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attorney and the deed of conveyance were insuflieient in h\\\ lo
pass the fee from the demandant to the tenant.

In Hutchins v. Byrnes, 9 Gray, 3G7, it was objected that the
assignment was not so executed by the treasurer as to be the act
and deed of the corporation. The objection was not sustained,
as the plaintiffs claimed to hold the mortgage by an assignment
which purported in the body thereof to be from the corporation
— ^the Bristol County Savings Bank. "The assignment," say the
court, "was made in the name and as the act of the corporation,
according to the rule laid down in **® Combes* case, 9 Coke, 76,
and always adhered to in England and in this commonwealth.*'

And in Haven v. Adams, 4 Allen, 80, where the mode of exe-
cution by the corporation was called in question, the
objection was unavailing. In the body of the mortgage it
was expressed to be the deed of the corporation, to which they
had caused their seal to be affixed, and the name of their preradent
to be signed. Chapman, J., in pronouncing the opinion, said:
'*The question in such cases is, whether the deed purports to be
the deed of the principal, or the deed of the agent executed by
him in behalf of the principal. In the first case, it is held to
convey their property, because it is their deed; in the latter case,
it does not convey their property, because it is his deed."

In Ohio there is no general statute prescribing the mode in
which deeds of conveyance are to be executed by corporations.
In Sheehan v. Davis, 17 Ohio St. 571, the deed sets forth that:
"This indenture, made this second day of July, in the year 1865,
between the Albany City Bank of the first part, and Charles
Butler, of the city of T^ew York, of the second part, witneesefh:
That the said party of the first part, for and in consideration, etc.,
do grant, bargain, etc., unto the said party of the second part, sni
to his heirs and assigns forever,*' etc., concluding: "In witness
whereof, the said party of the first part have caused their cor-
porate seal to be hereto attached, and these presents to be mgned
by their cashier on the day and year first above written.** It

Digitized by


Dec. 1894.] Norrib v. Dainb. 719

was held that the deed of conveyanee by the banking corpora-
tion was properly executed, but this court emphasized the fact
that ^'in this case the deed throughout purports to be the deed of
the corporation/' The ^^"^ deed did not, as in Elwell v. Shaw,
16 Mass. 42, 8 Am. Dec. 126, purport to be the deed of the attor-
ney, but purported on its face to be the deed of the principal.
For collation of other authorities in line with the aforegoing
views, see 1 Hare and Wallace's Leading Cases, 575; 4 Am. &
Eng. Ency. of Law, 238-242; 6 Am. & Eng. Ency. of Law, 440,
and cases cited.

Subjecting the assignment claimed to have been made by the
Scipio L*on and Coal Mining Company to the plaintiff in error
to the test of the cas6s we have cited, we do not think it can prop-
erly be held to be the act of that company, and it was therefore
properly withheld by the court from the jury, when offered in
evidence by the plaintiff.

Section 4110 of the Eevised Statutes of Ohio provides that:
''No deed of real estate executed by any person acting for another,
under a power of attorney duly executed, acknowledged, and re-
corded, shall be held to be invalid or defective because he is
named therein, as such attorney, as the grantor, instead of hia
principal; nor because his name, as such attorney, is subscribed
thereto, instead of the name of his principal.'' But it cannot
be claimed that the assignment under consideration in the case
at bar was made under a power of attorney, executed, acknowl-
edged, and recorded, as provided by the above section of the

It is suggested in argument in behalf of the defendant in error
that the court will notice that the transcript of the record of the
directors authorizing the lease, and which was made by George
P. Baker as treasurer, is also certified by George P. Baker as
clerk, thus showing the fraudulent character of the whole trans-
action. But the record does not profess to contain all the evi-
dence introduced ^^ at the trial, and does not present to our
consideration a question of fraud. The judgment of the circuit
court should, in our opinion, be aflSrmed.

Judgment accordingly.

AGENCY.— An a^ent is personally liable on a note signed in hia name,
fchongh he adds thereto the designation ''agent," an less from some por-
tion of the note or paper upon which it is written the name of the prin-
cipal appears: Hobson v. Hassett, 76 Oal. 203; 9 Am. St. Rep. 193,
and note; Tannatt y. Rocky Mountain Nat. Banir, 1 Ool. 278; 9 Am.
Rep. I'tB, and note; Tarver ▼• GariingtOD, 27 8. 0. 107; 18 Am. St.
Rep. 628, and note.

