Stoehr v. Brewing Co.

wife joined, resort should first be had to the amount of the homestead where the wife, claiming dower, joined in the mortgage simply as surety. 3. APPLICATION OF ABOVE PRINCIPLES.

In an action for the foreclosure of a mortgage in which the wife of the grantor joined as surety, and for the adjustment of the liens of another mortgage and several judgments, the property having been sold, the wife's dower interest and the homestead exemption should first be deducted from the proceeds, the balance being applied to the satisfaction of the liens in the order of their priority until the fund is exhausted, after which resort may be had by the mortgagees, but not by the judgment lienholders, to the homestead exemption and the dower interest, but the amount of the exemption should be first taken, before resort is had to the dower interest, the wife having joined in the execution of the mort gages merely as surety.

ERROR to Hamilton common pleas court.

Oscar Stoehr and Prescott Smith, for plaintiff in error:

As to lien of judgment. Laning R. L. 8901, 8903, 8904, 8905, 8943 (R. S. 5375, 5377, 5378, 5379, 5415); Coal Co. v. Bank, 55 Ohio St. 233 [45 N. E. Rep. 630]; Gillett v. Miller, 5 Circ. Dec. 588 (12 R. 215).

As to dower interest. Kilgore v. Miller, 10 Circ. Dec. 464 (19 R. 93); Mandel v. McClave, 46 Ohio St. 407 [22 N. E. Rep. 290; 5 L. R. A. 519; 15 Am. St. Rep. 627]; Giauque & McClure, Present Value Tables 164; Black v. Kuhlman, 30 Ohio St. 196; Unger v. Leiter, 32 Ohio St. 210.

As to priorities and distribution. Laning R. L. 8969 (R. S. 5440); Jackson v. Reid, 32 Ohio St. 443; Kelly v. Duffy, 31 Ohio St. 437; Cooper v. Cooper, 24 Ohio St. 488; McConville v. Lee, 31 Ohio St. 447; Roig v. Schults, 42 Ohio St. 165; Niehaus v. Faul, 43 Ohio St. 63 [1 N. E. Rep. 87]; Nixon v. Vandyke, 1 Circ. Dec. 364 (2 R. 63); Knepfle, In re, 6 Dec. 417 (4 N. P. 213); Simmons v. Moore, 13-23 O. C. C. 11; Mandel v. McClave, 46 Ohio St. 407 [22 N. E. Rep. 290; 5 L. R. A. 519; 15 Am. St. Rep. 627]; Loomis v. Building Assn. 37 Ohio St. 392; Van Thorniley v. Peters, 26 Ohio St. 471; Finley v. Bank, 1 O. S. C. D. 236 (32 Bull. 382).

Constant Southworth, for Mr. and Mrs. Zeltner. Paxton and Warrington, for the brewing company. SWING, J.

This was an action for the foreclosure of a mortgage and the adjustment of liens on certain real estate. The property in litigation was sold for $12,050, and after paying costs, taxes and uncontested mortgage liens, there remained the sum of $1,501.49 for distribution under the following facts:

Michael Zeltner was the owner of the real estate. His wife, Mar

Hamilton County.

garet Zeltner, joined with her husband in all the mortgages given by him. Her inchoate right of dower in the land was worth $555.

January 28, 1902, Oscar Stoehr recovered a judgment against Michael Zeltner for $250.

July 16, 1902, Zeltner and wife gave a mortgage to the Moerlein Brewing Company for $703.80.

June 11, 1903, Prescott Smith recovered a judgment against Michael Zeltner for $250.

July 13, 1903, Zeltner and wife gave a mortgage to the Moerlein Brewing Company for the sum of $338.42.

March 21, 1904, the Moerlein Brewing Company recovered a judgment against Michael Zeltner for $86.05.

May 16, 1904, Anthony Nulsen recovered a judgment against Michael Zeltner for $79.95.

Michael Zeltner claimed an exemption under the statute of $500 in lieu of a homestead to which it is admitted he was entitled as against judgment liens.

We are of the opinion that the value of Mrs. Zeltner's dower interest. should first be deducted from the $1,500. This is her individual property and is in no way liable for the debts of her husband. It can only be taken for her own debt or by one to whom she has released it.

