A wife cannot release her contingent right of dower to anyone except the owner of the fee or one who by the same conveyance takes the fee, hence, where S., without his wife joining, conveyed land by general warranty to K., from whom defendant claims, and afterwards an agreement of separation between S. and his wife was made, in pursuance of which he conveyed other land to one C. in trust for her, and she, in the same instrument, released her dower in the land, theretofore conveyed by S. to K., this is a mere release of dower by her to C., or S. is bound to K. by his warranty.

PETITION for Dower.

PRICE, J.

Catharine Smith, widow of Solomon Smith, has filed her petition, asking to have dower set off and assigned to her in certain lands in the petition described. The defendants deny that she is entitled to dower in said lands, and aver that on the twenty-sixth day of January, 1864, she, by her deed in writing, duly executed under seal, in conjunction with Solomon Smith, released her dower interest in said lands, which had theretofore been conveyed to Daniel Kaylor and Henry Kaylor by said Solomon Smith; and that said Solomon Smith never thereafter held title to said lands. The plaintiff, by her reply, denies the alleged release, and alleges that said pretended release was, and is inoperative and void.

On the fifth day of December, 1863, Solomon Smith, the husband of the plaintiff, conveyed the lands described in the petition by general warranty deed to David Kaylor and Henry Kaylor; his wife, the plaintiff herein, not joining with him in such conveyance. The defendants now own the lands thus conveyed, holding title thereto through, and under said Kaylors.

On the twenty-sixth day of January, 1864, Solomon Smith and Catharine, his wife, joined in a deed of trust to Amos Cherry. The fol lowing is a copy of said trust deed:

"Whereas Solomon Smith and Catharine, his wife, in the settlement of sundry difficulties and contentions, have agreed to live separately and to make an equitable distribution and division of their property, and the said Solomon in pursuance of said agreement, has by deed bearing even date herewith, conveyed to Amos Cherry as trustee in trust for the said Catharine, the west half of the southwest quarter of sec. No. 30 of town 3, range 14, M. R. S. having the mansion house and outbuildings belonging to the said farm situated thereon; and whereas, the said Catharine is desirous to release to the said Solomon for his use her dower estate in the east half of the same quarter section, and also in the N. W. quarter of sec. No. 29 of town 3, range 14 M. R. S. heretofore sold and conveyed by the said Solomon to Daniel and Henry Kaylor.

Now therefore, know all men by these presents, that we, the said Sol. Smith and Catharine his wife, in consideration of the sum of one dollar to us in hand paid by Amos Cherry, of the county of Logan in the state of Ohio, do hereby grant, bargain and sell to the said Amos Cherry 4 LB 40

and to his heirs and assigns forever the following premises situated in the county of Logan, in the state of Ohio, being the east half of the southwest quarter of sec. 30 in town 3, range 14, M. R. S., and the said Catharine hereby releases all her dower estate in the northwest quarter of sec. 29 of town 3, range 14, M. R. S. heretofore sold by the said Solomon Smith to Daniel Kaylor and Henry

To have and to hold all and singular the premises aforesaid to him the said Amos Cherry and to his heirs and assigns forever. Im trust, nevertheless, for the sole and exclusive use of him, the said Solomon Smith, his heirs and assigns forever, and the said Amos Cherry shall make such leases, transfers, conveyances and deeds as the said Solomon Smith may in writing direct, and to such person or persons as he may desire of all or any part of said premises.

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In witness whereof, we have hereunto set our hands and seals this twenty-sixth day of January, A. D. 1864.

Signed, sealed and delivered in presence of us,

Before me, a justice of the peace, within and for said county, personally came the above named Solomon Smith and Catharine Smith, his wife, and acknowledged the signing and sealing of the foregoing deed, to be their voluntary act and deed for the purposes therein mentioned, and the said Catharine, wife of the said Solomon having been examined by me separate and apart from the said Solomon, her husband and the contents of said deed, having been made known and explained to her by me, she declared to me on such separate examination that she executed the same voluntarily and of her own free will and accord, and that she is still satisfied therewith. :

In testimony whereof I have hereunto set my hand and seal, this 26th day of January A. D. 1864... *

i.. PHILANDER JONES, J. P. [Seal],

Received and recorded January 26th, 1864.··

JOHN SHUR, Recorder, L. C. O. B-The north west quarter sec. 29, town 3, range 14, N. R. S. is the land sold and conveyed by Solomon Smith to David and Henry Kaylor on the fifth day of December, 1865, and in which the plaintiff is now claiming dower.

Is she barred or stopped from asserting dower in said premises, by reason of the trust deed of January 26, 1864 ?

