Abraham Clark Freeman.

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notice or knowledge of the bad faith and wrongful purposes of
the administrator.

The petition avers that the sale of the notes by the adminis-
trator was in fraud of the rights of creditors and distributees,
and for purposes of his own; but there is no averment that Mr.
Jelke had notice or knowledge thereof, or in any way acted in bad
faith. Neither do the facts found by the court in any way impli-
cate Mr. Jelke in the wrongs charged against the administrator,
and there is no testimony in the bill of exceptions from which
notice or knowledge could be inferred. On the contrary, the ut-
most good faith on part of Mr. Jelke is conceded. He paid the
full face of the notes and interest after their rnaturity, before
there were any suspicions against the administrator; and at that
time the transaction seemed to be to the advantage of the estate,
as it served to realize the full amount of the notes, without the
trouble and expense of a foreclosure of the mortgage or collection
of the notes. Mr. Jelke, therefore, by his purchase acquired a

Digitized by


March, 1895.] Jelke v. Goldsmith. 787

good and indefeasible title to the notes and mortgage in ques-
tion. The transaction as to the purchaser of the notes should
be Viewed as it appeared at its date, and not as it may appear
years thereafter, when others, whose sins cannot be charged
4igainst him, have gone wrong.

**• To compel Mr. Jelke to surrender the notes and mort-
gage to the same estate from which he purchased them in good
faith and 'for full value, without returning to biTn his purchase
money, would certainly be unconscionable, if not absolutely dia^

Inasmuch as the petition fails to charge bad faith on the part
of the purchaser, or notice to him of bi^d faith on the part of the
administrator, in the sale of the notes and mortgage, it fails to
state a cause of action against the purchaser; and a judgment
founded upon such petition should be reversed, and a general de-
murrer to the petition should have been filed and sustained.

The conclusion is, that the judgment at special term in favor
of defendant below is right, not on the ground that the title to
the notes and mortgage had vested in the trustees, but on the
ground that the title had vested in Mr. Jelke.

With these views, it follows that the motions to make new par-
ties were properly overruled, and that the judgment of the gen-
eral term, reversing the judgment of the special term, should ba
reversed, and the judgment of the special term affirmed.

Judgment accordingly.

"^^■^^ •

I6TRAT0R DE BONIS NON FOR ASSEfS.— In order to roaliie the
assets of the estate, an administrator de bonis non in those states which
make the former representative render an account to him, may resort
to all necessary actions: Extended note to Potts v. Smith, 24 Am. Beo.

OF WITHOUT ORDER OF COURT.— A sale by an executor with-
oat order of court, under a will containing no power to hiro to so sell,
is ToiJ : Huse t. Den, 85 Oal. 390; 20 Am. St. Rep. 232, and note. An
executor who sells the personalty of his testator without an oitler of
eourt is snilty of its conversion and hecomes responsible for its Talue
with legflS interest: EsUte of Badoyieh, 74 Cal. 636; 5 Am. St. Ben.

EQUITY— JURISDICTION.— The original and primary jurisdietioft
•of the court of chancery was in panonam merely t MitooaU v. Bonoh.
1 Paige, 606; 22 Am. Deo. 669. ^

AM. 8r. Ear., Vok XLiX.— «

Digitized by


788 CSoMMSBciAL Nat. Baml v. Whbslook. [Ohia^

ftt Ohio SrAn, 684.]

In an action raising the issue as to wbetlier a deed in controyerqr
was executed under duress of the grantor, neither party is entitle<l
to demand a jury triaL

DBBD8-DURB8S OR FRAUD.— A grantor in a deed regularly
executed cannot assert rights contraiy to its terms, on the ground
tliat it was executed under duress, fraud, or undue influence, without
first securing its reformation or canceilatlon tiy a decree in equity.

DEEDS, EXECUTED UNDER DURESS of the grantor, a]»
▼oftdabie only, and not void.

