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267; Fawcett v. Osborn, 32 Illinois 411; Hardman v. Booth, 1 H. & C. 803; Higgons v. Burton, 26 L. J. Ex. 342; Kingsford v. Merry, 1 H. & N. 503; Hollins v. Fowler, L. R. 7 Q. B. 616, affirmed, L. R. 7 App. 757; In re Reed, 3 Ch. D. 123; Lickbarrow v. Mason, 1 Smith's L. C. 2 pt. 1195; Cundy v. Lindsay, supra.

Perhaps the principle here involved was more fully considered in the latter case (Cundy v. Lindsay) than in any other. The facts briefly stated were as follows: Lindsay & Co. were manufacturers of linen goods at Belfast, Ireland. Alfred Blenkarn, who occupied a room in a house looking into Wood street, Cheapside, wrote to Lindsay & Co. proposing to purchase a certain quantity of such goods, and in his letter used this address, "37 Wood street, Cheapside," and signed the letters (without any initial for a christian name) with a name so written that it appeared to be "Blenkiron & Co." There was a respectable firm known to Lindsay & Co. of the name, "W. Blenkiron & Co.," carrying on business at 123 Wood street. Lindsay & Co. sent letters, and afterwards supplied goods, being all addressed to "Messrs. Blenkiron & Co., 37 Wood street," which they supposed was the address of the respectable firm above mentioned. The goods were received by Alfred Blenkarn at that place, of which goods he sold 250 dozen of cambric handkerchiefs to the Messrs. Cundy, who had no knowledge of the fraud, and who resold them in the ordinary caurse of their trade.

On the hearing of the case before the judges of the Queen's Bench (Lindsay v. Cundy, 1 Q. B. D. 348), in 1876, it was held that the property in the goods passed to Alfred Blenkarn, and consequently that Lindsay & Co. could not maintain an action against the Messrs. Cundy, innocent purchasers. But that decision was reversed the next year, in the court of appeals (Lindsay v. Cundy, 2 Q. B. D. 96), and the latter decision was affirmed in the House of Lords in 1878. Cundy v. Lindsay, supra. That was a stronger case for the innocent purchaser than this. Indeed, on the latter hearing, Mr. Benjamin, who argued the case for the Messrs. Cundy, admitted that under circumstances such as are presented in this case, the property would not pass to the fraudulent vendee.

The circumstance that Hamet intended that Letcher & Co. should have the hogs is of no importance. He never intended they should acquire title from any other than himself, nor do they make any claim to such property under any purchase they made from him. The case would be in no material respect different if Rohner had represented to Hamet that he was agent of some firm other than Letcher & Co. Nor does the payment by Rohner of $55 on the agreed price have any other effect on the right to recover than to reduce the amount for which judgment should be rendered.

Counsel for defendants in error rely on Stoddard v. Ham, 129 Mass. 383, the sylabus of which is as follows: "If A. sells goods to B., who sells them

the goods to C. through B. as his agent, and would not have sold them to B. on his sole credit, will not entitle A. to maintain an action against C, for a conversion of the goods." But the decision lends no support to the defendants in error. There it appeared that Stoddard & Co., the

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plaintiffs, had sold bricks to Leonard, believing that he was acting as agent for Ham, the defendant; but Leonard was acting for himself, and subsequently he sold the bricks to Ham. was expressly found as a fact that "Leonard was not guilty of any false representations as to agency, and it was a case of error and mistake on the part of the plaintiffs as to the principal with whom they were dealing." Of course, Stoddard & Co. failed in the action.

Defendants in error also rely on a remark of McIlvaine, J. delivering the opinion in Dean v. Yates, 22 Ohio St. 388, as to the effect of delivery of possession to a fraudulent vendee. But nothing was determined in that case inconsistent with the conclusion stated in this case. On the contrary, Dean v. Yates is entirely consistent with our decision of this case, and supports it, as it is likewise supported by Sanders v. Keber, 28 Ohio St. 630, also cited by defendant in error.

