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Dr. Blunder is a good doctor and his treatment ceeds held to await the event of the attachment must therefore have been the correct thing. The

suit. This suit was determined in favor of the

The attached property visible results of the blunder, manifest in the attaching creditor.

was sold by the assignee, the real estate was crippled condition of a plaintiff, ought indeed to

sold for less than the mortgage debt, and the balhave weight as against such barren and selfish

ance of the attached property for less than the theories. This much we think our correspond- judgment recovered by the attaching creditor. ent will concede, outside the rulings in Haslet v. In accounting in the probate court, the asByles.

signee charged himself with the proceeds of the sale of all the attached property, and also with

other funds which came into his hands as assignee ASSIGNEE-ATTACHMENT-ALLOW.

separately. He credited himself with certain exANCES.

penses paid in preserving and selling the attached

property, also certain expenses incurred and paid SUPREME COURT OF OHIO.

in defending and resisting the attachment Buit.

Exceptions were filed by the attaching credJAMES G. MILES ASSIGNEE OF Isaac T. McLAIN, itor and other creditors, and on appeal to the

court of common pleas, the exceptions to the B. W. SIMINGTON ET AL.

matters of credit above stated were sustained.

In the district court, the judgment of the comA. assigned all his property to M. for the benefit of his

mon pleas was affirmed. creditors, having previously executed a mortgage on certain real estate to B, which real estate and certain personal

A. K. & J. C. Dunn and F. K. Dunn for property, the sheriff, at the suit of S., had seized in at- plaintiff in error. tachment and was in possession of at the date of assign

Dalrymple & Powell for defendant in error. ment. By agreement between the parties, M. converted the attached property into money and held the proceeds

BY THE COURT. to await tbe result of the attachment suit. The real es- 1. It was proper for the assignee to actate was sold for less than the mortgage debt, and the at- count in the probate court for all tached personalty for less than the judgment subse

moneys quently recovered by S. In his account in the probate

which came into his hands, as well the pro court, M. charged himself with the proceeds of the sale ceeds of the attached property, as other funds. of the attached property and also other funds received by him as assignee; and credited himself with expenses

2. As against the proceeds of the attached paid in preserving and selling the attached property and

property, expenses incurred in resisting the atin resisting the attachment suit.

tachment suit were not proper allowances. Held, 1. It was proper for the assignee to account in the 3. Whether such expenses should be allowed probate court for all moneys which came into his hands, as woll the proceeds of the attached property as

the assignee out of other funds in his hands, deother funds.

pends on the fact whether they were reasonably 2. As against the proceeds of the attached property, ex- and in good faith incurred for the benefit of the penses incurred in resisting the attachment suit were not proper allowances.

general creditors. 3. Whether such, expenses should be allowed the as- 4. The expenses in preserving and selling the signee out of other funds in his bands, depends on the attached property should be paid out of the profact whether they were reasonably and in good faith in- ceeds of such property. curred for the benefit of the general creditors.

4. The expenses in preserving and selling the at- 5. The expenses (including commissions), of tached property should be paid out of the proceeds selling the mortgaged property should be paid of such property. 5. The expenses (including commissions), of selling

out of the proceeds of the real estate so mortthe mortgaged property should be paid out of the pro- gaged. ceeds of the real estate so mortgaged.

Judgment reversed and cause remanded to Error to the District Court of Morrow County. court of common pleas.