Action to obtain possession of certain land. In Aprils 1885,
Mrs. Wheelock filed her petition in the court of oonunon pleaa^
alleging that in October, 1883, the Commercial National Bank
was a creditor of the Cleveland Chair Company in the sum of not
less than fifteen thousand dollars, that her husband, C. S. Whee-
lock, was a stockholder, director, and officer in said chair com-
pany; that the bank claimed that abont three thousand six hun-
dred doUars of such debt was evidenced by forged acceptances
of the drafts of the chair company, and that such forgeries had
been committed in part by her husband, who was arrested and
indicted therefor at the instance of the bank, with the fraudu-
lent intent of alarming and intimidating herself and her hus-
band and of coercing her into the payment of said fifteen thou-
sand dollars; that said bank, knowing of the insolvency of said
chair 'company and its stockholders, threatened plaintiff that
unless certain land, of the value of ten thousand dollars, owned
by hor, was conveyed to it toward the payment of the fifteen thou-
sand dollars, the indictment would be prosecuted; that while
overcome by fear and under duress, she executed to the bank
a deed of said land, joined in by her husband, also acting under
duress. She alleged that the deed was null and void; that aba
is the owner and entitled to the possession of said land unlaw-^
fully in the occupancy of said banL The bank, answering, ad-
mitted all of the allegations of the petition, except that the deed^
was executed under duress, and as to this it alleged that it ac-
cepted her deed at her instance and request in full satisfactioB*
of its claim against the chair company and surrendered alh
evidences of such debt. On the trial, the plaintiff demanded,
but was refused a jury trial, and judgment was rendered in favor
of the bank. Mrs. Wheelock prosecuted a writ of error to the-
circuit court, and that court reversed the judgment of the court,
of common pleas for error in refusing to plaintifl a jury triaV

Digitized by


April, 1895.] Commercial Nat. Bank v. Wheelock. 739

and In holding that she was not entitled to try her right to pos-
session, until she had tirst set aside the deed given by her to de-
fendant. The bank then prosecuted a writ of error to this court

J. H. Hoyt, A. St f. Newberry, and A. C. Dostin, for the
plaintiff in error.

Prentiss & Vorce, for the defendant in error.

H# SHAUCK, J. That Mrs. Wheelock did not, ia her
amended petition, pray for the eanoellation of the deed doe^ not
aid In determining whether the issues were triable to a jury or
not. The execution of the deed waa alleged in the petition, and,
if it was an impediment to her recovery at law, it followed either
that aho was entitled to that relief upon the facts alleged wd
without a apeciiio prayer therefor, or that her petitioo did not
state a cause of '^^ action. In either view, upon that assi^oq)-
tioa, the judgment of the eonrt of epmmon plena ^lo^ld have
been affirmed.

The contention of her oounsel is, that Hra. Wheeloek's leg^l
title to the land remained unaffected by her deed, iq view of tb#
oireumstanoes of its execution, and that, the deed b^ifig utterly
void, she might recover possession by an action at law. Bitt
Uttle reliance should be placed upon observations extracted
from opinions and te]ct»books, wheie only the validity and bind-
ing character of eontracts ia eonsideredt and where^ without
technical precision, the terms ^^ void " and ^ voidable " are Mid
aa eqnivalenta.

It ia auggesdve that the combined indnatry of court and ooup-
ael have failed to diseover a caae in this state in which the grim-
tor, having capacity to contract, in a d^ed eyeeated in conformity
to the provisions of the deeds aet, liaa been permitted to ass^it
rights contrary to its terms without first aecnriBg its reformatiaii
or cancellation by a decree in equity, to be obtained upon the
allegations and the degree of proof there requifed, and upon such
terma as may be imposed {conformably to the doctrine^ of eqi^^.
Bnita in equity for the cancellation of deeda in caeca of fracif^,
imdue infinence, and incapacity are familiar in our practii^a.
Tlie constant exercise of the powers of conrta of equity in fsfum
of this character has not been by chance or caprice, sinyee th^ mle
Imb been uniformly held that eenrta of equity do not act, except
te grant relief where the powers of eonrts of law are inad^qnatt^.
The force of the inference to be drawn from this familiar cauipe
of practice ia not dimiiuriied by Weatenona ▼. WeatemiaBy 96

Digitized by


740 Commercial Nat. Bank v. Whbblock. [Ohio^

Ohio St. 500, or McVeigh t. Kitenour, 40 Ohio St. 107, since
^"^^ it is not the grantor, but his creditor, who, according to the
doctrine of those cases, may treat a fraudulent deed as a nullity,
and the decisions are placed upon the provision of the statute,
that every grant made to defraud creditors ^'shall be deemed
utterly void and of no effect*': Eev. Stats., sec 4196. Indeed,
it is well settled that, notwithstanding the comprehensive terms
of this statute, such deed is, as against the grantor, effective to
convey his interest, and that he cannot avoid it by any form of
proceeding, either at law or in equity.

