Osborn v. Huffman.

SEWER ASSESSMENTS.

[Montgomery Circuit Court.]

Summers, Wilson and Sullivan, JJ.

*CYRUS V. OSBORN ET AL. V. FRANK T. HUFFMAN, TREAS., ET AL. IRREGULAR Sewer AsseSSMENTS PARTIALLY ENFORCIBLE.

Under the curative provisions of the statute, sewer assessments, which are illegal for irregularity in the proceedings, are enforcible, to the extent that expense has been incurred which is properly chargeable against the property assessed, and not in excess of benefits.

APPEAL.

WILSON, J.

This is an action to enjoin the collection of certain sewer assessments on account of irregularities in the proceedings.

It appears that after the authorities had divided the city into sewer districts, as provided by law, and let the contract for building the sewers in district number one according to law, they attached certain additional territory, embraicng the real estate of the plaintiffs, to said district, extended the sewer system into the added territory, and let the extended work to the same contractor, upon the same terms as in the contract for the original district, without advertising the same, and without competition. No other irregularity is complained of.

At the time this action was commenced, no work had been done under the contract so irregularly entered into, affecting the property of the plaintiffs, but, pending the action, the work has been completed and a number of the plaintiffs have connected their property with the sewer so constructed. It is alleged in the answer filed by the city, that it had accepted and paid for the work; that there are no defects in the construction; that it has been completed at a reasonable cost; that strict regard has been paid to the limitation of assessments, and that the real estate of the plaintiffs has been greatly benefited. These allegations are admitted to be true, no reply having been filed in the case.

It was also conceded on the trial, that the contract price paid for the work was the reasonable cost price.

The question to be determined here, is, What are the rights of the parties under the existing circumstances?

Upon the facts stated, under the authority of Upington v. Oviatt, 24 Ohio St., 232, and Becher v. McCloud, 2 Circ. Dec., 561, we conclude that the assessments in this case, though not conclusive, are enforcible, to the extent expense has been incurred which is properly chargeable against the property assessed, and that within the meaning of the statute, the expense so chargeable to the added territory is the whole of the contract price for the additional work, together with a proportionate share of the cost of the main, in sewer district number one, not in excess of benefits.

It is therefore ordered that the temporary restraining order herein be dissolved; that the plaintiffs be adjudged to pay the assessments respectively as entered upon the tax duplicate, and that the parties hereto pay the costs made by them respectively.

The judgment of the circuit court in this case was affirmed by the Supreme Court, unreported, 58 Ohio St., 697.

48 O. C. D. Vol. 12

Jackson Circuit Court.

ESTATES TAIL-DEVISES-LIMITATIONS-PLEADING.

[Jackson Circuit Court, June 4, 1897.]

* WILLIAM L. DARLING ET AL. v. JOHN HIPPEL.

1 RULE TO ESTATES TAIL IN OHIO.

There is nothing in the policy of the law of Ohio to discourage estates in fee tail further than the rule laid down by the courts, that when language conveys equally well two different estates, that construction will be placed upon, it which will confer an estate in fee simple in preference to an estate in tail. 2. WILLS LIMITING ESTATES TO FEE TAIL.

An estate in lands created by will or deed which, by the granting clause, would be an estate in fee simple may be limited by the habendum clause to an estate tail.

3. WILLS-DEVISE CREATING ESTATE TAIL.

A will devising lands to testator's son "to be held and enjoyed by him and the heirs of his body lawfully begotten forever," creates an estate ta'l and not in fee simple, and the devisee cannot by deeding away the lands so devised to him cut off his heirs.

4. SAME-INTENTION AS AGAINST LANGUAGE.

Where the language in the granting and habendum clauses of a will is such that it creates an estate tail in the lands devised, an intention to create an estate in fee cannot be construed out of other clauses in the will unless such intention be clearly and unmistakably expressed.

5. CONSTRUCTION OF WILLS-Payment OF TAXES BY Devisee.

Where the language of a will is such that it creates an estate tail in lands devised, a proviso that the devisee “shall pay all taxes which may accrue upon said lands after he arrives at the age of twenty-one years," is not sufficient to establish an intention on the part of the testator to devise such lands in fee simple.

