text:
    McClellan v. Filson.

      Section 6090, Revised Statutes — Liability of estate of married woman for funeral expenses and those of last sickness.

    1. Section 6090, Revised Statutes, which directs the payment of funeral expenses and those of last sickness, may apply to the estate of a deceased married woman, though such deceased left surviving her a husband having property.
    2. In such case, where it is shown that the physician, who attended the deceased in her last illness, was called at her request under such circumstances as to warrant a charge against her, and that the purchase of coffin and other nesessary articles for the funeral, being suitable to the station of the deceased, were made by the executor, such exe'cutor may properly allow such expenses, and pay them from the assets of the estate.
    Error to the District Court of Greene county.
    The facts are stated in the opinion.

      Nesbitt § Martin, for plaintiff in error.

      Little Shearer, for defendant in error.
   Spear, J.

The facts shown by the record, so far as they are necessary to an understanding of the points decided, are as follows: Nancy McClellan, a married woman, died about January, 1879, testate, leaving an estate of her own, and a husband surviving her, who also had property. The will named as executor W’m. S. McClellan, a son of the testatrix, who upon the probate of the will, took out letters testamentary, and at once entered upon the discharge of the trust. As such executor he paid from the assets of the estate, as expenses of the h^st sickness, physicians’ bills; also expenses of her funeral, and for a tombstone. The physicians who attended were called by the son (William S.) at request of the mother. The coffin and other purchases for the funeral were made by the son. It does not appear that the husband took any action in the way of employing either the physicians or undertaker. The executor also claimed to have paid certain taxes on the lands of deceased • during her life, a portion of them more than six years before the death of the testatrix.

To the account of the executor filed in the probate court asking credit for all these payments, Mary J. Eilson, a daughter of Mrs. McClellan, and legatee under the will, filed exceptions, in which, among other grounds of exception, she urged as to divers items of taxes, that they were barred by the statute of limitations. The probate court sustained all the exceptions. On appeal to the common pleas by the executor, that court upon trial sustained the exceptions as to the charges for expenses of last sickness and of the funeral, and overruled them as to the tombstone and the charges for taxes. The district court reversed the judgment of the common pleas as to the items of taxes, to which the statute of limitations had been pleaded, and affirmed the judgment of the common pleas in all other respects. To reverse this judgment of reversal the present proceeding in error is brought.

We think the executor was justified in paying the funeral expenses and those of last sickness, and that he should have been allowed for such items in his settlement. The contention is that he was not so justified, because the expenses were a debt against the husband and the executor should have compelled the undertaker to look to him. As to expenses of the funeral. Section 6090? Revised Statutes, provides that every executor shall proceed with diligence to pay the debts of the deceased, and shall apply the assets in payment of debts: First. The funeral expenses, those of last sickness, and the expenses of administration. Second. The allowance made to the widow and children Tor their support for twelve months. Another section permits the executor to sell property of the estate before letters testamentary are granted to pay funeral expenses, but for no other purpose. If within the meaning of the statute the funeral expenses are to be considered as debts of the deceased woman there would seem to be reason for regarding the statute as imperative. They manifestly can not be treated as contract debts, but that, as regards the estate of a man, such expenses may be regarded as debts, nevertheless, appears to be settled in this state. The statute speaks of them as debts. They are classed under the same head as the allowance to the widow for a year’s support. In the case of Allen v. Allen, 18 Ohio St. 234, where the question was directly made, the court sustained the action of the court below, where the allowance was treated as a debt, and held that “the allowance of a sum of money to the widow and child, under section 45 of the administration act, is classed among the debts of the deceased to be paid in the order specified in that section.” If allowance for a year’s support of widow is a debt it follows that funeral expenses are equally so. But, as before stated, the debt does not rest upon contract. The inability of a married woman to bind herself by contract generally, therefore, furnishes no reason why her estate should not be bound. If the statute applies to the estate of a married woman it is bound; if it does not it is not bound. In terms it does apply. The language is, “ every executor and administrator shall pay,” etc. Unless there is good reason founded upon principle why the married woman’s estate should be excepted, then no exception should be made. It is urged that such good reason is found in the fact that at common law there is a duty upon the husband to dispose of the body of his deceased wife by decent sepulture in a suitable place. This is conceded, and it is not intended here to weaken the force of that duty, nor to impair the liability of the husband for the expenses of such burial. But the husband may be without means and unable to procure the services of those whose business it is to bury the dead, though the wife leave an abundance. "What shall be done in such case? Shall the body remain unburied? If in such circumstances it is proposed to resort to the wife’s estate for such expenses, it must be upon some principle, some rule. What shall it be? We have seen that the law of contract does not aid. She can not, any more than could a deceased husband as to his funeral expenses, be presumed to have contracted. Plainly, then, it must be by the force of legislation. That we have, and if we apply it in "any case to the estate of a deceased married woman, it is difficult to see why, upon principle, it should not be applied to all. If we undertake to make arbitrary exceptions and distinctions, then the rule fails, for if it can not rest upon the doctrine of a statutory debt, and charge upon the estate, it is not easy to find satisfactory foundation for it. Besides, if the application of the statute be limited to cases where the husband is insolvent, then we impose upon the one who spends time and money upon the conduct of the funeral the burden of first exhausting the liability of the husband by suit, or at least demonstrating his insolvency. A decent regard for the proprieties of the situation would seem not to require this.

We think the statute was based upon a well recognized necessity, and that such debts may be regarded as created by statute from necessity, and as a charge upon the estate, the same as the necessary expenses of administration, and the statute as furnishing the rule of liability. Patterson v. Patterson, 59 N. Y. 574. The burial of the dead is a matter of necessity. The public health requires that it be done, and a proper public sentiment equally requires that it be done decently. Rex v. Stewart, 12 Ad. & Ell. 773. The estate in the hands of the executor is bound by law for the payment of the expenses of the decent interment of the dead.” Hapgood v. Houghton, 10 Pick. 154. The statute of Massachusetts is similar to that of Ohio, and the court is here speaking of the effect of the statute. It is clear that the expense should be required to be met by any estate which the deceased may leave. Is there any reason for saying that this most reasonable requirement should not apply where the deceased is a married woman ? As before stated, we regard the liability as resting on the statute, and upon that wholly. This must have for its basis, in large measure at least, considerations of public policy arising in the necessity of the case. That the dead might have proper sepulture, a clear, easily understood provision as to recompense for the expense was required. That provision we find in the statute. The question, then, is, do not considerations of public policy apply as well to the case of a married woman as to a man ? The necessity in the individual instance may or may not be as great, but where is the difference in principle?

Divers authorities are cited by counsel for defendant in error, but we find none presenting the precise question presented here as to the funeral expenses. Sears v. Giddey, 41 Mich. 590, is specially relied upon. In that case the surviving husband, with the son of a deceased wife by a former marriage, went together to the u udertaker’s and there ordered the casket and other goods for the funeral. Nothing was said about payment, or who was to be charged. The charge, however, was made to the husband, and the credit apparently given to him. The action was by the undertaker against the husband on the account. He sought to defend, on the ground that the wife had property which she had willed to the son, and therefore he should pay. The court held, and we have no doubt rightly, that the husband must pay. In deciding the case, Cooley, J., uses this significant language: “A funeral can not be delayed for judicial inquiries to determine upon whom the moral obligation to proceed with it rests most heavily.” In other words the undertaker may conduct the funeral decently and in order, and look to such person as ought to pay for his recompense. In that case it was the husband. In Gunn v. Samuel, 33 Ala. 201, an insolvent husband called in the plaintiff', a doctor, to attend his sick wife, her children and slaves. The wife was not consulted and gave no order. During her last illness she requested that a slave be sold to pay the doctor’s account. The court held that it being the legal as well as moral duty of the husband to furnish medical attendance for his sick wife, a legal liability rests on him to pay, and her request did not impose an original liability or make her estate responsible, though if she had made a contract originally, express or implied, to pay the doctor, he would be entitled to recover. Smyley v. Reese, 53 Ala. 89, is, perhaps, a stronger authority for defendant in error. In that case the husband, as administrator of his deceased wife, paid the expenses of her funeral from the assets of the estate and asked to have the amount allowed in settling his accounts, which was refused, the court holding that the statutes of that state “ creating the wife’s statutory estate do not absolve the husband from his common-law obligation to furnish suitable sepulture for his wife,” and that the administrator, in paying the funeral expenses, was but paying his own debt. The question of payment by an executor, not the husband, who had ordered the expenses, is not in that case. A holding contrary to the doctrine of the last case was made in Gregory v. Lockyer, 6 Maddock, 90, where the husband having paid the funeral expenses of the wife, and made a claim before the master to have them repaid by the executor from the separate estate of the wife, the separate estate was by decree ordered to be applied in payment.

The question is not simply whether the husband is liable' as between him and the undertaker, but may not the estate of the wife also be liable, and may not the executor, having ordered the expense, be justified in paying the claim from that estate? If not, then a woman may die leaving thousands in lands, money, and bonds, and if she happen to leave a husband, and he insolvent, the body may lay uneared for until some charitable friend comes to the rescue, or it be taken care of and buried by the town. Public decency and a just regard for an enlightened sentiment forbids.