In the finding of facts in the court of common pleas, it was ascertained that if Hamet was entitled to recover, the amount then (June 11, 1877,) due to him, deducting the sum paid by Rohner, was $137.28. The judgment of the district court and court of common pleas will be reversed, and judgment will be rendered in favor of Hamet and against the defendants in error for that sum, with interest from June 11, 1877, and costs.

Judgment reversed.

[This case will appear in 37 O. S.]

SUPREME COURT OF OHIO.

LUCINDA FRANCIS PIATT

ข.

DAVID SINTON, et al.

November 22, 1881.

1. A devise by a testator of all of his property of every description, whether real, personal or mixed, after paying all his just debts, is a devise of the fee, without the aid of a statute declaring such to be the effect of the devise.

2. Where there is a devise in fee, with a provision in the will that in case the devisee should die without leaving any legitimate heirs of her body, then the estate should go over to persons named, the tee taken by the first devisee is determinable only on the contingency of her dying without leaving such heirs living at the time of her death. Niles v. Gray (12 Ohio S. 320), followed. Error to the Superior Court of Cincinnati. The plaintiff in error, who was the plaintiff below, is the devisee of William Piatt, whose will bears date March 2, 1832, and was admitted to probate in 1834. The testator was the owner in fee simple of the land in controversy.

The dispositive provisions of the will are as follows:

"I will and bequeath to Lucinda Francis to C., the fact that A. supposed he was selling | Piatt, now at the school of Mrs. Ryland, in this

place, all of my property of every description, whether real, personal, or mixed, after paying all my just debts; excepting, however, such other bequests as are hereinafter named, viz: To my nephew, Daniel S. Piatt, son of my deceased brother, Daniel Piatt, my fowling piece, which was presented to me by Colonel Riano, of the Spanish Royal Army; then to my nephew, William Piatt, son of my deceased brother, Daniel Piatt, I will and bequeath my sword and pistols, being the same which I used at the siege of New Orleans; these I wish to have retained in the family, if possible; my wearing apparel I will and bequeath to E. Demond Piatt, William Piatt, and Daniel S. Piatt, sons of my deceased brother, Daniel Piatt, to be equally divided between them; and in case the aforesaid Lucinda Francis Piatt should die without leaving any legitimate heirs of her body, then I will and bequeath all my property, of every description, such as would be granted to her by this will, unto Catharine Wheeler, E. Demond Piatt, William Piatt, and Daniel S. Piatt, children and heirs of my deceased brother, Daniel Piatt, to be equally divided."

In July, 1844, the plaintiff uniting with her husband conveyed, for the consideration of thirty-one hundred dollars, a parcel of the real estate devised to her, to John C. Wright by a deed in fee simple, with full covenants of warranty.

In 1866, the widow and heirs of Wright, by like deed, conveyed the same premises to the defendant, David Sinton.

It is charged in the petition, in substance, that the plaintiff only in fact sold an estate for and during her life in the premises; and that the deed in fee simple was executed by mistake and in ignorance of her rights. It is also charged that Sinton purchased with notice of her rights. The plaintiff also claims that she took by the devise only an estate during her natural life.

The court below found, "that Lucinda Francis Piatt took a fee in the real estate described in the petition, under and by the will of her testator, William Piatt, subject to be defeated only by her dying without leaving legitimate heirs of her body."

And the court found the other issues joined for the defendants, and rendered judgment accordingly.

On error, the Superior Court in general term affirmed the judgment, and the present petition in error is prosecuted in this court to reverse these judgments.

WHITE, J.

We find no error in this case. The construction of the will now in controversy is governed by the decision in Niles v. Gray, 12 Ohio S. 320. That case was decided in 1861 and has become a rule of property in this State and we are not now disposed to reconsider it.

