246 Morrison, Adm'r, v. Martin et al. of a mortgage, to conduct to the conclusion reached. The holding then is, as already stated, that the bar set up, of fifteen years, is good. Hence the demurrer to the answer is not well taken, and must be overruled; and no relief to reply or to amend petition being asked, judgment should be entered for the defendant on the demurrer. COVENANTS. [Hamilton Common Pleas, March, 1890.] CINCINNATI (CITY) v. SPRINGer et al. 250 Where a person sold a lot fronting on a strip which would be needed to widen a street, covenanting not to use the strip so as to cut off the grantee's access to the street, and covenanting that the grantee should have the benefit of the grantor's interest on condemnation, such covenant runs with the land, and the city having appropriated the strip to widen the street, the grantee's heirs who inherited the lot are entitled to the entire condemnation money. BUCHWALTER, J. The city condemned a strip of ground 30 feet wide by 104 feet long for street purposes, to wit, to widen McMillan street west of Wheeler street. The jury found the value to be $1.500. Springer, in his lifetime, conveyed to Mrs. Chesley two lots in his sub-division, being 104 feet on the south side of this strip of land, on the south line of McMillan street, as proposed, by 52 feet on west side of Wheeler street. The grantor covenanted that he would not use the thirty-foot strip of land in any way that cut off the grantee from its use, as for street purposes, for access to McMillan street, and that the lots conveyed should be corner lots to Wheeler and McMillan streets when the thirty-foot strip was condemned for street purposes. It was also covenanted in the deed that the grantee should have the benefit of the grantor's interest in the property on condemnation. The court held that this covenant was one running with the land, and that Mrs. Chesley's interest passed, on her death, as intestate property, to her heir. The words of the covenant were not used with a doubtful sense or meaning. The only legal benefit accruing to the owner of land, when condemned, was the condemnation money fixed as the value thereof, which must be paid when the land is appropriated or taken. The benefit which the covenant and agreement in the deed passes to the grantee is the condemnation money recovered. Not a part of that money; not the surplus left after reimbursing the grantee as to expenses in widening and improving McMillan street in front of the lots conveyed; but the whole of the condemnation money. While this may have been an improvident bargain on Springer's part yet the court found it is clearly his agreement and covenant. I. J. Miller and Ex-Judge Horton, for Springer's heirs. 251 GUARDIAN – EMBEZZLEMENT. [Hamilton Common Pleas, January Term, 1890.] †STATE OF OHIO V. WILLIAM H. MEYER. 1. The use by a guardian of his ward's money in his own business and its loss thereby, to constitute embezzlement, must be with a fraudulent purpose although the statute is silent as to intent. 2. An expectation to repay, or an attempt at reparation, does not avoid the criminality. 3. The test of criminality is whether the primary object of such use of the money was to benefit himself irrespective of the ward's interests, and such intent is a question for the jury to be determined from conduct and circumstances. The defendant was tried for embezzlement of funds held by him as the guardian of minor wards, and was found guilty. The defendant had for many years conducted a retail boot and shoe business, in partnership with his uncle, the firm being Meyer & Pruess; the defendant having charge of the books and financiering of the firm, and his partner attending chiefly to the repairing and mechanical part of the business; the firm being worth in 1884 about $10,000.00. At that time the defendant became guardian of the minor heirs of one Mary A. Siebern, and received as such guardian some twelve to fifteen thousand dollars. From that time on he used the wards' money by paying bills of his firm or putting it into the business in sums of from one to five hundred dollars at a time, at intervals of every month or two until by the first part of 1888 over eleven thousand dollars had thus gone into the firm. But during all this time he did not inform his partner that any of the wards' money was going into their business, nor did he ever balance the firm's books or keep any accounts other than upon scraps and pieces of paper, and upon the firm's bank deposit book and a small book of his own. Neither did he execute to the wards' estate any notes or other evidences of debt representing the moneys thus taken from time to time. In January, 1888, the co-partner learning the condition of affairs insisted on a dissolution, and sold out his interest for $1,500.00 to the defendant, who assumed all the debts which were some $3,000.00 outside of that owing the