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of the chief requisites in a writing of either class. ilege of redemption at the expiration of said It is notorious that only one attorney in a hundred term; we to pay ground rent, at the rate of 8 can draw a deed, or write a will, or shape a con

per cent., that is to say, 8800 per annum, payable tract, that will not be susceptible of two or more

quarterly, and all taxes and assessments that are

or may be levied against said property. We different interpretations; while very many

also agree to pay attorneys' fees for examination most signally fail to inject even common sense of title, and your commission for negotiating or decent phraseology into the instruments they loan. Commission to be one per cent. write.


*Ruth Ass PATRICK." A book of forms of such writings is indispensa

It appeared that the defendants had paid 850 ble in almost all libraries, and if prepared by a attorneys' 'fees for examination of the title, and first rate laivyer, is of value in all branches of le- had secured the loan of $10,000 upon the property, gal practice. Such a book is Oliver's Conveyancing in accordance with the above terms. The de nos before us. The fourth edition was com

fendants below refused to receive the loan and

the action was brought to recover the agreed pleted in May, 1881, by Geo. H. Hopkins, of

commission of $100, and the 850 paid for the exthe Portland (Me) bar, and contains many new amination of title. forms and much new matter of value to the pro The petition alleged that the contract so exefession.

cuted by Ruth A. Patrick related to her separate Oliver's Conveyancing, revised and enlarged, 8 vo.

estate, and was for its benefit, and that said

Ruth held the legal title to the property de450 pp., 81.50 net. Dresser, McLellan & Co.,

Dresser, McLellan & Co., scribed in said contract. These allegations were Portland Maine.

not denied.

The answer, after setting up Mrs. Patrick's SUPREME COURT OF OHIO.

coverture as a first defense, alleged that the

transaction only contemplated a mortgage of the Johx W. PATRICK

property of Mrs. Patrick, to secure a loan, and

that the form it was to assume, of an absolute JOSEPH H. LITTELL ET AL.

conveyance with lease back for ten years, with

right of redemption, was to evade the revenue 1. The separate estate of a married woman is chargea

laws of the State, by enabling the lender of the ble with the performance of her eng:gements or obligations made or incurred upon its credit or for its benefit;

money to treat the transaction on his part as a and an agreement by her to pay for services to be ren purchase of the property, and not as a mere loan dered in procuring a loan of niones to remove a mort- of money, secured by lien upon the property gage from such estate, is an agreeiieut made upon its account, and for its benefit.

conveyed. This allegation was not denied by 2. In an action imder section 28 of the Code of Civil the reply: A personal judgment was rendered Procedure, as amended March 30, 1874, against a married in the superior court, in special term, against woman, upon her obligation in writing io pay for servi.

both defendants below, and the judgment against ces rendered, or money advanced, for the benefit of her separate estate,, it is not error to render a personal judge

Mrs. Patrick was declared to be a lien upon her ment against her.

separate estate. In the general term, upon pe3. Where a loan of money is to be secured hr a con

tition in error by Mrs. Patrick, the judgment of veyance of real state in ree to the lender, with a lease back for a specified number of years, with a privilege of the special term against her, was affirmed. redemption to the lessees at the expiration of the term, She now prosecutes this petition in error to tbe lessees to pay a ground rent equal to eight per cent.

reverse such judgments. per annum on the money loaned, such security is in equity a mortgage and subject to taxation under the Matthews, Ramser & Matthews, for plaintiff statuie; and a promise to a third party to pavi for servi.

in error. ces to be rendered in obtaining a luan to be tbus secured, is not void as being contrary to public policy, although

J. R. Murdock, for defendants in error. the object of the lender of tlie money in adopting such

BOYNTON, J. form of security was to evade tasution upon the invest- The plaintiff in error contends that the judgment.

ment of the special term of the superior court Error to the Superior Court of Cincinnati.

against her is erroneous for two reasons. The original action was brought by the de

