half," which they were to have on the upper side of the farm, and the same as to Mace on the lower side? The devise to Mace was "the equal one-half" of the land described in the 8th Item of the will. The title of Mace rests in this clause, and by its terms the interest devised to him was as clearly an undivided "equal half" as if the language of Item 8 of the will had been repeated. And in disposing of the "other onehalf" the language is still more emphatic. The "other one-half," which is here devised to Hays and Corwine, is described as the same which was "described in Item 8th, and by said 8th Item of said will devised to James W. Hays, Peter B. Hays and John Hays." What was devised to James W. Hays, Peter B. Hays and John Hays by the 8th Item? After giving to Jacob Mace "the equal undivided one-half" of the Claypool land, the 8th Item devised to James, Peter and John Hays "the remaining one equal undivided half thereof." And this is the exact interest, in terms, which is devised to Hays and Corwine by the codicil, and which is also the exact complement of the interest devised to Mace. Such being the clear meaning and intent of the testatrix, as manifested by the language employed in the only dispositive clauses of the codicil, when taken in either its ordinary or technical sense, we entertain no doubt that the half of the farm which Hays & Corwine were to have on the upper side and the half which Mace was to have on the lower side of the farm, are to be ascertained and measured, not according to acreage, but according to the value of the interests described in the dispositive clauses

of the codicil.

An objection is made to the jurisdiction of the appellate court. We are of opinion that the nature of the title and the relief sought, bring the case clearly within the cognizance of a court of equity, and that, therefore, an appeal from the common pleas to the district court was properly taken. The statute concerning the partition of legal estates does not afford the remedy to which the parties in this case are entitled under the will of Mrs. Davis.

Decree for plaintiffs.

[This case will appear in 36 O. S.]

SUPREME COURT OF OHIO.

ANDREWS v. Campbell.

While the statute allowing parties to contract for ten ten per cent. interest was in force, C. executed to B. his promissory note, payable on time, without interest.

Before maturity, B. negotiated the note to W., who brought an action to recover a balance due thereon, with

en per cent. interest, alleging for that purpose a promise writing by C. to that effect, made after maturity, in nsideration of an agreement by W. for further time, which had been granted. Held:

1. The burden of proving a valid modification of the terms of the note, by which the debtor became liable to the higher rate of interest under the statute, was upon the plaintiff.

2. The new promise of C. to pay interest at ten per cent. until the note was paid, must be supported by a sufficient consideration; and where it is alleg promise was made in consideration of a mutu romise

the

by W. to give time, it must appear that his promise to give time was so definite in its terms as to be enforceable by C.

3. The mere fact that in pursuance of his promise, C. had for several years annually paid interest at ten per cent., and had not been pressed for payment of the principal, does not raise the presumption of such a pre-existing modification of the original contract, as the statute requires.

4. Payments of interest, made in pursuance of said promise, while the ten per cent. statute was in force, are binding upon C., but payments made afterward, in excess of six per cent. are to be applied to the principal.

5. The written statements of B., made after he had parted with the note, and contained in a contract with W. concerning the same, tending to show the alleged consideration for C.'s promise, are not admissible in this action against C., though B. was dead, it not appearing that C. was a party to, or had notice of, said contract between B. and W.

Error to the District court of Butler County. The plaintiff in error brought an action to recover a balance due on the following n "$1,000. HAMILTON, April 16, 1861. "Nine months after date I promise to pay to the order of Wm. Bebb, one thousand dollars, value received, at the Ohio Life Insurance and Trust Co., Cincinnati.

"L. D. CAMPBELL.” Which was indorsed and transferred to plaintiff's intestate, Wm. E. White, before due."

He avers that on the 27th of November, 1852, at defendant's request, White agreed to let him have further time to pay said note, in consideration whereof the defendant executed the following agreement:

I hereby agree to allow Wm. E. White ten per cent. interest on a note signed by myself and payable to and indorsed by Wm. Bebb, for one thousand dollars, dated April 16, 1851, payable nine months after date, the said ten per cent. to be allowed until the same is paid.

