause is only a repetition of the two years mentioned in the habendum clause, and leaves the lease to terminate and become null and void at the end of the two years thus definitely fixed. And that definite term of two years cannot be wiped out and superseded by the indefinite' words, “unless the lessee shall pay for the further delay at the rate of one dollar per acre at or before the end of each year thereafter, until a well shall be drilled.”

No right is given in any part of the lease to drill a well after two years, and no time is fixed in this clause when such well shall be drilled. It is not specified how much further delay for drilling may be had by such payment, or when such drilling shall begin or end. In case the clause had gone further and provided that in case such payment should be made the right to drill under the terms of the lease should be extended to some definite time, force and effect could be given to the clause, but as it is, it is incomplete and fails to state what shall follow such payment. To give this “unless” clause its greatest force, it only saves the lease from becoming null and void by reason of no well having been drilled within two years, but with that saving as to this clause, the lease still terminated and expired at the end of the two years expressed in the habendum clause, and this “unless” clause does not pretend to control or extend the habendum clause. The extreme limit of twenty-five years cannot be made applicable to the term to be worked out under this “unless”’ clause, because that limit can only be invoked, in case oil or gas shall be found in the two years in which drilling can be done. So that there is nothing in the lease to which this “unless” clause can be attached to work out a lease as to time or terms, and therefore this indefinite clause is not of sufficient force to overcome and supersede the definite parts of the lease.

It is a rule of construction of written instruments that, that which is made certain in one part, cannot be overcome and changed by words in another part, unless such other words are of equal or greater certainty. 11 is not often that this rule must be applied in ,the construction of instruments, but we regard it applicable here, and'that the proper construction is that the Minard lease terminated at the end of two years from the date thereof.

As contended by counsel for plaintiffs in error, there seems to be something pervading this lease to indicate an intention that there should be some elasticity beyond the two years, but if the parties had such intention, they failed to insert the terms of such elasticity in the lease, and the court must take the lease as they made it, and cannot make that definite and certain which they left indefinite and uncertain. This would he to make a new lease for them. When the definite term of two years is fixed and the other terms of the lease fit thereto, a court cannot safely grope around through indefinite expressions, and guess what the parties may possibly have intended thereby, and thus ignore and disregard that which is fixed and certain.

This indefinite “unless” clause, cannot form the basis for a new contract between the parties, to be entered into at or near the end of the two years, and to be thereafter recorded. The judgments below are right, and are,

Affirmed.

Williams, Spear, Davis and Shauck, JJ., concur.