6. PROVISION EMPHASIZING Previous Devises.

A will devising the landed estate to testator's three sons, to one about eighty acres, to another about seventy-eight acres and to the third about eighty acres, with the habendum clause above stated, creating estates tail, to vest The judgment of the circuit court in this case was affirmed by the Supreme Court, unreported, in 60 Ohio St., 591.

J. W. Bannon, Jno. T. Moore and T. A. Jones, for plaintiff in error in the Supreme Court, cited:

Estates Tail: Collins v. Collins, 40 Ohio St., 353, 363; Bierce v. Bierce, 41 Ohio St., 241, 256; Niles v. Gray, 12 Ohio St., 320, 327; Piatt v. Sinton, 37 Ohio St., 353, 355; Sec. 5970, Rev. Stat. (1 Curwen, 145); Raymond v. Railway Co., 57 Ohio St. 271 [48 N. E. Rep., 1093].

Devisee, charged with payment of money: 2 Redfield, Wills, 704; Tiedeman Real Property, Sec. 37, p. 25; Decker v. Decker, 3 Ohio, 166.

Probate of wills: Sec. 5942, Rev. Stat.; 3 Chase, Sec. 7, page 1786.

Title by adverse possession: Yetzer v. Thoman, 17 Ohio St., 130, 134 [91 Am. Dec., 122]; Tiedeman on Real Property, Sec. 699: Smith v. McKay, 30 Ohio St., 409, 417, 418; Waite's Actions and Defenses, 662, 3, 4, 5; Secs. 5779 and 5780 (S. & B.), Rev. Stat.; 67 O. L., 116; Rhea v. Dick, 34 Ohio St., 420; Burnet v. Cincinnati, 3 Ohio, 73 [17 Am. Dec. 582]; Spiller v. Heeter, 42 Ohio St., 100; 2 Am. & Eng. Ency. Law (1 Ed.), 306-7; Schulte v. Beineka, 6 Dec., 529 (4 N. P. 207); Sternberger v. Ragland, 57 Ohio St., 148 [48 N. E. Rep., 811]; Bridenbaugh v. King, 42 Ohio St., 410; Secs. 5779 and 5780, Rev. Stat.

John M. McGillivray, for plaintiff in error, cited:

Estates fee and tail: King v. Beck, 15 Ohio, 556, 563; Smith v. Berry, 8 Ohio, 365; Thompson v. Hoop, 6 Ohio St., 480; Niles v. Gray, 12 Ohio St., 320; Piatt v. Sinton, 37 Ohio St., 353; Coonrod v. Coonrod, 6 Ohio, 114, 116; Young v. McIntyre.

Darling v. Hippel.

upon the death or marriage of testator's wife, is not affected or the estates changed to fee simple by a provision following in another part of the will, that: "It is my will and desire and I wish to be distinctly under-tood that the preceding items contain my last will and testament upon this express condition, that my now wife shall continue to be a widow, after my decease, during her natural life, but in case my said wife should afterward marry, then and in that case it is my will and desire that all my landed estate shall be equally divided between my three sons and all other property divided as aforesaid as near as the manner pointed out in the respective items as the circumstances will admit."

7. PLEADING-Rule as tTO ADVERSE POSSESSION.

In order to make the defense of adverse possession for more than twenty-one years available, on demurrer, in an action of ejectment, it should appear from the pleadings that the occupying claimant held by a claim of title in fee, and that the statute which ran against him would be effective as to all who held held after him, either by deed or by claiming under the statute of descent. 8. STATUTE OF LIMITATIONS-CONVEYANCES BY OWNER of Fee TAIL. The statutes of limitations will not begin to run against the right of action of the heirs of one who being entitled to a fee tail in land attempted to convey the same in fee simple, until the death of the grantor, and the right of action of the heirs accrues.

9. ADMISSION OF WILLS TO PROBATE--IRREGULARITY.

Under a statute requiring the probate court to set out the testimony and proof in admitting wills to probate, the failure to do so, while irregular, does not make the proceeding a nullity; and where the court had jurisdiction the proceeding cannot be collaterally attacked.

