Epstein v. Epstein. title. He made representations to the plaintiff that he was the owner of the property, but there is no evidence that these representations were known to the wife, or that she by any affirmative conduct induced the plaintiff to extend credit to her husband. On this state of facts the rule is as expressed in the first paragraph of the syllabus in Wright v. Franklin Bank, 59 Ohio St. 80 [51 N. E. 876] that lands held in trust can not be sold on execution for the payment of the debts of the trustee, and judgments against such trustee are not liens upon such lands. See also: Manley v. Hunt, 1 Ohio 257; Minns v. Morse, 15 Ohio 569 [45 Am. Dec. 590] Butler v. Brown, 5 Ohio St. 211; Lefferson v. Dallas, 20 Ohio St. 68; Churchill v. Little, 23 Ohio St. 301, 308; Mannix v. Purcell, 46 Ohio St. 102 [19 N. E. 572; 2 L. R. A. 753; 15 Am. St. 562]. The petition is therefore dismissed. Marvin and Winch, JJ., concur. DIVORCE AND ALIMONY. [Cuyahoga (8th) Circuit Court, June 14, 1909.] Marvin, Winch and Henry, JJ. CELIA EPSTEIN V. ABRAHAM EPSTEIN. Divorce Under Constructive Service not Governed by Rule Regulating Opening Judgments. Section 5355, R. S. (Sec. 11632 G. C.), which provides for the opening up of judgments obtained on constructive service does not apply to divorce decrees. ERROR. WINCH, J. This is a proceeding to review a judgment of the common pleas court refusing to set aside a decree of divorce, alleged to have been obtained through fraud and perjury, and without proper service upon the defendant in the original action. Cuyahoga County Circuit. As to service, it seems that the defendant was living in New York City, notice of the pendency of the action was properly published and the clerk mailed a copy of the newspaper containing the notice to the defendant at her proper address, postage prepaid. The requirement of Sec. 5693 R. S. (Sec. 11984 G. C.) that when the residence of the defendant is known a summons and a copy of the petition shall be deposited in the post office, directed to the defendant at her place of residence, was not complied with. It is said that the plaintiff in error was entitled to the relief she prayed for under favor of Sec. 5355 R. S. (Sec. 11632 G. C.) which reads as follows: "A party against whom a judgment or order has been rendered, without other service than by publication in a newspaper, may, at any time within five years after the date of the judgment or order, have the same opened, and be let in to defend; but before the judgment or order can be opened, the applicant shall give notice to the adverse party of his intention to make the application and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and make it appear, to the satisfaction of the court, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; and each party may present affidavits." The application of this section to divorce cases is expressly held by the Circuit Court of the Fifth Circuit in the case of Mulligan v. Mulligan, 31 O. C. C. 89, (11 N. S. 585), but this court held the contrary in the case of Solomon v. Solomon, 26 O. C. C. 307 (4 N. S. 321), and we are not disposed to change our ruling, until the Supreme Court establishes a contrary doctrine and itself overrules the case of Parish v. Parish, 9 Ohio St. 534 [75 Am. Dec. 4821. Even if Sec. 5355 is applicable to divorce cases, plaintiff in error did not comply with it, and so the common pleas court committed no error in denying her application. She failed to file a full answer to the petition and from her own testimony, which we find in the bill of exceptions, full of contradictions and exhibiting an utter disregard for truthfulness, and the admoni McMyler v. Beckman. tions of conscience, the court might well have found that she had actual knowledge of the pendency of the divorce case in time to appear in court and make her defense. Judgment affirmed. Marvin and Henry, JJ., concur. CONTRACTS SALES. [Cuyahoga (8th) Circuit Court, June 18, 1909.] Marvin, Winch and Henry, JJ. JOHN MCMYLER V. BECKMAN CO. 1. Stokers Kept by Purchaser for Six Months with Seller Working to Make Satisfactory, Deficient. A contract providing that stokers sold should be satisfactory to the defendant, is not complied with, though the defendant kept and used them for over six months, it appearing that all that time plaintiff was working upon them, trying to make them satisfactory, but failing therein. 