First, that being a married woman when her fendants in error, against John W. Patrick and liability is alleged to have been incurred, and Ruth A. Patrick, husband and wife, for services

not having charged her separate estate with the rendered and money paid for them, under the

performance of her engagement or obligation to following written agreement:


the defendants for the services rendered in “CIXTI, October 9, 1874. her behalf, or for the money advanced for her, a "To Jos. H. LITTELL & Co.

personal judgment was wholly unauthorized; “You are hereby authorized to negotiate for and, secondly, that inasmuch as the transaction us a loan of $10,000 on our house and lot, 50x136. contemplated that the security for the loan

a known as Yo. 534 Court st. between Baymiller should assume the form of an absolute conveyand Freeman sts., on a basis of a 10 years' lease, ance, with a lease back for ten years, with a we to give a good and sufficient deed of general i right of redemption at the end of the term, warranty, free of dower and clear of incumbran- instead of an ordinary mortgage, the purpose 008, and to receive a lease for 10 years, with priv. i being to evade the revenue laws of the State by

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so covering up the loan as to conceal the real having direct reference to Mrs. Patrick's sepa-
character of the transaction, the engagement or rate estate, but made for its benefit. The object
obligation was void as against public policy. was to remove an existing incumbrance upon
As respects this objection, whatever might be the property, and it was to accomplish this ob-
the effect of the transaction, if the person from ject that the services of the defendants were
whom the money had been procured were seeking engaged. The fact that the loan was to be se-
to enforce the provisions of the agreement, cured by a new mortgage upon the same prop-
with which point we are not now concerned, - erty, affects the question but very little. She
the relation of the defendants in error to the was to get rid of a mortgage debt then due and
transaction, or to the form of the security to be pressing, by substituting another therefor, to
given for the money borrowed, was not such, in become due ten years thereafter.
our judgment, as to defeat their right to com- Whether the separate estate would in fact be.
pensation for the services rendered, or the money benefited by exchanging one mortgage for
advanced. They were constituted agents to pro- | another, is not the test of liability. A married
cure a loan, upon terms prescribed by the plain- | woman, to the extent of her power of disposi-
tiff and her husband. The written request to tion over her separate estate, may charge it with
procure the same explicitly defined the form of such engagement as she sees fit to make. If
the security the defendants were directed to subjected to no imposition, a fact always to be
adopt. It was in pursuance of these directions determined in view of the relation she sustains
that the services were rendered and the money to the parties to the transaction, in connection
paid for the examination of the title to the prop- with its nature and subject matter, she may
erty, which was to be pledged as security for the charge the property to the extent she might
debt. The agreement by the defendants was bind herself at law, were she sui juris, unless in
fully executed, and the services rendered were so doing she exceeds some limitation upon her
performed in good faith. To refuse them redress, power of disposition. Pollock on Contracts, 73.
under the circumstances, for the reason stated, And that there is now no limitation upon her
would, it seems to us, be applying the doctrine power to bind her estate to the discharge of lia-
whịch denies a remedy for the enforcement of bilities created on account thereof, where the
contracts contrary to public policy, to a state of estate is acquired under the státute, will be
facts not justly falling within the operation of shown hereafter.
the rule. The services they performed were dis- The question now is, whether an intention
tinctive in their character and perfectly lawful; upon the part of Mrs. Patrick, to charge her sep-
and, had the transaction been executed through- arate estate with payment for the services ren-
out in the mode contemplated by the parties, as dered, and money paid by defendants, for the
respects the form of the security to be taken, it benefit of such estate, will be implied from the
would, in fact and legal effect, have been but a character of the transaction and the nature of
loan secured by what in equity would have been the engagement entered into. The principles
regarded as a mortgage only, and the investment, announced in previous adjudications of this
without doubt, have been as much the subject court require an affirmative answer to this ques-
of taxation under the statute relating to that tion.
subject, as if a mortgage pure and simple had In Graves v. Phillips, 20 Ohio St. 371, it apo
been taken.