Digitized by


720 Fulton «. Fulton. [Ohio,

AQENT.— A deed is admisBible in evidenoe m the deed of the corpoi»-
tion, where it purports to be iiichi if signed by the trustees as tmsteeSi
and has the regular corporate seal attached: Miners' Ditch Oob ¥• SeU
lerbaoh. 37 GaL 6i3; 99 Am. Dec 800, and note.

Pulton v. Fulton.

ps Ohio Srin, S2I.]

AWARDED TO HER.— If, at the time a dlToroe a Tinculo la granted
to the husband on account of the misconduct of the wife, the custody
of their minor children is awarded to her without any order prorid-
ing for their maintenance, he is not thereafter liable to her for neces-
saries furnished by her for the support of such children, in the ab-
sence of proof of a request by him that such support should be pro-
Tided, or of a promise by him to pay therefor.

W. B. Higbj and W. A. Babcock, for the plaintiff in error.

L. A. Wilson^ for the defendant in error.

»* BEADBUEY, J. The defendant in error was divoiced

from the plaintiff in error in a suit brought by him for her ag-
gression. She was awarded fifteen hundred dollars for alimony,
and two small children, the fruit of the marriage, were by the
decree placed in her custody, but no order was made respecting
their maintenance.

She, living apart from the defendant in error, supported the
two children, and the question to be determined is, whether she
can maintain an action against him for board, clothing, etc.,
which she has furnished to them, in the absence of any proof of
a request by him that the support should be provided, or of a
promise to pay for it when provided. Upon this subject the
court of common pleas charged the jury as follows:

*T[t is conceded that at the September term, 1886, the defend-
ant obtained a decree of divorce from the plaintiff for cruelty to
him; that the court gave her alimony in the sum of fifteen hun-
dred dollars and the custody of the children till its further order,
and that she has ever since had the children and boarded and
clothed them. This casts upon the defendant the legal obliga-
tion to pay her what that board and clothing is reasonably

^^t makea no difference whether it was done with the defend-
ant's consent or not, or at his instance *^ and request Plain-
tiff's right to recover is not founded in the defendant's promiao

Digitized by


J^eb. 1895.] Fulton v. Fulton. 721

to pay, either expressed or implied, but upon his legal duty to
provide for his children; and the order of the court giving her the
<;ustody of the children, and the caring for them thereafter by
the plaintiff, makes the defendant liable to pay the plaintiflE what
that board and clothing is fairly and reasonably worth/*

To this portion of the charge the defendant excepted, and the
-question in issue between the parties was thus brought into the
record. The defendant in error contends that this question is
settled in her favor by the case of Pretzinger v. Pretzinger, 46
Ohio St. 452; 4 Am. St, Eep. 542. In that case this court held
that: "The obligation of a father to provide reasonably for the
support of a minor child, until the latter is in a condition to pro-
vide for his own support, is not impaired by a decree which di-
vorces the wife a vinculo, on account of the husband's miscon-
duct, gives to her the custody, care, and nurture of the child, and
allows her a sum as alimony, but with no provision for the
child's support*' In that case, as in the one under considera-
tion, no question arose respecting the rights of the child to rea-
sonable support. In both instances the necessaries had already
been furnished by the divorced mother, and she was seeking
reimbursement from the father. The contention, therefore, re-
lated solely to the relative duties of the father and mother of
minor children, where the parents are living separate in conse-
<juence of a divorce a vinculo had between them, and the children
had been awarded to the custody of the mother.

"WTiere separation and divorce result from the **• misconduct
•of the husband, Pretzinger v. Pretzinger, 45 Ohio St. 452, 4 Adl
St. Rep. 542, asserts the primary liability of the father in a con-
test between him and the mother, and in such case the right of
the mother to recover against the father for such reasonable
necessaries as she has furnished is established. That case is
grounded in the principle that as the primary liability rests upon
the father, he cannot, by his own misconduct, shift it to the
mother, Dickman, J., saying in reference to the natural duty rest-
ing on parents to support their children, that: "This natural
-duty is not to be evaded by the husband's so conducting him-
fielf as to render it necessary to dissolve the bond« of matrimony.
.... It is not the policy of the law to deprive children of their
rights on account of the dissensions of their parents, .... or
to enable the father to convert his own misconduct into a shield
against parental liability." Again: "There is evidently no sat-
isfactory reason for changing the rule of liability, when, through
ill-treatment or othor breach of marital obligation, the husband