At the time of the execution of the foregoing trust deed, Catharine Smith had an inchoate right of dower in the lands, which, though not technically an estate, was, nevertheless, an interest in the lands. But it was an interest that she could not convey by deed. The inchoate right of dower was not assignable. That is to say, her deed would not operate by way of grant of any title; but she could release her right of dower to a proper person, and such release would operate by the way of

estoppel, and thus be as effectual to bar her dower as if she could have granted title. The words of the recital in the trust deed are: "Whereas the said Catharine Smith is desirous to release to the said Solomon for his use her dower estate in the N. W. Quarter of sec. No. 29, of Town 3 of Range 14, M. R. S. heretofore sold and conveyed by the said Solomon to Daniel and Henry Kaylor. In the granting clause of the deed, the words are: "And the said Catharine hereby releases all her dower estate in the N. W. Quarter of secto No. 29, of Town 3, Range 14, M. R. S. heretofore sold by the said Solomon Smith to Daniel Kaylor and Henry Kaylor." If these words are sufficient in form to constitute a release of her right of dower, to whom was the release? A. The most that can be claimed from them is that they constitute a release to Amos Cherry, in trust for Solomon Smith. There certainly is no attempt to make a

Kaylor and Henry Kaylor, the oase of her dower interest to Daniel

the fee; nor are there any words in the deed which can bear any such construction. They are not parties to the trust deed, and their names are used only as part of the description and by way of identifying the land♫17 oяntal

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If the language used in the deed is sufficient in form to constitute a release to Solomon Smith, or to Cherry in trust for Solomon, is plaintiff estopped by said deed from asserting her right of dower in said lands, as against the present tenants, who hold through and under Daniel Kaylor and Henry Kaylor?

Solomon Smith conveyed away all his interest in his lands in question on the fifth day of December, 1863, so that, at the time the trust deed was executed, January 26, 1864, his grantees, the two Kaylors, were the owners of the fee in the land.

1.

In Scribner on Dower it is said: "It is well settled that it is no difference to au action of dower, that the widow has released her right. to a stranger. In an early case in Massachusetts in which the defense was that the demandant had executed a release to a third person, the court said: "The deed relied on to bar the demandant shows no privity of estate or connection of any kind between her and the tenant. It can not avail the tenant in the action. 2 Vol. Scribner on Dower, p. 288, citing Pixley v. Bennett, 11 Mass., 298.9 1q6 ↑I PRZİ one. Teed of

The trust deed relied upon by defendants in this case shows no privity of estate, or connection of any kind between her and the Kaylors, or between her and the present tenants. When the trust deed was executed Solomon Smith was in the position of a stranger, he no longer having any interest in the lands. 7 10 7 5 betet en bomurt

It may be said that the release being to Solomon Smith, who once owned the land, and had conveyed it away by a deed of general warranty, it will be held to inure to the benefit of his grantees.o

On that subject Washburn on Real Property state the rule as follows: "But a release of dower to a stranger can not be set up as a bar to her claim against the tenant of the estate. Nor would it make any difference, in this respect, that the release was made to one through whom the tenant claims, in the release had before that ceased to have any interest in the estate. But though the interest of a wife as a doweress is not the subject of grant, so long as it is inchoate, it may be released to the owner of the fee." Washburn on Real Property, Vol. 11, 247, citing Pixley v. Bennett, supra, and Harriman v. Gray, 49 Mo., 538. .. See also McArthur v. Franklin, 15 Ohio St., 485, 509; and Kitzmiller v. Van Rensselaer, 10 Ohio St., 63.5

From the authorities, it would seem that a wife can release her contingent right of dower only by joining with her husband in a conveyance to one who already hath, or by the same conveyance takes the fee.

It follows that the trust deed of 1864, does not bar or estop plaintiff from asserting her right to have dower assigned in the premises described in the petition. A decree will be entered in her favor accordingly.

[Hamilton Common Pleas, 1889.]

JETHRO MITCHELL V. HAMILTON COUNTY COMRS.

1. Where the assessor in the discharge of his duties under sec. 2753, Rev. Stat., în his determination of the new improvements upon a certain tract of land, committed an error in concluding that there were thirty-five new buildings, when, in fact, there were only twenty-six; and where he carried this error into the list returned by him to the auditor, the county commissioners have no authority by virtue of sec. 1028, Rev. Stat., to refund the taxes upon the non-existent nine buildings paid in previous years in consequence of said error.

