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10. REPETITION OF QUESTIONS AND ANSWERS NOT PREJUDICIAL.

The mere repetition of questions and answers asked and answered in the crossexamination of the plaintiff, in his re-examination, can not be held prejudicial.

11. CONDITIONS in Deed-CONDITIONS In Law.

A condition subsequent in a deed is one that defeats or determines a vested interest, for the breach of which only a lessor or his heir can enter, but conditions in law are implied conditions for the breach of which the lessor, his heirs, his assignee, or the reversioner may enter.

12. FORFEITUre for Use of premises FOR GAMBLING.

A tacit condition is annexed by law to all tenancies, that the lessee will not by his unlawful act cause a forfeiture of the landlord's estate, or by such act create an enforcible lien upon the landlord's interest in the leased premises. Therefore, under Sec. 4276, Rev. Stat., the owner of premises, upon which gambling is conducted by the lessee, may bring an action in forcible entry and detainer, enforce a forfeiture and recover possession for the breach of such condition by the lessee.

18. MORTGAGee of Term NOT NECESSARY PARTY.

In an action for forcible entry and detainer by the grantee of the lessor of certain premises upon which gambling is conducted by the occupying lessee it is not necessary to join as a party defendant the mortgagee of the term. HEARD ON ERROR.

Richie, Leland & Roby, for plaintiff in error:

The rule that a mere possibility of reverter is not a subject of grant or conveyance has no application to this case.

When Satterthwait conveyed to Thompson he did not convey an estate to commence in future, i. e., at the expiration of the ten year term of Ackerman, but he conveyed a present vested estate. By that conveyance the seisin, ownership, vested in Thompson, subject to an estate for years in Ackerman, liable to be determined by unlawful acts of the latter. The seizin being in Thompson, if Ackerman's right of possession lapsed by his act, then Thompson being seized of the fee would have the present right of possession. Tiedeman Real Prop., Sec. 24; 1 Washb. Real Prop., 472.

That the interest of an assignee of a reversion is a present vested estate as distinguished from a mere possibility of reverter, see Nicoll v. Railroad Co., 12 N. Y., 121.

Where one having granted an estate for years, subsequently conveys the reversion, the assignee of the reversion without special contract to that effect takes with the reversion the right to collect the rentals under the lease. This is conclusive on the proposition that the assignee takes a present vested estate. 1 Washb. Real Prop., 548; Smith v. Harrison, 42 Ohio St., 180; Tiedeman on Real Prop., Sec. 389.

If an assignee of a reversion die before the expiration of an estate for years created before the assignment to him, a dower interest accrues to the wife, the husband being seized of a present estate. Andrews American Law, 984.

At common law the assignee of the reversion could not avail himself of a breach of condition upon which an estate for years was held, for the reason that the policy of the law prohibited maintenance which the conveyance of the right to prosecute an action for such breach was considered to be. 1 Taylor Landl. and T., Sec. 295; 1 Washb. Real Prop 506, 507.

The statute 32 Hen. VIII, Chap. 34, is not in force in Ohio, but its - taken by the code provision requiring actions to be brought in name of the real property in interest. Masury v. Southworth, 9 Ohio St., 340.

Thompson v. Ackerman.

The right of re-entry for breach of condition is not a reversion nor the possibility of reversion. It is mere right or chose in action. De Peyster v. Michael, 6 N. Y., 467, 506 [57 Am. Dec., 470]; 2 Washb. Real Prop., 16.

As a case on all fours with the case at bar cited Countee v. Armstrong, 9 Dec. (Re.), 62 (10 B., 339).

But the condition in the case at bar differs from that in the above case in that in the latter the condition is an express one while in the present case the condition is an implied one.

Conditions in law or implied conditions always inured to the benefit of an assignee of the reversion. The rule above stated never applied to them under the early common law rule above stated. 2 Washb. Real Prop., 14 and 15.

Thompson is a "lessor " within the meaning of the statute. Mullen v. Peck, 49 Ohio St., 447, 461, Sec. 3 [31 N. E. Rep., 1077].

The principle that forfeiture should be strictly construed does not apply in this case. This statute is a statute remedial in its nature. It imposes a liability civil and criminal upon the owner of the premises wherein gaming is conducted and gives him the remedy of eviction of the tenant. Sutherland on Stat. Const., Sec. 207.

A law respecting public rights and interests, generally, should be liberally construed, so as to make it effectual against the evil it was intended to abate. Ib. Sec. 443.