True, the wife’s property may not be taken for the husband’s debt. But if the debt may be treated, as we think in this case it may be, as well that of the wife as of the husband, it would not seem inequitable to allow her estate to bear the burden, though that does serve to exonerate him. At common law the husband and wife were one, and that one was the husband. Not so now. The common-law right in and power over the wife’s property by the husband is almost entirely taken away by our legislation. All estates and property, including rights in actiou belonging to her at marriage, or which come afterward by conveyance, gift, devise, or purchase with her separate money or means or due as wages of her personal labor, or growing out of the violation of her personal rights, together with rents, incomes, issues, and profits, are her separate property. As to the real estate she may rent it for three years, and by will dispose of it entirely at her decease, and the personal estate she may control and dispose of absolutely without the husband’s consent. And as to all this separate property she may sue and be sued as if she were unmanned. Ho has no control whatever over the personal property, except it be reduced to his possession with the express assent of the wife, and mere care, occupancy, and use is not to be deemed a reduction to possession unless by the terms of the express assent full authority is given him to dispose of it for his own use. Curtesy initiate, as it existed at common law, is now held not to exist in Ohio, and the right of curtesy is conferred only on surviving husbands in estates of which the wives die seized. It appears plain by this that the relations of the husband and wife as to property have greatly changed in this state by statute, and that much of the reason for the rale that the husband’s liability should be held to be so exclusive as to make impossible the subjecting of the wife’s separate estate to payment of expenses resulting from her necessities has vanished with the change. If the reason for the rule is in large measure gone because of these statutes, we may with some willingness be ready to see the rule, by virtue of other statutes, in equal measure, disappear.

As to the physicians’ bills for attendance during last sickness, the record shows that they were incurred by direct procurement of the deceased. That they were for her benefit admits of no doubt. She had the power to make the same a charge upon her separate estate. And while there are many reasons for saying that such expenses are made by the statute debts against and charges upon the estate of the deceased, in like manner as funeral expenses are, there is the additional consideration that the charge is also made by the deceased herself.

We expressly disclaim any purpose of deciding what is not before us. We hold that, under the circumstances, the executor had the right to follow the statute; to pay the physicians’ hills aud the fuueral expenses from the estate of the testatrix, and having paid them has now the right to be allowed for such payments.

No question is made here as to the tombstone. The court of common pleas approved of that item and ordered it paid. The district court affirmed the judgment as to that, and there the matter was allowed to rest. Regarding the items of taxes, we find sufficient ground in the record to warrant a reversal of the finding and judgment of the court of common pleas by the district court irrespective of the question of the statute of limitations, and we express no opinion upon the question raised by the exceptions based upon the statute. The district court affirmed the judgmeut below as to all the items of taxes except the first twelve, and no one asks a reversal of that action.

It follows that the judgment of the court of common pleas sustaining the exceptions to the charges for funeral expenses and of last sickness, represented by vouchers, one three, four, five, and six, and of the district court affirming such judgment, will be reversed, and the judgment of the district court as to the items of taxes represented by voucher number ten, in part reversing the judgment of the common pleas and in part affirming the same, is affirmed. The probate court will be directed to allow to said executor in his settlement the items represented by vouchers one, three, four, five, six, seven, and all items of taxes except the first twelve. The costs of this proceeding in error are adjudged against both parties in equal proportions.


source: Caselaw Access Project

author: Owen, C. J.

license: Public Domain

text:
    Payne v. Thompson.

      Husband and wife — Partnership.
    Prior to the legislation of 188é (81 Ohio L. 65,209), a married woman did not possess legal capacity to enter into a copartnership with her husband. (The effect of such legislation upon the legal capacity of married women is not involved in this case and not considered by the court.)
    Error to the Court of Common Pleas of Cuyahoga county, reserved in the District Court. •
    The plaintiffs, Payne, Newton & Co., filed in the .court of common pleas their petition of the following tenor:

      “Petition for Money and Equitable Relief, filec[ May 22, 1882. The plaintiffs, N. P. Payne and Isaac Newton, as partners, doing business under the firm name and style of Payne, Newton & Co., by Mix, Noble and White, their attorneys, complain of the defendants, M. T. Thompson and Elizabeth J. Thompson, partners, doing business under the firm name and style of M. T. Thompson & Co., for that:
    “ Plaintiffs are and at all the times hereinafter mentioned were partners, doing business under the firm name and style of Payne, Newton & Go. Defendants are and at all the times hereinafter mentioned were partners, doing business under the firm name and style of M. T. Thompson & Co. At all the times hereinafter mentioned said defendant, Elizabeth J. Thompson, was, and she is now a married woman, wife of said defendant, M. T. Thompson, and was and is the owner of a large estate of real and personal property and choses in action of great value; but the value and description thereof plaintiffs are unable to state more particularly than is hereinafter done, which is under her sole control and exclusive management, and which she owns in fee-simple in her own right, and as her own separate property, from which she receives for her own separate use a large income; but the amount thereof plaintiff is unable to state. Said real estate belonging to said defendant, Elizabeth J. Thompson, is bounded and described as follows-: ”
    (Here follow descriptions of several tracts of land situated in Cuyahoga county.)
    “The husband of said’Elizabeth J. Thompson had not at any of said times, nor has he any property of any kind subject to levy and sale on execution or otherwise for the payment of debts, and at all said times he did and h e does acquiesce in and consent to the acts of management, control and disposition of her said separate property by said Elizabeth J. Thompson. The coal in this petition mentioned was all purchased by said firm of M. T. Thompson & Co., for use in its said business, in the course of its said business, which was that of selling coal by retail, in which business said defendant, Elizabeth J. Thompson, had invested a considerable part of her saidseparate estate, as her separate property, her interest therein and in the profits and losses thereof remaining her separate estate with the knowledge and consent of her husband. At the times of each of the purchases of said coal it was agreed and understood by and between each of the sellers thereof and said defendants, and especially said Elizabeth J. Thompson, that the same was sold upon the credit of her separate property, and that she intended to and did charge her separate estate and income with the payment therefor, and said vendors and each of them sold said coal to said firm of M. T. Thompson & Co., upon the faith and credit of the said Elizabeth J. Thompson, and of her said separate estate and income aud of the said charge and lien thereon, and not otherwise.
    “At all the times hereinafter mentioned the Lake View Coal Company was a corporation duly incorporated and existing under and by virtue of the laws of the state of Ohio. At the several times mentioned in the account hereto attached, marked A, and made part hereof, at request of defendants, said Lake View Coal Company sold and delivered to defendants the coal mentioned in said account at aud for the agreed prices therein stated. Said Lake View Coal Company had sold aud assigned said account to these plaintiffs as such partners as aforesaid, who are now the owners thereof. Nothing has been paid on said account, and there is now due and payable thereon from defendants to plaintiffs as such partners as aforesaid the sum of two’hundred and sixteen dollars and eighty-eight cents ($216.88), with interest thereon from.the 25th day of March, a. d. 1882.”
    Here follow two other supposed causes of action, substantially like the first, each predicated upon an account assigned to plaintiffs by a party who had sold coal to the defendants.
    The petition concludes with the following prayer:
    “ Therefore, plaintiff's as such partners as aforesaid pray judgment against said defendants for the sum of four hundred and eighty ($480.13) dollars and thirteen cents, with interest on three huudred and eighty-nine ($389.80) dollars and eighty cents from the 25th day of March, a. d. 1882, and on ninety ($90.33) dollars and thirty-three cents from the 31st day of March, a. d. 1882 ; that said sum and interest may be declared a lien on said real estate; that said real estate may be subjected to the payment thereof, and for such other and further relief as equity and good conscience and the circumstances of the case may require.”

      The copies of the accounts attached as exhibits to the petition are in the following form :
    “ M. T. Thompson & Co., bought of Lake Yiew Coal Co.
    1882. March 8. Car 629, 15,100 tons coal.
    “ “ 3. “ 864,14,300 “ “ etc., etc.”
    Elizabeth J. Thompson demurred to this petition. The demurrer was sustained and judgment rendered for her.
    Judgment was rendered against M. T. Thompson upon-the accounts for the amount claimed.
    To reverse the judgment in favor of Elizabeth error was prosecuted in the district court, wherein the cause was reserved to this court.

      Mix, Noble ^ White, for plaintiffs in error.
    A married woman may embark her separate estate in trade, either alone or in conjunction with other persons, and such estate may be charged in equity with the satisfaction of engagements entered into in the course of such joint trade, either by herself or her associates. Such association may be made either with her husband or a third person.
    Was it intended that the separate estate should, if it became necessary, respond to or secure the contract obligation ? Such intention may be express or implied. Phillips v. Graves, 20 Ohio St. 371; Avery v. Vansickle, 35 Ohio St. 270; Williams v. Urmston, 35 Ohio St. 296; 3 Pom. Eq. Jur. 47, n. 1, 52, n. 1; Stew. Hus. and Wife, §§ 206-7.
    A married woman has, in equity, in relation to her separate estate, the same powers and liabilities as a feme sole. Stew. Hus. and Wife, § 203; Buckley v. Wells, 33 N. Y. 518, 523; Pybus v. Smith, 3 Bro. Ch. 340*, 346*; Towers v. Hagner, 3 Whart. (Pa.) 48, 57; Gardner v. Gardner, 22 Wend. 526, 528; North Am. Coal Co. v. Dyett, 7 Paige, 9; s. c., 20 Wend. 570, 573; Jaques v. Meth. Epis. Ch., 17 Johns. 548, 578; Taylor v. Meads, 34 L. J. (N. S.) 203, 207; 1 Bish. Law Mar. Wom., §§ 552, 557, 861, 864; 2 Story Eq. Jur. § 1397; 3 Pom. Eq. Jur., §§ 159, 1104; Schouler Hus. and Wife, §§ 241-3, 246; 2 Perry Trusts, §§ 654-5; Williams v. Urmston, supra.

