48

Moores & Co. v. Bricklayer's Union et al.

Abbott of Lilleshall appeared before the justices on the circuit, and accused the bailiffs of Shrewsbury, of proclaiming that a fine of ten shillings would be imposed on any one selling him provisions, and the beadle through whom the proclamation was made, was held to answer. The case is indexed by the learned editor as one of boycotting. Other cases in which the same form of combination has been considered and condemned, are State v. Stewart,59 Vermont, 273; State v. Glidden, 55 Conn., 76; Old Dominion Steamship Co. v. McKenna, 30 Fed. Reporter, 48; Mogul Steamship Co. v. McGregor, 15 Q. B. D., 476, and see a very interesting chapter on strikes and boycotts in Carson's American Law of Criminal Conspiracies, published in the same volume with Wright's work on the same subject above referred to.

From what has been said, it follows that the charge of the court was right, and that on the admitted facts, defendants were liable in damages to plaintiffs for an actionable tort. The fact that one of the defendants was a corporation and the others were its members, is immaterial. In the commission of an unlawful act, i. e. unlawful ab initio, as this was, all persons engaged, whether as principals or agents, are jointly liable. Meacham on Agency, sec. 573. A corporation may be a party to a conspiracy to injure and liable for the loss arising therefrom. Buffalo Lubricating Oil Co. v. Standard Oil Co., 106 N. Y., 669.

A number of other exceptions were taken by defendants' counsel, but we do not find in them any ground for setting aside the verdict. The motion for a new trial is overruled and judgment will be entered for plaintiffs on the verdict.

MOORE and NOYES. JJ., concur.

Bateman & Harper, for plaintiffs.
Baker & Goodhue, for defendants.

ENTAILS.

[Logan Common Pleas.]

JOHN D. YODER V. ELISHA FORD ET AL.

54

J. D. Y., in consideration of natural love and affection, conveyed a tract of land to his daughter, L. Y., "and to the heirs of her body and assigns;" and in the same conveyance reserved to the grantor "the right during his natural life to control the conveyance of said premises during the minority of any of the heirs of the body of the said L. Y." During the minority of all the children of L. Y., she, her husband, and the original grantor J. D. Y., joined in a conveyance of said land to J. C. Y. Afterward J. C. Y. conveyed said premises to E. F., said J. D. Y. again joining in such conveyance; and also executing a mortgage to E. F. on another tract of land to indemnify him against any claim to the land conveyed that might be made by the children of L. Y. Held; 1. That J. D. Y., as the source of the title in expectancy of the heirs of the body of L. Y., had the legal right to provide the means of barring the entail, or cutting off the expectancy, by the same instrument which created such expect

ancy.

2. That the joining of J. D. Y. in the deed to J. C. Y. was an execution of the power reserved by him in his deed to L. Y.; and did bar the entail, and cut off the expectancy of the bodily heirs of L.

3. That the title conveyed by J. C. Y. to E. F. is a fee simple absolute, divested of all interest or estate, present or expectant, of the bodily heirs of L. Y. 4 That said mortgage of J. D. Y. was and is without consideration.

PRICE J.

Logan Common Pleas.

54

This cause has been submitted to the court on a general demurrer to the petition. The petition shows that on the third of May, 1879, the plaintiff, John D. Yoder, in consideration of natural love and affection,conveyed to his daughter, Lydia Yoder, wife of Eli Yoder, a tract of land described in the petition, containing fifty-nine acres. Said conveyance was to Lydia Yoder "and to the heirs of her body and assigns," and also reserved to the grantor "the right during his natural life to control the conveyance of said premises during the minority of any of the heirs of the body of the said Lydia Yoder." On the twentieth of January, 1882, during the minority of all the children of said Lydia Yoder, the said Lydia, her husband and the plaintiff joined in a deed conveying said land to Jonas C. Yoder, with covenants of warranty, the plaintiff receiv ing no consideration therefor, but uniting in said deed for the sole purpose of authorizing, directing and controlling the conveyance of said land. On the eighth of January, 1887, the said Jonas C. Yoder conveyed said premises to the defendant, Elisha Ford, the plaintiff uniting in the covenants of warranty in said deed, receiving no consideration therefor, and having no beneficial interest in said premises. On the last mentioned date, to indemnify the said Ford against any claim or possibility of claim that might or could be set up to said land by the heirs of the body of said Lydia, the plaintiff executed a mortgage to said Ford upon a tract of land containing forty-four and 95-100 acres. The condition written in said mortgage is as follows:

"Whereas, on the third day of May, 1879, said John D. Yoder and wife, by deed of that date conveyed to Lydia Yoder a certain tract of fifty-nine acres of land, part of sec. 31, T. 4, R., 14, in said Logan county, in which deed were certain limitations. Said deed is recorded in vol. 58, at page 112 to which reference is here had; afterwards to-wit: on the twentieth day of January, 1881, said Lydia Yoder desired to sell said lands and to perfect the title to said lands as was supposed said John D. Yoder, joined with the said Lydia Yoder in conveyance of said lands to Jonas C. Yoder, said deed is recorded in vol. 62, at page 629 of land records of said Logan county. Said Jonas C. Voder has now sold said lands, and desires to convey the same to said Elisha Ford, and the parties have been advised that the title to said lands is still encumbered and clouded, and that said Jonas C. Yoder, cannot give a perfect title because of the limitations contained in said deed of May 3, 1879, and to perfect the said title and relieve it of said limitations, the said John D. Yoder for value received by him has joined in the warranty with said Jonas C. Yoder, and has agreed that all the heirs of the said Lydia Yoder, as they arrive at majority, shall execute and deliver to said Elisha Ford, his heirs and assigns, proper deeds of quit claim in fee simple for said lands, and has agreed that said Elisha Ford, his executor, heirs, and assigns forever, shall never be disturbed or in any manner damaged by reason of said limitations contained in said deed of May 3, 1879. Now, if said John C. Yoder, his executors and administrators shall protect said Elisha Ford, in his title to said lands, and shall cause the heirs of the body of said Lydia Yoder to execute to said Ford, his heirs and assigns, proper deeds of quit claim for said lands, and shall in every way save and indemnify him, Elisha Ford, his heirs and assigns, from all losses. damage and expense by reason of any claim of said Lydia Yoder or any child or heir in or to said lands by reason of said limitations contained

in said deed of May 3, 1879, then this mortgage to be void, otherwise to be and remain in full force and effect."

The plaintiff claims that said mortgage was without consideration; that there was nothing against which to indemnify the said Ford; that the title conveyed to Ford by Jonas C. Yoder was and is a fee simple absolute, divested of all estate existing, contingent or possible, in the heirs of the body of said Lydia Yoder, and asks that said mortgage be cancelled. The question to be determined is, was such mortgage without consideration? The mortgage pretends to indemnify Ford against any damage or expense by reason of any claim that might be made by Lydia Yoder. If that were all, the mortgage would certainly be without consideration, for Lydia Yoder conveyed to Jonas C. Yoder all her interest in the land by warranty deed. She is doubtless precluded from ever setting up or asserting any interest therein. So, in discussing the question of consideration, she may be left out of the question. As to whether there was any consideration for the mortgage, it must be ascertained by determining whether at the time of the execution of the mortgage the heirs of the body of Lydia had any interest in said lands, either present or in expectancy. If they had, that would be a sufficient consideration for the indemnity mortgage; if they had not, there would be no consideration for such mortgage, for there would have been nothing against which any indemnity could have been required. So that the whole case is to be determined by ascertaining whether at the time of the execution of said mortgage, the heirs of the body of Lydia had any interest in the lands, either present or in expectancy. The plaintiff, in his deed to Lydia, reserved "the right during his natural life to control the conveyance of said premises during the minority of any of the heirs of the body of said Lydia Yoder." When Lydia, her husband, and the plaintif conveyed said real estate to Jonas . Yoder, the children of said Lydia were all minors. In the case of Kary A. Pollock and others v. Elias Speidel, 17 Ohio St., page 439, the court decide:

I. "Where lands are conveyed by deed to A, the heirs of his body, and assigns, forever," the grantee takes an estate tail.

II. By force of the statute of this state limiting entailments, the issue of A takes the inheritance as an absolute estate in fee simple.

III. The first dower in tail cannot, in this state by a sale and conveyance in fee simple, with covenants of warranty, bar the entail, or deprive his issue of the right of succession to inheritance.

IV. Though the issue, in such case, take by descent, yet the tenant in tail is not the source of their title, they take per formam doni, from the person who first created the estate, are therefore not estopped by the deed of the tenant in tail."

Under this authority, it is clear that, but, for the power reserved by John D. in his deed to Lydia, she would have taken an estate for life only, and on her death her issue would have taken the inheritance as an absolute estate in fee simple, and she could not have barred the entail, or cut off the expectancy of her issue, by a conveyance in fee simple with covenants of warranty. But John D. did make the reservation already referred to, thus making a very diflerent case from the one just cited. It must be remembered that Lydia would not, in any event, be the source of the title of her issue to the lands, but that John D. would be the source of whatever title they might or could take. Being the source of their title in expectancy, it was competent for him, in the same iustrument which created their expectancy, to provide the means for

cutting it off, or barring the entail. His deed to Lydia was simply a gift to her, being without consideration other than natural love and affection. He had the right to place such limitations and restrictions upon the gift as seemed fit to him. He did reserve the power to control the conveyance of the land during his natural life, and during the minority of any of the heirs of the body of Lydia.