wards' estate. Three months afterwards the defendant made an assignment for the benefit of creditors after first mortgaging the stock to secure the debt due the wards, and to secure his sureties on the guardian's bond. The sale of the stock did not realize $7,000.00, and the assignee feared to distribute this, owing to doubts as to the legality of the mortgages arising from the recent decisions in Commercial Bank v. Cincinnati Bank, 2 Circ. Dec., 295; Turner v. Reed, 3 Circ. Dec., 384, and Rouse v. Merchants Bank, 46 Ohio St., 493. There was evidence tending to prove that the defendant when applied to on behalf of the wards stated, that the funds were safely invested in securities which were locked up in the Safe Deposit Co. The defendant testified that he put the money into the business as an investment; that he thought that was a safe investment; that he believed he had a right to do so. and had expected to repay it with six per cent. as the wards one by one came of age, and did not intend that they should lose anything. The defendant may testify to his own intent. See Wharton's Cr. Ev. sec., 431; also, State v. Wright, 40 La. Ann., 589; Coal Co. v. Davenport, 37 Ohio St.. 194; Snow v. Paine, 114 Mass., 510; State v. King, 86 N. Ca., 603. A large number of the defendant's acquaintances and neighbors and members of the shoe trade testified that the defendant had an excellent character, as honest, steady and industrious. His counsel urged that defendant had a right to invest in his own business as well as to invest by lending to any one else, and that if he believed he had that right and intended it as an investment, he could not be convicted, because there was no criminal intent. * * * It was demanded that the charge of the court be in writing. And as the statute is silent upon the subject of intent, Rev. Stat. sec. 6842, "An officer guardian * who embezzles or converts to his own use or fraudulently takes * with intent to embezzle or convert," etc., we extract the follow ing part of the charge as of interest on this subject. †This judgment was reversed by the circuit court; opinion 2 Circ. Dec., 712. After charging, first, as to reasonable doubt as defined in Clark v. State, 12 Ohio, 483, and Miles v. United States, 103 U. S., 304, 312; next as to character, stated that a bad man might be innocent, and a good man might be guilty of a crime, yet a man always had the right to show his good character as reflecting on the probability of innocence, and if a reasonable doubt of guilt was thereby injected into the evidence, was entitled to an acquittal. The court then proceeded as follows: Intent. Some acts may be innocent or criminal, according to the intent with which they are committed. And although the statute is silent as to intent, I think the case you are trying relates to acts of that kind. Hence a criminal or fraudulent intent is necessary to justify a conviction in this case. People v. Hurst, 62 Mich., 276; State v. Fritchler, 54 Mo., 424; Williams v. State, 25 Tex. App., 733; Beaty v. State, 82 Ind., 228. It is only in case of public officers that mere non-payment is embezzlement without proof of intent. I therefore leave to you the question of the existence of this intent, and its proof beyond a reasonable doubt. Intent can but rarely be proved by direct evidence of the condition of a prisoner's mind; Padgett v. State, 103 Ind., 550; Bonker v. People, 37 Mich., 4; Mullins v. State, 37 Tex., 337; State v. Maxwell, 42 Iowa, 208; hence its presence or absence must be gathered by considering all the facts and circumstances, and all that was said and done, or omitted to be done in determining whether the acts were accompanied by a criminal or fraudulent purpose; and subsequent conduct, State v. Lewis, 45 Iowa, 20; Long v. State, I Swan. (Tenn.), 287; Lamb v. State, 66 Md., 285, 287, may be considered as well as prior or contemporaneous. In endeavoring to describe what constitutes a criminal or fraudulent intent, I shall do no more than say two things. First. There is no such doctrine in the law as that a guardian has the same right to invest his ward's money in his own business, or lend it to himself, that he has to lend it to third persons. Such an idea is utterly preposterous, and not for an instant to be entertained. Putting the money into his own business is not investing it at all, Clark v. Garfield, 8 Allen, 427; and even the courts have no power to give a permission to do so, Michael v. Locke, 80 Mo., 548, and if the accused so disposed of it he would be liable to a civil action, not merely for the money and six per cent. interest upon it, but for the entire profits over that amount which the money earned, Chanslor v. Chanslor, 11 Bush., 663; Seguin's Appeal, 103 Pa. St., 139; Vyse v. Foster, L. R. 7 H. L., 318; Kyle v. Barnett, 17 Ala., 306; Long v. Majestre, Johns Ch., 305, and would probably be refused all compensation