2. The commissioners' power of refunder under sec. 1038, Rev. Stat., does not exist in case of fundamental error; and where the assessor, acting within the scope of his lawful authority under sec. 2723, Rev. Stat., committed an error in his determination as to the extent or number of new structures, it was a fundamental error.

3. The taxpayer's remedy was within the limitation of sec. 167, Rev. Stat., and secs 5848 et seq.

SHRODER, J.

This appeal is from the decision of the county commissioners in denying the appellant's claim, presented July, 1889, for taxes paid by him in 1887 and 1888. It appears from the records and files of the auditor's office that he was charged in the 1885 tax list and duplicate with a valuation of $17,010 upon 3 67-100 acres; that in May, 1886, the assessor returned as listed by him, eighteen new unfinished structures erected upon this land, with his valuation of them in the aggregate: that in May, 1887, he returned as listed by him, twenty-eight finished buildings, with his valuation of them in the aggregate, deducting therefrom the previous valuation made upon eighteen as unfinished; he also returned as listed thirty-five other new buildings with his valuation upon each of them, taken separately. The boards of equalization for 1886 and 1887 respectively, acted upon the respective returns, and the auditor in the tax list and duplicate of each year entered correctly the charges agreeably to the assessor's returns as modified by the board of equalization. The appellant paid these taxes as charged. He now claims that in listing the thirty-five new buildings in 1887 the assessor committed an error in that there were but twenty-six new buildings; and that the total of all the new buildings was fifty-four and not sixty-three, as returned by the assessor in 1887; that he paid the taxes charged in the 1887 tax list and duplicate under protest, and because of the auditor's promise that the error would be duly corrected and his taxes refunded.

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Mitchell v. Hamilton County Commissioners.

The commissioners rejected the claim for want of jurisdiction. Upon the subject of refunding taxes their authority to act is derived from sec. 1038, Rev. Stat. As to name of person, description of property or amount of taxes charged, their jurisdiction is restricted to clerical errors only. Chatfield & Woods v. Commissioners, ante 511, and cases cited. In cases of this description upon appeal the inquiry in this court is subjected to the same limitation.

The assessor erred in the making and returning under sec. 2753, Rev. Stat., a list of new buildings, in which he found and reported as newly erected nine buildings which were non-existent. The charges in the auditor's tax list include these nine buildings. The auditor made no clerical error in the entries in the tax list, for these charges were accurately placed in accordance with the assessor's returns as passed on by the board of equalization. Nor could there be ascribed to him the errors found in the returns of the assessor's and in the action of the board of equalization. With respect to the assessor's return of new buildings or structures, the auditor had neither the right nor the duty of revision, review or correction.

But, assuming that sec. 1038, Rev. Stat., applies to clerical errors in assessor's returns, was there any clerical error in the assessor's return? The assessor was required by sec. 2753, Rev. Stat., to make and return a list of all new structures of over one hundred dollars in value not previously included in the valuation of the property, specifying the tract of the land on which the structure is erected, the kind of structure and the value which in his opinion the new structure added to the land. The duty thus cast upon him involves the functions of ascertaining and determining the existence and kind of new structures, and of reducing the results of his inquiry to writing. This error was either clerical, or fundamental, according to the classification decided by the Supreme Court in The State v. The Commissioners, 31 Ohio St., 271. The distinction would be elucidated by a reference to the following decisions:

In Insurance Co. v. Cappellar, 38 Ohio St., 574, the court in defining a clerical error, used this language: "No fact is to be inquired into. Every necessary fact appears on the face of the return."

In State of Ohio v. Brewster, 6 Dec. Re., 1210, the Hamilton county district court said: "Facts having been determined by the auditor, not appearing upon the face of the return, but ascertained *** by investigation, we do not think the provisions of sec. 1038 apply."

Where under the act of January 16, 1873, (70 O. L., 10, 11), taxes were charged against exempt property, the error was not regarded as clerical. State v. Com'rs. 31 Ohio St., 271.

Where the non-taxable materials, which entered into the manufactured goods of a manufacturer were returned and charged in the tax list and duplicate, the error was held to be not clerical; the error being "that there was no property to be taxed." State, etc., v. Cappellar, 6 Ohio Dec. Re., 543; Com'rs v. Eckstein, Hill & Co., 6 Ohio Dec. Re., 843. Where the error consisted in the failure to deduct the value of an old building which had been torn down and replaced by a new one, listed and returned by the assessors, the error was held as not clerical. Sandheger v. Com'rs, & Ohio Dec. Re., 569.

Where the property not taxable in Hamilton county was charged in the tax list and duplicate of that county, the error was decided not to be clerical. Butler v. Com'rs. 39 Ohio St., 168.