The questions, in this case, arise on excep- [This case will appear in 38 0. S.] tions to the report of the assignee filed in the


MENT BY NOTE. In July, 1877, Isaac T. McLain, assigned all his property to plaintiff in error, for the benefit of creditors, to be administered under the statute

SUPREME COURT OF OHIO. in such case made and provided. Previous to the assignment the assignor

OTIS B. LITTLE, placed a mortgage for five hundred dollars on

THE EUREKA FIRE AND MARINE INSURANCE certain real estate in favor of William McLain, and B. W. Simington had seized the same par

COMPANY. cel of real estate and certain personal property, including a board yard in attachment and the

April 25, 1882. sheriff by virtue of the writ of attachment was

A policy of insurance, having one year to run, was de

livered to the insured, without payment of the premium in possession of the property seized at the date agreed on. In a few days, the note of the insured at of the assignment..

sixty days was accepted for the premium, which was not By a written contract between the attach

paid at maturity, and remained in the hands up the in.

surer. After this, and within a reasonable time before ment creditor, the assignee and assignor, the at- the loss, the insurer cancelled the policy, and notified the tachad property was delivered to the assignee to

parties interested therein of such cancellation, and cred

sted on the note, a sum less than the pro rata proportion be converted by him into money, and the pro- of tho unearned premium.

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The conditions of the policy provided, that it was not the note, as the pro rata share of the unearned to be binding until actual payment of the premium, and that the insurance should be terminated at the request

premium for the remainder of the year. This of the insured, in which case the company was to retain credit is some two or three dollars less than the only the customary short rates for the time the policy pro rata proportion of the unearned premium, if. was in force, also that the company right, at its option, terminate the insurance upon giving notice to that effect,

the fractions of the months of May and Septemand tendering a pro rata proportion of the premium for

ber be not counted as a month. the unexpired term. Held: '1st. That bị delivering Verbal notice of this cancellation was also the policy without actual payment of the premium, and by taking a note of the assured for the same, the com

given to all the parties interested in this policy, pany waived the condition that the policy was not bind- and in the property insured, in a short time therefug unless the premium was actually paid. 2d. On fail- after, and some two months before the loss. ure of the assured to pay the note, the company, might, on giving reasonable notice thereof before the loss, ex

Upon this state of facts, the court charged the ercise its option to cancel the policy. 3d. As the note jury: was past due and in the hands of the company at the "That, if, after the said insurance was effected, time of such cancellation, it was not necessary to tender the said William and Robert Carson, instead of back the pro rata proportion of the unearned premium in cash, nor to credit the same on the note. The note paying the premium due therefor, gave their was thereafter subject to such credit.

promissory note, payable in sixty days, which Error to the Superior Court of Cincinnati. was received by the said defendants for and on The action was brought by Otis B. Little to re

account of said premium, and was held by them

until after it became due, and is now held by cover under a policy of insurance, made in the

them, and was never in any way used by them, name of Little, Carson & Bro., for a loss by fire

and is now brought here into court, and if, after “loss, if any, payable to the Charter Oak Life Insur ance Company, of Hartford,” to whose rights Robert Carson, and the other parties interested

the said note became due, the said William and the plaintiff claimed to be subrogated. The conclusion reached by the court upon one

in the said insurance, had notice that the said

note had not been paid and neglected to pay the of the many questions presented, is fatal to a recovery; therefore, such only of the facts as pre

same, and thereupon, and within a reasonable

time before the fire, the defendants elected to sent this question will be stated. May 17, 1869, the defendant, The Eureka Fire

cancel the same, and gave the said parties reasonable and Marine Insurance Company, in considera

notice before the fire that the policy was cancelled, tion of a premium of $112.50, insured certain

then the plaintiff cannot recover.”

Also, “that in case of non-payment of said property for Little, Carson & Bro., for one year, loss, if any, payable to the Charter Oak Life In

note, or for any other reason, defendants elected surance Company

to end the risk, and did so, nothing more was reThe premium not being paid at the time, a

quired of them, than to notify the insured within note was taken on the 26th of May following, by

a reasonable time before the fire.” defendant for the amount, payable in sixty days foregoing facts and instructions, is the object of

To reverse a judgment for defendants on the from date. This note was not paid at maturity, and re

the present petition in error.

It is assumed for the purposes of this case, mained unpaid in the hands of the defendant at

that the plaintiff is entitled to be subrogated to the commencement of the action and was treated as worthless, the makers were, shortly after it

the Charter Oak Insurance Co., and to refell due, adjudged bankrupts, and were, at the

cover on this policy, if the same was not legally

terminated upon the loss. time of its maturity insolvent. No offer to pay

JOHNSON, J. this note was ever made.