The will in that case, as well as the will now in question, was made prior to the passage of the

Act of March 3, 1834 (1 Curwin 145), which declared, in effect, that a devise of lands, in a will thereafter made, should be construed to convey a fee simple, and that the devisee should take all the estate which the devisor had in the property, unless it appeared by express words or the manifest intent that a lesser estate was intended. The decision, therefore, in Niles v. Gray, was not founded upon that statute nor upon any subsequent one of like effect; but upon the term of the will as construed without the aid of such legislation. The language in that case that was held to operate as a devise of the fee was "the remaining part of my real property." The language of the devise in the present case is "all of my property of every description, whether real, personal or mixed, after paying all of my just debts;" and the devise over to the children and heirs of his deceased brother, is of the same interest and estate that was given by the will to Lucinda, the first devisee.

The claim on behalf of Lucinda is that she took only a life estate. But it seems to us that she took all the estate and interest that was subject to disposition by the testator and that was liable for the payment of his debts, subject to be defeated on the happening of the contingency named in the will, when the estate is to go over to the persons named as the children and heirs of his deceased brother.

The contingency upon which the devise over takes effect, according to Niles v. Gray, is the death of the first devisee, Lucinda, without leaving legitimate heirs of her body or lineal descendants then living; and that until such contingency happens the fee is vested in the devisee and her grantees.

Whether the devise over will ever take effect cannot be determined until the plaintiff's death; but if it should never take effect, her grantee, Sinton, will, according to the principles decided in Niles v. Gray, hold an indefeasable estate, if the deed to him is valid.

That the deed is valid was found by the court below upon the evidence; and we see nothing in the record to warrant us in disturbing that finding.

Judgment affirmed.

[This case will appear in 37 O. S.]

SUPREME COURT OF OHIO.

JOHN D. WILLIAMS

v.

CHARLOTTE ENGLEBRECHT.

December 6, 1881.

In an action by the mortgagee against the mortgagor, under the statute (Civil Code, 2 558, Rev. Stats. 35781), to recover possession of the lands mortgaged, the fact that such mortgage was given to compound a felony is not available as a defense.

Error to the District Court of Scioto County. On July 14, 1874, John D. Williams commenced an action in the Court of Common Pleas of Scioto County, against Charlotte Englebreeht

and others, under the civil code, § 558; Rev. Stats. § 5781. The object of the suit was to recover possession of certain real estate in that county, the plaintiff alleging in his petition that he had a legal estate in the premises therein described, was entitled to the possession thereof, and that the defendants unlawfully kept him out of possession. There was an answer to the petition and reply to the answer.

The facts are as follows: In 1866, Williams loaned $2,500 to Ludwig Englebrecht, who gave him a note for the amount, payable one year after date, which note was signed by Ludwig Englebrecht as principal and purported to be signed by Frederick Englebrecht, his father, as surety. When the note became due, December 20, 1867, Ludwig obtained a renewal of the loan for one year. To effect such renewal, he paid the interest on the note, and delivered to Williams a new note for the same amount, also executed by himself as principal and purporting to be executed by his father as surety, and also delivered to Williams an instrument purporting to be a mortgage on the premises sought to be recovered in this case, to secure the payment of the last mentioned note, which instrument, in the form of a mortgage, purported to have been executed and acknowledged in due form by Frederick Englebrecht and his wife Charlotte, one of the defendants, the premises being owned by said. Frederick in fee. In fact, however, the name of Frederick Englebrecht was signed to the notes and the pretended mortgage without his knowledge or consent, and the name of Charlotte Englebrecht was signed to the pretended mortgage without her knowledge or consent, and in placing such signatures on the notes and mortgage, Ludwig Englebrecht committed forgeries. He also fraudulently procured the pretended mortgage to be attested by two witnesses, and the acknowledgement to be signed by a notary public of Scioto county. Williams believed the notes and mortgage to be genuine when he so received them, and so believed until March, 1868, when he first learned that the forgeries had been committed. He insisted that a genuine note and a genuine mortgage on the premises should be executed, but Frederick Englebrecht refused to execute such note, and he and his wife refused to execute such mortgage, until Williams assured them that unless that was done he would immediately prosecute their son Ludwig for the forgeries. Thereupon, March 23, 1868, Ludwig and Frederick Englebrecht executed and delivered to Williams a promissory note for $2,500, dated December 20, 1867, payable four years after date, with interest, and Frederick and Charlotte Englebrecht executed, acknowledged and delivered to Williams, in due form, a mortgage on said premises, in which mortgage they say that we, "in consideration of $2,500 to us in hand paid by John D. Williams, * * * do hereby grant, bargain, sell and convey to said John D. Williams, his heirs and assigns forever, the following described real estate." Here follows a description of the property in the same form as set

forth in the petition, the usual covenants of seizin, against incumbrances, and of general warranty, a recital of the terms of the last mentioned promissory note, and a condition that "if the said Frederick Englebrecht and I.. Englebrecht, or either of them, shall pay said note when the same becomes due, with interest thereon, then these presents shall be void."