    The weight of authority is that a wife has ia equity all powers as to her separate estate not expressly taken away by the act (we add “ or statute”) of settlement. 3 Pom. Eq. Jur., pp. 28, 29, n. 2, p. 53, n. 3; Schouler Hus. and Wife, § 239; Jaques v. Meth. Epis. Ch., supra; Kelley Con. 259, n. 5.
    In dealing with her property she has, in equity, all the powers incident to ownership, of which the chief is the jus disponendi. Phillips v. Graves, 20 Ohio St. 371; 1 Bish. Mar. Worn., §§ 552, 553, 857, 861-864.
    The notion that only the written contracts of a married woman are enforceable in equity we believe to be exploded in Ohio. Phillips v. Graves, supra; Williams v. Urmston, supra; Avery v. Vansickle, supra. See Perry Trusts, § 358 n. 3.
    The petitions specifically aver that the contracts were made, on both sides, on the credit of a charge created on the separate estate. These actions can be maintained if the proof shows that Mrs. Thompson invested her separate estate in the coal business, as her property, with the idea thereby of increasing the estate, or of saving the estate from the burden of supporting the family, or to add to her luxuries, or to make the estate fruitful, and knew that to accomplish this result purchases on credit would be necessary, and empowered her husband to make them; and that these purchases were made for that business and purpose, under that power; and that the vendors, when making the sales, knew the husband was insolvent and the wife wealthy; were so told by the husband; and sold on the credit of the wife’s property, trusting it and her. This, whether we do or do not succeed in showing that she personally took part in the business, and that she knew of and directed those specific purchases. To sustain the propositions maintained under this head, we refer to the following authorities: Butler v. Cumpston, L. R., 7 Eq. 16, 20, 21; Matthewman’s case, L. R. 3 Eq. 781, 787; 1. Bish. Mar. Wom., §§ 857-8, 861-2, 876; Schouler Hus. and Wife, §§ 241-2, 246; Wells’ Sep. Prop. Mar. Wom., §§ 448, 452, 453, 465; Todd v. Lee, 15 Wis. 380; Phillips v. Graves, supra; 2 Story Eq. Jur., § 1400; Stew. Hus. and Wife, § 206.
    It is certainly not true that a married woman can not carry on trade. This is clearly settled in Ohio. Morgan v. Perhamus, 36 Ohio St. 517.
    A married woman may, at least with her husband’s consent, embark her separate estate in trade, and in equity charge her separate estate with engagements incurred in business. Stew. Hus. and Wife, §§ 46, 203; Schouler Hus. and Wife, §§ 299-304, 310; 2 Story Eq. Jur., §§ 1385-1387; 24 Am. L. Reg. (N. S.) 358; Haight v. Mc Veagh, 69 Ill. 624, 625; Martin v. Robson, 65 Ill. 129; Nispel v. Laparle, 74 Ill. 306, 308; Wilson v. Loomis, 55 Ill. 352; Blood v. Barnes, 79 Ill. 439; 3 Pom. Eq. Jur., § 1105, n. 1.
    Having the power to engage her separate estate in trade, she may employ agents whose acts will bind such estate, Stew. Hus. and Wife, 364; Whart. Ag., § 11; North Am. Coal Co. v. Dyett, 7 Paige, 9, 14. See L. R. 10 Q. B. 147; Allen v. Johnson, 48 Miss. 413.
    Wherever it is held that a married woman may engage her separate estate in trade, it is held she may do this alone or in conjunction with others, personally, through agents, or as a partner. Pars. Part. 25 and n. 2; Collyer Part., § 14, n. 4; Atwood v. Meredith, 37 Miss. 635; Newman v. Morris, 52 Miss. 402; Bitter v. Rathman, 61 N. Y. 512; Scott v. Conway, 58 N. Y. 619; Kelley Con. Mar. Wom. 159; Haight v. Mc Veagh, supra; Stew. Hus. and Wife, § 480; 2 Bish. Law. Mar. Wom., § 436; Penn v. Whitehead, 17 Gratt. 503, 512; Parshall v. Fisher, 43 Mich. 529, 534; Preusser v. Henshaw, 49 Iowa, 41, 44; Silveus v. Porter, 74 Pa. St. 448, 449.
    The relations of husband and wife are not inconsistent with those of partner to partner.
    It is true that at common law husband and wife constitute but one person and that the husband could not deal with the wife’s personal property without reducing it to his possession and thus becoming himself the owner. But this was not true in equity as to the wife’s separate estate.
    In Ohio there is no such thing as a wife’s general estate. All her property seems to have become her separate estate. Phillips v. Graves, supra.

    In equity husband and wife, as to the wife’s separate estate, are distinct persons. They may sue, contract with, and become debtor and creditor of each other. 2 Story Eq. Jur., §§ 1168, 1370, 1372; Stew. Hus. and Wife, §§ 42, 45, 46; Willard Eq. Jur. 634, 646, 649; Wilcox v. Todd, 64 Mo. 388; Wright v. Wright, 16 Iowa, 496; Northrop v. Barnum, 15 Wend. 167; Head v. Head, 3 Atk. 295; Guth v. Guth, 3 Bro. Ch. 614; Angier v. Angier, Finch Prec. 497; Jelineau v. Jelineau, 2 Desaus. Ch. 50; Prather v. Prather, 4 Desaus. Ch. 35; Reeves Dom. Rel. 214; 2 Story Eq. Jur., § 1380; Strong v. Skinner, 4 Barb. 546; Firemen's Ins. Co. v. Bay, 4 Barb. 407, 414.
    The wife may sue the husband to compel specific performance of agreements made between them without the intervention of trustees before or after marriage. Garlick v. Strong, 3 Paige, 440, 451; Cannel v. Buckle, 2 P. Wms. 243, 244; Sidney v. Sidney, 3 P. Wms. 269; Wright v. Cadogan, 2 Eden Ch. 253; Cruger v. Cruger, 5 Barb. 231; Bradish v. Gibbs, 3 John. Ch. 523; Livingston v. Livingston, 2 John. Ch. 537.
    Or to restrain the husband from interfering with her separate estate, and to get control of it. Martin v. Martin, 1 N. Y. 473; 1 Hoffm. Ch. 462; Minier v. Minier, 4 Lans. 421, 422; Whitney v. Whitney, 49 Barb. 319, 322; s. c., 3 Abb. Pr. 350, 353.
    Or to set aside conveyance of wife to husband. Fry v. Fry, 7 Paige Ch. 461, 463.
    Or to obtain an equitable allowance out of that part of her husband’s estate derived through the wife. Carter v. Carter, 1 Paige Ch. 463; Partridge v. Havens, 10 Paige, 625; Van Dazer v. Van Dazer, 6 Paige, 366; Clancy Mar. Wom. 464; 2 Story Eq. Jur. §§ 1404, 1414; Roberts v. Roberts, 2 Eq. Cas. 421; Kenny v. Udall, 5 John. Ch. 463; s. c., 3 Cow. 590.