peared that Mrs. Graves, owning a separate Where the transaction, within the under-estate, had purchased a piano, and given her standing of the parties, is a loan of money upon note therefor, and that the same was purchased security, no form which the transaction may as- for her separate use, and as her separate property. sume can so disguise it, as to change its legal The court held that an intention to charge her character or effect.

separate estate with the payment of the note It remains to consider the effect of the cover- might be inferred from its execution. In Avery ture of the plaintiff upon the obligation she as- v. Yan Sickle, 35 Ohio St. 270, it was held that sumed, and upon the right to give a personal where a married woman acquires the title to judgment against her. The facts are briefly property, by purchase, which by force of the these. Being the owner of a separate estate, statute becomes her

statute becomes her separate estate, and exewhich was heavily encumbered by mortgage, she cutes a promissory note therefor, an implication engaged the defendants in error, her husband arises, in the absence of proof showing a differjoining, to secure for her a loan of $10,000 to ent understanding, that she thereby intended to enable her to remove the mortgage from her charge her separate estate with its payment. estate. She agreed to pay an attorney's fee for And the circumstances that upon sale of the making an examination of her title, and a com- property, so purchased, in proceedings in foremission of $100 to the defendants for securing closure, the proceeds were exhausted in the paythe loan. The services stipulated for were fully ment of prior liens thereon, did not effect the performed, the defendants paying $50 from their creditor's right to payment of the note out of own funds to the attorney making the abstract the, residue of her estate. So also, in Williams of title. The plaintiff refused to accept the v. Urmston, 35 Ohio St. 296, we held that where loan, or to pay for the services rendered in pro- a married woman, having a separate estate, execuring it. We have no hesitancy in pronounc- cutes a promissory note as surety for another, a ing the agreement made, to be one, not only presumption arises that she thereby intended to

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charge such estate with its payment. The prin- judgment could be awarded, and the decree only ciple of the first two cases is clearly applicable | reached property which it was within the wife's to the present. The liability, in each, was in

power to bind.

But under the statute as curred not only on account, but for the directamended, the same judgment is required, with

, benefit, of the estate, and was therefore held to

the same process for its enforcement as would be be a just charge upon it. “The test of liability,"

"The test of liability,” | awarded if the wife were sole; and, saving to says Mr. Pollock," would seem on principle to her such exemptions as are provided for heads of b , whither the transaction out of which the families, her separate estate is made liable for demand itrises had reference to, or was for the

any judgment rendered against her, to the same benefit of the separate estate.” Pollock on Con- extent as would be the property or estate of her tracts, 75.

husband, for any judgment rendered against Cases that deny the liability of the estate, him. This subjects all her separate property where the wife becomes a surety, and does not and estate acquired or held under the act of 1861, expressly charge her estate with the payment and its amendments, with the exception named, of the debt, admit the liability where the en- to the payment of the debts chargeable upon it; gagement either has reference to the estate, or is and also all separate estate otherwise acquired, for its benefit. Yale v. Dederer, 22 N. Y. 450; ; unless restrictions are laid on her power to charge Ballin v, Dillage. 37 N. Y. 35; Manhatten B. & the same by the instrument creating the estate. M. Co. v. Thompson, 58 N. Y. 81; Williard v. Before the amendment of 1870 it is doubtful Eastham, 15 Gray 328.

whether the creditor could have reached more It was said, in a late English case, by Lord than the personal estate of the wife, with the Justice James, that “it would be


inconven- rents and profits of her real estate arising upon ient that a married woman, with a large sepa- a lease for the term for which the wife could rate property, should not be able to employ a have leased the same without the consent of the solicitor, or a surveyor, or a builder or tradesman, husband. But now the creditors are substantior hire laborers or servants, and very unjust, if ally let in upon the whole estate, and where she did, that they should have no remedy there are no liens to adjust, and the wife holds against such separate property." London Char- the legal title to the property constituting her tered Bank of Australia v. Lempriere, 4 P. C. separate estate-in other words, where there are (Law R.) 595.