Ludwig Englebrecht died before the note became due. Frederick Englebrecht was living on the premises above mentioned at the time he executed such mortgage. He was the owner of the premises in fee simple and continued to reside thereon until he died, intestate, his death also occurring before the note became due, and the defendants, his widow and heirs at law, have resided on the premises ever since his death.

A jury was waived and the cause was submitted to the court of common pleas on the pleadings and the above facts, which court found in favor of the defendants; the district court affirmed the judgment; and this petition in error was filed by Williams to obtain a reversal of the judgments.

W. A. Hutchins and J. W. Bannon for plaintiff in error.

F. C. Searl and Moore & Newman for defendants in error.

OKEY, C. J.

In 1826, Charles Roll and Peter Roll, his father, executed to Henry Raguet two promissory notes, each for the sum of five hundred dollars, and Peter Roll executed to Raguet mortgages on a parcel of real estate in Hamilton County, to secure their payment. The notes and mortgages were given to compromise or compound a larceny said to have been committed by Charles Roll. The reports of the cases prosecuted on those instruments are very instructive on the question here presented. In an action brought on one of the notes against Charles Roll and Peter Roll, it was held that Řaguet could not recover, the contract being executory and the parties in pari delicto. Roll v. Raguet, 4 Ohio, 400. The same result was arrived at, for the same reason, in a proceeding by scire facias, prosecuted by Raguet against Peter Roll on one of the mortgages. Raguet v. Roll, 7 Ohio, 1 pt. 76. The same result would have followed in any suit in chancery for an account of the amount due on the mortgages and a sale of the premises. McQuade v. Rosecrans, 36 Ohio St. 442. And see acc. Spalding v. Bank of Muskingum, 12 Ohio, 544, 548; Goudy v. Gebhart, 1 Ohio St. 262; Hoss v. Layton, 3 Ohio St. 352, 357; Cooper v. Rowley, 29 Ohio St. 547, 549. Raguet then prosecuted an action of ejectment against Peter Roll, basing his right to recover on the mortgages, the conditions in which had been broken, and Roll relied for his defense on the fact that the mortgages had been given to compound a felony. The court, however, while approving the decisions in the above mentioned cases between the parties, held that in the action of ejectment, such defense was not

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available to Roll. Grimke, J., in delivering the opinion, said: "A mortgage is in reality a conditional fee, which is as large an estate as a fee simple, though it may not be so durable. And the case comes within the principle, that when a conveyance has actually been executed on an unlawful consideration the court will not merely, not annul it; they will permit it to be enforced. Raguet v. Roll, 7 Ohio, 2 pt. 70. But this is not inconsistent with the statement in Harkrader v. Leiby, 4 Ohio St. 602, 612, repeated in other cases, that a mortgage is now treated in both courts (law and equity) as a mere security for the debt, and the mortgagee is permitted to use the legal title only for the purpose of making effectual such security." And see Hill v. West, 8 Ohio, 222; McArthur v. Franklin, 16 Ohio St. 206. Hence, it is a good defense to ejectment on a mortgage that the debt has been paid. This principle is further illustrated in the fourth suit to which Roll and Raguet were parties. That was a bill in chancery in which the question presented was whether Roll had the right to redeem, and it was held that he had such right, and the court approve the decisions in the three preceding cases between the parties. Cowles v. Raguet, 11 Ohio, 38. But it was further held that a court of equity will not set aside or restrain the enforcement of a deed of real estate the consideration of which is wholly founded on an illegal agreement between the parties (Moore v. Adams, 8 Ohio, 373; Thomas v. Cronise, 16 Ohio, 54); though where by threats of prosecution for a crime of which he was wholly innocent, a person was induced to execute a note and mortgage, it was held that equity will grant relief, and restrain the collection of the note or the enforcement of the mortgage. James v. Roberts, 18 Ohio, 548.

