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Debtors and Creditors-Deeds.

the rigor and severity of the com-
mon law in requiring that there
should be some consideration other
than the payment of money. Gard-
ner v. Oil Co.


An agreement to release a joint
debtor from a joint debt, the amount
of which is liquidated, upon pay-
ment by such debtor of his propor-
tion of the debt, there being no
other consideration, is valid under
Secs. 3162, 3166, Rev. Stat., provid-
ing that partners and joint debtors
may make separate compositions
with their creditors.


An agreement to release a joint
debtor from a joint debt, the amount
of which is liquidated, upon pay-
ment by such debtor of his propor-
tion of the debt, is void at common
law, for want of consideration. Ib.



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 im-
plied conditions for the breach of
which the lessor, his heirs, his as-
signee, or the reversioner may enter.
Thompson v. Ackerman.

Real estate owned by a member
of a corporation and conveyed upon
full consideration to the father-in-
law of the grantor in satisfaction
of money loaned to the grantor, and
long due, and which is subsequently
deeded by the father-in-law to his
daughter, the wife of the first
grantor, as a deed of gift and ad-
vancement, cannot be subjected to
the payment of the debts of the
first grantor; such a transfer is ab-
solute, and not in the nature of a
mortgage to be redeemed upon the
payment of the money loaned. First
Nat. Bank v. Rice.

The record of deeds is competent
as evidence in an action involving
title to land, where there are ir-
regularities in the execution of the
deed. Graham v. Burggraf. 743

Such an instrument, while lack-
ing one or more essentials as to the
form of its execution, forms a basis
upon which a court of equity may
give relief to parties holding posses-
sion thereunder, especially where
there is evidence tending to prove
payment received by the wife at the

time of such conveyance and that
those claiming through her ac-
quiesced in the adverse possession
of grantees for a long period of

An instrument purporting to be a
deed and proper in all respects ex-
cept as to the signature of the wife
of the grantor, which appears in an-
other than the ordinary place there-
for, and without seal as the law at
the time required, and without proof
that the witnesses were present and
saw her sign her name, amounts to
a deed by the husband and a con-
tract by the wife.

A party may sign a deed else-
where than in the place provided
for that purpose; and if in other re-
spects regular, and the signature is
properly identified, the fact that one
of the grantors signed on an op-
posite page from the place for the
signature, does not render a deed

The testimony of a witness who
saw a deceased grantor sign a deed,
and the identification of the deed
in question, and the testimony of
three or four expert witnesses that
the handwriting is that of such
grantor, are, standing uncontra-
dicted, sufficient to establish the
signature of such grantor.

Where, in making surveys
deeds of his land, grantor conveyed
to different parties different parcels
out of a 250 acre tract of land, and in
the last deed intended to and sup-
posed he had conveyed all his re-
maining interest in said tract, but
by reason of an erroneous survey,
said deeds, conforming thereto, left
a tract of eight acres unconveyed,
the grantees are not entitled to the
unconveyed land, although some of
the deeds did not convey in number
of acres the quantity of acres ex-
pressed therein, and bordered on the
eight acre tract unconveyed; such
land remains in the grantor and his
heirs. Vought v. Hooker.
An imperfect description of land
attempted to be conveyed in a deed
by metes and bounds which does not
inclose the premises sought to be
conveyed, does not convey the legal
title to the premises but gives the
grantee an equitable title thereto.

The word "northerly," used in a
deed, does not necessarily mean due
north, but when not controlled by
position of monuments, or by lines


described with reasonable certainty,
may be construed to mean due
north, and particularly when it is
necessary to so hold in order to pre-
vent uncertainty. New York, P. &
O. R. R. Co. v. Stubbings.



A deposition taken by one party
may be used by either party in the
trial of fact and where it is against
the party in whose behalf it was
taken and he refuses to use it, any
other party may use it in the exam-
ination in chief or in cross-examina-
tion. Andrews v. Watson.


No legal deposition, as defined by
Sec. 5262, Rev. Stat., requiring the
deposition to be signed by the wit-
ness, has been taken where the wit-
ness, for the reason that the steno-
grapher taking it inaccurately re-
ported his declarations, refuses to
sign the writing. Hafer, In re, 102.

Under Sec. 5243, Rev. Stat., a
party may take the deposition of an
adverse party, notwithstanding the
latter is within the jurisdiction of
the court, and probably will be pres-
ent at the trial of the case, and is
not at the time sick or unable to
attend court. Chapman v. Lee, 45
Ohio St., and Smith v. Moore Co., 9
Circ. Dec. 751 (19 R., 617), approved
and followed.

Where there is a conflict between
a stenographer and the witness
whose deposition has been taken as
to the writing containing the
declarations of the witness, the
question of what was said is one of
fact for determination by the trial
court, and neither the stenographer
nor the witness are competent to
determine what was said.



