« PreviousContinue »
lines approaching the river were so run as to divisional lines to be so run as not to extend to extend only to certain points on the bank of the or embrace the bed of the river. But if it was river, at greater or less distances from the mar- intended not to embrace the bed of the river as gin of the water, which points are designated by land to be paid for, which was in accordance the survey as corners to the respective subdivi- with the policy of the government, it was necessions of the reservation. And also that the river sary for the lines to be thus run, in order to was meandered on the bank thereof, to and from ascertain the quantity of land in each subdivisaid respective corners."
sion and the amount to be paid therefor by the That the meander-lines run in surveying por purchaser. tions of the public lands bordering upon navi. Judgment affirmed. gable rivers, are run, not as boundaries of the [This case will appear in 36 O. S.] tract, but as a means of ascertaining the quantity of land to be paid for by the purchaser, was decided in Railroad Company v. Schurmeir, supra.
SUPREME COURT OF OHIO. The meander-line, therefore, in the present in
WILLIAM V. SKED, stance, not being a boundary line, the only boundary was the river; and the question is, when
JAMES SEDGLEY ET AL. the boundary line of a riparian owner is thus described, where is it to be located ? Gavit y. Chambers answers, at the middle of the stream, 1. The act of May 1, 1861 (58 0. L. 113), which exempts as at common law.
from sale the property of persons belonging to the milítia The act in question provided for the survey
of Ohio, who have been mustered into the military ser
vice of the United States under any requisition of the and sale of the tract of two miles square, at the president, is an act conferring upon a certain class of perlower rapids of the Sandusky river, ceded by the
sons a right or privilege, which must be asserted by him Indians to the United States, by the treaty of
who seeks its benefit.
2. Where, after judgment and order of sale have been Greenville.
duly and regularly entered in an action to foreclose a mortThe second section provided that, previously
gage, the nortgagor becomes entitled to this exemption, to the disposal of the tract, the surveyor-general
by being mustered into the United States' service for
three years, if the war should last that long, and a sale is should re-survey and mark the exterior lines of made and contirmned, and deed executed to the purchaser, the tract, conformably to a survey previously
wbile he is still in such service, the sale and proceedings
are not void, but voidable only. made. It also required him “to cause divisional 3. In case of a sale of the mortgaged premises upon a lines to be run through each fractional section, decree of a foreclosure, while the nortgagor is entitled to and that of the adjoining quarter section, so that
such exemption, and the sale is confirmed, deed made each subdivision, having one front on the river,
and possession taken without objection by him, bis
proper mode of relief, if entitled to any, after confirpiamay contain, as near as may be, eighty acres. tion, and the proceedings are not reversible for error, is And in like manner to cause the large island,
by a direct proceeding in that case, to have such sale and
confirmation set aside. lying in the west half of section number one, to be surveyed, and the same to be divided into two Appeal—Reserved in the District Court of equal parts."
Cuyahoga County. One of the provisos in the section is, "That in The question for decision arises on a demurrer no case shall the subdivisional lines so run as to to the petition, on the ground that it does not extend to, or embrace the bed of the river, which state facts constituting a cause of action. shall be deemed, and is hereby declared to be, The petition was filed in the Superior Court of a public highway.”
Cuyahoga County, and on appeal to the district The third section provides, "That all the land court was reserved for decision in this court. contained in the aforesaid cession, of two miles square,
The plaintiff alleges that, on September 28, shall, with the exception of as many town lots 1861, one Hiram Iddings, now deceased, comand out-lots as in the opinion of the secretary menced an action in the court of common pleas of of the treasury may be necessary to reserve for said county against him, for a foreclosure of two the support of schools within the same, and mortgages, executed in 1853 and 1856, by him, with the exception also of the salt springs, to secure certain notes, of which notes and mortand the land reserved for the use of the same, gages Iddings had become the owner; that on be offered for sale to the highest bidder," &c. December 1, 1861, judgment for the amount due It is also provided that "the divided quarter was rendered, and an order of sale granted on desections and fractional sections shall not be sold fault of payment for ten days, and that the propfor less than twc dollars per acre; the in-lots for erty was appraised and advertised to be sold Janless than twenty dollars each, nor any out-lots for less than at the rate of five dollars per
uary 30, 1862.