2. Letter of Managing Officer to Third Person Recommending Goods, not Admissible against Corporation. A letter written by the managing officer of a corporation to a third person, recommending the kind of stokers his corporation had purchased is not admissible in evidence in an action against his corporation for the value of the stokers furnished it, on the proposition that it was satisfied with said stokers. ERROR. Weed, Miller & Nason, for defendant in error. WINCH, J. In this case we think that it was incumbent upon the plaintiff to show that the defendant company was satisfied with the stokers furnished (the contract being that the defendant would accept and pay for the same if satisfied with them), and having failed to show this material part of his case, his first cause of action was properly dismissed. The mere fact that the defendant kept and used the stokers from April to November before it ordered them out, was not sufficient to require a submission of this cause of action to the jury, for the plaintiff submitted Cuyahoga County Circuit. this fact, with an explanation that continuously during that time he was working upon the stokers, manifestly because they were not satisfactory to the defendant. There was no error in excluding the letter written by Mehling, the managing officer of the defendant company, to Lieber, of the Indianapolis Brewing Co., recommending the stokers. If Mehling had authority to bind the defendant company by his admissions, it was only in transactions that he was authorized to carry on and to those with whom he was dealing in behalf of his authority and properly rejected, being offered as substantive proof that the company was satisfied with the stokers. The use of the letter to contradict or impeach any evidence offered by the defendant, was not involved. We have examined all the claims of error, and finding nothing prejudicial to the rights of the plaintiff in error, the judgment is affirmed. Marvin and Henry, JJ., concur. LANDLORD AND TENANT-VERDICT. [Cuyahoga (8th) Circuit Court, November 1, 1909.] BARDONS & OLIVER V. WILLIAM J. CRAWFORD. Tenant not Liable for Unauthorized Occupancy by Subtenant of Adjoining Premises. A lessee of land adjoining premises of his own upon which are tenements used by his own tenants can not be held for occupancy of said adjoining premises after termination of the lease thereof, simply because his tenants continued to make use of said adjoining land, unless it be shown that they did so with his knowledge and consent. 2 Special Findings not Framed to Test General Verdict Refused. It is not error to refuse to direct the jury to make special findings requested in the event they bring in a general verdict, if the special findings submitted are not so framed as to test the general verdict. ERROR. Bardons & Oliver v. Crawford. Thompson & Hine, for plaintiff in error. Samuel C. Blake, for defendant in error. WINCH, J. This was an action to recover for the use and occupation of a strip of land owned by plaintiffs adjacent to certain flats or tenements of the defendant which had been originally leased to the defendant to be used by him as a means of access to said tenements. The lease was from month to month and was terminated February 1, 1903, by the plaintiffs who then demanded an increased rent. The defendant refused to pay more, but was alleged to have held over and continued to use the strip of land, not personally, but through tenants. The jury found for the defendant. It was shown at the trial that previous to February 1, 1903, and before he was notified of the termination of the lease, the defendant had collected of the U. S. Express Co. a certain sum of money for the use of said strip of land as a rear entrance to said company's land up to April 1, 1903. The express company was not a tenant of the defendant, but used premises adjacent to both parties. It was also shown that there were coal holes on plaintiff's strip of land connected with defendant's tenements; that after notified that he could not longer use said strip of land at the old rental, the defendant put steps to the rear windows of his tenements opening upon a new way on his own premises, called Lakewood court, and some time later cut said windows into doors but did not close up the doors opening onto plaintiff's land, nor said coal holes. It was also shown in evidence that the tenants continued to use said doors opening onto plaintiff's lands and said coal holes after February 1, 1903. It was also claimed that defendant had notified his tenants to cease to use the premises in question, but the only evidence on this subject was the testimony of the defendant himself who said that he had notified them to cease using the plaintiff's premises, except in the case of one Nicholls who did not become a tenant until September 1, 1903, and when he took possession |