Nor is the question affected by the numerous cases in which
deeds have been held to be void because of fraud not limited to
the purposes for which they were executed or procured, but ex-
tending to the very execution of the instruments. They are
cases where, in contemplation of law, the deeds wero not exe-

It is the settled policy of the state, as indicated by a uniform
course of practice in its courts, and by repeated decisions of this
court, that instruments of this solemn character, executed in
conformity to the provisions of the deeds act, shall not be set
aside or defeated of their natural purpose, except upon propa
tdlegations which are supported by evidence of a dear and con-
Tincing character. The mere preponderance of evidence, which
is sufficient to determine the verdicts of juries in dvil actions,
is not sufficient: Potter t. Potter, 27 Ohio St 84; Ford v.
Osboume, 45 Ohio St. 1.

^he distinction between the terms ^oid' and 'voidable,' in
their application to contracts, is often one of great practical im-
portance; and whenever entire technical accuracy is required,
the term •** *void' can only be properly applied to those con-
tracts that are of no effect whatsoever, such as a mere nullity,
and incapable of confirmation or ratification'': Tenill t.
Auchauer, 14 Ohio St. 80.

The distinction suggested between deeds that are void and
those that are voidable only is usually regarded as determining
the necessity for the interpodtion of a court of equity. Apply-
ing it here, it would seem to justify the ruling of the court of
common pleas, dnce it is not doubted that Mrs. Wbedock's deed
was capable of ratification.

But it is said that the judgment of the circuit court wa
trolled and justified by Cresinger v. Welch, 16 Ohio, 156; 46 .
Dec. 665. It was there dedded that if an infant conveya land,
•nd, after attaining his majority, conveys the same land to

Digitized by


April, 1895.] MoBGAN V. Hudnxlu 741

another, such subeeqnent conveyance is a disaffirmance of the
former, and the grantee in the subsequent deed may maintain
ejectment That case is distinguished from the present case
upon clear grounds. The deed against which the title of the
subsequent grantee prevailed was the deed of one who was with*
out power to contract. The theory of the case is that the deed
was, when executed, ineffectual to pass title because of the want
of capacity of the grantor to contract, and that it so remained
until effect should be given to it by ratification. In this case
Mrs. Wheelock had capacity to execute the deed, and it was ef-
fectual to convey the title, subject to her right to avoid it in a
proper suit because of the circumstances under which it is alleged
to have been executed.

Duress is but the extreme of undue influence, and there ap-
pears no reason why a deed, voidable because of its exercise,
should not be canceled in ^^^ the same manner and subject to
the same conditions that are imposed in courts of equity in
sm'ts to avoid deeds obtained by fraud or undue influence.

The consideration of other questions argued by counsel is nn-

Judgment of the circuit court reversed, and that of the com-
mon pleas affirmed.

A oontrmct of sale obtained by daress is void as against the pArty on
whom sQch dnress is committed, conRideration or no consideration, be-
canpo it lacks the assent of the forced vendor : Belote ▼. Henderson, 5
Cold. 471 ; 08 Am. Dec. 432, and note. Duress will avoid a contract at
lair or in equity: Central Bank ▼. Copeland, 18 Mo. 806* 81 Am. Dec.
597, and note with the cases collected, diaoussing the elleet of doreas oo
deeds or cootracta obtained ander.

[8S Obio Stati, 682.]

ANIMALS— LIABILITY OP OWNER.— The owner of a domestle
animal Is not In y^eneral liable for an Injury committed by It while In
a place where It rightfully may be, unless It Is shown that the animal
was tIcIous In the particular complained of, and that the owner had
notice of such tIcIous propensity.

If a domestic animal breaks into the close of another, and there
damages the real or personal property of one In possession, the owner
of the animal Is liable without reference to whether such animal
Is Ticious, or whether such viclousness was known to the owner.

■eyeral cotenants in possession, holding by separate contracts, may

Digitized by


74S MoB0Aii v» HuDNSLU [Ohio^

maintain an action In trespass, when the damage for w' Jch he seeks
t5 )recover Is t6 his own individual property, rightfully in the dose by
flrtue of his contract

A cotenant of a pasture field may, without making his cotenants
parties, maintain trespass against the owner of an animal which
breaks into the pasture and injures an animal belonging to such co*
tenant, and rightfully therein.