"L. D. CAMPBELL.” "HAMILTON, Nov. 27, 1852."

It is alleged that by virtue of said agreement, which became part of said note, it bore interest at the rate of ten per cent. from and after November 27, 1852.

By an amendment to his petition, the plaintiff alleges that White did, in pursuance of said promise by Campbell to pay ten per cent., give and extend time to him, in consideration of which he paid said interest.

Sundry credits are indorsed on the note, beginning with January 6, 1853, and ending March 31, 1870.

The answer claims that these payments, in dorsed, were paid as interest at ten per cent., denies the validity of the contract to pay that rate for want of any consideration to support the defendant's promise, and denies generally all plaintiff's allegations touching the agreement to give time for the payment of the note.

Upon this issue the case was submitted to the court. The plaintiff testified that he was the executor of White, and that he found among his papers a writing signed by Bebb, the payee and indorser of the note. This paper was offered in evidence by the plaintiff, in support of his case, made by the pleadings, but was ruled out, and

to this ruling plaintiff excepted. It reads as follows:

"CINCINNATI, March 16, 1852. "Whereas, I negotiated to Wm. E. White the note of Hon. L. D. Campbell, dated April 16, 1851, for $1.000, payable nine months after date, at the Ohio Life and Trust Co., Cincinnati. And whereas, by reason of fires, &c., Mr. Campbell has not been able to meet said note at its maturity, and asks further time, which Mr. White has consented, with my consent, to grant:

Now, I agree that in consideration of said forbearance, that if the said Campbell will not pay to the said White ten per cent. per annum interest on said note, from and after its maturity, I will; and I agree that the mortgage lien shall remain unaffected by said forbearance, and that I will remain surety, as heretofore, until I give written notice to the contrary, and sixty days thereafter.

"Witness my hand:

WM. BEBB."

Without further testimony by either party, the case was submitted, and the court computed interest on said note at ten per cent. until the repeal of the ten per cent. statute, and after that at six, applying the excess of interest paid after that date, to the payment of principal."

This judgment was affirmed in the district court. To reverse so much of the same as allows six per cent. interest only after the repeal of the ten per cent. statute, is the object of the present proceeding.

Harmon & Maxwell and H. L. Morey, for plaintiff in error,

James E. Campbell and Thomas Millikin, for defendant in error.

JOHNSON, J.

By the act of March 14, 1850, which took effect May 1, 1860 (48 O. L. 87), "the parties to any bond, bill, promissory note or other instrument of writing, for the payment or forbearance of money, may stipulate therein *** at any rate not exceeding ten per centum yearly."

This statute was repealed February 25, 1859, and the repeal took effect April 1, 1859, but by an act of March 31, 1859 (1 S. & C. 745) the repeal did not affect existing ten per cent. contracts, nor such as should be made before the repeal took effect.

By the act of 1848 (1 S. & C. 744), all payments of interest above the legal rate were to be treated as payments on the principal, when the note was not in the hands of a bona fide holder, purchased before due.

This note was without interest, and upon its face bore six per cent, after maturity.

The burden of allegation and proof that the contract, as expressed by the note, had been converted to a ten per cent. contract rested upon the plaintiff.

The court having no other evidence before it, upon the issue made, than the pleadings, found that the contract to pay interest at six per cent. had not been converted into one to pay ten, but following the decision in Samyn v. Phillips, 15 Ohio St. 218, allowed all payments of interest at

the rate of ten per cent. made during the exis tence of the ten per cent. statute to stand as such, and treated all subsequent payments in excess of six per cent. as credits on the principal.

To reverse this judgment two errors are assigned.

1st. That the court erred in ruling out the written agreement of Bebb, found among White's papers, giving his consent to an extension to Campbell, which it is therein stated White had agreed to give, and reciting that White had, with his consent, agreed to give time to Campbell.