He also alleges that he was a citizen of Ohio, acre."
belonging to the militia force of the state, and It seems to us that the only exceptions or res
that he volunteered into the United States' serervations from sale intended by the act, were vice in the late war, and was accepted and musthe lots for the support of schools, the salt springs, tered into such service January 21, 1862, for und the land for the use of the same, and the use three years, if the war should last so long, and of the river for the purposes of a highway. continued in such service until January 2, 1865,
In the argument for the plaintiffs in error, when he was discharged. stress is laid on the provision requiring the sub- For the purpose of staying the proceedings and sale, he, on January 29, 1862, filed a petition aforesaid, be exempt from the levy of execution, under the act of May 1, 1861, to exempt from sale any law of this state notwithstanding.” 58 Ohio the property of Ohio militia in the military L, 113. service of the United States, and obtained a re- On the other hand it is claimed: straining order against such sale. Whether a 1. That this statute is in contravention of the bond was given, does not appear, but it is alleged constitution of the United States, because it imthat Iddings and the master-commissioner
master-commissioner pairs the obligation of the contract embodied in charged with the sale had notice thereof, and of the notes and mortgages on which the judgment his claim for exemption, nevertheless the sale and order of sale were founded. was made to said Iddings on the day fixed.
2. But if not void, it only confers a personal March 18, 1862, this sale was confirmed by the right or privilege in favor of a judgment debtor court, the petition for an injunction having been who belongs to the Ohio militia in the United dismissed before the day of sale, by plaintiff's at- States service, which can be and has been torney, but without his knowledge or consent, as waived. he alleges. No objection was made in court to 3. That the statute is not self-operating, but the confirmation or conveyance to Iddings. its immunity must be sought and obtained by
Iddings received a deed, and went into posses- the interposition of the soldier within some reasion April 2, 1863; he conveyed to James J. sonable time. And it is claimed, that the present Monroe, and died November, 1863, leaving heirs, demand, now first interposed more than twelve who are defendants. April 4, 1865, Monroe con- years after the sale and confirmation, is stale, veyed part of the land to Augustus Fuller, one of and barred by the statute of limitations. This defendants now in possession. April 9, 1866, statute does not operate to stay judicial proceedMonroe conveyed part to Ahimaz Sherwin, who, ings in an action against one in the military in October, 1872, conveyed the same to James service. It simply exempts his propSedgley, a defendant now in possession. April erty from sale while in such service, and for two 9, 1866, Monroe conveyed the balance of the land months thereafter. It does not apply to all to C. C. Beckwith, who conveyed to McDowell. judgment debtors, but only to persons belonging In 1867, McDowell conveyed to Sarah Stewart, a to the Ohio militia mustered into the actual serdefendant now in possession.
vice of the United States under any requisition Iddings' heirs, with Monroe, Sherwin, Beck- of the president. with and McDowell, former owners, are made de
Whether the legislature had the power to pass fendants.
this act has now ceased to be a question of public The object and prayer is, to have an account of concern. While it was so, the general current of the rents and profits since the sale, and their ap- authority was, that an act like this, simply stayplication to the mortgage debt, and that he be re- ing the power of sale for a definite period during stored to the possession of the premises, upon a period of public war and great financial depaying the balance found still due.
pression, in favor of soldiers in the active service, This action was commenced November 14, while the creditor was left free to prosecute his 1874.
action, and to secure by judgment and levy all McMath & Everett and A. M. Jackson, for possible security that an order of court or a levy plaintiff in error.
could afford, did not impair the obligation of the J. E. Ingersoll, for defendant in error.
contract. JOHNSON, J.