AM. 9t, Rnn VOU XUX.-46

Digitized by VnOOQ IC

722 Fdlton v. Fulton, [Ohio,

renders it necessary for a court of justice to divorce the wife, and
commit to her the custody of her minor chUdren": Fretzinga
y. Pretzinger, 45 Ohio St 458, 459; 4 Aul St Bep. 542.

In the case before the court, however, the wife was the ag-
gressor, and it is this feature by which it is to be distingnislied
from Pretzinger v. Pretzinger, 45 Ohio St 458, 459, 4 Ahl SI
Bep. 542, for in that case the husband was in fault It does not
necessarily follow that, because a father cannot, by his own mis-
conduct, shift from himself to the mother his pnmaiy liabilitj
to support his minor children, the mother cannot, by her miscon-
duct, produce that result, at least to the extent of denying to hei
a right to ^^"^ recover against him for expenses she has incurred
for necessaries for their support, in the absence of a request or
promise by him in the premises.

The contest is between the parents. By the law of nature,
the responsibility of each for the birth of children is equal; the
moral obligation of nurture, protection, and reasonable support
bears upon each according to his or her capacity to afford it
Schouler, in referring to this obligation, says: **Thi8 is said to
rest upon a principle of common law; but perhaps it may be more
reasonably referred to the implied obligation which parentB
assume in entering into wedlock and bringing childroi i^to the
world*': Schouler's Domestic Belationa.

The common law, in an earlier stage of its development,
stripped the wife of her personal property, transferred to the
husband the income of her real estate, vested in him the right
to her earnings, denied to her the power of contracting, and
merged her legal entity into his; and, to compensate her for theee
disabilities, it absolved her from nearly every legal obligation and
duty, including that of maintaining her children. Nor had she
any legal control over them or right to their services. Even hff
widowhood did not restore this control or right, and tiiis harsh
doctrine was at one time recognized and applied by courts of d^
servedly high authority in this country. Thus, as late as 1812.
it was held in Commonwealth v. Murray, 4 Binn. 487, 5 Am. Dec
412, in respect of a widowed mother, that *'an infant owes rercr-
ence and respect to his mother, but she has no l^gal anthoritj
over him, nor any legal right to his services.''

*^ Within the last half century, however, the hareh rules of
common law respecting the property and domestic rights of
married women have gradually yielded to more enlightened and
humane notions, and consequently they have been greatly modi-
fied and ameliorated. The modifications and ameUoratioos

Digitized by


Feb. 1896.] Fulton v. Fulton. 728

which affect her property rights are chiefly the result of legisla-
tion^ but those affecting her domestic relations are as much due
to those enlightened views which led to a more humane applica-
tion of the rules of common law to that relation as to direct
legislative action. And in many instances, legislative action en-
larging her property and personal rights, have gradually led to
the imposition of correlative duties, by the application of recog-
nized principles of the common law.

The husband and father, while living with his family is its
head, is entitled to the services of his minor children and is lia-
ble for their reasonable support: Bev. Stats., sees. 8108-3110,
3113; Sharp v. Cropsey, 11 Barb. 224.

Wliere, however, the husband is dead, the modem and better
rule is tliat the mother is the head of the family and entitled to
the earnings and obedience of her minor children: Commission-
ers V. Hamilton, 60 Md. 340; 45 Am. Rep. 739; State v. Balti-
more etc. R. R. Co., 24 Md. 84; 87 Am. Dec, 600; Ohio etc. R. B.
Co. V. Tindall, 13 Ind. 366; 74 Am. Dec. 269; Purman v. Van
Sise, 56 N. Y. 436; 15 Am. Rep. 441; Matthewson v. Perry, 87
Conn. 435; 9 Am. Rep. 339; Hammond v. Corbett, 60 N. H.
601; 9 Am. Rep. 288; Gray v. Durland, 50 Barb. 100.