2d. That the court erred in holding that there was no valid contract changing the rate of interest from six to ten per cent.

1st. As to the objection of the written statement and agreement of Bebb.

It is dated March 16, 1852, two months after the note was due, and more than eight months before Campbell's promise to pay ten per cent., and after B. had parted with his interest in the

note.

It appears from the record that Bebb had waived demand, notice and protest, so that, at the time he signed this paper, he was liable on the note as an indorser.

One of the objects of this instrument was to waive any right he might have to be discharged if White should give time on the note.

Another object seems to have been to induce White to grant further time to Campbell, who it seems was unable to pay, by reason of losses by fire, &c.; hence he agrees that if Campbell does not pay the ten per cent., he will. This agreement was signed by Bebb, and was made for the benefit of White.

Bebb is not a party to this action. This paper was one executed to White; Campbell was not a party to it, nor does it appear that he ever knew of its existence until it were offered in evidence. White's title and ownership of the note was not in issue on the trial, and hence the declarations of Bebb that he had negctiated the note to White, or his statements in favor of White, were not material except to prove the allegation that White had agreed to give time on the note.

The issue to be tried was, whether there was a consideration to support Campbell's promise of November 27th, that is, whether White's promise of delay was a consideration for Campbell's promise to pay ten per cent.

The statement made by Bebb to White, that he, White, had consented, with his consent, to give time, is but the declaration of a third party, a stranger to Campbell's agreement, of what White had agreed to do.

It was no part of the res geste, and was inadmissible in favor of White for the purpose for which it was offered, namely, to prove a mutual promise by White, in consideration of the promise made by Campbell. In the absence of anything 'tending to show that Campbell knew of the existence of this agreement of Bebb with White, or that he had acted upon the faith of it,

it was clearly inadmissible to prove that White had promised to delay or give time.

2d. Did the court err in treating the payments made after April 1, 1859 (the date of the repeal of the ten per cent. law), in excess of six per cent., as payments on the principal of the note?

This depends on the validity of Campbell's promise to pay ten per cent. In this promise he says: "I hereby agree to allow William E. White ten per cent. interest on a note (describing the same) to be allowed until the same is paid."

* * *

The plaintiff alleges that the consideration that made this promise binding was the promise of White to give time. No proof of this is offered, and we are asked to presume or imply that such a valid contract was in fact made, from the fact that annual payments of interest were made for several years by Campbell, who enjoyed the benefit of actual delay during the time of these payments.

The statute requires that the contract to pay the increased rate must be in writing, and while it may not be necessary to express the consideration for the promise in the contract, yet to make it valid as a change of the terms expressed by the note, it should be supported by a valid consideration. The fact of giving time indefinitely, and the payment annually of ten per cent., do not warrant the inference that there ever was any binding obligation pre-existing on the part of White, which was enforceable by Campbell.

Without a definite obligation by White to support Campbell's promise, the terms of the note are not modified. If he was at liberty at any time to collect the note, as he seems to have been, there was no statutory change of its terms.

But it is urged that, as the delay was actually granted for a series of years, the contract became, on the part of White, an executed one, which made Campbell's promise binding; and reference has been made to a numerous class of contracts, where the rule that the promise of one is void for want of mutuality, is confined to cases where want of such mutuality would leave the promisor without a valid consideration at the time he is to perform his promise. L'Amoreux v. Gould, 7 N. Y. 349.

In other words, that Campbell's promise to pay ten per cent. until the note is paid, though void for want of mutuality, became binding, because time was actually given, as desired by Campbell.

It is undoubtedly true that when the promise is made on certain and definite terms or conditions, open to acceptance, or to be acted upon by the promise, it becomes a binding promise upon such acceptance or performance, though void for want of mutuality before such acceptance or performance.

Instances of this class of contracts may be found in cases of conditional, optional and gratuitous, promises, and also in some forms of guaranty.