Ridenour & Halfhill, for defendant in error:

When the court states to the jury, "If you find from the evidence and admissions in this case that gaming was permitted or carried on in said premises, then your verdict shall be guilty' as charged in the complaint," that it erred, for it would permit the jury to find a forfeiture of the estate resulting from a single act of gaming; whilst the statute is broader, and states that if the premises are occupied for gambling purposes, that the lease becomes void at the instance of the lessor. This charge permits the jury to find that the estate has been forfeited and the right of possession, from the mere act of gambling, irrespective of the election or action on the part of the lessor. There must be an election

of forfeiture. (1.) On the part of the lessor, before the estate is forfeited. (2.) A cause of action does not accrue to Thompson, the present owner of the premises, against Charles L. Ackerman, by reason of a violation of Sec. 4276, Rev. Stat. The only lease that would be void by reason of the violation of said section would be the contract of sub-letting between Michael Ackerman and Charles L. Ackerman, and that only Michael Ackerman, the lessor of Charles L. Ackerman, could take advantage of the violation of said section. There is no privity of contract or by blood between the defendant, Charles L. Ackerman, and Thompson.

In a proper case, a violation of Sec. 4276, Rev. Stat., and an election by the lessor would defeat the estate in the lessee, and it would revert to the lessor; but the right to declare the estate void for the sole violation of the statute is personal to the original lessor.

The presumption of law at the time of the execution of the lease, and at all times, was that said premises would not be used or occupied for gaming or gambling, because that would be a violation of law. It was a mere possibility, so far as the original lessor was concerned, that the estate would ever revert to him or that he would have the right to exercise his option to declare a forfeiture. This possibility of reverter

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was not and is not the subject of conveyance, and could not be assigned by the original owner. Satterthwaite, to Thompson; and Thompson never had any right in law or in fact to declare a forfeiture by reason of . the violation of said section against gaming.

The possibility of a reverter depending upon the happening of an uncertain event, is not subject to alienation. This principle is not confined to a reversion of the fee, but applies to lesser estates. Walker Branch and M. E. Church v. Cemetery Assn., 5 Circ. Dec., 326 (11 R., 185); Ruch v. Rock Island, 97 U. S. Rep., 693-6; Needles v. Needles, 7 Ohio St., 432-442.

Thompson not being in privity of blood with Satterthwaite, had no right to declare the forfeiture; the forfeiture depending as it did upon a mere remote possibility, was not the subject of alienation and could not be assigned to Thompson. He never had the right to declare a forfeiture as against even Michael Ackerman, the owner of the leasehold estate, much less against Charles L. Ackerman, his sub-lessee.

That whatever may be the nature or kind of forfeiture, it is never carried by construction beyond the clear expression of the statute creating it. Bond v. Swearingen, 1 Ohio, 395, 403; Presbyterian Church's Lessee v. Picket, Wright, 57; Callen v. Ellison, 13 Ohio St., 446, 447; Genin v. Grier, 10 Ohio, 209, 214.

In as much as the expectancy is not the subject of transfer, a reverter depending upon the happening of an uncertain event did not pass under the general terms of a deed to Thompson; the right to declare the forfeiture before the expiration of the ten years never vested in Thompson; he could not elect to terminate the estate.

If

Thompson cannot maintain this action against Charles L. Ackerman, who had not the legal title to the lease by assignment. Michael Ackerman is the owner of the legal estate in the lease, and as such has the right to his day in court before his lease can be declared forfeited. Thompson could gain possession of this lease as against Charles L. Ackerman, as sub-lessee, every right of Michael Ackerman, the legal owner of this lease, would be destroyed and his property would be taken from him without due process of law. The right to declare a forfeiture for the violation of Sec. 4276 is not a covenant, but a condition that may arise by law. It is not a covenant that runs with the land, as a covenant to pay rent, keep in repairs, etc.; and hence at the time of the assignment there was no covenant or nothing in being assignable or subject to alienation that could be taken advantage of by Joseph C. Thompson.

The act complained of to void this lease is a crime. There can be no agency between persons to do an unlawful act, and especially to commit a crime, and the principal is not bound for the criminal acts of an agent. Hence, Michael Ackerman, the owner of this leasehold, was not bound for the acts of Charles L. Ackerman, even in the latter had used and occupied the premises for the purpose of gambling. Stranahan Co. v. Coit, 55 Ohio St., 398, 410 [45 N. E. Rep., 634]; Mechem on Agency, Sec. 740; Story on Agency, 452.

Opinion of Armstrong, J.: See Ackerman v. Thompson, 10 Dec., 361 (7 N. P. 598).

*

1. The provisions of Sec. 4276, Rev. Stat., that "whenever premises are occupied for gaming * * purposes, the lease or agreement *** shall be absolutely void at the instance of the lessor", operates as a condition subsequent, annexed by implication of law to the terms of the lease or agreement under which the premises are held.

Thompson v. Ackerman.

2. This provision vests in the lessor and his privies in blood an election to continue the estate created by the contract, or declare it forfeited on breach of such condi ior.

3. This right of election is personal to the lessor. It cannot be exercised by the lessee. It is not the subject of transfer by the lessor, especially in the absence of covenants in the lease or agreement, that conditions therein, or arising at law, shall extend to the assigns of either.

4. The possibility of reverter before the expiration of the terms named in the contract for breach of the condition, is a mere expectancy dependent on the happening of an uncertain event, and is not the subject of alienation.