      A wife may purchase property from her husband for a bona fide and valuable consideration. Livingston v. Livingston, 2 John. Ch. 537; Lady Arundel v. Phipps, 10 Ves. 139, 146, 149; Savage v. O'Neil, 44 N. Y. 298.
    A wife may purchase a judgment against her husband, levy on his land and sell it to pay the same. Strong v. Skinner, 4 Barb. 546.
    By marriage settlements a wife may act as to l*er separate estate as a feme sole, may loan to her husband if she choose, and he must repay her as though he were a stranger. Towers v. Hagner, 3 Whart. (Pa.) 48, 57; Pybus v. Smith, 3 Bro. Ch. 340*, 346*; Schaffner v. Reuter, 37 Barb. 44, 49; McCartney v. Welch, 44 Barb. 271; Woodworth v. Sweet, 44 Barb. 268, 271; Babcock v. Eckler, 24 N. Y. 623; Savage v. O'Neil, 44 N. Y. 298, 301, 302; Grabill v. Moyer, 45 Pa. St. 530; Rowland v. Plummer, 50 Ala. 193; Bryan v. King, 51 Ga. 291; Hurlbut v. Wade, 40 Ohio St. 603; Huston v. Cone, 24 Ohio St. 11; Huber v. Huber, 10 Ohio, 371.
    A wife may, in equity, sue a firm of which her husband is a member, for money loaned. Gould v. Gould, 36 N. J. Eq. 380; Devin v. Devin, 17 How. Pr. 514; Young v. Ross, 3 W. L. G. 349.
    Eor a fair consideration there may be contracts between husband and wife, and these are enforcible in equity. Wallingsford v. Allen, 10 Pet. 583, 594; 2 Story Eq. Jur., §§ 1372, 1374, 1385-7; Steadman v. Wilbur, 7 R. I. 481, 485, 486.
    Husband may be wife’s tenant. Albin v. Lord, 39 N. H. 196; Booker v. Worrill, 55 Ga. 332; Kaufman v. Whitney, 50 Miss. 103.
    Husband may sue in equity to change wife’s separate estate with money borrowed from him. Gardner v. Gardner, 7 Paige, 112; s. c., 22 Wend. 526, 528; Myers v. King, 42 Md. 66; 67 Mo. 596.
    Husband may be agent of wife. Fairbanks v. Mothersell, 60 Barb. 406, 407.
    Wife may foreclose mortgage against husband given before marriage. Power v. Lester, 17 How. Pr. 413; s. c., 23 N. Y. 527.
    Husband may assign directly to his wife a claim in his favor for his work and labor. Seymour v. Fellows, 77 N. Y. 178, 179.
    Wife may carry on business and have her husband manage it for her. Schouler Hus. and Wife, §§ 277, 282, 314, 15; Owen v. Cawley, 36 N. Y. 600, 604; Draper v. Stouvenal, 35 N. Y. 513; Buckley v Wells, 33 N. Y. 518, 521, 523; Smith v. Sweeny, 35 N. Y. 291, 294; Freiberg v. Branigan, 18 Hun, 344; Merchant v. Bunnell, 3 Keyes, 541; Knapp v. Smith, 27 N. Y. 277, 280; Kluender v. Lynch, 4 Keyes, 361; Abbey v. Deyo, 44 Barb. 374; s. c., 44 N. Y. 343; Whedon v. Champlin, 59 Barb. 61; Lockwood, v. Cullin, 4 Robt. 136; Wells v. Smith, 54 Ga. 262; Glover v. Alcott, 11 Mich. 492; Cooper v. Ham, 49 Ind. 394; Manderbach v. Mock, 29 Pa. St. 46; Jones v. Smith, 121 Mass. 15; 2 Bish. Law Mar. Wom., § 439; Bellows v. Rosenthal, 31 Ind. 116; Rankin v. West, 25 Mich. 195, 200; Porter v. Mount, 45 Barb. 422; Warner v. Warren, 46 N. Y. 228; Baum v. Mullen, 47 N. Y. 577, 579; Bodine v. Killeen, 53 N. Y. 93.
    The doctrine of non-identity has been recognized by this court. Crooks v. Crooks, 34 Ohio St. 610. See also Hardy v. VanHarlingen, 7 Ohio St. 208; Huber v. Huber, 10 Ohio, 371; Huston v. Cone, 24 Ohio St. 11; Fowler v. Trebein, 16 Ohio St. 493.
    Husband and wife may be jointly liable. Williams v. Urmston, 35 Ohio St. 296. See also White v. McNett, 33 N. Y. 371; Heatley v. Thomas, 15 Ves. 596; Hulme v. Tenant, 1 Brown Ch. 16; Standford v. Marshall, 2 Atk. 69; McKenna v. Rowlett, 68 Ala. 186.
    The following are some of the cases usually cited as being against our claim: Carey v. Burruss, 20 W. Va. 571; s. c., 43 Am. Rep. 790; Meyer v. Soyster, 30 Md. 403; Bradstreet v. Baer, 41 Md. 19; Plumer v. Lord, 5 Allen, 460; s. c., 7 Allen, 481; s. c., 9 Allen, 455; Lord v. Parker, 3 Allen, 127; Edwards v. Stevens, 3 Allen, 315.
    Since the decisions of the Massachusetts courts, however, it has been said by an eminent jurist that they are really based on the want of equity jurisdiction in the courts deciding them. In re Blandin, 1 Low. 543.
    The same opinion has been intimated by the Massachusetts supreme court. Atlantic Nat. Bank v. Tavener, 130 Mass. 407, 409; Bassett v. Bassett, 112 Mass. 99; 3 Pom. Eq. Jur., § 1126, n. 1.
    So in the following cases it was held, for reasons good only at law, that a married woman could not be a partner in trade: Montgomery v. Sprankle, 31 Ind. 113; Hass v. Shaw, 91 Ind. 384; 44 Tex. 381. But see Morgan v. Perhamus, 36 Ohio St. 517.
    A married woman may be a partner with her husband. In re Goodman, 5 Biss. 401; In re Kinkead, 3 Biss. 405; Todd v. Lee, 15 Wis. 365; Krouskop v. Shontz, 51 Wis. 204; Zimmerman v. Erhard, 58 How. Pr. 11; s. c., 8 Daly, 311; s. c., 83 N. Y. 74; Graff v. Kinney, 15 Abb. N. C. 397; Tibbatts v. Tibbatts, 6 McLean, 80; Scott v. Conway, 58 N. Y. 619.
    Text writers have differed very widely as to the real meaning of the decision of Swasey v. Antram, 24 Ohio St. 87, relied upon by counsel for defendants in error. Kelley Con. Mar. Wom. 159; Schouler Hus. and Wife, § 317; Wells’ Sep. Prop. Mar. Wom., § 155.

      W. G. Rogers, for defendants in error.
    The plaintiffs call on the court to sot aside a long and well established rule of property, to reverse at least two, if not three, decisions of this court, and go a long step further than the legislature has yet gone. They desire the court, as .we understand it, to distinctly overrule Quigley v. Graham, 18 Ohio St. 42; Swasey v. Antram, 24 Ohio St. 87; Alexander v. Morgan, 31 Ohio St. 551.
    At common law a married woman could not be a partner with her husband. 1 Black Com. 442; 2 Com. Dig., Baron & Feme, D. 1; Scarborough v. Watkins, 9 B. Mon. 545; Stew. Hus. and Wife, §§ 41, 358; Bertles v. Nunan, 92 N. Y. 160; Robins v. McClure, 3 N. E. Rep. 666; Proffatt Wom. Before the Law, 33, 53, 55, 56; Ramsdall v. Craighill, 9 Ohio, 197; Walden v. Chambers, 7 Ohio St. 30; Needles v. Needles, 7 Ohio St. 432.
    The wife can make such contracts only as positive statutory enactments allow. Bertles v. Nunan, supra; Coleman v. Burr, 93 N. Y. 17; Pollen v. James, 45 Miss. 129, 133; Hinkson v. Williams, 41 N. J. Law, 35; Nash v. Mitchell, 71 N. Y. 199; Stillwell v. Adams, 29 Ark. 346; 11 Allen, 214; West v. Laraway, 28 Mich. 464; Lewis v. Perkins, 36 N. J. Law, 133; Scarborough v. Watkins, 50 Am. Dec. 528; Levi v. Earl, 30 Ohio St. 163; Crooks v. Crooks, 34 Ohio St. 614; Alexander v. Morgan, 31 Ohio St. 549; Fowler v. Chichester, 26 Ohio St. 9; Wilson v. Wilson, 30 Ohio St. 365.
    The legislation relating to married women can not receive a liberal construction. Cole v. Van Riper, 44 Ill. 64; Ashley v. Rockwell, 43 Ohio St. 386.
    When a statute authorizes her to contract with reference to her separate property, her contracts, to be valid, must be with reference to her separate property. The extent of the power depends upon the grant. Sammis v. McLaughlin, 35 N. Y. 647; Jenz v. Gugel, 26 Ohio St. 527; Allison v. Porter, 29 Ohio St. 136; Avery v. Vansickle, 35 Ohio St. 273; Libby v. Berry, 84 Me. 288; Machir v. Burroughs, 14 Ohio St. 519.
    At common law the marriage of the feme sole dissolved the partnership. 1 Lindley on Part. 240*, 241*; Pars. Part. 390, 462; Bassett v. Shepardson, 52 Mich. 3; Brown v. Chancellor, 61 Tex., 437, 445; Alexander v. Morgan, 31 Ohio St. 551.
    "The point here involved does not need to be argued out from inferences and fanciful conclusions. It has been squarely met and decided again and again,'and in numerous states having a code like ours. Brown v. Jewett, 18 N. H. 230; Bassett v. Shepardson, supra; Plumer v. Lord, 7 Allen, 481; Whitney v. Closson, 138 Mass. 49; Haas v. Shaw, 91 Ind. 384, 389; Brown v. Chancellor , 61 Tex. 437; Story Part. 306; 1 Collier Part. 151; Bradstreet v. Baer, 41 Md. 19; Carey v. Burruss, 20 W. Wa. 571; Kaufman v. Schoeffel, 37 Hun, 140. See also Shartzer v. Love, 40 Cal. 93; Montgomery v. Sprankle, 31 Ind. 113; Lord v. Parker, 3 Allen, 127; Plumer v. Lord, 5 Allen, 460; Chatterton v. Young, 2 Tenn. Ch. 768, 772; Atlantic Nat. Bank v. Tavener, 130 Mass. 409; Fairlee v. Bloomingdale, 14 Abb. N. C. 341; Bertles v. Nunan, 92 N. Y. 152; Coleman v. Burr, 93 N.Y. 17; Snyder v. People, 26 Mich. l06; Smiley v. Smiley, 18 Ohio St. 543; Howard v. Stephens, 52 Miss. 239; Quigley v. Graham, 18 Ohio St. 42; Swasey v. Antram, supra; Ex parte Holland, L. R. 9 Ch. App. Cas. 307; Story Part., sec. 10; 1 Collier, Part., § 14; Stew. Hus. and Wife, § 40; 1 Lindley Part. 84; Proffat Wom. Before the Law, 53; Wells Sep. Prop. Mar. Wom., § 155; 19 Am. L. Rev. 371; 6 South. L. Rev. N. S. 657.
   Owen, C. J.

Do the facts stated in the plaintiffs’ petition entitle them to the relief they seek against the defendant, Elizabeth J. Thompson, which is, that the sums represented by the accounts which they aver were sold and .assigned to them, may be declared a lien upon her separate real estate, and that the same may be subjected to the payment thereof?