10. EJECTMENT-PLEADINGS-INSUFFICIENT DENIAL.

An allegation in ejectment that plaintiffs have a legal estate in and are entitled to the possession of premises sued for, is not sufficiently denied by an answer alleging that the person under whom plaintiffs claim was never in possession of the premises as owner thereof, and had no title thereto, legal or equitable, and that "neither the legal or equitable title to said premises ever vested in said plaintiffs, in so far as the records of this county disclose, and defendant believes and avers that neither they nor either of them possess a title to said premises not of record; that they never were in possession of said lands nor possessed nor procured any title thereto."

3 Ohio, 301; Parker v. Parker, 13 Ohio St., 95, 105: Ball v. Foreman, 37 Ohio St., 132, 141, citing Flagg v. Eames, 40 Vt., 16 [94 Am. Dec., 363]; Moore v. Lewis, 2 Circ. Dec., 548 (4 R., 284); Ewing v. Standifer, 18 Ala., 400.

Powell & Eubanks, for defendant in error, cited:

Estates in fee and tail: Pollock v. Speidel, 17 Ohio St., 439; 3 Jarman on Wills (5 Ed), 89; 1 Washburn's Real Property (5 Ed.), 110; Lessee of Hall v. Vandergrift, 3 Binn., 373; Allin v. Bunce, 1 Root, 96; Chesebro v. Palmer, 36 Atl. Rep., 42 [68 Conn., 207]; Good v. Good, 2 Marsh, Eng. Rep., 107; Jesson v. Wright, 2 Bligh, 1.

Construction: Collins v. Collins, 40 Ohio St., 353; Parker v. Parker, 13 Ohio St., 95, 105, 110; 3 Jarman on Wills, 706, rule 12; 1 Ib., 617; 3 Ib., 707, rule 16; 3 Ib., 22; 3 Ib., 24; Niles v. Gray, 12 Ohio St., 320.

Probate of wills: 2 Redfield, Wills, 55; Holman v. Riddle, 8 Ohio St., 348 Mosier v. Harmon, 29 Ohio St., 220.

Error-Presumptions; 1 Greenl. Ev. (8 Ed.), 25; McClelland v. Miller, 28 Ohio

St., 488.

Ownership; Rapalje & Stewart's Law Dictionary; 17 Am. & Eng. Ency. Law; 299, 305; Frank v. Arnold, 35 N. W. Rep. 453 [73 Iowa, 370]; Wright v. Bennett, 4 Ill.. 258; Illinois Trust Ins. Co. v. Mfg. Co., 6 Ill., 267; Jariott v. Vaughn, 7 Iil., 132.

Limitations: Holt v. Lamb, 17 Ohio St., 374; Carpenter v. Denoon, 29 Ohio St., 379; McArthur v. Scott, 5 O. F. D., 347 [113 U. S, 340; 5 S. Ct. Rep., 652]; Salmaus v. Davis, 29 Mo., 176; Barrett v. Strad1, 41 N. W. Rep. 439 [73 Wis., 385; 9 Am. St. Rep., 795] Mettler v. Miller, 22 N. F. Rep., 529 [129 Ill., 630]; Pickett v. Pope, 74 Ala., 122; | Meller v. Snowman, 21 Me., 201.

Jackson Circuit Court.

11. ERROR-BILL OF EXCEPTIONS-JOURNAL ENTRIES.

Where a case is submitted in common pleas court on demurrer and an agreed statement of facts, on error to the circuit court, there should be a bill of exceptions, containing the facts to be reviewed, or, if not, such facts should be recited in the journal entry.

12. STATEMENT OF FACTS SHOULD BE INCLUDED IN BILL OF EXCEPTIONS.

A paper containing an agreed statement of facts not included in a bill of exceptions, and not identified in the journal entries of the trial court, cannot be considered by the reviewing court.

CHERRINGTON, J.

This cause was submitted at the December term of the Jackson county court. We have considered the cause, and we now dispose of it.

