Beard, Administrator v. T. & O. C. Ry. Co. [Vol. III, N. S. v. Norman, 49 Ohio St., 598, 607, the general rule governing cases of this character is stated: "The servant in order to recover for defects in appliances, must establish three propositions: 1. That the appliance was defective. 2. That the master had or should have had notice thereof. 3. That the servant did not know of the defect.'" When we get a proper construction of the statute and its true office, it affects the rule of evidence, but it does not change the necessity of the party alleging and proving these three propositions that are here stated. Judge Shauck further says: "The force of the statute under consideration is wholly expended in relieving the servant of the duty of establishing the second of these propositions, namely: That the master had or should have had notice thereof." That would be the only change that there would be, and the only burden that the plaintiff in this action would be relieved from, if this were a case of a defective car-defective machinery -bringing the case within the provisions of the statute. His duty with respect to the first and third remains wholly unaffected, viz, that the appliance was defective, and third, that the servant did not know of the defect. If the plaintiff fails to establish either one of these propositions, the action can not be maintained. In this record there is no evidence whatever that the company knew of the condition, or that there was any defect in the loading of these cars. Therefore, there are two essential facts that the plaintiff in this action must establish before he can recover, viz., that there was this defect or this negligence in the loading of the car and the company had knowledge of it; and the deceased did not know of its condition. The plaintiff must affirmatively establish these facts, either by circumstances, or by direct evidence, or the record must show that there was evidence tending to establish these two propositions, to warrant the submitting of the issue to a jury. Where there is no evidence tending to establish these facts, then the court has nothing to submit to the jury. If there had been some evidence, or the testimony was conflicting, the facts uncertain or the proper inference to be drawn there from doubtful, then it would be error for the court to withdraw the case from the jury, or direct them to return a particular verdict. But these essential facts or propositions the plaintiff failed to establish, either with or without the aid of the statute; and the question of negligence being one of law, it was the duty of the court to take it from the jury. Therefore the court did not err when the plaintiff rested his case in saying to the jury that they should return a verdict for the defendant. Judgment affirmed. S. M. Hunter and Flory & Flory, for plaintiff in error. HOMESTEAD. [Circuit Court of Cuyahoga County.] T. I. KERNS v. AUGUSTA F. LINDEN ET AL. * Decided, November 11, 1901. Allowance of Homestead—Out of Life Estate-Purpose of Section 5438— Property Relieved from Judgment Only While Occupied as Homestead. In setting off a homestead in property to one holding a life estate therein, the purpose of the statute is subserved if an amount is set off the fee simple title to which is worth $1,000. MARVIN, J.; CALDWELL, J., and HALE, J., concur. This action comes into this court by appeal from the court of common pleas. The facts are that the plaintiff obtained a judgment in the court of common pleas against the defendants, Augusta F. Linden and her husband, John Linden, and that an execution upon such judgment was levied upon about fifty-seven acres of land in this county, in which the defendant, Augusta Linden, has a life estate. On this land is the dwelling house occupied by the two Lindens, husband and wife, and their children, as a family. homestead. * Dismissed by the Supreme Court for failure to file printed record. There is another judgment lien upon the same property, and the purpose of the present action is have the liens marshaled and this property subjected to the payment of the claims of the lienholders. Augusta Linden claims a homestead exemption, and to this she is clearly entitled. The only question is as to the manner of ascertaining such homestead. On the part of the Lindens it is urged that since the only estate which they or either of them have in the premises is the life estate of Augusta, there should be set off and assigned to her an amount of this property such that her life estate in the amount so set off shall be worth one thousand dollars, and it is said that this will take the entire property. On the other hand, it is urged that without reference to what estate Augusta holds in the property, there should only be set off to her an amount the fee simple to which is worth one thousand dollars, and that the balance of her life estate be sold for the purpose of satisfying these liens. The language of Section 5438, Revised Statutes, is: "The officer