This is the sole question presented for our consideration. These accounts against the supposed partnership, composed of M. T. Thompson and his wife (as M. T. Thompson & Co.), which the plaintiffs say accrued to their assignors by reason of the sale of coal by the latter to such firm, are made the basis of their proceeding to subject the separate real estate of Elizabeth to their payment. They are the only evidences of indebtedness, or of the supposed causes of action which the plaintiff's in form allege were assigned to them by the parties in whose favor, it is alleged, they were contracted.

If they are entitled to the relief they seek, it is because such remedy is incidental to the liability represented by these accounts.

This involves the presupposition that M. T.' Thompson and his wife, Elizabeth, had capacity to, and did, enter into a trading partnership for the purpose of buying coal and selling the same at retail. ¥e are not materially aided in our investigation by the fact that the broad and comprehensive averments of the petition were evidently inspired by a determination to impart to the proceeding, at all hazards, an equitable character.

It is averred that, in the'business of the firm of M. T. Thompson & Co., Elizabeth “ had invested a considerable part of her said separate estate, as her separate property, her interest therein, and in the profits and losses thereof remaining-her separate estate with the knowledge of and consent of her said husband.”

In spite of the heroic averment that not only the profits of the business but even the the losses thereof remained her separate estate, we are confronted at the threshold of our inquiry with the requirement that, as an indispensable predicate to an equitable charge upon her separate estate, Elizabeth Thompson and her husband must have entered into a trading partnership. It was in the business of such a firm, if- at all, that she embarked her separate property. It was as collateral to the liability of such a firm, if at all, that she charged her separate estate in equity. A partnership is an association for the purpose of prosecuting any lawful business, formed by contract betwen two or more persons.

A contract, it seems, is essential to the formation of a partnership. Among the essentials of every contract are two competent contracting parties, and mutuality of obligation.

That a married woman had not capacity at common law to enter into a partnership with her husband will not admit of serious controversy. 1 Black. Com. 442; Matthews Part., § 9; 1 Collyer Part. (6th ed.), sec. 14; Brown v. Jewett, 18 N. H. 230; Parsons Part. *23.

If she be endowed with capacity to enter into a contract of copartnership with her husband in Ohio, it is so by favor of some enabling statute. Except so far as capacity has been given to her by statute to bind herself by her contracts they are void. We are not now dealing with her power to chargé her separate property in equity, but simply with her power to bind herself at law by her contracts. As the transactions involved in this controversy occurred prior to the legislation of 1884 (81 Ohio L. 65,209), we are not called upon to consider or construe these enactments.

Without reviewing the legislation of this state, the object and effect of which has been to remove some of the common-law disabilities of married women and to invest them with capacity to bind themselves in certain respects by their contracts, it is sufficient to say that, at the time of the transaction involved in this inquiry, no power had been given them by statute to engage in business, as partners, with their husbands. See Levi v. Earl, 30 Ohio St. 167.

While this court has not heretofore been called upon to consider this precise question, the manifest tendency of its adjudications has been in the direction of the conclusion just announced. Swasey v. Antram, 24 Ohio St. 87; Alexander v. Morgan, 31 Ohio St. 551. In the latter case it was said that when an unmarried female was engaged in business as a partner, her marriage dissolved the partnership of which she was a member. This proposition is vitally inconsistent with the theory that a married woman has capacity to engage in business as a partner.

In McClelland v. Bishop, 42 Ohio St. 113, it was held that the joint note of the husband and wife is the valid obligation of the husband alone.

It should be borne in mind that the provisions of sections 4496 and 5319 of the Revised Statutes were not intended to enlarge or vary the liabilities of married women, but relate merely to the form of remedy. Jenz v. Gugel, 26 Ohio St. 527; Allison v. Porter, 29 Ohio St. 136.

Counsel for plaintiffs in error invite us, however, to look upon the proceeding below and the transactions which it involves, as relating wholly to Elizabeth’s power to charge her separate property in equity. They say: “It may be well to define what we mean when we claim that a married woman may be a partner’. It is not contended that she is a partner in the same sense in which a man is a partner. A person sui juris, who is a partner, thereby makes him or herself personally liable at law for all engagements contracted in the partnership business by any of the partners. This we do not claim to be true as to a married woman, but we do claim that a married woman may embark her separate estate in trade; that this trade may be carried on alone, or in conjunction with other persons, and that her separate estate maybe charged in equity with the satisfaction of engagements entered into in the course of. such joint trade, either by herself or her associates. We further claim that she may thus associate herself in trade either with her husband or with third persons.”

Looking to the petition, we fail to find a warrant for the peculiar interpretation of its averments here contended for. It is averred that the defendants were “partners doing business under the firm name and style of M. T. Thompson & Co.” That the coal which entered into the accounts sued upon “ was all purchased by said firm of M. T. Thompson & Co. for use in its said business i n the course of said business, which was that of selling coal by retail.” That their assignors “sold and delivered to defendants the coal mentioned in said account at and for the agreed prices therein stated.” The accounts were made out as against “ M. T. Thompson & Co.” In this form they were sold and assigned to the plaintiffs. It is averred that nothing has been paid on these accounts, and that there is now due and payable thereon from the defendants to the plaintiffs the sums named in the accounts. The prayer is for judgment against defendants for the sums stated in the accounts, and that the same be declared a lien upon the real estate of the wife, which it is prayed may be subjected to their payment. The theory of counsel, as indicated above, almost wholly ignores the existence of the husband as a contracting party. It is averred that he had not nor has he any property of any kind subject to the payment of debts. That the coal was sold upon the credit of the separate estate of the wife, and that she intended to and did charge her separate estate and income with the payment thereof. This theory of counsel also ignores or is utterly inconsistent with the existence of any such partnership as the petition describes.

With the partnership also disappears the accounts; and as they are the only evidences of indebtedness which the plaintiffs allege they purchased or hold, there would not seem to be much left upon which to predicate the proceeding to charge and subject the separate property of Elizabeth. We do not feel at liberty thus to emasculate the plaintiffs’ petition by construction.

The existence of a partnership capable of contracting a liability represented by these accounts is vital to the relief which the plaintiffs seek against the estate of Elizabeth.

’ Giving to the petition that reasonable and liberal construction to which it is entitled, we find no difficulty in construing its object to be to subject the separate property of the wife to the satisfaction of the supposed liability of an alleged partnership of which she is treated as a member, and this by virtue of a charge which she is supposed to have imposed upon it in equity. As no such partnership bad or could have a legal existence, and as no such liability was incurred, no cause of action against the wife is stated in the petition.

If it be conceded, however, that “ M. T. Thompson & Co.” constituted a partnership capable of contracting, there is another view upon which the relief sought against Elizabeth should be denied. It will be conceded that it is not by virtue of any contract obligation that her separate estate can be charged in equity.

It is because, under all the circumstances of the transaction, it would be inequitable to withhold her property from satisfaction of liabilities incurred on the faith of it, that' equity will subject it.

While it is averred in the petition that the husband is without means to pay debts, it does not appear that the firm of “ M. T. Thompson & Co.” is either without ample means to discharge its indebtedness, or that it is not still in the successful prosecution of its business. It is averred in the petition that Elizabeth invested a considerable part of her separate property in the business of the firm.

Whether this is the property which is now sought to be subjected does not appear. It is very clear, however, that, assuming the legal existence of a partnership, this property so invested in the business of the firm was thereby placed under the control of the husband as a member and .consequently an agent of the firm, with full power to appropriate it to the satisfaction of the partnership liabilities. For this purpose it is the primary fund. In the absence of some averment that this fund, which is shown to have once had an existence, is exhausted, or is inadequate to the payment of plaintiffs’ claim, there is not shown that state of circumstances which would justify a court of equity in decreeing that the separate property of the wife be subjected to the payment of the partnership liabilities.

While in either view the petition fails to show sufficient grounds for the relief sought against the wife’s property, we regard the former as the true ground, and upon it we rest the determination of the case.

Judgment of the court of common pleas affirmed.


author: By the Court.

text:
    Hendershot v. The State.

      Constitutional law — Section 4715, Revised Statutes, void.

    There is no provision in the statutes whereby the owner of material taken by a supervisor for the repair of a public highway, under section 4715 of the Revised Statutes, can have his compensation assessed by a jury as required by section 19 of the bill of rights, and it is therefore invalid; and the owner, resisting a supervisor entering upon his lands under the provisions of said section, is not guilty of resisting an officer under the provisions of section 6908 of the Revised Statutes.
    Error to the District Court of Washington county,

      Chamberlain § Hamilton, for plaintiff in error.

      James Lawrence and L. W. Ellenwood, for defendant in ■ error.
   By the Court.

The plaintiff in error was indicted and

convicted under section 6908 of the Revised Statutes upon the charge of resisting a supervisor of a road district while the latter was, under the provisions of section 4715, attempting to enter upon certain uncultivated lands of the accused, near a public highway, for the purpose of obtaining gravel to repair the same.

That resistance to a supervisor of roads while in the execution of his office is an offense within the provisions of section 6908 of the Revised Statutes, was decided in Woodworth v. The State, 26 Ohio St. 196.