5. The grantee of the lessor who had previously granted an estate for ten years, takes the fee limited by the unexpired term of ten years. The right of election to declare the estate for years forfeited before the expiration of the term, if the premises are occupied for gambling purposes, does not pass under the general term of the lessor's deed. Such grantee can not assert the forfeiture, nor maintain an action in forcible detention to recover the premises on breach of such condition. MOONEY, J.

The original action was in forcible entry and detainer brought in the court of Miner A. Atmur, a justice of the peace of this county. In that action Joseph C. Thompson, as owner of certain premises, sought to recover the possession because, as he alleged, the lease under which Chas. L. Ackerman occupied the same had become forfeited by reason of the use thereof by said Ackerman for gaming purposes. The defendant, Ackerman, in that action filed what is called his answer, and therein denied that the premises were used for gaming purposes, and averred that in 1894 the premises in question were owned in fee by one Satterthwaite, and that said owner, being so seized, executed lease thereof to one Freel for the term of five years and renewable at the option of said lessee for a further term of five years; that thereafter Freel assigned the term to one Michael Ackerman, and that Michael Ackerman duly exercised the option and renewed the term; that said Satterthwaite died intestate and the lands decended to his heirs who, about July, 1897, conveyed the same in fee to Thompson; that Charles L. Ackerman holds as sub-lessee under Michael Ackerman, and has never had any relation, by contract or otherwise, with Satterthwaite or his heirs, with Thompson or Freel; that Michael Ackerman has never used said premises for any unlawful purpose, and has never permitted or had knowledge of any such use. Charles asks that Thompson be required to make Michael a party defendant, and that the action as to him, Charles, may be dismissed.

March 16, 1900, trial was had to a jury resulting in a verdict for Thompson, and judgment for restitution was thereupon rendered. March 17, a motion was filed by the defendant for a new trial, assigning as grounds therefor that the verdict was against the weight of evidence and not supported by sufficient evidence; that the court erred in the admission and rejection of evidence; that the court erred in not sustaining defendant's motion to direct a vedict for defendant at the close of plaintiff's case in chief; and that the court erred in his charge to the jury and in his refusal to charge as requested. On March 21, this motion was heard and overruled and the court, a second time, entered

Allen Circuit Court.

judgment of restitution and at the same time fixed eight days from said date as the time within which defendant might prepare and present his bill of exceptions. March 29, defendant filed his bill of exceptions which was then allowed and signed by the justice of peace. This bill of exceptions embodies all the evidence and sets out all rulings and orders made by the court on the trial of the cause.

On leave, the defendant, as plaintiff in error, filed his petition in error in the common pleas and assigned as error the refusal of the court, on defendant's motion, to require plaintiff below to make Michael Ackerman a party defendant, and meanwhile, either to dismiss the complaint as to the defendant or suspend the trial of the cause. The other errors assigned are, that the court erred in overruling the motion for a new trial, and the several matters stated in said motion as grounds for new trial are also assigned as errors.

On trial in the common pleas the court reversed the judgment.

First-For error in overruling motion for new trial because Thompson could not, under Sec. 4276, Rev. Stat., maintain the action during the term, the right of election to declare the forfeiture being reserved to Satterthwaite and his heirs, and not passing by conveyance to Thomp

son.

Second-Said justice of the peace had no jurisdiction to entertain said action or pronounce said judgment, because Michael Ackerman is a necessary party defendant.

Third-For error in the charge given, in this; that the court charged "if you find from the evidence and admissions in this case that gaming was permitted or carried on in said premises then your verdict shall be guilty as charged in the complaint."

To reverse this judgment of reversal this action is brought in this

court.

It will be observed that all errors assigned in the common pleas are predicated upon the bill of exceptions. Section 6565, Rev. Stat., as amended April 12, 1898, 93 O. L., 104, and since in force, provides that the justice of the peace shall fix a time to prepare the bill of exceptions not less than five or more than ten days from date of judgment or overruling motion for new trial. Section 6560, as amended March 17, 1898, 93 O. L., 51, and since in force, provides that: "It shall be lawful for the justice before whom a cause has been tried, on motion, and being satisfied that the verdict was obtained by fraud, partiality or undue means, at any time within four days after the entering of judgment to grant a new trial."

This trial was had and judgment entered March 16; the motion for new trial was heard March 21, five days after, and the bill of exceptions was allowed, signed and filed March 29, thirteen days after judgment.

In Derby, Jr., v. Heath, 59 Ohio St., 54 [51 N. E. Rep., 547], decided under another statute, which fixed the time for granting a new trial at five days, instead of four days as now provided, it was held, "the authority of a justice of the peace to grant a new trial is limited by the terms of Sec. 6560 by which it is conferred, and an order made by him for that purpose after the time therein limited is void.”

In Dunlap v Robinson, 12 Ohio St., 530, the court say, p. 534: "A justice of the peace cannot, by neglecting or refusing to enter judgment within the time required by statute, keep an action indefinitely pending before himself. When his power to determine the controversy, by a valid judgment, ceases, his jurisdiction ends. His power of adjudica