This policy was delivered and took effect May Among the conditions of the policy are these: 17th, and by its terms was good for one year

“5. No insurance, whether original or contin- unless sooner terminated in accordance with its ued, shall be considered binding until the actual terms and conditions. On its face, the premium payment of the premium.”

was payable in cash, and one of the conditions (The words 'actual payment are italicised was, that “no insurance

* shall be conin the policy.)

sidered binding until the actual payment of the “6. The insurance may be terminated at any premium." By the delivery of the policy withtime at the request of the insured, in which out such payment, and by taking a note of the case the company shall retain only the custom- insurer, nine days thereafter, payable in sixty ary short rates, for the time this policy has been days, this condition was waived and the policy in force, and the same may at any time be ter- was in force, notwithstanding this condition, minated at the option of the company on giving until lawfully cancelled, under this or some notice to that effect, and tendering a pro rata other condition contained therein, or under the proportion of the premium for the unexpired option reserved in the sixth condition. term thereof."

The note not being paid, and its makers being The note became due July 28th, 1869, and on insolvent, the company, after waiting some the 9th of September following, the defendant, forty-five days, cancelled the policy, and notified in a letter to Little, Carson & Bro., called their the insured and the Charter Oak Co. and others attention to the 5th condition above, and noti- interested of the fact. This was in September. fied them that it was in force, and on the same In December the loss occurred. This policy was day cancelled the policy and credited $75.00 on good for one year, unless terminated lawfully.

* *

The 6th condition, provided that the insured We cannot make a new contract for the parties. might terminate the insurance at any time on Good faith is the life breath of the contract. The request, in which case the company should re- payment of the premiums is an essential eletain only the customary short rates for the time ment of the contract, to enable the company to the policy had been in force. This is an un- meet its obligations. Whatever may have been qualified right reserved to the insured to termi- the right of the company before the maturity of nate the policy at any time during the year for this note, to terminate the insurance for other any cause. If the premium had been paid in causes, we think it clear, that after the note becash, the insurer would have been compelled to came due and was not paid, this option might refund the unearned premium, after charging be exercised upon giving reasonable notice for the time the policy was in force at the cus- thereof before the loss occurred. tomary short rates. As a note had been given, Again it is said, the amount credited on the and was still in the hands of the payee, the in- note was too small. Concede this, the note was sured could have terminated the policy by pay- part due, and had not been negotiated. In any ing or tendering the amount due, at short rates, action brought thereafter for the earned preand demanding a return of the note, but as no mium, the correct credit could have been compayment had been made, no money had to be re- puted and allowed. This note was subject to turned by the insurer under this clause. This such credit, in whoseever hands it should be right to terminate the policy was mutual. The found. company reserved the option to at any time Judgment affirmed. put an end to the policy; "on giving notice to [This case will appear in 38 0. S.] that effect, and tendering a pro rata proportion of the premium for the unexpired term thereof." CONVEYANCE IN FRAUD—MORTGAGEIn case the premium had been actually paid for

ATTACHMENT_EQUITIES. the year, the pro rata share thereof from September 9th to the end of the year, must have been

SUPREME COURT OF OHIO. tendered back before this option could be exer.cised. In the present case, no money, had ac

SHORTEN V. DRAKE ET AL. tually been paid. The company still held a past due note for the premium, on which there was

April 18, 1882. due the amount earned to the date of cancella- 1. Where a debtor purchases real estate and causes it tion. It was claimed, and the evidence tended

to be conveyed to his wife in fraud of his creditors, &

bona fide mortgagee from the husband and wife, will not strongly to support that claim, that this note

be affected by the fraud. was not collectible. The company credited $75 2. The possession of the husband and wife at the time on the note, being the amount of the unearned

of taking the mortgage will not charge the mortgagee

with notice of the fraud; nor will he be affected by nopremium, if the pro rating is computed by tice of levies made upon the property as that of the hus. months, and if the fraction of May, 14 days, and band subsequent to the conveyance to the wife. of September, 9 days, are counted as a month, but

3. The levy of an order of attachment, in the absence

of process of garnishment, has no greater operation than if the pro rating is by days, that amount is too the levy of an execution, small by two or three dollars.