The ground, however, upon which a reversal of the conviction of the accused is asked, is that the section of the Revised Statutes (4715) under w’hich the supervisor claimed the right to enter upon his lands, makes no provision for the assessment of his compensation by a jury, as required by section 19 of the bill of rights, and is therefore void. This we think is the fact and that the accused must be discharged. It is true that under this section of the bill of rights, property may be taken for the repair .of a public highway without first making compensation in damages, as in other cases; but this is the only difference; the owner is, after his property has been so taken, entitled to have his compensation assessed by a jury. Lamb v. Lane, 4 Ohio St. 167; and, as said in that case, the constitution does not in this regard execute itself.

We fail to find any provision in the statutes by which the owner of property taken under section 4715 of the Revised Statutes, can have his compensation assessed by a jury. It is not found in sections 4744 and 4745. These sections only provide a mode by which he may be paid such sum as may be allowed to him by the township trustees, and, where the amount exceeds the sum of $25, by the latter in connection with the county commissioners. No appeal is given from the decision of the trustees or commissioners to a court in which the owner may have his compensation assessed by a jury. The provisions of section 896, Revised Statutes, giving an appeal from the commissioners, is not applicable to this case. Provision is made in sections 1483 and 1484 whereby material may, in conformity to the constitution, be condemned for the repair of roads; but no such condemnation had been made in this case.

Judgments reversed, and accused discharged.


author: Minshall, J.

text:
    Kemper v. Campbell.

      Deed intended as mortgage — Record—Sections 4133 and 4134 Revised Statutes.

    A deed, absolute in form, intended, however, to secure the paj'ment of money due from the maker to the grantee, and, upon the payment of which by a certain time, the grantee agreed to reconvey the property to the grantor, though in equity a mortgage, is not a legal one; and, to make . it available as against creditors of the grantor, it need not be recorded under section 4133 of the Revised Statutes, providing for the registration of mortgages; it is sufficient for such purpose, if it be recorded within the time prescribed by section 4134 of the Revised Statutes, making provision for the registration of all other deeds and instruments of writing for the conveyance or incumbrance of lands in this state, other than as provided in the previous section, 4133.
    Error to the District Court of Hamilton county.
    The facts are stated in the opinion of the court.

      Willis M. Kemper, Thos. MeDougall and C. W. Cowan, for plaintiff in error.
    The conveyance to Campbell was in fact a mortgage. This court has long since settled that a deed, absolute on its face, if in fact a mortgage, is governed by the law as to the record of mortgages, and takes effect only from the time of its delivery to the recorder as against creditors. Woodruff v. Robb, 19 Ohio, 212.
    And what will be considered a mortgage is equally well settled. Whatever form the conveyance may be made to assume, if given in fact as collateral security for the payment of money, it is a mortgage. Perkins v. Dibble, 10 Ohio, 434; Wilson v. Giddings, 28 Ohio St. 554; Cotterell v. Long, 20 Ohio, 464.
    But it is claimed that the deed to Campbell equitably takes precedence over the deed of assignment by force of the decision of Gill v. Pinney, 12 Ohio St. 38. But in that case no lien existed at the time the mortgage was recorded. The creditors had simply the right to obtain a lien by proper proceedings for that purpose. Here the deed to the assignee, a bona fide lien, took effect from the time it was delivered to the probate court, four minutes before the filing of the mortgage for record.
    This court held in Bloom v. Noggle, 4 Ohio St. 45, that an agreement for a mortgage could not be held to be a specific lien as against a deed to an assignee actually delivered to the probate court.
    It has been the rule for years in Ohio that a subsequent judgment lien takes precedence over a prior unrecorded mortgage or one defectively executed. Mayham v. Coombs, 14 Ohio, 428.
    A recorded mortgage, not under seal, does not take precedence over a general assignment for the benefit of creditors. Erwin v. Shuey, 8 Ohio St. 509.

      Bloom v. Noggle has been approved and followed in Hanes v. Tiffany, 25 Ohio St. 549, and Kilbourne v. Fay, 29 Ohio St. 264, 278.

      Campbell, Bates ¿¡ Bettman, for defendant in error.
    This court has said at least three times that the Ohio rule, that an unrecorded mortgage is invalid as against later incumbrances, is sufficiently stringent, and is not to be carried further than the rule requires. Gill v. Pinney, 12 Ohio St. 38, 48; Strang v. Beach, 11 Ohio St. 283, 289; Bloom v. Noggle, 4 Ohio St. 45, 55.
    The reason of the rule does not apply here. There is no. race of diligence between creditors. An assignee for creditors is not a bona fide buyer. Burr. Ass., §§ 391 et seq.; Morgan v. Kinney, 38 Ohio St. 610. And takes subject to unrecorded liens. Morgan v. Kinney, supra.

    An express agreement of parties that one mortgage shall be subject to another will be enforced. Coe v. Columbus, etc., R. Co., 10 Ohio St. 372, 406. So with an oral agreement to the same effect. Rigler v. Light, 90 Pa. St. 235.
    Simmonds assigned only the surplus coming to him after the satisfaction of Campbell’s interest; a claim for more could only be made by a bona fide buyer; that is, one holding the legal title. Elstner v. Fife, 32 Ohio St. 358; Woods v. Dille, 11 Ohio, 455. For valuable consideration. Morris v. Daniels, 35 Ohio St. 406. And without notice; but here the assignee and the mortgagee are the same individual.
    But the question has already been settled in Gill v. Pinney, 12 Ohio St. 38; and the analogy between an administrator and an assignee for creditors is, as was said in Kilbourne v. Fay, 29 Ohio St. 268, 280, so perfect as to be hardly distinguishable. And see Haskell v. Bissell, 11 Conn. 174.
    In Pennsylvania, where the law as to the record of a mortgage was as strict as that of Ohio, and the statute provided that no mortgage should be a lien until left for record, it was held that an unrecorded mortgage was a lien against an assignee for creditors. Mellon’s App., 32 Pa. St. 121; Wyckoff v. Remsen, 11 Paige, 564.
   Minshall, J.

On March 7,1881, G. T. Simmonds and wife executed and delivered to T. C. Campbell a deed, absolute in form, of a house and lot in Cincinnati for the expressed consideration of $18,000.

According to a written proposition, signed by Campbell, upon which the deed was made, the consideration consisted of his assumption of a mortgage on the premises to E. D. Lincoln, then amounting to $12,530 and of an indebtedness of $320, due Campbell’s firm for fees; and the allowance of an indebtedness to Campbell of $2,100, for money before loaned, and cash $3,050. It also appeared from this writing that Campbell was to let Simmonds remain in the propertyfor one year rent free, and if he did not then pay the money advanced he was to give up the premises, and if he did, Campbell was to reconvey them.

Afterward, on May 7, 1881, and before the above deed was recorded, Simmonds made an assignment to Campbell of all his property, real and personal, for the benefit of his creditors; and on the same day Campbell, through a messenger, caused the deed of assignment to be delivered to the probate court of the county, and. the other to himself, to be delivered at the office of the recorder to be recorded; the former being delivered to the probate court four minutes before the latter was delivered at the office of the recorder.

The house aud lot was sold by Campbell for the sum of $18,275; the sale was confirmed by the court,'and Campbell admitting that the deed to him was intended as a security for the money he had loaned and advanced to Simmonds, the general creditors claimed that he was not entitled to any priority over them upon distribution of the fund — the deed to him not having been recorded until after the assignment had been made and filed in the office of the probate court.

The matter was decided by the probate court in favor of Campbell, and the creditors appealed to the court of common pleas, where the matter was again decided in his favor. The latter court having made a finding of facts substantially as stated, its judgment was affirmed on error by the district court; and the creditors now prosecute this proceeding to reverse the several judgments so rendered against them.

It is claimed in argument by the defendant in error, that this ease should be governed by the decision in Gill v. Pinney, 12 Ohio St. 38, where it wms held that a mortgage filed for record after the death of the mortgagor secured a lien to the mortgagee against the general creditors of the estate. If that ease is right in principle, it is difficult to perceive why it should not apply to a case where a duly executed mortgage is not filed for record until after an assignment has been made by the mortgagor. A different view seems, however, to have been taken in the subsequent decisions of this court as to chattel mortgages, not available as against general creditors, from the omission of certain statutory requirements, and which defects existed at the time of the assignment. Hanes v. Tiffany, 25 Ohio St. 549; Kilbourne v. Fay, 29 Ohio St. 264. But no conclusion has been reached, either way, upon this question, by a majority of the court.

There is, however, another question in the case; that is, whether the deed to Campbell need have been recorded to entitle him, upon distribution, to a preference over the claims of general creditors, as less than six mouths had expired from the execution of it to the time of the assignment ? The majority are of opinion that this question should be answered in the negative.

The deed, although intended to secure Campbell for moneys he had advanced, paid, and assumed for Simmonds, was, nevertheless, absolute in form, and conveyed to him the legal title to the premises in fee-simple. It is not a proper mortgage. In equity it is construed to be such for the purpose of preventing imposition and injustice; but at law it is simply what, on its face it purports to be, an absolute conveyance in fee-simple. Hughes v. Davis, 40 Cal. 117; 1 Jones Mortg., § 339. And no other or different construction will be placed on the deed, unless necessary to accomplish the ends of justice. 1 Jones Mortg., § 321. To do otherwise would be foreign to the spirit of equity, and would violate the plainest principles upon which equity jurisprudence has always been administered by the courts. No one of the maxims of equity is of more unvarying application than that “ he who seeks equity must do equity.”

