Bank v. Schirk.

not necessarily so. Under certain circumstances it might amount to that; if the probate court of this county had allowed the guardian to sell these securities without an order of the court while it still retained jurisdiction over the subject-matter then the question of good faith or bad faith might have been an important question in the case; but, upon looking into the laws of Missouri, as we read them and understand them, the guardian was without any authority whatever to sell these securities, and therefore, of course, the guardian could not confer any authority upon Lemmon, and an examination of this matter would have disclosed the fact to the bank and it cannot supply this want of authority-this entire absence of authority-by any exercise of good faith, no matter how great. I will call attention to certain of the provisions of the laws of Missouri upon that subject. Sections 3504 and 3496 Missouri Rev. Stat. were read to us in argument, and I read Sec. 3504:

“The probate court shall order the proper education, support and maintenance of minors, according to their means, and for such purposes may from time to time, make the necessary appropriations of the money or the personal estate or income of such minor not otherwise provided to be used; and when the money, income or personal estate of such minor shall be insufficient or not applicable to such objects, purpose or purposes, the court may order the lease or sale of the real estate of such minor, or so much thereof as may be requisite, or that said real estate be mortgaged for not less than two-thirds its real value, to raise the funds necessary to maintain, support and educate such minor."

That section contemplates the making of an appropriation by the court for certain uses before the money is expended for such uses. Then Sec. 3466:

"The guardian of the person, whether natural or legal, shall be entitled to the charge, custody and control of the person of his ward, and the care of his education, support and maintenance; the curator shall have the care and management of the estate of the minor, subject to the superintending control of the court; and the guardian of the person and estate of the minor shall have all the powers and perform all the duties both of the guardian of the person and a curator."

I should have read that section first, as that is the natural order. Then I read Secs. 3510 and 3511 Missouri Rev. Stat. which seem to us to be more to the point and to be conclusive upon this question of want of authority:

3510. "When it shall appear that it would be for the benefit of the ward that his real estate, or any part thereof, be sold or leased, or his personal property, or any part thereof, be sold, and that the pro

Lucas County.

ceeds be put on interest or invested in United States or state bonds, or in any other real estate, or in any other personal property, or in the preservation of the estate of the minor, the probate court may authorize and order such sale, leasing or investment."

3511. "To obtain such order, the guardian or curator shall present to the court a petition setting forth the condition of the estate, and the facts and circumstances on which the petition is founded. If, after a full examination, on the oath of credible and disinterested witnesses, it appears to the court that it would be for the benefit of the ward that the personal estate, or any part of it, should be sold and reinvested or exchanged, the court may make an appropriate order for such sale and reinvestment or exchange, and thereupon the curator shall have the power to carry out such order in all its parts. And if, after such full examination, it appears to the court that it would be for the benefit of the ward that the real estate or any part of it should be sold or leased, the court may make an appropriate order for such sale or lease, under such regulations and conditions, subject to the provisions of this chapter in relation to the sale of the real estate of minors, as the court shall consider suited to the case, first requiring the guardian or curator to enter into good and sufficient bonds to make such leases and conduct such sales with fidelity to the interest of his ward, and faithfully to account for the proceeds of such sales and leases according to law, and as the order of the court may require, if the court shall be of the opinion that such bond is necessary.

I have read the latter part of the section to show that in Missouri the same care and formality is required with respect to the sale and reinvestment of personal estate as is required in the sale of real estate. Under that statute it seems to us entirely clear that the guardian had no right and no power to sell this security in the absence of and order from the court, and, therefore, the guardian could not confer authority upon the attorney to do it and that the sale having been made without authority the bank required no title to the securities and was liable as upon a conversion thereof. The question of the good faith or bad faith of the bank is a matter of no importance in the case. The judgment of the court of common pleas will be affirmed.

Hull and Haynes, JJ., concur.

Mack v. Eckerlin.

LANDLORD & TENANT-FORCIBLE ENTRY AND DETAINER.

[Hamilton (1st) Circuit Court, January 27, 1905.]

Giffen, Jelke and Swing, JJ.

MARTIN MACK V. ALBERT ECKERLIN.

1. NOTICE OF TENANT'S ELECTION TO RENEW MUST BE GIVEN AT OR BEFORE TERM EXPIRES.

Notice of the tenant's election to renew must be given at or before the expiration of the term, under a lease containing a privilege of renewal at the expiration of the term.

2. JUDGMENT OF MAGISTRATE IN FORCIBLE DETAINER CANNOT BE REVERSED BECAUSE AGAINST WEIGHT OF EVIDENCE (LAN. R. L. 10192; R. S. 6610).

Under Lan. R. L. 10192 (R. S. 6610), a reviewing court is not authorized to reverse the judgment of a justice of the peace in an action of forcible entry and detainer, upon the ground that it is not sustained by sufficient evidence.

3. NOTICE TO LEAVE PREMISES HELD TO BE AN IMPLIED PROMISE FOR FURTHER OCCUPATION, WHEN.

The provision, "that your compliance with this notice on May 14, 1904, will prevent legal measures being taken by me," contained in a notice to leave premises, which was served on the tenth day of the month, may amount to an implied promise that the tenant may leave the premises on the fourteenth, but, being unsupported by any consideration, is not binding upon the landlord; and, in such case, an action of forcible entry and detainer may be commenced after three days from service of the notice.

ERROR to Hamilton common pleas court.

Closs & Leubbert, for plaintiff in error.