And whenever the mother is entitled to the obedience and
services of her minor children, it would seem to follow, neces-
sarily, that she should maintain them. Harsh and anomalous,
indeed, a *^ rule of law must be that would give the earnings
and custody of a minor child to a parent who was under no recip-
rocal obligation of maintenance. The duty of maintenance by
the mother is asserted by Schoulor's Domestic Relations, sec. 293,
and Mowbry v. Mowbry, 64 111. 383. In Dedham v. Natick, 16
Mass. 140, the court say: "The mother, after the death of the
father, remains the head of the family. She has the like control
over the minor children as he had when living. She is boimd
to support them, if of sufficient ability, and they cannot, by law,
be separated from her.**

The cases, indeed, are rare, where a mother, having the ability,
has declined to administer to the wants of her minor child. The
law of nature is usually stronf:^ enough to secure this, and an
appeal to municipal law is therefore seldom necessary. But if
a widowed mother with ample possessions should decline to ad-
minister to the necessities of her destitute minor child, a rule of
law that would allow this, and suffer her to abandon it to private
or public charity, would be a reproach to any system of juris-

Digitized by


724 Fulton v. Fulton. [Ohio»

If she ii not bound to maintain her child, then she BhoaU not

be permitted to keep it in subjection to her authority^ or rec^ve
the wages of its labor. The hght to keep her minor childien to-
gether under her roof and to control their persons implies the ob-
ligation to feed and clothe them; and the great weight of modem
authoiity, as well as of reason, clothes her with those rights. It
may be that the authorities do not speak i^-ith equal emphasii
upon the question of her duty of support, as they do in reference
to her right to the custody and services, of her children, but this
should be attributed to the want of an occasion, and not to **•
the existence of any rule of law by which she can be vested with
the control without the duty of maintaining her minor children.

Where a divorce a vinculo is decreed, the bonds of matrimony
are dissolved, and the former husband and wife become as strang-
ers to each other, and the former wife is relieved from aU the dis^
bilities and duties incident to coverture. If children were born of
the marriage, the paternal relation remains^ and the duties per-
taining to it continue. The primary obligation of maintaining
the children was on the husband and father — ^the foundation
of tins superior obligation rests upon the general fact that he is
most capable of discharging it. His right, however, is to main-
tain his children in his own way and at his ovm fireside, vhere
he can have the comfort of their society and the aid of their
services. If, by his own misconduct the family relation is de-
stroyed, and the welfare of the children render it necessaiy that
they should be placed in the custody of the motlier, he has no
just ground to complain if he is compelled to maintain them in
her home. However, even under these circumstances, if the
mother has an ample fortune, and the resources of the father ai«
comparatively limited, justice might require a modification of a
rule founded upon the assumption of conditions which in the par-
ticular case did not exist.

And although the separation and divorce were caused by the
misconduct of the mother, it may nevertheless be true that the
obligation of the father to reasonably provide for his children
will follow them into the custody of the delinquent mother, when
circumstances reqiure them to be placed in her custody. 1^
however, under such **^ circumstances, it does so follow then,
the reason and limit of this obligation of the father should he
found in the necessities of the children. As to them, the natn*
ral obligation of protection, nurture, and maintenance press vith
equal force upon the parents. By the divorce a vinculo, th*^
mother is as completely absolved from the marital relation as slie

Digitized by


March, 1895.] Clsvbland Leader Print. Co. v. ORsnr. 725

would be by death, and if, in the couiee of the proceedings
which end in an absolute divorce, the minor children are put
under her control, by her procurement or in response to 'her
wishes, her direct obligation towards them, so long as she retains
them, would seem to be founded upon as substantial considera-
tions as if she were a widow. Their daily wants must be satis-
fied. Constant supervision may be necessary. Can their di-
vorced mother, who has received them into her custody, abandon
them in the one case and not in the other? We think not. By
receiving them into her custody she should be held, as to them,
to assume the obligations incident to that custody. If, under
these circumstances, where her own misconduct has destroyed the
family relation, and deprived the father of the custody and
society of his children, she has in fact maintained her children,
•dhe has no claim, legal or moral, to demand reimbursement from
the father. She has simply discharged a duty cast upon her by
the plainest principles of natural justice, for the reason that the
necessity for it arose from her own misconduct.
Judgment reversed.