An examination of these cases will show very clearly, that under the law as it existed before the adoption of the code of civil procedure of 1853, there was no such defense to an action of ejectment based on a mortgage like this; nor could a bill in chancery, founded on such facts, be entertained to restrain such action or quiet the title of the mortgagor. As against such mortgage the only relief in the courts available to the mortgagor or his heirs, on the facts here stated, was a bill to redeem. It is urged, however, that the rule is now very different, and that by reason of the blending of legal and equitable actions and defenses, under the code of civil procedure, the defense of illegality is equally available to the defendant whether an action is brought upon the note, or upon the mortgage to obtain a sale of the property, or for the recovery of the possession of the land under the mortgage. True, the rights of parties, with respect to a few matters, are changed by the code, as, for instance, the acknowledgment of a debt sufficient to take a case out of the statute of limitations, must now be in writing; and the practical effect of permitting, in a proper case, the determination of the rights of the parties, legal and equitable, in the same suit, enables a person sometimes to secure rights which under the

former practice would have been lost. But, with the exception of the express changes referred to, the rights of parties are unaffected by the code. This view is well expressed in Dixon v. Caldwell, 15 Ohio St. 412, 415, where it was said: "The distinction between legal and equitable rights exists in the subjects to which they relate, and is not affected by the form or mode of procedure that may be prescribed for their enforcement. The code abolished the distinction between actions at law and suits in equity, and substituted in their place one form of action; yet, the rights and liabilities of parties, legal and equitable, as distinguished from the mode of procedure, re main the same since, as before, the adoption of the code:" White, J. As the heirs of the mortgagor could, in a case like this, have maintained a bill, under the former practice, to redeem, they may, of course, obtain the same relief in this case by cross-petition. Rev. Stats. § 5071. This is not a change of the rights of the parties. But, as we have seen, a bill in chancery could not have been entertained to restrain an action of ejectments on a mortgage like this, and hence the heirs of the mortgagor cannot maintain a cross-petition for such relief in this case. Το hold otherwise is to affirm that the code has effected most material changes in the rights of parties, without any words to indicate a purpose to make such change.

No claim is made that the question before us is affected by the provision of the statute (R. S. $5316) requiring a sale to be ordered when a mortgage is foreclosed; nor could such claim be properly made. The object of that provision will sufficiently appear in Anonymous, 1 Ohio, 235, Higgins v. West, 5 Ohio 554; Morgan v. Burnet, 18 Ohio 535.

In rendering a judgment of reversal in this case, we perform a disagreeable duty; but it is a duty, nevertheless. If it will tend to a better administration of justice to permit, in cases of this sort, such defense as was offered by the defendants, the law upon the subject must be changed by the legislature and not by this court. Judgment reversed.

SUPREME COURT OF OHIO.

JOHN WEAVER

v.

WILLIAM E. CARNAHAN.

December 6, 1881.

1. Where plaintiff sues to recover the value of services rendered, and defendant admits the rendition of the services, but denies the value to be as great as claimed, and avers that it does not exceed a certain specified amount, it is error to render a judgment in plaintiff's favor for such amount, and continue the cause for trial, to determine the further value of such services,

2. Where defendant, in such case, denies the rendition of the services and further alleges that, even if they had been rendered, they would have been worth specified sum and no more, and the court thereupon, without trial had, erroneously renders judgment against him for such amount; the judgment, if acquiesced in by defendant, is final and a bar to further proceedings.

3. Section 376 of the Code, as amended March 13th,

1872, (69 O. L. 44), appplies only to cases where a part of the cause or causes of action is admitted and part denied. (Moore v, Woodside et al, 26 O. S. 537, distinguished.)