Where the executor of an estate
and his brother, as individuals,
Imade division of certain funds be-
longing to the estate under a mis-
taken view that it was their money,
and neither one recognized the ac-
tion of the executor as being done
in his official capacity, or as repre-
sentatives of the heirs and legatees,
who were not parties to the action,
it was not such a "mistake of law"

as will prevent a recovery back or
prevent the doing of justice between
the parties in an equitable action by
the executor. Ward v. Ward. 59

See also DOWER.


Where a husband obtained a di-
vorce a vinculo from his wife on ac-
count of her aggression, but the
court by its decree assigned the cus-
tody of their minor children to the
wife without an order respecting
their maintenance, and while in her
custody she furnished to them nec-
essaries, she cannot recover against
her former husband, their father,
for such necessaries, in the absence
of proof of an express agreement
by him to pay for such necessaries,
or of a request that they should be
furnished to the children. Douglass
v. Douglass.


Where property is already pro-
vided with local drainage and does
not need other drainage, the owners
may enjoin the levy of an assess-
ment for the cost of construction of
a new sewer, and are not required to
wait until the assessment is actually
levied and then seek to be relieved
from it, especially since it is fairer
to the corporation to have its right
to assess determined before the ex-
pense of the improvement is in-
curred. Potter v. Norwood. 146




But where the purchaser of real
estate at judicial sale had actual
knowledge or notice that the widow
claimed that she was entitled to the
rights of a widow in said property,
though the children of her deceased
husband claimed she was not so en-
titled. and the purchaser, with such
knowledge of such claim, decides
that said widow has no claim, he
decides at his peril; and if sufficient
information comes to him to put
him on inquiry, he cannot rely upon
his rights as a bona fide purchaser
for value. Fast v. Umbaugh. 434

A bona fide purchaser of such
property at judicial sale, without
any knowledge or notice of this
equitable claim of dower by the
widow, would hold it free from such
claim of dower.



Where a husband, voluntarily and
without consideration, disposes of
his interest in real estate, though
it be only an equity therein, during
coverture, without the knowledge or
consent of his wife, it is a fraud on
her marital rights, and she, at his
death, is entitled to dower in such

A widow, being entitled to dower
in real estate, is only entitled to
share in the rents and profits aris-
ing therefrom, from the date of the
filing of her petition for assignment
of dower; and the commissioners in
assigning dower shall ascertain the
rental value of the property from
that time.

In an action for dower the court
of common pleas, under Sec. 5714a,
Rev. Stat., has power to assess the
value of the dower interest at a
gross sum and charge the same upon
land under certain circumstances.
And where this is done, it will be
presumed that the requisite circum-
stances existed and that the judg-
ment is valid. Weyer v. Sager. 193

A consummate dower interest be-
fore admeasurement may be aliened
to a stranger to the title.

No conversion of real estate into
personalty can defeat a widow of
her dower without her consent, but
she is not entitled to have real es-
tate sold by the executors under a
will treated as equitably converted
for one purpose and as not so con-
verted for another purpose, so that
she may obtain the benefit of the
provisions of Sec. 4188, Rev. Stat.,
relating to estates in dower, in the
real estate, and at the same time se-
cure the benefit of Sec. 4176, Rev.
Stat.. providing for distribution of
personalty, as to the same property.
Davis, In re.

The claim of a widow for a dis-
tributive share out of the avails of
the sale of real estate of her deceased
husband, upon the ground that such
lands are to be treated, to her as
well as the residuary legatees, as
converted into personalty, is incon-
sistent with her action in claiming
and accepting dower in the prop-
erty sold. She should be put to her
election, whether to share in the
proceeds of conversion or to claim
dower, and the acceptance of the
latter will defeat her claim to the

A widow for whom no provision
is made in the will of her deceased
husband has the same rights in his
personal estate as she would have
had if provision had been made for
her and she had rejected it.

A widow, no provision having
been made for her in his will, is not
entitled to interest on her distribu-
tive portion of her husband's per-
sonal estate, from the expiration of
one year from the taking out admin-
istration on the estate, for the rea-
son that the amount to be dis-
tributed cannot be fixed until the
court passes upon the accounts of
the executor and orders distribution


In fixing the rights of the widow
on distribution, under circum-
stances stated, it is immaterial
whether the other distributees take
as next of kin or as residuary lega-

Where, in accordance with the
provisions of testator's will, his real
estate was sold and converted into
personalty by his executors, his
widow having elected to be endowed
in the real estate, under Sec. 4188,
Rev. Stat., and having accepted out
of the avails of such sale the proper
amount as the value of her interest
in the same, cannot afterwards
claim distribution as of personalty.
out of the avails of such sale.


The purchaser of mortgaged lands
at a judicial sale by the assignee for
the benefit of creditors buys the
interest of the assignor and becomes
subrogated to the rights of the mort-
gagees therein as against the dower
interest of the widow of decedent,
she having released her dower in-
terest therein as to them. Jeffrey v.

Where the wife's dower is sold
with the interest of her husband,
without making her a party to the
action, to liquidate liens on lands in
which she released her dower. she
cannot subsequently have dower
therein assigned without first offer-
ing to redeem.


