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Chittenden v. Chittenden.

That deed was put on record very soon thereafter-received for record October 8, 1896. Until after the separation Mrs. Chittenden supposed that she was the owner of this home. It was always spoken of as her home. When the city was about to assess the property, it was informed that it belonged to her. He often told persons that the property stood in her name. She spoke of it as her property. He told her parents that he had given this home to her, and provided for her in that way; but on May 1, about a week after the separation, a quitclaim deed was put on record of this homestead from Mary S. Chittenden back to her husband. He testifies that the quitclaim deed was made and executed at the same time the deed was made from him to her, but they bear different dates. The deed from her to him is dated October 6, 1896, while the deed from him to her is dated August 5, 1896. Mrs. Chittenden testifies that to her knowledge she never signed the quitclaim deed of this property back to her husband, and that she had no knowledge that such a deed was in existence until her attention was called to its being placed upon record, or the transfer being made in May, 1900, our years nearly after the date of its execution.

We find from the evidence, as a matter of fact, that she never did knowingly sign and execute that quitclaim deed. The signature attached to it is probably genuine, but we find that she signed and executed this paper without any knowledge that she was signing a deed of this homestead property back to her husband. It seems to us that the transaction would have been a futile one, and it is unreasonable to suppose that she asked him that the homestead might be in her name, that she might be the owner of it, and he making this deed to her soon after their marriage, that as a part of the transaction she would be willing to immediately convey it back to him. The quitclaim deed from her to him is kept off the record for nearly four years. Then this separation occurs, after the wife has signed this mortgage for $6,500, binding all the property that they have to the father. Until then this deed from her to him does not come to light; but after the separation, after this mortgage is made, it is placed on record. We find that the $6.500 mortgage was duly acknowledged and witnessed, but find from these facts, from this evidence, that he procured her to sign this mortgage with the purpose of defrauding her of the claim which she was about to have for alimony. We find that she is now entitled to a judgment for alimony in some amount; that this mortgage, so far as her rights are concerned, is fraudulent and void, and should be inferior to any judg ment for alimony that may hereafter be awarded her.

There is no prayer in her answer and cross-petition to have the quitclaim deed, as it is called, from Mary S. Chittenden to her husband. cancelled and set aside. If there were such a prayer in the petition, we would have no hesitancy in cancelling it and setting it aside; but we hold that in equity she is the owner of the homestead property; that it was conveyed to her by her husband, and that she never knowingly parted with the title thereto; and we hold that so far as the homestead property is concerned, and so far as all property is concerned, that the $6,500 mortgage shall be inferior to any judgment that she may procure for alimony hereafter. As to the mortgages that were made before their marriage, we find that they should be satisfied, if possible, out of the real estate other than the homestead, she in equity being the owner of the homestead, and it should be subjected last to the payment of the mort gages made before marriage; and if there is sufficient of the other prop

Lucas Circuit Court.

erty to satisfy those mortgages, the homestead property should not be taken for that purpose.

As to the validity of the claim between Edwin S. Chittenden and Herbert J. Chittenden, the majority of the court are unable to tell from this evidence and the consideration we have given it, how much Herbert J. Chittenden owes his father, if anything; whether the moneys that Edwin S. Chittenden gave to Herbert J. Chittenden from time to time were intended as loans or advancements, and therefore not to be returned. No note was ever given by Herbert J. to his father as this money was advanced; no security taken; no written contract ever existed between them. The father is wholly unable to tell us how much he advanced to his son, when he advanced it, or in what amounts, except as he learns it from the books, which were kept by the son. But as between Herbert and his father, Herbert J. admitting those claims, they are not to be disturbed. They are the only persons interested in them. But so far as Mrs. Chittenden is concerned, we do not find, and we think it is unnecessary for us to find, whether in tact those claims are valid claims or not. We do not find here, so far as he is concerned, as affecting any claim that she may have against her husband for support and alimony and its amount, whether these are just and valid claims, that should be taken into consideration in determining the amount of the alimony or not. We will leave that to be determined by the court in which the alimony suit is pending. It is sufficient for this case to say, that so far as these mortgages are concerned, we find as already stated.

Our decision in this case is not to prejudice the rights of either Herbert J. Chittenden or his wife in the alimony suit as to the amount to be allowed, so far as his alleged indebtedness to his father is concerned. We simply do not find it necessary to pass upon that in this case and we leave it without prejudice, to be considered by the court in which the alimony suit is tried in determining the amount of alimony. A decree may be drawn in accordance with this opinion.


I concur fully in the conclusion that the court has arrived at, except as to the question whether Herbert is indebted to his father, which remains open for further inquiry so as not to prejudice either party upon the hearing of the alimony case. The opinion was expressed that we could not determine how the matter stood from the evidence. I do not concur in that conclusion, holding as I do the opinion that the evidence fairly shows that this indebtedness exists between the father and son as claimed by them, though $3,000 of the $6,500 may be an indebtedness to Steiner rather than to his father. However, there should be no finding on that subject that would be prejudicial between either of the parties, but it should be left open, as the subject-matter of further inquiry between the parties, if they choose to go into it.

Blake v. Harris.


[Hamilton Circuit Court, 1901.]

Smith, Swing and Giffen, JJ.



A landlord is not liable to one who goes upon his premises at the invitation of a tenant and is injured through a defective stairway.