It is liable to be taken by the mortgagees in this case since she has joined with her husband in releasing dower, but not as a principal but as a surety for her husband. Mandel v. McClave, 46 Ohio St. 407 [22 N. E. Rep. 290; 5 L. R. A. 519; 15 Am. St. Rep. 627].

After deducting Mrs. Zeltner's dower interest there remains $946.49. From this should be first deducted the homestead exemption of Zeltner of $500.

This leaves a balance of $446.49. From this should first be applied the sum of $250, the amount of the lien of Oscar Stoehr as his judgment in the first lien.

The Moerlein mortgage of $703.80 is the next best lien and the balance of $196.49 after deducting the Stoehr lien should be applied on the Moerlein mortgage, and as it is not enough, the $500 homestead exemption should also be applied, for as against the mortgage there can be no exemption. Van Thorniley v. Peters, 26 Ohio St. 471. This would allow $696.49 to be applied on this mortgage, but it is not sufficient to pay it in full. Therefore Moerlein must resort to the dower interest of Mrs. Zeltner to make up the deficiency; this would require $7.31.

The lien of Prescott Smith is next, but all the property of Michael

Stoehr v. Brewing Co.

Zeltner has been exhausted in the payment of prior liens and he cannot resort to the dower interest of Mrs. Zeltner for its payment.

Next after his lien comes the mortgage of Moerlein, dated July 13, 1903, for $338.42. As Mrs. Zeltner released her right of dower in this mortgage Moerlein may have recourse to the dower interest for enough to satisfy the same. Finley v. Bank, 1 O. S. C. D. 236 (32 Bull. 382). The balance should be paid to Mrs. Zeltner which exhausts the fund, and no other liens need be considered.

Mrs. Zeltner cannot claim her dower against the mortgagees to whom she released. Neither can Zeltner hold exempt $500 in lieu of a homestead as against his mortgagees, but we think as between Zeltner's homestead exemption and Mrs. Zeltner's dower interest, the homestead exemption should first be applied to the mortgage for the reason that she stands in relation to these mortgagees as surety for her husband, and the whole of his property must first be exhausted before resorting to her's.

The judgment of the court of common pleas should be modified to conform to these conclusions.

Giffen and Jelke, JJ., concur.

FRAUDULENT CONVEYANCES-EVIDENCE.

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

Jelke, Giffen and Swing, JJ.

GERMAN NAT. BANK OF NEWPORT V. W. A. YOUNG, JR., ET AL.

PRESUMPTION IN FAVOR OF BONA FIDE CHARACTER OF CONVEYANCE.

The burden of proof as to the fraudulent nature of a conveyance rests upon those seeking to have it set aside, and any doubt as to the bona fide character of the transaction must be resolved in favor of the defendants.

ERROR to Hamilton common pleas court.

John Nichols and Matt Herold, for plaintiff in error.

C. B. Matthews and C. E. Schell, for defendant in error.

GIFFEN, J.

We entertain no doubt that the conveyance from Robert C. Young to his father, William A. Young, was made in good faith and for full value. Whatever doubt exists concerning the conveyance made by Doctor William A. Young, Jr., to his wife, must be resolved in favor

Hamilton County.

of the defendants, as the burden of proof that it was fraudulent rested upon the plaintiff, and it was not, as claimed by counsel, incumbent upon the defendants to show the good faith of the transaction.

We think the plaintiff has failed to prove by a fair preponderance of the evidence the allegation of fraud. The transfer from Doctor Young to his wife of his equity in the Spring Grove avenue lot was not a gift, but upon the consideration that she pay the taxes and sewer assessments, which she afterwards did.

Judgment affirmed.

Jelke and Swing, JJ., concur.

STATUTES-TAXATION.

[Lucas (6th) Circuit Court, March 11, 1905.]

Hull, Haynes and Parker, JJ.

C. W. F. KIRKLEY V. PETER PARKER, TREAS.

TAX LEVIED BEFORE LAW HELD VOID NOT LEGAL, MAY BE ENJOINED.

