Fairfield County.

INSURANCE-DEED-TRUST.

[Fairfield (5th) Circuit Court, September 23, 1904.]

Voorhees, Donahue and McCarty, JJ.

OHIO FARMERS' INS. Co. v. G. W. BLACK.

TRUST DEED WILL DEFEAT INSURANCE POLICY STIPULATING AGAINST CHANGE OF TITLE.

The execution of a trust deed of realty for the purpose of paying off certain mortgage incumbrances, with the understanding that the residue was to be returned, is a sufficient alienation to avoid a policy of insurance on such property which had, as one of its stipulations, a provision that "This policy shall become void if any change take place in the title to, interest in, occupancy or possession of the subject of insurance or the interest of the insured therein or any part thereof, whether by legal process or judgment or voluntary act of the insured, and the company shall not be liable on the policy."

ERROR to Fairfield common pleas court.

Lee Elliott and William Davidson, for plaintiff in error.

J. S. Sites, for defendant in error.

DONAHUE, J.

The defendant in error recovered a judgment in the court below against the plaintiff in error on a policy of insurance, one of the provisions of which policy is:

"This policy shall become void if any change other than death of insured take place in the title to, interest in, occupancy or possession of the subject of insurance or the interest of the insured therein or any part thereof, whether by legal process or judgment or voluntary act of the insured, and the company shall not be liable upon the policy."

On the part of the company it is claimed that the plaintiff below parted with the title to this land by an absolute conveyance which is offered in evidence. In answer to that contention the plaintiff says that this was merely a trust deed for the purpose of paying off certain mortgage incumbrances, the residue to be returned to Black after the property was sold and debts paid.

The question arises whether this conveyance is a violation of the terms of the policy or not. We think it is. The terms of this policy do not provide only that a sale of the property would render it void. If that. were true, we should find there was no sale of the property and that the transfer of the property did not affect the title of the owner to the beneficial interest in the property. There is no rale under the authorities as we find it, but there is a change of title.

Insurance Co. v. Black.

In May, Insurance Sec. 289, it is said that if the deed upon its face contains the provisions that are here attempted to be grafted upon it by parol evidence, it would nevertheless be a change of title. But we do not place our opinion upon that authority, but upon the case of Blackwell v. Insurance Co. 48 Ohio St. 533, 539 [29 N. E. Rep. 278; 14 L. R. A. 531; 29 Am. St. Rep. 574].

In that case a man owned a stock of goods upon which he took out a policy of insurance, which provided against a sale of his interest therein. Later he sold an undivided half interest to a partner.

The court held that Blackwell could recover against the insurance company, though the policy there considered had in it the condition against the sale or transfer of the property because the entire interest was not transferred. But the Supreme Court does here announce the law to be that a change of title, no matter whether it conveys all beneficial interest or not is within the provisions of this policy. We think there is some difference between this case and Ohio Farmers' Ins. Co. v. Waters, 65 Ohio St. 157 [61 N. E. Rep. 711], but Ohio Farmers' Ins. Co. v. Waters, supra, is very strong authority showing the extent to which the Supreme Court has gone in giving effect to those contracts and conditions avoiding the policy. The Supreme Court holds that where a debtor transfers his property to a trustee or assignee for the payment of his debts, he violates the conditions of the policy and it becomes void. True in that case he parts with the control over the property and has only the residue thereof, yet in this case after parting with the title for the purpose of the payment of the debt the agreement of the trustee to take it and pay the debt can be enforced by the creditor. The owner of the property could not come into court and compel the reconveyance of this trust estate unless he first paid the debt. The only thing he would have left in this property would be the residue remaining in money. The title in law is irretrievably and absolutely gone and as said in Ohio Farmers' Ins. Co. v. Waters, supra, all that remains to him is that portion of the fund arising from the sale of it not exhausted in the payment of the debts.

The judgment of the court below will be reversed with costs and the case remanded.

Voorhees and McCarty, JJ., concur.

Fairfield County.

APPEAL-AMENDATORY LEGISLATION.

[Fairfield (5th) Circuit Court, September 23, 1904.]

Voorhees, Donahue and McCarty, JJ.

NEWTON PETERS V. GEORGE HARMAN, ET AL.