4. Where, in a court of equity the fund in controOn this state of facts, the court in effect charged spective claimants are equal in point of merit, the dis

versy is held for distribution, and the equities of the rethat it was not necessary to tender back the tribution will be ordered according to the maxim, qui cash for the unearned premium, nor was - the prior est tempore potior est jure. right to cancel defeated by a failure to credit the Error to the District Court of Hamilton exact amount, or indeed any amount.

County. In this we concur. The effect of taking the

This case

was before this court at a former note, was to give the policy life, notwithstanding term and is reported in 34 Ohio State 645, under the 5th condition, but it did not divest the com- the name of Shorten v. Woodrow. In that case pany of its right reserved in the 6th condition to the judgment below was reversed and the cause terminate the insurance at any time, on giving rémanded for the ascertainment of the priorities notice, and in case the premium had been of liens upon the premises in controversy in the paid, tendering back the unearned proportion case and for distribution of the proceeds of the thereof.

sale of such premises. Upon the trial of the As nothing had been paid, nothing was to be case for that purpose, in the superior court, upon tendered back. The only duty imposed on the the answer and cross petition, and supplemental company, when the premium had not been paid answer and cross petition of Samuel Shorten was, to give notice in reasonable time before the and his amended answer and cross petition, the fire. This the jury found was done.

answer of Alexander McMillan, and Eleanor, The contract of insurance is a contract of in- his wife, and the amendment to their amended demnity upon the terms and conditions specified answer and cross petition, and the answer of in the policy. The insurer undertakes for com- said Shorten thereto, the answer and cross petiparatively small premium, which good faith re- tion of William S. Grant, administrator of Samquires should be paid, to guarantee against loss uel Grant, deceased, and the proof and exhibits or damage, upon the terms and conditions agreed submitted by the parties, in addition to the upon, and upon none other. He may, therefore findings of fact reported in 34 Ohio State 645, justly insist upon the fulfillment of those terms. that court found: "That said Sargent and wife continued to occupy said premises until the sale firmed the judgment of the s! periur court, as in this suit; that the judgment in favor of Sam- to Shorten, and reversed it is to William uel Grant was based on an indebtedness of said Grant, and ordered that out of the proceeds of Sargent occurring prior to the said conveyance the property there be paid, 1st. All unpaid to Drake, and that at the time of the making of costs except those adjudged against Samuel the mortgage hereinafter mentioned by said Shorten. 2nd. To the payment of the judgSargent and wife to Shorten, the said shorten ment in favor of George W. Steele. 3rd. To had actual notice of the levying of said execu- William Grant the amount of his judgment. tion on said premises as the property of said 4th. The balance to Alexander McMillan and Sargent; that the order of attachment in the wife. suit of McMillan and wife against said Sargent, This proceeding is on the petition in error of was grounded on the statement verified by affi- Samuel Shorten and the cross-petition of Alexdavit, that Samuel A. Sargent had property and ander McMillan and wife, prosecuted to obtain rights which he concealed for the purpose of de- the reversal of the judgment of the district frauding his creditors, and that the indebtedness

court. in said action sued upon arose and was a subsist

WHITE, J. ing cause of action in 1864. At the time of the

This case was before this court at a former making of the mortgage by Sargent and wife

term, and is reported in 34 Ohio S. 645. It was to Shorten, hereinafter mentioned, the said Shorten had actual notice of the levying of said

then held that the conveyance from Clark to attachment on said premises, as the property of Sargent are not within the operation of Sec. 17