In all such cases it is an essential element of

the promise that it is based upon terms or conditions, express or implied, which can be accepted and performed. In such cases the execution of these terms or conditions by the promisee constitutes a valid consideration, and from the time of such execution the promise becomes binding.

If Campbell's promise be examined, it will appear that it is not such as comes within the above rule. He stipulated for no definite time of delay, and none was in fact given. The delay that did occur may have been, and probably was, the result of the voluntary act of White, and not because he was under any legal and valid obligation to grant it. Again, it does not appear that the act of giving time by White was in execution of any contract with Campbell, or of any terms or conditions, express or implied, as the consideration of his promise.

To constitute a valid modification of the terms of the promissory note, there must be a new and valuable consideration moving to Campbell to support his promise. None is shown in this case, and none can be presumed to have existed, from the mere fact that he paid the higher rate from year to year, and that indulgence was granted.

The statute requires that the stipulation to pay ten per cent. must be in the contract for the payment or forbearance of money. A strict construction of this statute would exclude this subsequent contract or promise of Campbell, made on a separate paper. It does not purport to be a contract for the payment or forbearance of the principal debt, but a supplemental promise to pay a higher rate of interest on the note.

Such a contract was, however, sustained in Mueller v. McGregor, 28 Ohio St. 265, where the promise to pay ten per cent. was in a supplemental contract, in which there was a promise by the creditor to delay for a definite time in consideration of the promise to pay ten per cent. In that case, it was held, that the original contract was modified as to rate of interest for the time named, but that after the expiration of that time, the original rate of interest governed, except as to payments made at a higher rate before the repeal of the ten per cent. law.

We hold, therefore, that to constitute such a modification of the promissory note as to change it from a six to a ten per cent. note, there must have been a valid contract to that effect; that the burden of proving such contract rested upon the plaintiff, that such a pre-existing contract cannot be implied from the payment of ten per cent. for a series of years in pursuance of a voluntary promise to do so, in the absence of any consideration to support such promise, and that, as the promise by Campbell was not coupled with any definite terms or conditions to be accepted or performed by White, the fact that delay was granted by him for a series of years, does not constitute such a performance or execution of a contract as will make the promise by

Campbell, which was void for want of mutuality, binding upon him under the statute. Judgment affirmed.

[This case will appear in 6 O. S.]

SUPREME COURT OF OHIO.

THE CLEVELAND LIBRARY ASSOCIATION

v.

FREDERICK W. PELTON, TREASurer, et al.

1. A library association, incorporated under the laws of this state, whose objects and purposes are, "The diffusion of useful knowledge, and the acquirement of the arts and sciences, by the establishment of a library of scientific and miscellaneous books for general circulation, and a reading-room, lectures and cabinets;" open to all persons, without distinction, upon equal terms, and the income and revenues of which are devoted exclusively to such obects and purposes, is "an institution of purely public charity." within the meaning of the 6th clause of the act of March 21, 1864. S. & S. 761.

2. Where such association owns a lot of ground, with a block of buildings thereon, constructed as an entirety, and the buildings having a basement and three stories over the same, each divided into rooms adapted to its use, and for renting, some of which, on each floor, are used by it for its purposes; some are rented out, and the rents received are applied exclusively to keeping the property in good repair, and to the purposes of the association, and some are vacant, Held, that such parts of said building and appurtenances as are rented, or otherwise used with a view to profit, are not exempt from taxation.

3. The fact that the building is so constructed, that the parts leased or otherwise used with a view to profit cannot be separated from the residue by definite lines, is no obstacle to a valuation of such parts for purposes of taxation, having due reference to the taxable value of the entire property,

Appeal-Reserved in the District Court of Cuyahoga County.

The action below was brought by plaintiff, to enjoin the auditor and treasurer of Cuyahoga county, from collecting the taxes and assessing penalties thereon, for the year 1877, on its property, known as Case Block, in the city of Cleveland.