This case was what is known under our code as real action. The petition is in the usual form. The answers contains three defenses: the first sets out that James Henderson Darling, some time in the year 1831 and shortly thereafter, claimed some title to or interest in the real estate described in the petition, basing his claim upon what he assumed to be the record of a will claimed to be executed by his father, Timothy Darling, then deceased, and he says the only record touching such matter is as follows, setting out a copy of the will, and the admission of the same to probate court of Jackson county. There is the further averment that in point of fact neither the legal or equitable title to said premises was ever vested in said plaintiff, and defendant avers that they or any of them never were in possession of said lands, nor possessed or procured any title thereto. There is the further averment that on November 7, 1830, said James Henderson Darling was a minor and unmarried, but in 1833 he married the mother of plaintiffs, as defendant believes and avers, and afterwards during the lifetime and widowhood of said Elizabeth Darling, by deed duly executed and delivered, sold and conveyed whatever land and interest could be conveyed by the following description, to-wit: the northeast half of the northwest quarter of section number four, of township number seven, of range number eighteen, in Jackson county, Ohio.

The pleader evidently intended to make two points in this first defense; first, by setting out the will of Timothy Darling, and claiming also in argument that James Henderson Darling took a fee simple, and subsequent to that time deeded all his interest away, leaving nothing to these plaintiffs, and the further averment of the denials that we have recited, by reason of the fact that there was no proper admission to probate of this will. That was the claim made in argument; that inasmuch as the statute at the time this was admitted to probate required all the proof as to the capacity of the testator to be spread on the records, and there being an absence of that, there was no admission to probate.

The second is merely the statute of limitations of twenty-one years. Some averments claimed by way of estoppel, but it is not claimed in argument that there was any estoppel, and I take it that the only claim is the statute of limitation, twenty-one years.

There is a third defense, which amounts to a denial. The defendant admits that he is in possession of the premises described in the petition, and he denies each and every other averment in said second cause of action of said petition.

There is a reply, which says that the plaintiffs, William L. Darling, Henry C. Darling, Charles J. Darling, Peter B. Darling, Joseph R.

Darling, Virginia C. Martin and Malinda S. Eubanks are the sons and daughters, and the said Frances Springs is the granddaughter, being the only child of a deceased daughter, of said James Henderson Darling, recently deceased.

Timothy Darling was in his lifetime the owner of the premises; he died testate, and his last will and testament, duly admitted to probate and record, is set forth and copied in the answer.

The premises are part of the premises devised in the fourth item of said will. But for this averment in the reply there must have been considerable doubt as to whether or not the property claimed in the petition was the property devised by the fourth clause of the will.

The widow of Timothy and mother of James Henderson Darling never remarried, and she has been dead for many years.

The deed, dated July 7, 1838, and recorded in deed book C, page 314, of James Henderson Darling and wife to John D. James recited tha said grantors "do hereby demise, release and forever quitclaim unto th said John D. James, his heirs and assigns forever all our title, interes and estate which we now have or have in expectancy, legal or equitable in the following premises, witn the appurtenances, situated in an bounded as follows, to-wit: one-half section willed to said James Henderson Darling by his father, it being the same land on which h lived at his death, to-wit: the northeast half of the northwest quarter It was of section number four (4) of township number 7, of range number 18 of lands lying and being in Jackson county, state of Ohio." intended by said deed to convey according to its terms the same premises mentioned ard devised in item four of said will of Timothy Darling. The said James Plaintiffs deny that said Darling had no title. Henderson Darling died on November 26, 1895, and the plaintiffs herein. are the only heirs of his body. That of course is to say that the statute did not begin to run against these plaintifs until the death of their

ancestor.

There is a second reply to the second defense in which they deny that defendant, nor any of his predecessors, held possession of said premises, adverse to these plaintiffs prior to the death of said James H. Darling, and they aver the possession of the defendant has only been adverse to plaintiffs since that time, and on the issue thus made the case went to trial before the court, parties having waived a jury, on an agreed statement of facts, which resulted in judgment for the defendant.

One is that The petition in error contains substantially two causes: the court erred in overruling the demurrer to the first and second deferses in the answer, and the judgment of the court was contrary to the evidence.

I might have stated that there was a demurrer interposed to the first and second defenses which the court below overruled, and exceptions taken.

It was stated in the argument of this cause in this court that the whole matter depended upon the construction to be placed upon the fourth clause of the will of Timothy Darling. No doubt it was upon the construction to be placed upon that, together with the agreed statements of facts showing that the statute of limitations did not begin to run until the death of the father of plaintifs, which took place in 1895, consequently was no adverse possession. It was on this that the court Now, what is the fourth clause of the will? below decided the case.