no equitable circumstances calling for the exerHolding the separate estate of Mrs. Patrick lia

cise of the equity power of the court-a perble to the defendants' demand, we are also of the sonal judgment, to be collected by execuopinion that a personal judgment against her tion, would not only an appropriate was proper. Her obligation is one upon which, remedy, but to be clearly authorized by the were she sole, she would be liable at law. It is statute. The Married Woman's Property Act a contract or obligation upon which, under sec- of England, of 1870, provided that "a hustion 28 of the Code, as amnended March 30, 1874, band shall not, by reason of any marriage which she might have been sued alone; and being of shall take place after this act shall come into that charaoter, the statute requires the like operation, be liable for the debts of his wife conjudgment to be rendered and enforced, in all tracted before marriage, but the wife shall be lirespects, as if she were unmarried. 71 Ohio Laws, able to be sued for, and any property belonging 47. It was one of the objects of this section, as to her for her separate use shall be liable to satthus amun led, to so far modify the disabilities of isfy, such debts, as if she had continued unmarcovertur , av toauth. 27" a personal juagment to ried.” In giving construction to this provision by rendrial is ruini i married woman, where in Exp. Holland, L. R., 9 Ch. App. 307, Lord such judgment would have been proper, had she Cairns said: “I think the meaning of the secremainud unmarried.

tion is, that although the husband is not liable This provision, as amended, wrought a radical for the debts in question, the separate propchange in the remedy as respects the character

erty of the wife is to be liable, and that for of the judgment to be rendered, as did the amendment of April 18, 1870, as to the extent

the purpose of reaching it she is to be subject of the property that might be reached to dis

to the ordinary process of law and equity. charge the liability. Prior to the date at which

Section 28 of the Code, as amended in 1874, a personal judgment was authorized, the decree, gives the same process, resort being had to according to the English practice, and that of

the one that is appropriate to the case. sone of the states, was directed against the The objection that it does not sufficiently estate, declaring the separate estate vested in


that the plaintiff in error owns a septhe wife at the date of the decree which it was

arate estate, is not well founded. The petiwithin her power to dispose of, chargeable with the payment of the debt. Picard v. Hine, L. R., the contract sued on related to her

tion alleges, and the fact is not denied, that 5 Ch. App. 274; Davies v. Jenkins. L. R., 6 Ch.

separate D. 730; Collett v. Dickenson, L. R. 11 Ch D. 687;

estate, and was made for its benefit. The Johnson v. Gallager, 3 De Gex, F. & J. 320;

contract related to no other property than Armstrong v. Ross, 20 N. J. Eq. 109; see Todd v.

that therein described, to which, it was alLee, 15 W is. 365.

leged, she held the legal title. It thus appears As there was no personal liability, no personal that the property to which the agreement



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related was held by her for her separate use. assume that no error intervened to the prejuWhether she had other property does not ap- dice of the defendant. pear. Having a separate estate, the whole of Nor is it apparent how he could have been it, subject to the exemptions provided for prejudiced by the refusal of the court to require heads of families, was liable for the judgment. the plaintiff' to separately state and number her

several causes of action. Judgment affirmed.

For the purposes of this, we may assume that

the petition states more than one cause of action. SUPREME COURT OF OHIO

On this assumption, these causes should have

been separately stated and numbered, and the BEAR V. KNOWLES.

court of common pleas erred in not sustaining

the motion. 1. In proceedings in error, under the civil code, to reverse a judgment, the court must disregard any error or

Will error lie to reverse the final judgment defect in the pleadings or proceedings which does not upon the merits for this assumed error? affect the substantial rights of the adverse party.