as guardian for such management. Gilbert v. Sutliff, 3 Ohio St.,129; Burke V. Turner, 85 N. Ca., 500; Seguin's Appeal, 103 Pa. St., 139. Whether he would also be liable criminally depends on the nature of the acts, and their accompanying intent to be examined into, in view of the principles laid down in the other parts of the charges you receive. Second. If a man wrongfully appropriates to himself another's money, the act that he intended and always has intended to replace it, or that he attempts to nake reparation, does not prevent the act being punishable criminally if the elements of a crime exist. In other words, the fact that the prisoner may never have intended that the funds of his trust should be wholly lost or impaired, and may have expected to reimburse the estate, does not prevent his acts being criminal. State v. Pratt, 98 Mo., 482; State v. Leicham, 41 Wis., 565, (2 Am. Cr. Rep., 117); Com. v. Tuckerman, 10 Gray, 173, 201; Com. v. Tenney, 97 Mass., 50. That is to say, the state does not have to show that he intended to keep this money forever to himself and repay none of it; nor to show that he knew he could not produce it when due. The question then is not what he intended to do, but what he actually did, and with what purpose. To return, therefore, to the question of intent, in the sense of present purpose and motive. If a person converts to his own use money or property in his hands as guardian, and does this with the object not of managing the wards' estate, but with the primary design and conscious purpose of benefiting his own estate, or that of his firm, and applying it in furtherance of his own interests, regardless and irrespective of the consequences to his wards, such purpose, if conscious, and not the product of honest mistake, is a fraudulent and criminal purpose, and if you find that the defendant converted to his own use any money of his wards with such purpose existing in his mind, then he is guilty, and otherwise not. In determining this you may consider the fact of defendant's solvency or insolvency; J.eonard v. State, 7 Tex. App., 417. 447-8; whether he concealed or did not conceal; whether he did or not give false representations of where the money was to those entitled to enquire; Tompkins v. State, 17 Ga., 356; Jackson v. State, 76 Ga., 551; State v. Baldwin, 70 Iowa, 180; whether he kept proper accounts or not; whether he informed his partner or not, or entered the alleged loans on the books of his firm or not; whether he did or did not make notes, or other evidences of debt, to protect the wards' estate; whether the condition of the business was such as to justify an expectation that a loss was or was not probable; the method in which the payments into the firm were made, in that they were for small sums at a time, at frequent intervals. Anything that is out of any usual or natural order or manner of doing may be taken into consideration by you and given such weight, whether more or less, as you in your best judgment shall determine, in ascertaining whether the defendant converted the money to his own use with the fraudulent intent aforesaid of applying it to his own purposes, regardless of the consequences to his wards. People v. Welsh, 63 Cal., 167; Bonker v. People, 37 Mich., 4; People v. Marion, 29 Mich., 31; Leonard v. State, 7 Tex. App., 417, 447-8; Mullins v. State, 7 Tex., 337, and article by W. F. Elliott in 22 Centr. Law J., 271. [Superior Court of Cincinnati, Special Term, 1890.] FRANK RATTERMAN, TREAS., V. MELVILLE E. INGALLS. 1. Taxes assessed for back years, under Rev. Stat., sec. 2781, as amended (83 O. L., 82), should all be placed upon the tax list of the year in which the correction is made. Whether such taxes can be collected when not placed upon the current tax list, but upon the respective lists of the years in which the false returns were made, quaere? 2 Considering art. 2, sec. 28, of the constitution of Ohio, said sec. 2781, as amended, only grants power to correct false statements made after its passage. And as original sec. 2781 was repealed without saving clause, false statements made prior to the repeal (April 14, 1886), can not now be corrected. 3. The word "false" in original and amended sec. 2881 of the Revised Statutes means not merely erroneous, but willfully so. Hence, when property is omitted from a tax statement because of a mistake honestly and reasonably made, in thinking the law did not require such property to be returned by the holder, and where the auditors of the county where the statement is made and the state auditors have for many years acted upon the same misinterpretation of the law, and refused to correct statements which to their knowledge omitted similar property, such statement is not false within those sections. 