The remedial right of the grantor is not that of foreclosure, but of redemption merely, which can only be exercised upon the principle stated. White v. Lucas, 46 Iowa, 319; Cowing v. Rogers, 34 Cal. 648. Hence the grantor on redeeming or seeking a reconveyance must comply with his agreement and pay the amount due. 1 Jones Mortg., § 336. The only proper decree, in such .cases, is for a reconveyance of the land upon the payment of the amount found due the grantee. Campbell v. Dearborn, 109 Mass. 130; Westlake v. Horton, 85 Ill. 228. Aud, differing from an ordinary mortgage, a reconveyance is required to reclothe the grantor with the legal title, although payment has been made. McCarthy v. McCarthy, 36 Conn. 177.

In Baird v. Kirtland, 8 Ohio, 21, it was held that where there is an absolute conveyance of land, intended as a mortgage, and a separate covenant by the grantee to re-convey to the grantor, on the payment of a sum of money, the equity of redemption remaining in the grantor can not be sold on execution at law; and the holding was placed on the ground that the judgment debtor did not have a legal title to the land. Hitchcock, J., in delivering the opinion, says: “ In equity, he” the grantor “ might upon such payment, compel a reconveyance; but at law he had no interest in the land — therefore the judgment of the complainants could not operate as a lien upon the land.”

It may be conceded that the principles above stated apply without qualification as between the parties to the deed, whilst it would be contended that their application to a case arising between the creditors of the grantor and his grantee is prevented by the policy of our registration laws. It has been the purpose of our reasoning to show that there is a marked difference between an absolute deed held to be a mortgage and a deed that is intended to be, and is, a mortgage upon the face of it; and that this'difference consists in the remedial rights of the parties and in the principles upon which such relief is granted. If this difference exists, and plainly as between parties it does, then it is difficult to see how those who may desire to succeed to the rights of the maker of an absolute deed, which in equity maybe a mortgage, can do so, as creditors or otherwise, without invoking the same equitable powers in the court, that could only have given relief to the grantor himself; and if they can not, then upon what equitable exception could relief be rendered them without complying with the maxim, that would have been applicable to him, that he who seeks equity must do equity; as they, as well as he, must ask that the deed be declared to be something other than what on its face it purports to be; and such relief can only be awarded in the exercise of its equitablejurisdiction by a court. The maxims of equity is the life of its system of remedial justice, and a judgment disregarding any of its maxims, where applicable, is not a judgment in equity.

In commenting on the maxim, “ he who seeks equity must do equity,” Prof. Pomeroy quotes with approval the following language of an eminent judge: “ The court of equity refuses its aid to give to the plaintiff what the law w-ould give him if the courts of common law had jurisdiction to enforce it, without imposing upon him conditions which the court considers he ought to comply with, although the subject of the condition should be one which the court would not otherwise enforce,” and adds : “In this narrow and particular sense the principle becomes a universal rule governing the courts of equity in administering all kinds of equitable relief, in any controversy where its application may be necessary to work outcomplete justice.” IPom. Eq. Juris., § 385. The following are some of the many instances in which the principle has been applied: Where a borrower brings a suit in equity for the purpose of having a usurious bond or other security that is void by statute, delivered up and canceled, the relief will be granted only upon condition that the plaintiff himself does equity, by repaying to Ms creditor what is justly and in good faith due, that is, the amount actually advanced with lawful interest, unless indeed the statute has gone so far as to expressly prohibit the court from imposing such terms as the price of its relief. 1 Pom. Eq. Juris., § 891, and cases cited in note 2.

So in Heacock v. Swartwout, 28 Ill. 291, where an absolute conveyance was ascertained to be a security for a usurious loan, the court allowed the grantor to have a conveyance of the land on paying the grantee the original money loaned at six per cent, but denied him the benefit of the forfeitures given by the statute, saying : “ When a party asks the court of equity for relief from the letter of his contract, which he could not obtain at law, the court will impose terms upon him to do equity.”

See also Cowing v. Rogers, supra, where upon the same principle the grantor was required to pay in gold coin, as the condition upon which the court would decree a reconveyance of land held by the grantee ulider a deed absolute in form, but found to be a security.

It appears to us the same equitable principle must apply to the case of a creditor seeking the aid of equity to have a deed of his debtor, absolute in form, declared a mortgage; the relief can only be granted upon condition that he pay the' grantee the amount with interest justly due him. The relief will not be granted that his claim m&j, when the relief is granted, be declared a superior lien to that of the grantee as a consequence of his omission to record the deed as a mortgage.

So far as our examination has gone, we have not been able to find any case arising between creditors and the grantee in which the application of these principles has been regarded as disturbed by the policy of the registration laws. Whilst it is uniformly held that a creditor may subject the grantor’s equity of redemption to the payment of his claim, it is always with the qualification that it must be done upon the payment of the amount justly due the grantee. Van Buren v. Olmstead, 5 Paige, 9.

In Westfall v. Westfall, 16 Hun (N. Y.), 541, the action was on behalf of the widow; in Judge v. Reese, 24 N. J. Eq. 387, it was by a judgment creditor; and so in Allen v. Kemp, 29 Iowa, 452; in De Wolf v. Strader, 26 Ill. 225; in Marshall v. Stewart, 17 Ohio, 356; and in Dwen v. Blake, 44 Ill. 135.

If it be said, that the question was not made in these cases, the answer is that they are, nevertheless, evidence of what the law has been and is regarded to be. Marshall v. Stewart, supra, was decided in 1848; the statute as to recording mortgages having been enacted in 1831, and the declaratory act in 1838. 1 S. & C. 458; Id. 469.

In Christie v. Hale, 46 Ill. 117, the court observes that it has never been held where a conveyance is made in good faith as security for a debt, that because the grantee could not claim all that he seemed to hold by the deed, he should not hold a lien subject to the equities of the grantor.

The observation in Clark v. Condit, 18 N. J. Eq. 362, was based upon the statutes of that state, which provide that a every deed of mortgage or conveyance in the nature of a mortgage” must be recorded to make it available against subsequent bona fide purchasers and mortgagees without notice. Revised Statutes N. J. 705-6.

It is important in this connection to notice the language of our own statutes on the subject. Section 4133, Revised Statutes, provides that all mortgages executed agreeably to the provisions of this chapter” (Chap. I, Tit. iv, Part 2) shall take effect from the time they are delivered for record; and the next section provides that “ all other deeds and instruments of writing for the conveyance or incumbrance of any lands” executed agreeably to the provisions of the same chapter shall be recorded in six months from the date thereof, and if not so recorded they are deemed to be fraudulent as against any subsequent bona fide purchaser without notice. We refer to the provisions of this section as they were prior to the amendment of May 4, 1885 (82 Ohio L. 230).

Inasmuch as the latter section recognizes the existence of a deed for the incumbrance of lands, that would take effect upon its execution and delivery, as a deed for the conveyance of lands, it is fair to construe the former section as simply embracing mortgages that, in law, are such upon the face of them.

The deed held to be a mortgage and required to be recorded as such in Woodruff v. Robb, 19 Ohio, 212, was clearly so upon the face of it; for, although made to a trustee, it was by the clause of defeasance to become void on the payment of the money by Robb. 1 Jones Mort., § 62. And so within the act as to the record of mortgages.

Here there was no such provision in the deed; it was absolute upon its face. The proposition of Campbell, upon which the conveyance was made to him, was for a purchase of the property at the estimated value of $18,000. This he was to pay by assuming a mortgage of $12,580 on the premises, and an indebtedness of $320 to Campbell’s firm ; the balance he proposed to pay by the allowance of his own. claim of $2,100 for money lie had loaned S., and cash, $3,050; then S. was to remain in the premises for one year rent free, and if he did not then repay the- money advanced, with interest, he was to surrender the premises; and if he did Campbell was to reconvey them to. Simmonds. There was no promise by Simmonds to pay; it was his privilege to do so and claim a reconveyance of the property. The absence of a promise to pay and of a provision in the deed that upon payment the conveyance should be void, marks the distinction between a proper mortgage and an absolute conveyance, with a right reserved to the grantor to claim a reconveyance upon the payment of money.

The fact that the deed had not been recorded at the time of the assignment can avail nothing, because it was recorded within a few minutes after, and within the time allowed by law. And as said by Chief Justice Marshall, in Shirras v. Caig, 7 Cranch, 50: “If subsequent purchasers without notice, sustain an injury within the time allowed for recording a deed, the injury is to be ascribed to the law, not to the individual who has complied with its requirements.”

There is no ground here for saying that any body was injured by a failure to record the deed sooner than it was recorded. After paying the charges and liens upon the property, the residue is insufficient to pay Campbell the amount found due him for moneys paid and advanced at the time of the conveyance; and it is not shown that any of the creditors had sought to acquire a lien upon'the property that would have been available but for this deed. The only interest they have in the property is that acquired by the assignment.

Transactions which in equity are construed as mortgages, arise under a great variety of forms, to many of which, if not all, it would be difficult to apply the statutes applicable to the registration of mortgages proper. Thus, where a land agent purchased lands at a government sale for one who had a right in them, simply recognized by the custom of settlers, and took the title to himself as a security for the money advanced by him to the settler (Rogan v. Walker, 1 Wis. 527), and where the owner of a certain tract of land, obliged himself to pay a certain sum of money in a certain time, and in default thereof to convey the lauds (Cotterell v. Long, 20 Ohio, 464), and where a purchaser at a sheriff’s sale, made the purchase and took the deed under an arrangement with the judgment debtor, whereby the purchaser was to advance money and pay off certain claims agáinst the debtor, and to convey to the debtor, when reimbursed, for the moneys so advanced (Sweetzer’s Appeal, 71 Pa. St. 264), and the absolute assignment of a mortgage as a collateral security (Pond v. Eddy, 113 Mass. 149), have each been held to constitute a mortgage.