Where it appears that the encum-
bered property sold for $8,818.50
and that the sum required to liqui-
date the mortgages was $8,061.66,
without evidence as to the wife's
age, may assume that her dower in-
terest amounted to more than
$756.64 and that part of it was re-
quired to liquidate the encum-


A wife who has pledged her dower
towards the payment of mortgages
upon lands of her deceased husband,
has a right to have her husband's
interest therein applied first and
then so much of her dower interest
as may be required to liquidate the



An easement and servitude appur-
tenant to dominant estate may be
relinquished in whole or in part, or
abandoned, and a contract for its
surrender may be made for a con-
sideration which the courts will en-
force. Miner v. Furnace Co. 490

The right of way and easement in
a street or alley of an abutting lot
owner extends at least to the first
connecting or intersecting street or
alley, and such lot owner may en-
join the closing or obstructing of
that part of such street or alley un-
til his damages by reason thereof
have been assessed and fully paid.
Beatty v. Kinnear.


An abutting owner, in addition to
the general interest which the pub-
lic has in the street, has an inci-
dental title to certain facilities and
franchises, such as the right of in-
gress and egress to property, and
where this right be substantially im-
paired by the location and operation
of the railroad, the property owner
is entitled to recover damages. New
York, P. & O. R. R. Co. v. Stubbings.

The erection by county commis-
sioners of a high level bridge in a
street by reason of which the ease-
ment of abutters to the free and un-
obstructed use of the street will be-
come impaired, is a taking of the
property thereof for road purposes
within the meaning of Sec. 19, Art.
1, of the constitution requiring that
shall be made in
money to property owners therefor.
Lloyd Booth Co. v. Mahoning Co.

An obstruction to the light and air
in the street of an abutting owner
is as much an impairment to the
rights of the property owner as di-
version of travel or other injury to
property, and is an infringement on
his easement in the street.

The easement or an abutting prop-
erty owner in a street is as much
property as the lot itself and comes
within Sec. 19 of the bill of rights,

providing that private property
shall be held inviolate but subser-
vient to the public welfare and re-
quiring compensation when SO
taken, and is not a mere right of
consequential damages to be re-
covered by a party as in other cases.

An abutting owner's easement in
a street consists not only in having
its surface free and unobstructed,
for ingress and egress, but also in
having it free for light and air to
the premises.

The erection of a viaduct and ap-
proaches thereto in a street in front
of plaintiff's premises, interferes
with the access to such property
and materially affects such owner's
rights in the street, and an injunc-
tion, where compensation is not
made, will lie not only to restrain
the construction and erection of
such viaduct, but also to remove
work already performed.


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 equi-
table 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 pos-
sessed nor procured any title there-
to." Darling v. Hippel.


Courts cannot control the discre-
tion of the deputy state supervisors
of elections. Pugh Printing Co. v.

The presumption is that the deputy
state supervisors of elections have
exercised a sound discretion in let-
ting contracts to the lowest respon-
sible bidders as provided by Secs.
2966-28, Rev. Stat., and the burden
of proof is on one attacking their ac
tion to show clearly a state of facts
constituting an abuse of discretion
in order to authorize a court of
equity to interfere.

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Equitable Conversion-Estates Tail.



A proceeding in error is a statu-
tory remedy and it is essential, in
order to give jurisdiction to a re-
viewing court, that the require-
ments of the statute be strictly com-
plied with. Terry v. State. 274

A conviction in such case before a
mayor or in a police court may be
reviewed on the weight of the evi-
dence. Germantown v. Basore. 500

The refusal to set aside a sale
may be preserved in the record as
an error of the court on such mo-
tion, and be reviewed in proceed-
ings to reverse the order of confir-
mation, but the refusal to set aside
a sale is not a final order which may
of itself be reviewed on error, with-
in the meaning of Sec. 6707, Rev.
Stat. McArthur Bros. v. Trust Co.

An order made in an action or
proceeding, in order to be available
on error must so prejudicially affect
a legal right as to extinguish it or
destroy its proper and legitimate
effect in the final determination of
the subject in controversy.

The testimony of a brakeman that
he did not know of any rule of the
railway company requiring him to
ride at a certain place on the train,
cannot be regarded as prejudicial
error where it appears that the
book, containing the rule, was subse-
quently placed before the jury.
Cleveland, C. C. & St. L. Ry. Co. v.
The mere fact that a reviewing
court would probably have found
differently from the finding of the
jury is not sufficient to justify a re-
versal as against the weight of the
evidence. Lake Shore & M. S. Ry.
Co. v. Godwin.

The mere making by the clerk of
the original papers on file in another
case (No. 268), "Filed May 31, 1901,
Circuit Court, No. 276," and leaving
them on file in the original case,
without a transcript taken or filed
in the new case, is not such a com-
pliance with Sec. 6716, Rev. Stat.,
requiring the filing of original
papers or transcripts, as is neces-
sary to the commencement of an ac-

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