It was reserved for decision here, on the following finding of facts:

"This cause came on to be heard upon the pleadings and evidence, and the court finds that the plaintiff is a corporation, duly organized under section 66 of the corporation act of May 1st, 1852, as amended May 14th, 1859, and that the objects and purposes of said corporation are set forth in the constitution and by-laws, which are made part of this finding and hereto annexed, marked 'Exhibit A;' that said plaintiff is possessed of a large collection of scientific and miscellaneous books, about 14,000 volumes; that besides its library proper, it has a large collection of natural history, also a large historical collection, and keeps up and maintains a reading-room in connection with its library; that any person, without distinction of color, sex or faith, can become a member, and that at the commencement of this action the annual fee is, and ever since has been, one dollar, and there are about one thousand inembers; that if a member withdraws more than one book at a time a further charge of ten cents per week is added;

that its library and reading-room are open to the members daily, and its natural history and historical collections are open free during two days a week to the public; the association has no stockholders, and no member or officer of the plaintiff has any pecuniary benefit from the plaintiff, or is entitled to any; that it employs and pays a librarian and a few necessary assistants to take charge of the books and their distribution, and to attend to the exhibiton of its collections aforesaid; that on the first day of July, 1876, Leonard Case, by his deed duly executed and delivered, conveyed to the plaintiff the premises situate in the city of Cleveland, and described in his said deed, a copy of which is hereunto annexed and made part of this finding, and marked 'Exhibit B' said Case died in January, 1880, without exercising his right of revocation mentioned in said deed; that said plaintiff has been in occupation of said premises ever since the execution of said deed; that the whole land is covered by a building, and a diagram of the rooms af said building is hereto annexed, marked 'Exhibit C,' and made part of this finding; that the rooms marked 'R,' in the basement, are used for storage by the tenants of the rooms above; that on the principal floor the rooms are all stores and are all rented. and the rooms on the floors above marked 'R,' are rented, and the hall is rented for musical concerts, lectures, and art and scientific exhibitions; the rooms marked 'L,' are actually occupied by the library for its books, collections, reading-rooms and storage, and the other rooms are not rented; the entire net income derived from the rents is devoted as fast as it is collected to the purchase of books and enlarging the facilities of the library, and no member or officer of the plaintiff derives or receives any pecuniary benefit from said income; during 1879 the gross income from renting rooms and hall amounted to $10,000, of which amount $3,000 was used in purchasing books for the library, and after retaining sufficient to pay the taxes on premises, the remainder thereof was used for necessary repairs of the building and for enlarging the library

rooms.

"That the land included in said deed stands on the county duplicate at a valuation of $24, 552.50, and the building at a valuation of $74, 657.50, on which total valuation of $99,210, the general state, county and city taxes were assessed for the year 1877, and in the hands of the treasurer for collection. And difficult and important questions of law arising on these facts, on motion of the plaintiff, this cause is reserved to the supreme court for final determination." Grannis & Griswold, for plaintiff.

Heisley, Weh & Wallace, for defendants.
JOHNSON, J.

The plaintiff is a corporation organized under the act of 1852, as amended March 14, 1859. 1 S. & C. 305.

Section 73 of said act provides that: "The trustees or directors who may be appointed under the provisions of this act, and their succes

sors in office, shall have perpetual succession of such name as may be designated, and by such name shall be legally capable of contracting, and of prosecuting and defending suits, and shall have capacity to acquire, hold, enjoy, dispose of and convey all property, real or personal, they may acquire by purchase, donation, or otherwise, for the purpose of carrying out the intention of such society or association, but they shall not acquire or hold property for any other purpose."

The purposes of this association, and for which it may acquire, hold and use property, are, as as found by the district court, and set forth in "Exhibit A," "The diffusion of useful knowledge and the acquirement of the arts and sciences by the establishment of a library of scientific and miscellaneous books for general circu: lation, and a reading room, lectures and cabinets."