Drake, and the subsequent one from Drake to Mrs. said Sargent. And as to the Sargent mortgage of the act regulating the mode of administering that court found as follows: That on the 4th day of January, 1872, the said

assignments in trust for the benefit of creditore, Sargent and wife executed, in due form of law, Sayler 354. The judgment of the court below

as amended February 12, 1863. S. & S. 397; 1 a mortgage deed to Samuel Shorten of the prem

was reversed and the cause remanded for distriises in controversy to secure the payment of a debt therein mentioned, which said mortgage was

bution of the proceeds of the sale of the prop

erty. of the giving of said mortgage the said Shorten was the owner of certain promissory notes given to respective rights on distribution of Grant, a him by the said Sargent for money loaned to judgment creditor, whose judgment was recovhim by the said Shorten; that on giving of said

cred March 8, 1870, and execution levied April mortgage the said Shorten surrendered said 12th, following; McMillan and wife, attachnotes to said Sargent and received in lieu

ment creditors, whose attachment was levied thereof, from said Sargent, the notes described May 27, 1870; and Shorten, a mortgagee, whose in said mortgage; that at the time of the mak- mortgage was executed by Sargent and wife ing, of said mortgage the notes, first held by January 4, 1872, and recorded the same day. said Shorten, were due and the amount due 1. As to the priority of the mortgage. At thereon was the full amount mentioned in said

the time of taking the mortgage the legal title mortgage, and that by the giving of said mort- was held by Mr. Sargent, and the findings show gage to said Shorten the time for the payment that the mortgagee had no notice of any fraud of the amount due, from the said Sargent to the or infirmity in it. The mortgage is supported said Shorten, was extended by the said Shorten, by a valuable consideration passing at the time and that at the time of receiving the mortgage of its execution, and the mortgagee took it, as is said Shorten did not in fact have notice, that said in the finding, believing "Mr. Sargent to said conveyance from Clarke to Drake was be the bona fide owner of said premises described made or received in the manner and with the

in said mortgage.” purpose and intent therein set forth, but that The mortgagee therefore stands on the footing the said Shorten at the time of the taking of of a bona fide purchaser for value of the legal title, said mortgage deed believed Mrs. Sargent to be and is entitled to be protected as such. the bona fide owner of said premises described This position of the inortgagee is sought to be in said mortgage deed.

impugned on two grounds; (1) that Sargent, the As conclusion of law from the facts, the sui- judgment debtor, was in possession at the date perior court found, that McMillan and wife by of the mortgage, and that the mortgagee was reason of said attachment acquired a lien on the chargeable with notice of such possession; (2) premises in controversy prior to the claims of that he had notice of the levies of the execution all other defendants except Steele, who was a and of the attachment. prior lien holder, and ordered that the unpaid As to the first ground. The possession of balance of the proceeds of the sale of the prem- Surgent was not adverse to the title in h s wife, ises be distributed as follows: 1st. To the pay- but consistent with it, and in the absence of ment of the unpaid costs; 2nd. To Steele the fraud, his possession was referable to his marisum of $1.500, with interest from October 27, tal rights in her property. The notice of posses1873; 3d. The remainder to McMillan and sion with which the mortgagee was chargeable wife,

was the possession as it existed at the time of On error to the district court, that court af- taking his mortgage, and not as it may have ex

in whom was vested the legal title, but

against In the present case, the equities of the credit

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isted anterior to the conveyance to Mrs. Sar- out notice; although such estate cannot be sold gent.

under an execution upon the judgment.” The As to the second ground. The execution and same principle is applied in Lynch, et. al. o. The

, . her husband, a stranger to the title, except as re- ors were perfect against Mrs. Sargent to have spects his possession in his marital right, which, the property subjected to the payment of their under the statute concerning the rights of mar- judgments; and they were entitled to share in ried women, was not subject to be taken in pay- the proceeds accordig to the dates at which their ment of his debts. The levies were subsequent respective equities accrued. to the conveyance to the wife and could not af- Judgment reversed and distribution ordered fect a bona fide purchaser or mortgagee under in accordance with the foregoing opinion. such conveyance.