In the view we take of this case, however, it It is claimed that the sale made January 30, becomes unnecessary to consider this question. 1862, and the order of confirmation thereof, This act is unlike those statutes which, in March 18, 1862, are void, and that plaintiff terms, exempts from execution and sale specific is now entitled to be let in to redeem, not with property of the judgment debtor. There, the standing the sale and conveyance stated.
process in the officer's hands definitely fixes the The ground of this claim is, that under the act person whose property is to be exempted, and the of May 1, 1861, his property was exempt from law enumerates the specific property not subject sale. This statute is entitled: “An act, to ex- to levy and sale,
to levy and sale. It does not depend on the selectempt from execution the property of the militia ion of property by the debtor, and applies to all of Ohio, mustered into the service of the United debtors alike. The officer takes such property States," and reads:
at his peril, and if he takes property so ex"That the individual, real and personal propempted, he is a trespasser, and his levy and sale erty of any person, who may belong to the mili- are void. Frost v. Shaw, 3 Ohio St. 270. tia of this state, and who shall be mustered into The act is for the benefit of a certain described the actual service of the United States, under any class of persons. Whether a person belongs to requisition of the president, shall be, and the that class is a question of fact, outside of the same is hereby declared exempt, during the time record or order of sale, of which neither the court such person
shall remain in the actual service of nor the officer can take notice. The burden of the United States and two months thereafter, bringing this fact before the court, so as to entitle from the sale on any execution or order of sale the party to his exemption, is upon the person issued on any judgment rendered by any of the claiming to belong to that class. As in the case courts of this state, and the individual, personal of exemptions dependent upon selection, the claim property of such person shall also, for the period | must be asserted at the proper time, and before the proper court or officer. The officer has no their own rights, from their own negligence. power to dis bey the command of the process in American Ins. Co. v. Oakley, 9 Paige, 259. his hands upon an order of sale legally made. The purchaser at such a sale has the right to Again, like all other, exemptions, whether of be protected in his purchase, and after the sale enumerated articles, or dependent upon selection, had been confirmed, deed made and possession the right may be waived. Frost-v. Shaw, 3 Ohio taken thereunder, his title is perfect until the St. 270.
proceedings in the foreclosure suit are opened up This being so, the sale and confirmation with- in a direct proceeding for that purpose. And this out objection is not void, but, at most, is voida- rule applies as well to a mortgagee who is a purble only. The remedy for the debtor is to assert chaser as to a stranger. Brown v. Frost, 10 Paige, his privilege either by resisting the confirmation 204. before the court, or, if he has had no opportunity
This was a case of a purchase by a mortgagee, to do this, by a direct proceeding in the foreclos- at his own sale in foreclosure, who received a ure suit, to set aside the sale and confirmation. deed from the master. On the same day, but Being voidable only, the title cannot be attacked after actual delivery of the deed, the mortgagor collaterally.
tendered the whole amount due and demanded a What are the facts of this case ?
a redemption, which being refused, he filed an The notes and mortgage were given long prior original bill in chancery to be allowed to redeem. to this statute. The action to foreclose and for Chancellor Walworth, in deciding against the judgment, and the judgment and order of sale, complainant, says, the decree in the original suit were made in due course of law. Subsequently in foreclosure, is conclusive upon the rights of the debtor, by being mustered into the United the parties, and cannot be opened up or disturbed States service, became entitled to have the order in a collateral way; ad he expressed the very of sale stayed while he was in such service, and decided opinion that an original bill in chanfor two months thereafter. He made an ineffect- cery cannot be sustained by a party to a foreclosual attempt to do this by a petition for a restrain- ure suit, to impeach or set aside the proceedings ing order, but this failed, either because he did not upon a master's sale under the decree, when there give the proper bond, or by the act of his attor- was nothing which could have prevented an apney in dismissing the action. The fact that his plication to the court, in that suit
, for a re-sale, by attorney did this without his knowledge or con- those who are interested in the premises ;” and sent cannot affect the action of the court, in con- he cites numerous authorities to the effect that firming a sale against which there was no objec- the proper remedy is by a summary application, tion interposed, after the dismissal of the action in the suit in which the foreclosure decree was to restrain.