ED TO MOTHER.— A decree of divorce granted to a wife, commit-
ting to her the care and custody of her minor child, entirely relieves
the father from any legal obligation to aapport the child, except such
as may be imposed on him bv the original or anv sabseqaent decree in
the divorce proceedings: Hall v. Qreen, 87 Mo. 122; 47 Am. Bt* Bep.
Sll, and extended note.

Glbybland Leader Printing Com? any v. Green.

[IB Ohio GfTArm, 487.]

record some act of the court done at a former term, which was not
then carried into the record, but it cannot be employed to secnre, at a
8Ul>8eqnent term, a performance by the court of some act which the
applicant failed to have the court do at the term in which final Judge-
ment waa rendered and entered.

If the record of a court fails to show that it has acquired Jurisdiction
of the person of the defendant and the plalntiflT has neglected at the
hearing of the case to require the court to inquire into and adjudicate
that question, the court cannot, at a subsequent term, inquire into its
jurisdiction over the defendant, and, by a nunc pro tunc order, cause
the record to state that the inquiry was made at the term when final
Judgment was rendered.

Action by Green against the Cleveland Leader Printing Com-
pany in which, at the term of court held Janoaiy, 1891, judgment

Digitized by


726 Clbvxland Lbadbb Print. Co. «. 6bbb& [Ohio^

was rendered for the plaintiJBE. The judgment was aflSrmed on
appeal to the circuit court, and proceedings were then brought
in this court to reverse both judgments. In October, 1894, this
court, upon the motion of Oreen, dismissed the proceedings
herein, on the ground of want of jurisdiction of the person of
Green, the record failing to show the issuing of a summons, a
waiver thereof, or an appearance in person. After the case was
dismissed, the Cleveland Leader Printing Company obtained its
reinstatement on the groimd that it could obtain from the circuit
court a nunc pro time order showing that Oreen waived service
of process or personally appeared at the hearing of the case in
that court Plaintiff in error then obtained such order in Jan-
uary, 1895, against the objection of the defendant in error, and
he now questions the regularity of the proceedings by which it
was secured and prosecutes a writ of error to this court

Prentiss ft Yorce, and Squire, Sanders ft Dempsey, for the
plaintiff in error.

W. S. Kerruish and E. J. Blandin, for the defendant in error.

*»» BRADBTJEY, J. This court, in October, 1894, held ihat
the record of the circuit court did not show that that court had
obtained jurisdiction of the defendant in error. That being true,
the plaintiff in error had no standing in the court, for it could
not, in the method it pursued, bring the defendant in error into
this court, except through the circuit court, and it had wholly
failed to bring him into that court. Upon a representation by
the plaintiff in error that it was entitled to a nunc pro tunc order
of the circuit court curing this omission, the diflmiRsal was set
aside to enable it to procure such order.

Thereupon the plaintiff in error applied to the circuit court
for an order nunc pro tunc, which application was in the follow-
ing terms: ''And now comes the said The Cleveland Leader
Printing Company, and says that said defendant, Arnold Green,
appeared in this case in this court in the hearing of the same in
person and by his attorney at the January term of this court, to
wit, on the nineteenth day of June, 1891, but that the record
in this case fails to sufficiently show such appearance, and the
plaintiff asks that such deficiency may be supplied and the record
corrected accordingly by the proper order of this court/' etc.

The defendant in error moved the circuit court to require the
application to be made definite and certain: 1. By setting forth
the acts of defendant in error which were claimed to constitute

Digitized by


March, 1895.] Olbveland Leader Print. Co. «. Green. 727

an appearance by him in the circuit court; 2. By stating *••
whether some finding, not before made by the court, was wanted, or
whether the court was to ascertain some fact before found by it,
but not recorded. This motion was overruled, to which ruling
the defendant in error excepted.

Good practice doubtless requires that in such proceedings the
party against whom relief is prayed should be apprised clearly
of the character of the relief sought, as well as the facts and cir-
cumstances upon which the applicant rests his claim to such re-
lief. This application, when tried by that test, is faulty; for it
affords no notice to the defendant in error of any specific act or
acts done, either by himself or by his coimsel, that in law con-
stitute an appearance in the circuit court, nor did it state with
reasonable precision the relief sought. However, as the record
discloses that no evidence was adduced when the motion was
heard upon the facts, but that the court rested its findings thereon

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 83 of 121)