Trespass for the unlawful killing of Hudnf^ll's horse by a
hotse belonging to the plaintiff in error. Jr.dgment for the
plaintiff and defendant prosecuted a writ of err';r to this court

Mayo^ Yaple & Phillips^ for the plaintiff in f nor.
J. C. Entrekin, for the defendant in error.

w^ SPEAB, J. The contention of the plaintiff in error is
that the charge of the court is wrong, aid that there should
have been no recovery in favor of Hudnell, because: 1. The owner
of domestic animals cannot be held liable for injuries com-
mitted by them, unless the owner has notice of their vicious pro-
pensities; and 2. The plaintiff below, not being in possession of
the lot where his horse was being pastured, could not maintain
an action of trespass.

Undoubtedly, it is settled law that the owner of a domestic
animal is not in general liable for an injury committed by such
aJQiimal while in a place where it rightfully may be, unless it is
shown that the animal was vicious in the particular complained
of, and that the owner had notice of such vicious propensity.

But we regard it as equally well settled that if the aninuil
breaks into the close of another, and there damages the real or
personal property of one in possession, the owner of the trespass-
ing animal is liable, without reference to whether such animal
was vicious, and without reference to whether such propensity
was known to the owner, for the law holds a man answerable,
not only for his own trespass, but for thSit of his domestic animaL
The ^^^ natural and well-known propensity of horses, as well as
other cattle, is to rove, and the owner is bound to confine them on
his own land; so that, if they escape and do mischief on the land
of another under the circumstances where the other is not at
fault, the owner ought to be liable: Beckwith v. Shordike, 4
Burr. 2092; Angus v. Radin, 5 N. J. L. 815; 8 Am. Dec. 626;
Dolph V. Ferris, 7 Watts & S. 367; 42 Am. Dec. 246; 3 Black's
Commentaries, 211.

The question, then, in this case, is whether or not Hudnell was
in possession of the pasi^ve field in such sense as to aathoxiie Uai

Digitized by


April, 1895.] MoBaAH «. Hudhbi.u 74S

to maintain the action. It is the duty of this court to giro sneh
construction to the record as will sustain the judgment of the
court below if it can be reasonably done.

Looking to the bill of exceptions we find that the plaintiff ''had
the right to keep the horse in question in Houser's pasture field
on pasture/' and '^paid a certain price per month for such right*^
That is, lludnell, the plaintil!, was keeping the horse there;
Houser, the owner of the land, was not keeping the horse there.
It does not appear that he was keeping any animal there. Othei
persons who had like right with plaintiff had theur horses in thtf
same field on pasture. It does not appear that Houser reserved
any right to use the field for his own stock, nor for the stock of
others. Indeed, the circumstances are consistent with the idea
that Houser had, for the time these contracts remained in force,
given up the possessiiMi to those who had thus hired the pasture.
In this view they were, then, the owners of the growing herbage.
The rule that tenants so in possession may maintain trespass
against even the owner of the fee ^ seems to rest on reason
and abundant authority: Crosby v. Wadsworth, 6 East, 602;
Tompkinson v. Bussell, 9 Price, 287; Clap v. Draper, 4 Mass. 266;
3 Am. Dec. 215; 1 Addison on Torts, 371, 872. It would follow
from this that, had damage to the htebage been the ground for
complaint, the tenants might have maintained a joint action for

If the conclusion just stated is justified, and we think it is, the
only question remaining is as to the right of one of several tenants
in possession, holding by separate contracts, to maintain an
action in trespass, where the damage for which he seeks to re-
cover is to his own individual property rightfully In the close by
irtue of his rental contract. That the damage is to personalty
will not, according to the authorities, stand in the way of a re-
cover}'. True, such damage is treated by many authorities as an
incident, and in the nature of aggravation. But this distinction
<»eems to have arisen from a desire to preserve the common-law
form of action, and at the same time not deny the injured party a
remedy. The old action for trespass quare clausnm fregit was
strictly an action for damages to tiie land following an unlawful
flitry, and hence could not be resorted to for the purpose of a re-
covery for damages to personalty only. But forms of action not
being important in this state since the adoption of the code, we
need not be embarrassed by any such distinetioiL The queition
fn every case is, not what is the proper fona olMtm, Iwt has tkt
ftfty a right of actioiL