Error to the District Court of Butler County. Carnahan brought his action in the Court of Common Pleas against Weaver to recover $117.50, with interest, which he claimed to be due him upon an account for medical services, a copy of which account he attached to his petition. The answer of defendant was as follows:

"The defendant for answer denies that there is due to the plaintiff on said account $117.50, as alleged in the petition. He admits the items in said account:

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$4 50

4 50 4 50 4 50 4 50 450

4 50

4 50 4 50

$40 50

He says plaintiff expressly agreed to make no charges for medicine and medical aid rendered defendant's family, besides his wife. He denies that the value of the residue of said services and medicines and prescriptions were worth as much as stated in the petition. He says said entire amount should not be more than ninety dollars."

The plaintiff replied denying each and every allegation of the answer.

Thereupon, on motion of plaintiff, the court rendered judgment against defendant for the sum of $90.00 and continued the cause for further disposition. The amount thus found due, the defendant paid.

At the following term the court proceeded to hear the case and found that there was still due to the plaintiff upon the account aforesaid $26.75, for which sum judgment was rendered against defendant. A motion for a new trial was overruled, and the cause coming into the District Court for review, the judgment of the court below was affirmed.

LONGWORTH, J.

The answer of defendant, as a pleading, is exceedingly vague and unsatisfactory. Whether by it the defendant offered to confess judgment for the sum of $90.00, or to deny the rendition of any services, except those expressly admitted, and to allege, by way of alternative, that such services, if they had been rendered, would not have been worth, all told, more than $90.00, is not as clear as we could desire. The latter construction, however, is the more reasonable. Treated as an admission of the facts stated in the petition, except as to the value of the services rendered, the judgment upon the pleadings would have been final and the action of the court in rendering a further judgment in plaintiff's

favor would be too plainly erroneous to admit c discussion.

The court below seems to have treated the case as one of that class to which the provisions of § 376 of the Code of Procedure applies, (69 O. L. 44). That section provides that defendant having answered "to a part of the cause or discretion, render judgment upon such part or causes of action alleged, the court may, in its parts as are not put in issue by such answer." Under the discretionary power thus conferred the court might, undoubtedly, have rendered judgment in plaintiff's favor for $40.50 upon the nine items expressly admitted by the answer to have been correctly charged, and then continued the cause for trial upon the issue or issues raised. But

this was not done.

As to the remianing items of account the answer either admitted or denied that the services were rendered. If it admitted their rendition the mere denial that they were of the value alleged would be surplusage and the court might have rendered judgment against defendant as by default, there being no issue of any kind raised by the answer. If, on the other hand, the rendition of services was denied, then it was error to enter up judgment against defendant for $90.00, without trial, as was done. But of this error the defendant made no complaint on the contrary he paid the judgment and only objected to the court proceeding against him further. Upon either hypothesis the

judgment was a finality.

Section 376 of the Code applies only to cases where a part of the cause or causes of action is admitted and part denied, it does not apply where all are admitted or denied.

Moore v. Woodside et al., (26 O. S. 537), in nowise conflicts with this doctrine. True, in that case the plaintiff had but one cause of action, the suit having been brought to recover the agreed value of goods sold. But the answer alleged that the goods had been sold by sample and were inferior to the samples in a specified amount and offered to confess judgment for the agreed price less this amount. Here it is plain that the defendant might have paid the agreed price and would then have had a right of action against plaintiff for the breach of warranty. Instead of so doing he sought to recoup in the same action; and it was upon the sole ground that the defense was a counter-claim and not a mere denial of the amount of eamages that the decision in that case was based.

The judgments of the district court and court of common pleas will be reversed. [This case will appear in 37 O. S.]

Adjoining Owners-Surface Water.-In respect to the running off of surface water caused by rain or snow, an owner of land is not prevented from filling up wet and marshy places on his own soil for its improvement and his own advantage because his neighbor's land is so situated as to be incommoded by it, nor because by so doing he prevents the water reaching a natural water-course as it formerly did.-N. Y. Court of Appeals. BARKLEY v. WILCOX. October 4, 1881.

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