It is open to all without distinction, and all its income is devoted exclusively to said purposes.

That this association, in its objects and purposes, is, "an institution of purely public charity," within the meaning of the statute of 1864, is, we think settled by the cases of Gerke v. Purcell, 25 Ohio St. 229; Cincinnati College v. State, 19 Ohio, 111; and Humphries . Little Sisters of the Poor, 29 Ohio St. 201.

As it appears, by the findings of the court, that some of the rooms in the basement and in the different stories are used by the association for its objects, some are vacant and some are rented, the only remaining question is, whether the part of the property that is rented should be assessed for taxation?

This requires a construction of the sixth clause of section 1 of the act of March 21, 1864, providing for exemptions, which reads as fol

"All buildings belonging to institutions of purely public charity, together with the land actually occupied by such institution, not leased or otherwise used with a view to profit, and all moneys and credits appropriated solely to sustaining, and belonging exclusively to such institutions."

In considering this question, we may premise: 1st. That all exemptions by statute, from the equal burdens of taxation, should be strictly construed.

2d. That the fact that the income derived from rents of parts of the building not used is devoted exclusively to the objects and purposes of the association, and not used for the benefit or profit of its members, can make no difference.

The law looks to the property, as it finds it in use, and not to what is done with its accumulations. Cincinnati College v. State, 19 Ohio, 110; Humphries v. Little Sisters, 29 Ohio St. 201; Gerke v. Purcell, 25 Ohio St. 229.

.

3d. The circumstance, that the rooms in the building, actually used by the association, are on the different floors, from the basement to the third story, and are not severable by any verti

cal or horizontal lines through the building, presents no obstacle to a separation in valuation for purposes of taxation. This was settled in Cincinnati College v. Yeatman, 30 Ohio St. 276.

The case of Cincinnati College v. State (supra), would seem to be decisive of the one at bar, and is so, unless, as is claimed, the exemption clause under consideration requires a different construction from the corresponding clause in the former statutes under which that case arose.

The words of the act of 1864 are: "All buildings belonging to institutions of purely public charity, together with the land actually occupied by such institution, not leased or otherwise used with a view to profit," &c., while those of the act of 1846 are: "All buildings belonging to scientific, literary, or benevolent societies, used exclusively for scientific, literary or benevolent societies, together with the land actually occupied by such institutions, not leased or otherwise used with a view to profit," &c.

The argument is, that as the word exclusively is omitted from the act of 1864, it was intended to change the law as construed in Cincinnati College v. State, and that now, if part only of the building is so used, and the residue is rented, the whole is exempt. This construction would defeat the limitation found in these words "not leased or otherwise used with a view to profit."

The words "institutions of purely public charity," are substituted in the act of 1864, for the societies specifically named in the act of 1846, and embrace all societies without enumeration, where the object is a purely public charity. If such an institution embraces other objects, and uses its buildings for other purposes, as for instance, renting with a view to profit, it is not an institution of purely public charity. In short, its buildings must, under the act of 1864, as well as under that of 1846, be used exclusively for that object, in order to be exempt.

Any other construction would defeat the manifest intention of the tax laws, and allow such institutions to become landlords of all species of property, provided the income derived therefrom is used to promote their objects.

Again, in view of the principle that exemptions from taxation should be strictly construed, it has been held, in many well-considered cases, that an exemption in general terms of all the property of a college or other institution extends only to the property actually used for its legitimate purposes, as fully as if the exemption was expressly limited to such property.

Thus, when a library association was incorporated, to establish a library, and by its charter its property, in general terms, was exempt from taxation, it was held that the use must be direct and exclusive, and that where the building of the association consisted of a large number of rooms, a small portion of which only were used, and the others were rented out for business purposes, the part so used was not exempt from taxation. State v. Elizabeth, 4 Dutcher, '103. To the same effect is the case of State v. Flavell (4 Zab. 382), where the lands of a corporation