Digitized by


744 Morgan •. Hudnbll. [Ohio^

Upon this phase of the inquiry we do not find antlioritiee.
Bnty upon principle why should not one of seTeral tenants in*
common haye such an action? Had he been in ezclusiTe posses-
eion no doubt would exist Why should the mere fact that ^'^
others are interested in the growing herbage bar a reco▼e^y^
They are not concerned in the special damage suffered by plain-
tiff, and, holding, not by virtue of a joint contract^ but by sepa-
rate several contracts, are not necessary or proper parties. It
cannot prejudice the defendant that others having the same right
of pasture do not join in the action, for they have no concern with
it. If the claim were for damage to the herbage, the case woxdd
be different, inasmuch as it might be urged that the defendant'*
entire liability should be determined in one action, and hence all
should be parties. In Virginia and Vermont it is held that even
in that case one alone may maintain the action, though it ap-
pears that the trend of authority is the other way. Probably the
latter view would prevail in this state. And yet, if it were at-
tempted to recover in one action for damages to the real estate
suffered by all and for damages to the personalty of one alone, a
vexed question of misjoinder would arise, because all the parties
would not be interested in each ground of action. To hold,,
therefore, that one tenant 'could have no standing to recover foi
damages to his personalty, save by joining with him the other
tenants, is practically to refuse him any relief whatever. And
this would, in effect, be to say that the law will take cognizance
of a claim for damages to real estate, though it may amount only
to a few cents, and refuse a hearing to a claim for destruction of
personal property under like facts which may reach hundreds
of dollars. It would be to say further that a party suffering in-
jury to his personalty by an animal trespassing upon premises
of which he has sole possession may be made whole, but» if it
happens that the possession is shared by others, he is without
remedy. Such a result would ^^^ cast discredit on the power
of the law to work out justice.

To deny the right of the injured party to maintain action for
damage to his separate personalty upon any of the grounds re-
ferred to would, we think, be to interpose a technicality for the
purpose of defeating justice. It is tiie duiy of courts, as we
understand it, to override mere technicalities, where they stand
in the way of doing justice between man and man.

Stated in brief, the case is this: The plaintiff's horse was in
a close where the owner, having rightful enjoyment, had a right
to keep him; he had a right in the field; the defendant's horse»

Digitized by


April, 1895.] Railway Company v. Salzmah, 746

by breaking the fence which his landlord was bound to maintain^
became a treepasser, and, while thus onlawfolly inTading the
close as a trespassing animal, inflicted the damage to plaintiff's
property. For aach wrong we think the law should, and does,
afford a remedy.

In this Yiew tlie charge of the court was rights and the judg-
ment will be afSrmedi

MITTED BY. — An ov^nerof animals is answerable for their trespasses:
Van LeaYen y. Lyke, 1 N. Y. 615; 49 Am. Dec. 346, and note. Tres-
pass lies against the owner of cattle which escape into the lands of
another, even thoagh against the will of the ov^ner: Porsythe y. Price,
8 Watts, 2S2; 84 Am. Deo. 485. Cattle doing damage on another's land
might be distrained at common law, or the owner was liable in tres-
pass: Halladay v. Marsh, 8 Wend. 142; 20 Am. Deo. 678. The owner of
a bail is liable to an action of trespass quare claasnm fregit for damage
done by the animal in breaking into the field of another and killing a
horse: Dolph v. Perris, 7 Watts & S. 867; 42 Am. Deo. 246, and note.
See, also, the notes to Eysus y. McDermott, 60 Am. Rep. 605; LaYerone
Y. Margianti, 10 Am. Rep. 270, and the extended note to Tonawanda
R. R. Co. Y. Manger, 40 Am. Dec. 251.

TIES.— A tenant in common of personal property may separately main-
tain an action for a wrong done to it, if his cotenants refuse to join with
him as plaintiffs and they are nonresidents! Peck y. McLean, 86 Minn.
228; 1 Am. St Rep. 665, and note.

Railway Company v. Salzman.

[52 Ohio Statb, 568.]

company is bound to take such reasonable care of passengers who
become sick after entering its cars as is fairly practicable with the
facilities at hand, without unreasonable delay of the train or discom-
fort to the other passengers.

PASSENGER.— A railway passenger who is assisting in the care of a
sick person on the train, by direction or permission of those in charge,
is entitled to at least ordinary care on their part for his protection
from injary.

Action to recoYcr for personal injuries.- On April 26, 1887,
plaintiff, Salzman, and his wife together with a number of
brother Odd Fellows and their wives went on an excursion

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