We think not. It is true the code requires 2. The refusal of a court, in which a civil action is pending, to sustain a motion to separately state and

causes of action, which may be united in one number several causes of action which may be united in Petition, to be separately stated and numbered; one petition, is not an error for which the final judgment but unless it appears that the adverse party has will be reversed, unless it appears that by such refusal

been deprived of some substantial right, by the the adverse party has been deprived of a substantial right.

action of the court, it must be regarded as formal Error to the District Court of Stark County. merely, and not prejudicial. Hannah Knowles, the plaintiff below, brought that "the court in every stage of an action, must

The Code, section 138 (R. S. 5115), requires her action against the plaintiff in error, to re- disregard any error or defect in the pleadings cover for injuries to her person and to her means of support, by reason of the intoxication of her

or proceedings which does not affect the substan

tial rights of the adverse party, and no judgment husband, Hiram Knowles, caused by the unlaw

shall be reversed or affected by reason of such error ful sale of liquor to him by defendant below.

or defect." The injury to her means of support is alleged to be caused by the intoxication, rendering him

Here, there was a full trial upon the merits.

So far as the record discloses, the plaintiff in unable to perform his usual labor, whereby she

error had the benefit of every legal right to which was deprived of food, fuel, clothing, &c.

he would have been entitled had his motion been The injury to her person arose from his beat- granted. Had he been deprived of any such right, ing and ill-treating her while so intoxicated. it should have been made to appear by excep

The defendant moved the court to compel the tions, made part of the record. If several causes plaintiff to separately state and number her

of action, which cannot be joined, are stated in causes of action; and in argument claims that

the petition, the vice can be reached by demurrer; there are two causes of action; one for injury to

but where they may be joined, but are not sepaher

person, and one to her means of support. rately stated and numbered, the defect is a forThis motion was overruled and the defendant

mal one, to be reached by motion, and for which excepted. He then answered to the merits, de

a demurrer will not lie. nying all the material allegations of the peti

That cases may arise in practice where a failtion, except that she was the wife of Hiram Knowles.

ure to separately state and number the causes of

action may work prejudice, is possible. In such The issue thus joined was tried by a jury, resulting in a verdíct for the plaintiff.

a case, when error does intervene which deprives

a party of a substantial right, and that fact is To set aside this verdict the defendant filed a disclosed by the record, error would lie to reverse motion for a new trial, alleging that there were the judgment. errors at law occurring at the trial, and that the It does not appear in this case that the plainverdict was contrary to the evidence; but no tiff was deprived of any substantial right by the bill of exceptions was taken on the overruling refusal of the court of common pleas to grant of this motion.

the motion. If it was an error to overrule this The court rendered judgment on the verdict, motion (and upon that we express no opinion), and on error to the district court this judgment it is one that must be disregarded by the requirewas affirmed.

ments of section 138 of the Code of Practice. To reverse this judgment this action is brought.

In the New York Code, there is the same S Meyer & Son and J. J. Parker, for plaintiff provision as in ours ($ 140), requiring the causes

| . ir error.

burge v. Utley, 60 N. Y. 427, it was held that this D. Fording and W. C. Pippitt, for defendant section related simply to a question of practice, in error.

over which the court has control'; that the right is JOHNSON, J.

merely formal, and not substantial; and that The record does not disclose any error occur- an order denying this right is not reviewable on ring on the trial. The motion for a new trial error. was overruled, but no exception was taken by This is going farther than the case at bar rebill or otherwise.. From this we are bound to quires us to go. We simply hold that a final


judgment will not be reversed for such an error, The defendant prayed "that said contract may unless it appears of record that the refusal to be declared rescinded, and the plaintiff ordered grant the motion affected the substantial rights to repay said sum of money to respondent, with of the adverse party in a manner prejudicial to interest, and for other proper relief." him on the merits. We have not undertaken to The answer was controverted by reply. determine what unlawful sales of intoxicating The following was the decree rendered in that liquors constitute one, and what several causes of suit: action, which should be separately stated and “This cause came on for trial upon the issues numbered.