W. C. McLean and Wade Cushing, for plaintiff in error.

C. B. Matthews, contra.


Plaintiff sustained a personal injury by reason of a defective stairway maintained by the defendant upon premises owned by him and rented to one Mary Listerman. The plaintiff was there by invitation of Mrs. Listerman for the purpose of roasting her turkey in the stove of the latter, and sustained no other relation to the defendant. We are unable to distinguish the facts in this case from those in Burdick v. Cheadle, 26 Ohio St., 393, and applying the principles of that case to this one the court did not err in arresting the case from the jury and rendering judgment for defendant.

Judgment affirmed.


[Hamilton Circuit Court, 1901.]

Swing, Giffen and Jelke, JJ.



Where an ordinance accurately states the grade of a street improvement in feet and inches, and the notice served on a property owner sufficiently apprises him of it, it is immaterial whether the ordinance was properly passed, and having failed to file his claim for damages, within the time prescribed by statute, no relief can be granted, notwithstanding it clearly and equitably appears he should be compensated for the damages done him by the improve


W. H. Jones, for plaintiff.

Charles J. Hunt, contra.


In our opinion the notice served on the plaintiff in this action for the improvement of Hemlock street must be construed to have given him a fairly accurate statement of the nature of the improvement proposed to be made, and that the improvement, as actually made, was in accordance with the notice.

It is true that the fifth item of the notice says that the improvement will not change an established grade; but the sixth item of the notice

Hamilton Circuit Court.

specifically points out the established grade referred to in the fifth item, and accurately states what the grade is in feet and inches.

The fifth item standing alone, without specifying what established grade was meant, might be construed to mean the actual grade as it had existed in front of the property for the last fifteen years; but we do not think this meaning can be given to it when the notice clearly shows that the "established grade" mentioned is the grade established by ordinance No. 1806, passed July 3, 1874, which grade the notice itself specifies in accurate terms.

It is immaterial whether the ordinance itself was properly passed. The grade mentioned in the ordinance was accurately set forth, and the grade proposed in this ordinance is accurately set forth, and the notice served on the plaintiff sufficiently apprised him of it, and not having filed his claim for damages within the time required by the statute, we are unable to see how we can grant him any relief, although it would clearly appear from any principle of natural justice that he should be compensated for the damages done him by the improvement. But not having complied with the requirements of the law, he himself must stand the consequences.

Petition dismissed.


[Hamilton Circuit Court, 1901.]

Smith, Swing and Giffen, JJ.


WHERE TWO Judges do not agree-AffIRMANCE.

Where a judgment is substantially correct and it appears that the judges who heard the case are not exactly agreed as to the points involved, the judgment is affirmed,


S. A. Miller and Gustav Tafel, for plaintiffs in error.

Wm. L. Avery and Ramsey, Maxwell & Ramsey, contra.

The judgment in this case as rendered by the court below was for $45,969.64, with costs, etc., against the defendants, John B. Mannix, assignee of Archbishop Purcell, and H. H. Hoffman and Michael Clements as sureties. Error was claimed on account of the period for which interest was charged, etc.


The two judges who heard this case are not exactly agreed as to one or more points involved in the case, and for this reason, and the further one, that in our opinion the judgment of the common pleas was substantially just, it will be affirmed.

Railway Co. v. Godwin.


[Lake Circuit Court, 1893.]



Instructions to the jury, in an action for personal injuries, respecting the duty and liability of the railroad company as to foreign cars, where no claim of negligence in that respect was made, would be in the nature of abstract propositions not demanded by the issues and though correct as abstract propositions, were properly refused.


The fact that fifty trains a day with their usual complement of men passed a standpipe for several years without injury will not relieve a railroad company from the charge of negligence, if, in fact, the standpipe was constructed so near the track as not to afford reasonable safety to employes in the performance of their duties; and it would be mis eading to charge the jury that such use and freedom from injury would constitute a reasonable test that the compauy might continue to use it without imputation of negligence.


An instruction to the jury, in an action for injuries alleged to have been caused by the proximity of a standpipe to the railroad track, that the railroad company "had the right to commit the construction and location of its standpipes to its engineer or superintendent of construction; and this fact is not abridged by the fact that it might have been safer to its employes if the standpipe had been placed farther from the track; nor by the fact that the jury may differ with such engineer or superintendent as to the proper location of such pipes," might have been misleading, as leading the jury to believe that if the railway company so committed the construction of the standpipe, it would be relieved of all obligation thereto, and was properly refused.


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A charge, in such case, that "if the jury should find from the evidence that brakemen were accustomed between stations to descend the ladder of a examine whether boxes were heated, at places where no obstructions were in sight or to be expected, that fact would not justify the plaintiff in so exposing himself while passing stations, when he knew he was passing stations," assumes a fact, that a person would be in danger on the cars of the company in the discharge of his duties, and was properly refused.


So far as the rule as to assumption of risk is concerned, the nature of the service is immaterial. The principle applicable alike to all, is that the master and the servant owe to each other the duty of exercising ordinary care in the discharge of their relative obligations to each other and the duties as measured by the character and the risks embraced in the service.


A railroad brakeman in entering the service of the railway company assumes only the ordinary and usual dangers of such employment, excluding all unusual or extraordinary risks growing out of any negligence on the part of the company. The fact that he may have knowledge, or in the exercise of ordinary care might know of the extraordinary or unusual dangers to which he may be subjected by the negligence of the master, and by the exercise of such care might protect himself from injury by reason thereof, is not suffi cient to establish an assumption of such dangers as an incident of the employment.


A servant can only be defeated from recovering for injuries received in consequence of some unusual or extraordinary risks or dangers to which the master has subjected him, by his own negligence, contributing to his injury.

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