N. J. Utter, for defendant in error:

As to the distinction between the extension and renewal of a lease. 18 Am. & Eng. Enc. Law (2 ed.) 692; Renond v. Daskam, 34 Conn. 512; Shamp v. White, 106 Cal. 220 [39 Pac. Rep. 537]; Thiebaud v. Bank, 42 Ind. 212; Darling v. Hoban, 53 Mich. 599 [19 N. W. Rep. 545]; Cooper v. Joy, 105 Mich. 374 [63 N. W. Rep. 414]; Falley v. Giles, 29 Ind. 114; Bradford v. Patten, 108 Mass. 153; Atlantic Nat. Bank v. Demmon, 139 Mass. 420 [1 N. E. Rep. 833]; Hemphill v. Flynn, 2 Pa. St. 144; Schuyler v. Smith, 51 N. Y. 309 [10 Ain. Rep. 609]; Skaggs v. Elkus, 45 Cal. 154; Worthington v. Rolling Mill, 6 Dec. Re. 1038 (9 Am. L. Rec. 693; 6 Bull. 235); M’Alpine v. Swift, 1 Ball & B. 285; Elevator Co. v. Brown, 36 Ohio St. 660; Maxwell v. Ward, 13 Price 674; Gladwell v. Holcomb, 60 Ohio St. 427 [54 N. E. Rep. 473; 71 Am. St. Rep. 724]; Griffin v. Griffin, 10 Sch. & Lef. 352; Railway v. West,

Hamilton County.

57 Ohio St. 161 [49 N. E. Rep. 344]; London (City) v. Mitford, 14 Ves. Jr. 41.

Notice to vacate may be served either before or after the expiration of the term of a lease. Leutzey v. Herchelrode, 20 Ohio St. 334; Hoveler v. Luhrmann, 4 Dec. 149 (3 N. P. 224).

This court will not consider the weight of the evidence, but only its competency. Laning R. L. 10192 (R. S. 6610); State v. Wood, 22 Ohio St. 537.

PER CURIAM.

The original action was one in forcible detainer in which the justice of peace awarded judgment of restitution of the premises to the defendant in error. To that judgment error was prosecuted to the court of common pleas, and to that judgment of affirmance, error is now prosecuted in this court.

The defendant in error leased to the plaintiff in error certain premises for a term of three years, commencing May 1, 1901, "with the .privilege of renewal at the expiration of the said three years for another three years at the same rental."

The first alleged error is that the notice to quit the premises was not served at least three days before commencing the action.

The notice was served on May 10, 1904; the suit was commenced on May 14, 1904. Laning R. L. 10184 (R. S. 6602) requires only that the notice shall be served at least three days before commencing an action. In this case that was done but it is contended that in the notice it was stated that "your compliance with this notice on May 14, 1904, will prevent legal measures being taken by me." This may be an implied promise that the tenant would be required to leave the premises on May 14, but it is not binding upon the promisor for the reason that it is unsupported by any consideration.

It is also contended that under this lease no notice was required of the intention of the tenant to renew the lease, but under the terms of this lease, we think the notice of the tenant's election to renew the lease should have been given at or before the expiration of the term. 18 Am. & Eng. Enc. Law (2 ed.) 692.

We are asked also to review the weight of the testimony upon the question whether the lease was in fact renewed by the acceptance of rent for a term of six months after the expiration of the term.

Under Lan. R. L. 10192 (R. S. 6610), a reviewing court is not authorized to reverse the judgment upon the ground that it is not sustained by sufficient evidence. State v. Wood, 22 Ohio St. 537.

Judgment affirmed.

Ross v. Railway.

RAILROADS-NUISANCE-INJUNCTION.

[Hamilton (1st) Circuit Court, February, 1905.]

Jelke, Swing and Giffen, JJ.

MARGARET O. ROSS ET AL. V. CINCINNATI, L. & N. Ry.

1. RAILROAD CANNOT SUBJECT PROPERTY OWNERS TO LEGAL NUISANCES.

A steam railroad company has no right or authority, in the operation of its road, to subject adjacent property owners to any kind of a nuisance, cog. nizable by law, for its own convenience or advantage.

2. NOISE, ETC., FROM OPERATION OF RAILROAD NOT LEGAL NUISANCE, WHEN. On the state of facts in this case noise, smoke and offensive vapors which naturally arise from and are necessarily incident to the proper operation of a steam railroad at its terminals, do not constitute a nuisance cognizable by law, such as will warrant a court of equity in granting an injunction against its continuance on complaint of abutting residence owners, where there is no charge of negligence against the company, or that it acted in bad faith and failed to exercise due care in locating its terminals; the annoyances arising in such a case are damnum absque injuria.

3. INJUNCTION NOT ISSUED WHEN COMPLAINANT'S RIGHTS IN DOUBT.

Where there is doubt as to whether or not certain acts constitute a nuisance cognizable by law, or an illegal trespass upon the rights of complainant, an injunction will not be granted until the rights of complainant are ascertained and defined in an action at law.

C. E. Tenney, for plaintiffs.

Maxwell & Ramsey, for defendant.

JELKE, J.

The plaintiffs herein, Margaret O. Ross, Ella R. Tenney, L. J. Goldman and S. M. McKenzie, are the owners of lots and lands abutting on the north side of Beecher street, Walnut Hills, between Gilbert avenue and the right of way of the Cincinnati, Lebanon & Northern Railway Company, the defendant herein.

The defendant railway company having secured from the city of Cincinnati permission to cross Stanton avenue, has built a large number of tracks on the property immediately in the rear of plaintiff's property, that is, adjoining it on the north on the low ground, being between thirty and forty feet below the rear of complainants' premises at the east running out to almost nothing where it crosses Stanton avenue. These tracks are provided and used by the defendant railway company as terminals for the receipt and discharge of freight, most of this being of a heavy nature and in car-load quantities.

It is alleged that the backing and switching of cars upon these tracks by reason of the noise, smoke, and noisome vapors coming from the locomotives, is an intolerable nuisance to complainants' residences