made, for relief. He made no further objection, by motion or The present action is in the nature of an origiotherwise, to the confirmation of the sale, or to nal bill in chancery, filed in the superior court, by the execution of the deed to the purchaser. He the mortgagor, for a redemption of premises sold surrendered possession of the premises, and with and conveyed under a decree of foreclosure, made out objection, to the court or the purchaser, al- in the court of common pleas of the same county, lowed the latter to take possession, and by sales over twelve years before the commencement of and conveyances transmit title and possession to this action. It is not an appeal to the same Monroe, and through him by sundry mesne con- court in the same suit. This cannot be done unveyances to the present owners, none of whom less the sale, confirmation and conveyances are had notice, so far as is alleged, of the plaintiff's nullities. Clearly they are not, but at most are claim. It is not alleged that they are not bona
voidable only. fide purchasers for a valuable consideration, and No reason is shown why plaintiff did not apwe must assume that they were.
pear and resist confirmation of the sale. If, after The sale was confirmed in March, 1862, and neglecting to do this, he was entitled to relief, he this action was brought in November, 1874. should state facts warranting the court in grant
For more than twelve years he slept upon his ing it. No such facts are stated even as against rights, if he had any, after failing to object to the the heirs of Iddings, after the lapse of so many confirmation, and has allowed the property to be years, much less as against innocent bona fide several times sold, and to pass into the hands of purchasers. innocent holders.
Demurrer to the petition sustained, and petiHis proper remedy in the first instance was, to tion dismissed. object to the sale and confirmation. Aside from [This case will appear in 36 0. S.] the provisions of the statute of limitations, the rule in chancery was, that the proper remedy for a party whose property was sold by a master
SUPREME COURT OF OHIO. without authority, was by an application in the foreclosure suit to have the sale set aside. But
MARY JANE ABBOTT V. HENRY BOSWORTH. such an objection would not be listened to after a great lapse of time. Nichols v. Nichols, 8
1. Where the signing and sealing of a lease for ninetyPaige, 349.
nine years, renewable forever, are attested by but one Neither will a sale be set aside and a re-sale
witness, the lessee acquires only an equitable title. directed, to protect persons competent to protect
2. To entitle a widow to dower in an equitable estate of her husband he must have owned said estate at the
time of his decease. Rands v. Kendall, 15 Ohio, 671, jection to the plaintiff's right of dower in the estate or followed.
interest assigned to her husband by Jonathan Ely. Error to the Superior Court of Cincinnati.
The lease to Ely from the trustees of the seminary This was an action by Mary Jane Abbott against had but one witness, and his lease to Abbott had but one. Henry S. Bosworth, for dower in the south half of the ('onsequently neither of them acquired any legal title to premises below described.
the premises demised. The first section of the act to The Court found the following facts, and upon them provide for the proof, acknowledgement and recording gave judgment for the defendant.
of deeds and other instruments of writing (1 S. & C. 458) "1. On February 1, 1840, the trustees of Lane Semin- requires the signing and sealing of all instruments in ary, by indenture of that date, and recorded in book 104, writing by which any land, tenement or hereditament page 430 of the records of said county, demised to Jona- shall be conveyed, or otherwise affected or incumbered than Ely, his heirs, executors, administrators and in law, to be acknowledged by the grantor or maker in assigns, a tract of ground fronting 167 34-100 feet on the presence of two witnesses, who must attest such Elm street, by 406 6-10 feet on Locust street, for 99 signing and sealing, and subscribe their names to such years, from October 21, 1830, renewable forever on the attestation. By the ninth section of said act, a lease of game terms, for an annual rent of thirty-one dollars, school or ministerial lands for a term not exceeding ten which Ely for himself, his heirs, etc., covenanted to pay. years, and of any other lands for a term not exceeding Said lease was duly executed, and acknowledged, save three years, is excepted from this requirement. that there was but one subscribing witness.
The lease in the present case does not fall within the “2. By an instrument in writing, without date, but the class not required to be acknowledged. It was a acknowledged May 8, 1841, and attested by one fitness . lease for ninety-nino years, renewable forever, and to creonly, and indorsed on the original lease, Jonathan Ely, ate thereby a legal estate or seizin, its execution attested in consideration of fifteen dollars, paid by Isaac C. by two witnesses was an'indispensable formality. Hence, Abbott, sold and conveyed to the said Abbott, his execu- the estate acquired by Ely, and the only one he could tors, administrators, and assigns, 'the within lease and part with, was wholly equitable; and had he possessed a all and singular the within demised premises.'