The mere fact, alone, that an unconstitutional statute, under which a tax levy was made, had not, up to the time of making the levy, been held unconstitutional by the Supreme Court, will not legalize the tax and warrant a court in refusing to enjoin its collection.

ERROR to Lucas common pleas court.

B. A. Hayes, for plaintiff in error:

Stare decisis. Yost v. Brewery Co. 10 Circ. Dec. 693 (20 R. 26); Maumee Brewing Co. v. Yost, 63 Ohio St. 563 [60 N. E. Rep. 1132]; Pump v. Lucas Co. (Comrs.) 69 Ohio St. 448 [69 N. E. Rep. 666]; 26 Enc. Law (2 ed.) 179; Lewis v. Symmes, 61 Ohio St. 471 [56 N. E. Rep. 194; 76 Am. St. Rep. 428]; Price v. Toledo, 25 O. C. C. 617; State v. The Judges, 21 Ohio St. 1; State v. Lewis, 69 Ohio St. 202 [69 N. E. Rep. 132]; Willis v. Owen, 43 Tex. 41; Cleveland v. Wick, 18 Ohio St. 304; Cin. L. & N. Ry. v. Cincinnati, 62 Ohio St. 465 [57 N. E. Rep. 229; 49 L. R. A. 566].

W. G. Ulery and J. S. Martin, for defendant in error.

HAYNES, J.

A petition in error is filed in this case for the purpose of reversing a judgment of the court of common pleas in a matter of certain alleged illegal taxes. The facts of the case are so well stated in the brief of the plaintiff in error that I quote from it:

Kirkley v. Parker.

"In the court of common pleas the plaintiff in error, who was plaintiff below, brought an action to restrain the county treasurer from collecting part (to wit, $214.10) of the taxes standing charged on the tax duplicate of 1904 against lot 224, Port Lawrence division, the plaintiff admitting that the balance (to wit, $2,033.07) was legal and due.

"The court below restrained the treasurer from collecting $155.87 of the $214.10, but refused to enjoin the collection of the balance, $58.23. Because of the refusal to enjoin this small sum, $58.23, the plaintiff prosecutes error here. It appears from the petition that in June, 1903, the county commissioners levied for general county purposes two and thirty-seven one-hundredths mills on each dollar of taxable valuation. Under the Lucas county clause of Lan. R. L. 4265 (R. S. 2823), as it stood prior to the amendment of April 23, 1904 (97 O. L. 308), the commissioners were authorized to levy not to exceed five mills for all county purposes; but under the general clause of that section they were authorized to levy only seven-tenths of a mill in counties having a taxable valuation between $70,000,000 and $100,000,000, of which Lucas county is one. The rate actually levied (two and thirty-seven one-hundredths mills) exceeded the rate authorized by the general clause of Lan. R. L. 4265; R. S. 2823 (seven-tenths of a mill) by one and sixty-seven one-hundredths mills, which on a valuation of $34,870-the valuation of the property in question-would amount to $58.23, the amount in controversy before this court. In March, 1900, in the case of Yost v. Brewery Co. 10 Circ. Dec. 693 (20 R. 26), this court held the Lucas county clause of Lan. R. L. 4265 (R. S. 2823) to be constitutional. This decision was affirmed without report by the Supreme Court June 5, 1900, Maumee Brew. Co. v. Yost, 63 Ohio St. 563; but January 19, 1904, after the levy of the county commissioners in the case at bar (June, 1903), in the case of Pump v. Lucas Co. (Comrs.) 69 Ohio St. 448 [69 N. E. Rep. 666], the Supreme Court held the Lucas county clause of Lan. R. L. 4265 (R. S. 2823) to be unconstitutional and that Lucas county must be governed by the general clause of that section. The court below applied the doctrine of stare decisis to the case at bar and held the law levied for county purposes to be valid."

The case stands upon the petition; there was no answer filed in the court of common pleas-the facts were taken to be admitted.

It was urged by counsel on behalf of the county commissioners that we ought not to interfere with this tax because at the time or before the tax was levied, while this suit was pending in the Supreme Court, an application was made to that court for temporary injunction, prior to June of that year, prior to the time at which the tax levy was made by the county commissioners, and that that court overruled the motion