joined and the testimony, and was submitted to In deciding this case, we have taken the con- the court for decision, and the court thereupon struction of the petition insisted on by plaintiff find that the plaintiff is not entitled to an order in error, that there are two causes of action, one for the specific performance of said contract, and for injury to means of support, and one to the the defendant is not entitled to an order for the person, which should have been separately rescission of said contract, and do therefore order, stated and numbered.

adjudge and decree that said petition and counterJudgment affirmed.

claim be dismissed, and that plaintiff pay all (To appear in 36 -0. S.]

costs in this cause made before appeal, and that defendant


all costs made since said appeal, SUPREME COURT OF OHIO

and that execution issue to collect the same.

On the trial of the case now under review, the GEORGE H. PORTER

plaintiff asked the court to charge the jury as to

the effect of the decree in the suit for specific HENRY WAGNER.

performance, in substance, as follows: That the

decree did not bar the plaintiff's right of action 1. A judgment of dismissal of a petition for the specific

in this cause, if the jury should otherwise find performance of an agreement and of a counter-claim asking a rescission of the same, is no bar to an action for the

the issues in favor of the plaintiff. recovery of money paid on the agreement, although the The court refused so to charge; but charged, cause of action accrued before the rendition of the judg- in substance, that said decree was a conclusive ment; 2. Where a judgment between the parties is relied upon

bar to the right of the plaintiff to recover either as an estoppel, the question is not what the court might on account of said alleged agreement to rescind bave decided in the former action, but what it did in said contract, or on account of said original confact decide, as shown by the judgment. 3. A judgment is conclusive by way of estoppel only

tract and the breach thereof, if not rescinded. as to facts, without the proof or the admission of wbich To the refusal to charge as asked, and to the it could not bave been rendered.

charge as given, the plaintiff excepted. Error to the District Court of Trumbull County. Verdict and judgment were for the defendant. The original action was brought by the plain

On error, the judgment was affirmed by the distiff in error, George H. Porter, agair:st the de- trict court. The present proceeding is instituted fendant in error, Henry Wagner. Porter and to reverse these judgments. Wagner had entered into a written agreement whereby the latter agreed to sell and convey to

George M. Tuttle, for plaintiff in error. the former certain real estate; and the petition

H. H. Moses, for defendant in error. avers that in consideration that the plaintiff

, WHITE, J. Porter, would release the defendant, Wagner, The principle upon which the decision of from the obligations of the contract, the defend

this case turns was determined in Cramer v. ant promised the plaintiff and undertook that

Moore, decided at the present term, OHIO LAW the said contract should be rescinded, and that he would repay to the plaintiff the sum of $1,000

JOURNAL, 502. which he had paid on the contract, and also the

The question is not what the court inight sum of $10 taxes paid on the land. Judgment

have decided in the former action between was asked for these sums.

the parties; but what the court did, in fact, Among other defenses, the defendant set up decide, as shown by the record. The court that the matter in controversy had been adjudi- found that the plaintiff in that case, Wagner, cated in a former suit between the parties. This

was not entitled to an order for the specific defense was controverted by reply.

performance of the contract, and that the deOn the trial it appeared that Wagner, the ven- fendant, Porter, was not entitled to an order dor, in the former suit, had filed a petition for for its rescission; and, as a consequence of the specific performance of the agreement for the sale of the real estate; and that Porter in his tion and the counter-claim each be dismissed.

these findings, it was adjudged that the petianswer to the petition controverted the right of Wagner to have specific performance of the agree

This left the legal rights of the parties under ment, and charged him with numerous defaults

the contract, as distinguished from their equiunder the agreement. Porter also charged that

table rights, unaffected by the judgment. in consideration that he would release Wagner

The system of pleading under the code does from the agreement of purchase, the latter prom

not affect the question. Since the adoption ised to repay the $1,000 paid on the agreement,

of the code as well as before, the question in and $10 taxes paid by Porter.

each case is, what was adjudicated in the for


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