executing any writ of execution founded on a judgment or order shall, on application of the debtor, his wife, agent, or attorney, at any time before sale, if such debtor has a family, and if the lands or tenements about to be levied upon, or any part or parcel thereof, constitute the homestead thereof, cause the inquest of appraisers, upon their oaths, to set off to such debtor, by metes and bounds, a homestead not exceeding one thousand dollars in value." The purpose of the statute is to save to the unfortunate debtor who has a family, a place where he and such family may live. The property set off is not thereby relieved from being subjected to the payment of the judgment in such wise that it can never be so used, but is relieved only from being so subjected while it is occupied as a homestead for the family. It is manifest that this purpose will be subserved as well to set off an amount, the fee simple title to which is worth one thousand dollars, to one who only has a life estate, as it would be if the debtor owned the fee simple in the property, for, in neither case, could any benefit be derived by the debtor beyond his own life, and that he may have as well where he has a life estate as where he has the fee simple. tained. See Brown v. Starr, 21 Pac. Rep., 973 (79 Cal., 608; 12 Statutes similar to ours and enacted for the same purpose, have been construed in other states, and this view has been susAm. St. Rep., 180); Yates v. McGibbon, 66 Iowa, 357 (23 N. W. Rep., 752); France v. Lucas, 14 Bush (Ky.), 395; Arnold v. Jones, 77 Tenn., 545, and Crigler v. Connor, 11 S. W. Rep., 202 (10 Ken. L. Rep., 957). The order will require the appraisers to set off and assign to Augusta F. Linden land including the house, an amount the fee simple of which is worth one thousand dollars; and the life estate of Augusta in the remainder will be sold. In case such an assignment can not be made by metes and bounds, then the order will be in the usual form, providing for ascertaining the rental value of the property and the application of so much of such rental value as exceeds one hundred dollars a year to the payment of the liens. V. A Andrew and F. A. Shepherd, for plaintiff. J. T. Sullivan, for defendants. RIGHTS UNDER A CHATTEL MORTGAGE. [Circuit Court of Cuyahoga County.] MERKEL BROTHERS' Co. v. VINCENT F. DE WITT. Decided, October 28, 1901. Chattel Mortgages-Acknowledged Before Party in Interest-Does Not Affect Interest of the Party Making the Affidavit—Notice As to His Rights. While an officer before whom a chattel mortgage is executed, if interested therein could not maintain his interest against subsequent purchasers, yet such interest would not affect the rights of the party making the affidavit, to the extent of his interest in the debt secured by the mortgage. Merkel Bros.' Co. v. De Witt. MARVIN, J.; CALDWELL, J., and HALE, J., concur. Heard on error. [Vol. III, N. S. The plaintiff in error obtained possession of a piano under a chattel mortgage, which had been executed by one Williams to A. D. Coe. This mortgage was assigned by Coe to the plaintiff in error; it was good as against Williams but, by reason of not having been properly refiled, had become inoperative as against subsequent purchasers and mortgagees in good faith. Before the mortgaged property had been taken possession of by plaintiff in error, and while said mortgage was so inoperative except as between the parties to it, Williams executed another mortgage upon the same property to the defendant in error; this was given on April 28, 1897, and, upon its face, purports to secure the payment of two promissory notes of that date, one for $138, and one for $61.09. DeWitt, on April 29, 1897, made the affidavit required by law to be made in order that a chattel mortgage shall be good as against subsequent purchasers and mortgagees in good faith; and on the next day the mortgage was duly filed with the proper officer. This verification was made before Charles Seeman, a notary public. De Witt brought an action in replevin against the Merkel Brothers' Company before a justice of the peace, and, after trial and judgment in that court, the case was appealed to the court of common pleas; it was there tried to a jury, and resulted in a verdict and judgment in favor of DeWitt, to reverse which judgment this proceeding in error is prosecuted. There is filed in this court a bill of exceptions containing all the evidence. It is urged there was error in the trial of the case in the court of common pleas. The amended petition upon which the case was tried is an ordinary petition in replevin setting out that the plaintiff has a special ownership in the piano, which is described, by reason of the chattel mortgage made to him as hereinbefore mentioned; that the mortgage was properly filed, and that the defendant detains the mortgaged property from the plaintiff. To that the Merkel Brothers' Company answered, setting up the mortgage executed to Coe; that the Merkel Brothers' Com |