4 But where the auditor discovers his mistake of law after the statement is made and prior to the expiration of that tax year notifies the tax payers thereof, and the latter fails to correct his statement voluntarily, the auditor may do so under said sec. 2781 as amended. This is a suit brought by Frank Ratterman, treasurer of Hamilton county, Ohio, against M. E. Ingalls, to recover taxes claimed to be due from said defendant to the said county for the years 1881 to 1886, both inclusive, upon certain shares of stock of the C., I., St. L. & C. R. R. Co., owned and held by said defendant during the years specified as aforesaid, and not returned by him for taxation, with penalty. The pleadings in the case show, that on December 7, 1886, the then auditor of Hamilton county, in pursuance of the provisions of secs. 2781 and 2782 R. S. O., and in the manner provided therein, after due notice to said defendant, placed upon the tax lists and duplicates of said county for the several years set forth in the petition as the true amount of personal property, moneys, credits and investments that said defendant ought to have returned, in addition to the returns made by the said defendant for said several years, as follows, towit: *This judgment was affirmed by the superior court in general term; post, 24 B., 433 and the general term affirmed by the Supreme Court; opinion 48 O. S., Being for 6,000 shares of stock of the C., I., St. L. & C. R. R. Co., of the par value of $100 per share, for each of said years, with 50 per cent. penalty, and taxes thereon; and said auditor duly certified the same to the treasurer of Hamilton county, for collection; that afterward, on or about February 7, 1887, said defendant having heretofore filed his application and petition with said county auditor for such purposes, was heard upon his own testimony and that of other witnesses produced by him, and argument of his counsel, upon the question among others of the taxability of said stock, and said auditor reported the evidence, with his recommendation thereon, to the state board of revision of taxes, consisting of the governor, auditor of state and attorney-general of Ohio, at the request of said defendant; before which board said defendant also appeared by counsel, and said matters were there again argued and submitted; and thereupon, on said hearing, said board refused said defendant's application to strike off said taxes from the tax lists and duplicates for non-taxability of said stock; but granted his application to reduce the number of shares and value, and to remit the 50 per cent. penalty, except for the year 1886; and directed the said county auditor, for the purpose of making such changes, to strike the amount as assessed from the tax lists and duplicates, but immediately to replace thereon the true number and value of said shares with the proper tax thereon, including the 50 per cent. penalty, thereon for the year 1886 only; which was done by said county auditor, and his said action approved and confirmed by said state board of revision, leaving the amount standing upon the tax lists and duplicates, as alleged in the petition. Said charges upon said tax list and duplicates are for shares of stock of the C., I., St L. & C. R. R. Co., for each of said years, as follows, viz.: cents. For the year 1881, 4,000 shares at 70 cents. cents. cents. For the year 1886, 4,889 shares at 53.9 cents. A full statement of the facts and evidence in all of which proceedings was duly filed by the said county auditor of Hamilton county, in his office. NOYES, J. It is contended by the learned counsel for plaintiff that all the important legal questions involved in the case at bar have been disposed of by tribunals whose authority is binding upon this court. If that is so, my task is easy and simple; but after an examination of all the authorities cited by the able and distinguished counsel upon either side, in arguments which occupied eight solid days, I have been unable to reach the conclusion contended for by plaintiff's attorneys in that regard. It is convenient to consider briefly what has been decided by the Supreme Court of the United States, the Supreme Court of Ohio, and the general term of the superior court of Cincinnati. In the case of Sturgis v. Carter, (114 U. S., 511), the Supreme Court of the United States held: Syllabus-"The act of the legislature of Ohio, of May 11, 1878, authorizing auditors to extend inquiries into returns of property for taxation over a period of four years next before that in which the inquiry is made, is no violence of that provision of the constitution of that state which declares that the general assembly shall have no power to pass retroactive laws. The Supreme Court then adopts the definition of a retroactive law as laid down by Mr. Justice Story in the case of The Society for Propogating the Gospel v. Wheeler, as follows: "Upon principle, every statute which takes away or impairs vested rights, acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective." |