legal estate instead of an equitable one, Abbott could "3. On June 25, 1811, Isaac C. Abbott, in consideration have acquired but an equitable interest under a lease atof $1.25, demised all his claim, title, and interest to the tested by but one witness. To entitle a widow to dower in south half of said land to Leonard H. Nason, for the an estate of which her husband had an equitable title unexpired term of said lease and renewable forever, Nason only, he must have owned such equitable estate at the covenanting in the instrument to pay to the trustees of time of his decease. Rands v. Kendall, 15 Ohio 671. Lane Seminary, sixteen dollars per annum rent, payable Judgment affirmed. on the same days as the rents reserved in the original (This case will appear in 36 O. S.) lease. “The plaintiff, who was the wife of said Abbott, did
SUPREME COURT OF PENNSYLVANIA. not join in this instrument." The trustees of said seminary at the date of the lease
Ash v. GUIE. to Ely held the title in fee. The defendant now holds through sundry mesne assignments the interest acquired by Nason. Isaac C. Abbott died in 1876. Upon this
May 2, 1881. state of facts the plaintiff claims that she is entitled to
"1. Mutual Beneficial Society- Partnership. A mutual dower in said south half of said premises.
beneficial society is not governed by the same rules as to
the liability of its members to third persons as a trading C. D. Robertson, for plaintiff in error.
partnership, but rather by those applicable to a.club, and Sage & Hinkle, for defendant in error,
the authority of its officers and committees depends on
its constitution and rules. BOYNTON, C. J.
2. Masonic Lodge-Seal. Where a contract is made in To entitle the plaintiff to dower in the premises de
the name of masonic lodge and under its seal, with mised by Isaac C. Abbott to Nason, it must appear that
reference to a matter not contemplated by its constitu
tion, those members who so far assent to or ratify the such estate was one of inheritance within the meaning of contract are bound and no others. the act relating to dower, passed January 28, 1823 (1824), 3. Seal. In such case the seal will be regarded 29 Ohio L. 249. The first section of that act provided,
as the seal of those members so signing, assenting, or that the widow of any person dying shall be endowed of
ratifying, and not as the seal of the lodge.
4. Former Recovery. A recovery, against a masonic one full and equal third part of all lands, tenements and lodge by its name and without naming any of its memreal estate of wbich her husband was seized, as an estate
bers will not be a bar to a subsequent action against à of inheritance, at any time during the coverture. And
member who was not served and did not appear. of one third part of all the right, title and interest, that Error to Common Pleas of Chester County. her husband at the time of his decease, had in any lands and tenements, held by bond, article, lease, or other evi
Action against Ash and one hundred and nine dence of claim.
others described in the writ as lately trading as By the act of March 5, 1839 (2 S. & C. 1142), it is pro
Williamson Lodge No. 309, A. F. M. The writ vided, "that permanent leasehold estates, renewable for
was an assumpsit, and the narr. contained a
count in debt on a sealed instrument with the ever, shall be subject to the same law of descent and distribution as estates in fee simple are or may be subject
common counts in debt. Pleas non assumpsit, to." If it be granted that the effect of this provision is
the statute of limitations, and a plea by one of to convert permanent leasehold estates into estates of in
the defendants of a former recovery. The acheritance, where the instrument creating the estate is
tion was brought on a certificate of indebtedness properly executed and acknowledged, and that the
in the following form, under the seal and signed widow of the lessee is consequently entitled to dower in
by the officers of Williamson Lodge: “This is the leasehold premises, there still is an insuperable obo
to certify that Williamson Lodge, No. 309. A. F.
M. * * * * * acknowledges itself indebted concerns. Ricketts v. Bennett, 4 C. B. 676; 4 M., to Wm. H. Guie in the sum of $100, payable in G. & S. 686. two years from November 11, 1870, with lawful Here there is no evidence to warrant an inferinterest for the same, payable annually.” The ence, that when a person joined the lodge he certificate was issued to obtain money to com- bound himself as a partner in the business of plete a masonic temple. Pending the suit sev- purchasing real estate and erecting buildings, or eral of the defendants died; at the trial their as a partner so that other members could borrow death was suggested, and the jury was sworn as money on his credit. The proof fails to show to the survivors alone, the defendants objecting that the officers, or a committee, or any number The equitable and legal plaintiffs and two of the of members had a right to contract debts for the defendants were permitted to testify under ob- building of a temple which would be valid jection. It appeared that Guie had previously against every member from the mere fact that he brought suit against the Williamson Lodge, was a member of the lodge. But those who enwithout naming any of the members individ- gaged in the enterprise are liable far the debts ually, and had obtained judgment. Verdict and they contracted, and all are included in such liajudgment for plaintiff. The defendants took bility who assented to the undertaking or subsethis writ.