As a rule, the character of such instruments is only ascertained and determined after more or less litigation, and the decree no doubt frequently works a hardship to the grantee, who had taken the deed and acted upon what he had regarded as a fair construction of the transaction; and, as between himself and a creditor, to go beyond the principles just stated, and apply the consequences that .would follow at law from a failure to register the deed as a mortgage, would, as a rule, shock the conscience of any court. Nor do we see any reason why Campbell or any other grantee should be dealt with any more severely for voluntarily doing what he might have been compelled to do at the end of a suit. The difference^ if any, should, in such cáse, be in his favor.

Judgment affirmed.

Spear, J., dissents.


author: Eollbtt, J.

text:
    Krug v. Bishop.

      Injunction bond — Construed with reference to statutes in force at time given — Dismissal of action — Section 5576 Revised Statutes.

    1. The terms of an undertaking for an injunction, construed by the statutes in force at the time of giving the same, govern as to the liability of the sureties signing it.
    2. An injunction undertaking was given in accordance with section 5576 of the Revised Statutes, and was conditioned: “ that the plaintiff shall pay to the defendants the damages which they or either may sustain by reason of the injunction in this action, if it be finally decided that the injunction ought not to have been granted.” On motion of part of the defendants, and because co-defendants had not been served with summons, the court dismissed the action without prejudice to another action, and the injunction was dissolved, and the costs were paid by plaintiff. Thereupon suit was brought, on the undertaking, for damages claimed by reason of the injunction. Held: 1. Such dismissal of the action without prejudice, and such dissolution of the injunction, do not constitute. a breach of the condition of the undertaking.
    3. The sureties thereon can not be required to pay damages for such injunction until it is decided that the injunction ought not to have been granted.”
    Error to the District Court of Hamilton county.
    On March 2,1880, Mildred E. Bascoe brought a suit in tbe court of common pleas of Hamilton county against John W. Bishop and Amanda H. Bishop, his wife, and Edward L. Bishop, May Bishop, Howard C. Bishop, and Daisy Bishop, heirs at law of James W. Bishop and Jane B. Bishop, widow of James. The object and prayer of the suit was to have an instrument, in form a deed, declared to be a mortgage, and for relief against the defendants therein.
    Afterward, on March 23, 1880, John W. and Amanda Bishop brought suit'of forcible detainer before a justice of the peace against Bascoe to obtain possession of the real estate described in the instrument. Thereupon Bascoe filed an affidavit in her suit in the court of common pleas, and applied for an injunction restraining the Bishops from proceeding with the suit before the justice of the peace. The court granted a temporary injunction as prayed for, on the filing and approval of the following undertaking:
    “We, Simon Krug and Prank Bruner, of the county of Hamilton and state of Ohio, bind ourselves to the defendants, John W. Bishop, Amanda II. Bishop, Edward L. Bishop, May Bishop, Howard C. Bishop, Daisy Bishop and Jane B. Bishop, in the sum of two hundred and fifty ($250.00) dollars, that the plaintiff, Mildred P. Bascoe, shall pay to the said defendants, the damages which th ey or either may sustain by reason of the injunction in this action, if it be finally decided that the said injunction ought not to have been granted.
    Cincinnati, Ohio, April the 5th, one thousand eight hundred and eighty. Simon Krug.
    Prank Bruner.”
    No summons was served on the Bishops, but the order of injunction was served upon all but John W. Bishop and Amanda H. Bishop, and the court made an entry as follows :
    “ By consent of parties in open court a temporary injunction is granted herein, and the defendants, and each cf them, are hereby restrained and enjoined from prosecuting the action in forcible detainer against the plaintiff, before Nathan Marchant, justice of the peace, or in any way disturbing the possession of the plaintiff in and to the premise? in the petition described, until the final determination of this action by this court. This order of injunction to take effect upon the execution by the plaintiff to the defendants, with surety to the approval of the clerk of this court of an injunction bond or undertaking in the sum of two hundred and fifty dollars ($250.00).”
    On February 25, 1881, Amanda TI. and John "W. Bishop appeared and filed an answer and cross-petition in the case, setting up title and praying that their title might be quieted. On Alarch 3, 1881, John W. and Amanda H. Bishop moved the court to dissolve the injunction granted, for the reason that the facts stated in the petition and affidavit as the grounds asking for the injunction were not true. Upon hearing on affidavits the court refused to dissolve the injunction until the case should be tried upon its merits. May 9, 1881, the defendants, John W. and Amanda H. Bishop moved the court to dismiss the action because of plaintiff’s unreasonable neglect to serve summons on the other defendants, Edward L. May, Howard C., Daisy, and Jane B. Bishop ; and. the court sustained the motion and dismissed the action without prejudice, at the costs of Baseoe, who paid the same.
    And the forcible detainer suit before the justice of the peace was dismissed and costs paid by John W. and Amanda H. Bishop. After the court dismissed the action and the injunction was dissolved, the defendants in error brought suit against the plaintiffs in error on the undertaking for the injunction, averring that, on May 16, 1881, the court dismissed the action and dissolved the injunction at the costs of M. F. Baseoe, and claiming damages for rents and profits of the premises, counsel fees, loss of time, and cash expended, and prayed judgment against the sureties for the full amount of the undertaking. The plaintiffs in error answered, and, among other things, they averred as answer 6, “ that it was a condition of their said obligation that they were only to be liable on their bond in ease it was finally decided that the injunction ought not to have been granted. They deny that it has been finally decided, that the injunction ought not'to have been granted, but on the contrary, they allege that the said injunction ought to have been granted.” A demurrer to this part of the answer was sustained, and on the trial judgment was rendered against the plaintiffs in error for the full amount of the undertaking.
    On proceedings in error the district court affirmed the judgment of the court of common pleas, and plaintiffs in error now seek a reversal of those judgments.

      Alfred Yaple and W. H. Baldwin, for plaintiffs in error.
    P. A. Reece, for defendants in error.
   Eollbtt, J.

Are the sureties liable in this action ? This depends upon our statutes and the condition of the undertaking. Section 5576 of the Revised Statutes provides that the undertaking shall be: “ to secure to the party enjoined the damages he may sustain if it be finally decided that the injunction ought not to have been granted.” Under this provision of the statute the undertaking was given conditioned : “ that the plaintiff, Mildred E. Bascoe, shall pay to the said defendants the damages which they, or either, .may sustain by reason of the injunction in this action if it be finally decided that'the said injunction ought not to have been granted.”

The answer sets up that the sureties were to be liable only in case it was finally decided that the injunction ought not to have been granted, and that it has not been finally decided that the injunction ought not to have been granted. All this the demurrer admits. But it is claimed that the dissolution of the injunction is such a final decision as that the condition of the undertaking was broken when the action was dismissed by the court and the injunction was dissolved, though the action was not heard or dismissed upon its merits, and the forcible detainer action was also dismissed by the Bishops without trial. The dissolution of the injunction was consequent upon the dismissal of the action of Bascoe against the Bishops. Section 5313 of the Revised Statutes provides: “ The court may dismiss the petition with costs, in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants.” And John W. Bishop and Amanda H. Bishop, having failed to obtain the dissolution of the injunction without a hearing upon the merits of the ease, procured the dismissal of the action without prejudice, “ because of plaintiff’s unreasonable neglect to serve summons on the defendants, Edward L. Bishop, May Bishop, Howard O. Bishop and Daisy Bishop, heirs at law, and Jane B. Bishop, widow of James W. Bishop, deceased,” as shown by the record.

Such a dismissal without prejudice is provided for by section 5314, of the Revised Statutes, as follows: “ An action may be, dismissed without prejudice to a future action ... 3. By the court, for the want of necessary parties. 4. By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence.” Such a dismissal is not a final decision on rights in the action, or on plaintiff’s right to the injunction. But it takes away any prejudice to the parties to determine in another action, any right either party may have in the action dismissed.

The action loas so dismissed without prejudice, or the dismissal is void and the action is pending in that court. Such a judgment of dismissal is an entirety. See Wanzer v. Self, 30 Ohio St. 378, where the court says: “A judgment dismissing an action without prejudice to a future action is an entirety, and, though it may have been so rendered erroneously, it will not constitute a bar to a subsequent action upon the same subject-matter.”

If the action was not dismissed withqut prejudice, how-stands the claim of title to the premises in the same action, set up in their answer and cross-petition by John "W. Bishop and Amanda IT. Bishop, especially after they dismissed their cross-petition and the action so enjoined ? Are such dismissals decisive against them ? Sureties are bound by the conditions of their agreements, by the terms of their bond. This is shown by the very cases cited by defend-, ants in error. And until “it be finally decided that the. said injunction, ought not to have been granted,” Krug and Bruner can not be required to respond for any damages by reason of the injunction. The demurrer to their sixth matter of defense admits that such a final decision has not been made, and the demurrer should have been overruled.

See Bein v. Heath, 12 How. (U. S.) 168.

The court erred in sustaining that demurrer, and the district court erred in affirming the judgment of the court of common pleas.

The judgments of the district court and of the court of common pleas are reversed, and the demurrer to the sixth matter of defense is overruled and judgment*for the sureties is rendered at the costs of the defendants in error.