[This case will appear in 38 0. S.] 2. After satisfying the mortgage, the remaining question is as to the priority between the ex- CRIMINAL LAW-OBSTRUCTING PUBLIC ecution and the attachment.

ROAD. In the first place it may be remarked that no question arises as to what rights may be acquired

COURT OF APPEALS OF KENTUCKY. by the creditor under the process of garnishment in the proceeding in attachment. No such pro

CINCINNATI SOUTHERN R. R. Co. cess was had in the present case. The levy. of the attachment like that of the execution was

COMMONWEALTH. made as upon the lands and tenements of the debtor; and where the attachment is thus exe

February 28, 1882. cuted, its operation is no greater, in our opinion,

The offence of obstructing a public road is comunitted than the levy of an execution. It has the like

when, by actual obstruction or impediment, the road is

rendered by any person inconvenient or dangerous to effect before judgment that an execution has af- pass. It is not necessary that any actual injury be sufter judgment.

feerd by any person. The present suit is in equity.

Indictment for public nuisance. The particuThe fund in controversy was raised by a sale lar circumstances of the offence charged in the made in a court of equity, and is now held for indictment are, that the defendant did, on Oc distribution 'upon the principles by which such tober 16, 1880, unlawfully obstruct a public road courts are governed. The only parties that can in Mercer County, at a point where it crosses be supposed to have any interest in the distribu- the Cincinnati Southern Railway, by leaving a tion are the execution and the attachment cred-hand-car upon said road, and hanging upon said itors, the debtor and his wife. The title of the car buckets and clothing, by reason of which, wife is held in fraud of the rights of the credit- and the location of said car upon the road, the ors; hence cannot be set up to defeat those horses of people using and passing upon the road rights. In equity, as against these creditors, she were frightened, and the lives of persons endanstands on the same footing as though her title gered, and the road obstructed. The defendant had not been acquired. The debtor himself can appealed of course assert no claim to the fund, neither as LEWIS, C. J., in delivering the opinion of the against his wife nor the creditors. The ques-court, said: “Public or common nuisances," as tion then simply is as to the respective rights of defined by Blackstone, "are a species of offences the execution creditor and the creditors in the at- against public order and economical regimen of tachment. Their equities are equal in point of the state; being either the doing of a thing, to merit; and where the equities are equal, the law or the annoyance of all the king's subjects, or the analogy of law will prevail. The maxim in neglecting to do a thing, which the common such case is, qui prior est tempore, potior est jure. good required. * * * Of this nature, an an

In Adams' Equity (p 162), it is said: “If noyance in highways, bridges, or public rivers, there be no legal right, or, in respect of equita- by rendering the same inconvenient or danger ble subject matter, no perfect equitable right in ous to pass, either positively, by actual obstrucany of the claimants, as, for example, if the es- tion, or negatively, by want of reparation." A tate be still outstanding in the original owner, publie road is a way established and adopted by or in some third person not constituted a trustee proper authority for the use of the public, and for any claimant individually, the claims will over which every person has a right to pass, and be satisfied in the order of date.”

to use, for all purposes of travel or transportsIn Brewster v. Power (10 Paige, 562), the tion, to which it is adapted and devoted. And application of the principle is thus declared: though any temporary use of a highway or street, “Where there is a resulting trust in favor of the that is rendered absolutely necessary from the creditors of the person who pays the considera- necessities of trade or erection of buildings, that tion for real estate and takes a conveyance in do not unnecessarily or unreasonably obstruct the name of another, in fraud of their rights, it the same, is lawful, and temporary obstructions, seems that a judgment recovered by one of such arising from accidental causes, do not render s creditors is in equity a lien upon such real es- person liable for a nuisance, provided no unrestate, except as against bona fide purchasers with sonable or unnecessary delay is permitted; still

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