quently ratified it. We are of opinion that it TRUNKEY, J.,
was error to rule that all the members were liaIn delivering the opinion of the court, said:
ble as partners in their relation to third persons
in the same manner as individuals associated One of the defendants called by plaintiffs testified, "The purposes of our lodge are charitable,
for the purpose of carrying on a trade. benevolent, and social.”. A partnership has been
This unincorporated association had a seal
which the officers were authorized to use for cerdefined to be a “combination by two or more persons of capital, or labor, or skill, for the pur
tain purposes. Some of those who engaged in pose of business for their common benefit." It
the business of borrowing money directed it to
be affixed to the certificate of indebtedness. All would seem that there must be a community of
who did, adopted it as their seal for the specific interest for business purposes. Hence voluntary associations or clubs, for social and charitable pur- intended as such. The party borrowed the
purpose. It was not the seal of a corporation nor poses and the like, are not proper partnerships, nor have their members the powers and responsibil- certificate in the same name, and adopted a com
money in the name of the lodge, and gave the ities of partners. Parsons Part. 6, 36, 42.
mon seal. They cannot repudiate it, in good A benevolent and social society has rarely faith to the lender. He loaned the money on a ever been considered a partnership. In Lloyd v. sealed instrument. Those who advised affixing Loaring, 6 Ves. 773, the point was not made; but the seal should be held the same as their officers Lord Eldon thought the bill would lie on the who signed the certificate. Were the members ground of joint ownership of the personal prop- partners, without evidence of agreement beerty in the members of a masonic lodge; there tween them that the seal should be affixed to was no intimation that they were partners. contracts, those not assenting to its use in that Where a society of odd fellows erected a build- way would not be bound by a sealed instrument, ing which was afterwards sold at sheriff's sale in though given for a debt for which all were liable. satisfaction of mechanic's lien, in the distribu- Schmertz v. Shreeve, 12 P. F. S. 457. The tion of the proceeds it was said that, as respected learned judge was right in ruling that the certifthird persons, the members were partners, and icate was a sealed instrument, but not, under that lien creditors who were not members were the evidence, in holding that it was authorized entitled to performance as against the liens of by all the members. members. Babb v. Reed, 5 Rawle, 151. Had the Elston pleaded a former recovery against "the members been called joint tenants of the real Williamson Lodge, No. 309, A. F. M.” The estate the same principle would have applied. court properly remarked that if judgment had In Flemyng v. Hector, 2 M. & W. 172, Lord been recovered in that suit against any of these Abinger held that a club and its committee defendants it would not have precluded recovery must stand on the ground of principal and in a subsequent action against those not joined. agent, and that the authority of the committee That was not a recovery against any person, depends on the constitution of the club, which natural or artificial. The writ was not served is to be found in its own rules. A mutual bene- on Elston, nor did he appear. It is not to the ficial society partakes more of the character of a purpose to speak of the result, had property held club than of a trading association. Every part- in the name of the lodge been sued in satisfacner is agent for the partnership, and as concerns tion of the judgment. The plaintiff has rebimself he is a principal, and he may bind the ceived nothing, and Elston was not a party in others by contract though it be against an agree- that proceeding. The act of May 25, 1878 (P. ment between himself and his partner. A joint L. 153), provides that in all civil proceedings by tenant has not the same power by virtue of the or against surviving partners no interest or polrelation to bind his co-tenant. Thus one of sev- icy of law shall exclude any party to the record eral co-adventurers in a mine has not, as such, from testifying to matters having occurred beany authority to pledge the credit of the general tween the surviving party and the adverse party body for money borrowed for the purposes of the on the record. Those jointly concerned in a