This is what is called a power in gross, that is, he reserved no interest or estate in the land itself, but simply the power to direct or control its conveyance during the time specified in the reservation. He had the right to reserve such power, and the exercise of the power thus reserved would cut off the expectancy of the heirs of the body of Lydia. The question remains, did he exercise such power when he joined Lydia and her husband in the conveyance to Jonas C. Yoder? The word "control" contained in the clause of reservation is not qualified by any other word, so that it imports as much as if he had used the words 'absolute control" or "control without restraint." In the deed toJonas C., there is no express reference to the power that had been reserved to John D., but that he, John D., intended such conveyance as an execution of such power, in my judgment, admits of no rational doubt. The deed covers and describes the property which was the subject of the power that he might execute within the time specified; he had no interest or estate whatever in the property, nor did he hold the power in trust for the benefit of some stranger, but for his own exclusive benefit. So that his joining in the conveyance to Jonas C. would have been doing a most idle and vain thing, unless he had intended it to be an execution of the power reserved by him in his deed to Lydia.

I conclude, first, that John D. as the source of the title in expectancy of the heirs of the body of Lydia, had the legal right to provide the means of barring the entail, or cutting off the expectancy, by the same instrument which created such expectancy.

Second, that his joining in the deed to Jonas C., was an execution of the power reserved by him in his deed to Lydia, and did bar the entail, and cut off the expectancy of the bodily heirs of Lydia.

Third, that the title conveyed by Jonas C. to the defendant, Ford, was, and is a fee simple absolute, divested of all interest or estate, present or expectant, of the bodily heirs of Lydia.

Fourth, that in consequence of the above findings, plaintiff's mortgage was and is without consideration.

The demurrer to the petition will be overruled, and unless the defendants desire to further plead, a decree will be entered cancelling plaintiff's mortgage, also quieting the title of the defendant, Ford, as against the heirs of the body of Lydia, each party to pay his own costs.

West & West, for plaintiff.

E. J. Howenstine, for defendant.

68

Mt. Adams and Eden Park Inclined Ry. Co. v. City of Cincinnati.

MUNICIPAL CORPORATIONS.

[Superior Court of Cincinnati, General Term.]

68

†MT. ADAMS AND EDEN PARK INCLINED RY. Co. v. CINCINNATI. Plaintiffs assignors tendered a bond to the city of Cincinnati conditioned that he would pay the cost and expense of appropriating land for a street, the city to levy an assessment upon abutting lot owners, to pay for the appropriation and to certify the same to plaintiffs' assignors. The bond recited that he had an interest in the improvement. The bond was approved by the board of public works pending the passage of the ordinance, was read in council, but was not read in the board of aldermen. The ordinance to condemn passed all the boards, and was approved. Proceedings were had condemning the property, and in about one year after tendering the bond, plaintiffs' assignors paid the condemnation money into the city treasury and the city used it to open the street. No assessment was yet levied, in an action to recover the money. Held:

1. That the common council had no authority to contract to levy an assessment and certify an assessment, and to certify the same to another, in cases of appropriation of land.

2. That the city has no power to borrow money in anticipation of assessment except by issuing bonds and advertising for bids for the same.

3. That as the bond was not approved by the board of council, and was not even read in the board of aldermen, there was no acceptance of it, and therefore no contract was entered into by the city to make and certify assessments. 4. That no promise either to verify assessments or to return the money is to be implied from the city's using the money, because it is to be presumed not that the city thereby intended to make a contract which was beyond its power, but rather that the plaintiffs' assignors, being interested in the improvement, and making payment after his bond had failed of acceptance, intended a voluntary payment within sec. 2251 Rev. Stat. and that the city accepted and used it as such.

This is an action by the plaintiff to recover from the city $8,750.00 which was paid by James Mooney into the city treasury for the purpose of enabling the city to appropriate and pay for land of Richard Mathers, and to open Grand street from Nassau street to Gilbert avenue. The allegation of the petition is that in consideration of the advance of this money, the city agreed to assess the cost of the appropriation upon the abutting and benefited lot owners and certify such assessment to Mooney, that the city used the money so advanced, took the land and is now using it as a street but although frequently requested, the city refuses to give to plaintiff who has become the owner of Mooney's rights, any assessment for said cost upon the abutting or benefited lot owners. The defendant denies the agreement to give an assessment and says that Mooney and plaintiff had such an interest in the condemnation that they agreed to and did advance this money without any stipulation that it should be repaid, a privilege accorded to any citizen who is interested in a public condemnation by sec. 2251, Rev. Stat.

The facts are as follows: On the twelfth of October, 1878, the board of public works recommended to the common council that it pass an ordinance to con demn a strip of land lying between Nassau street on the south and Gilbert avenue on the north which would be included between the extended lines of Grand street, authorizing and directing the city solicitor to institute the necessary proceedings in the court for an inquiry and assessment of compensation therefor, and providing that the amount so found, together with the costs of the action, should be assessed upon the property abutting on the improvement. In the board of council, the ordinance was read the first time on the eighteenth of October, 1878, and was referred to the committee on condemnation and vacation. On November first, 1878. it was reported back, read a second time and engrossed. Two days before this, James E. Mooney and Wm. M. Ramsey executed a bond to the city of Cincinnati by which they bound themselves to the city in a sum to be as

This judgment was affirmed by the superior court in general term; opinion 25 B. 91. The general term was affirmed by the Supreme Court, in Railway Co. v. Cincinnati, 52 O. S., 629.