1. APPEAL IS CONTINUANCE OF ORIGINAL ACTION-AMENDATORY STATUTES REGULATING APPEAL CONTROLLED BY LAN. R. L. 98 (R. S. 79).

An appeal is a continuance of the original action, and, under favor of Lan. R. L. 98 (R. S. 79), statutes relating thereto, in force at the time an action is commenced, is not affected by subsequent amendatory legislation, unless it is expressly so provided.

2. LANING R. L. 8736 (R. S. 5227) CONTROLLED IN OPERATION BY LAN. R. L. 98 (R. S. 79).

The provision of the amendatory act of March 25, 1902 (95 O. L. 66; Lan. R. L. 8736; R. S. 5227), requiring a party who desires to appeal his cause to the circuit court to file a written notice of such intention within three days after the judgment or order is entered by the trial judge on his docket, does not apply to actions pending at the time of its enactment. The appeal of such actions is governed by the statutes in force at the time of their commencement, and not by subsequent amendatory acts passed before judgment is rendered, unless expressly so provided.

MOTION to dismiss appeal.

C. W. McCleery and William Davidson, for plaintiff.

M. A. Daugherty, for defendant.

DONAHUE, J.

This case is submitted to us on a motion to dismiss the appeal. The judgment of the court below was entered June 4, 1902, and an appeal was attempted from that judgment. There was no notice filed in writing of an intention to appeal and it is claimed by counsel for the motion that under the statute, as it then read, this was absolutely necessary, and that a failure to file such motion is fatal to the appeal and the same must be dismissed.

Laning R. L. 8736 (R. S. 5227) was amended March 25, 1902 (95 O. L. 66). In that amendment it is provided that a party desiring to appeal his cause to the circuit court shall, within three days after the judgment or order is entered on his docket by the trial judge file a written notice of such intention, and, within thirty days after the entering of such judgment or order by the trial judge, give an undertaking with sufficient surety, to be approved by the clerk of the court or a judge thereof, as hereinafter provided.

This section was amended to read as I have just stated on March 25, 1902, and the decree was entered June 4, 1902, so it is contended by

Peters v. Harman.

council for the motion that this section as it was amended March 25, 1902, applies.

The original section as it stood before this amendment provided that a party desiring to appeal his cause to the circuit court shall within three days after the judgment or order is entered, enter on the records notice of such intention, and within thirty days after the entering of such judgment or order on the journal of the court give an undertaking with sufficient surety, to be approved by the clerk or a judge thereof, as hereinafter provided.

With the contention of counsel touching the requirements of the statute as amended, we are in perfect accord. Under that section as amended, the filing of a separate notice in writing is absolutely indispensable to perfect the appeal, and the entry that was put upon the journals of the court is not sufficient under the amended statute as it read on June 4, 1902. But it is contended that the original Lan. R. L. 8736 (R. S. 5227) as it read at the time of the bringing of this suit controls. That is the only question in this case.

Laning R. L. 98 (R. S. 79) provides that where a statute is repealed or amended, such repeal or amendment, shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions or proceedings, unless so expressed; nor shall any repeal or amendment affect causes of such action, prosecution or proceedings, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.

Now if this appeal comes within the provisions of Lan. R. L. 98 (R. S. 79), then of course the statute as it existed at the time of the commencement of the action would control. If it does not, then Lan. R. L. 8736 (R. S. 5227) as amended March 25, 1902 controls.

The entry (after the decree of the court is entered) is as follows: "Now and here plaintiff gives notice of his intention to appeal this case to the circuit court of Fairfield county, Ohio, and the court fixes the amount of the appeal bond at $200."

1

That notice is sufficient under the old statute if the appeal is to be perfected under that statute.

The case in Young v. Shallenberger, 53 Ohio St. 291 [41 N. E. Rep. 518] seems to cover this question, but it is distinguished in this that at the time of the passage of the act there in question the right of action then had already accrued to the plaintiff in error; that is, judgment had been rendered against him and he was entitled to his cause of action as it then existed. It is contended that if judgment had

Fairfield County.

then been rendered it would have been different; that no rights could have accrued until judgment had been entered and consequently Young v. Shallenberger, supra, is no assistance to us in determining this case.

In Thompson v. Street Bldg. Assn. 7 Circ. Dec. 68 (13 R. 250), the court reviews Lan. R. L. 98 (R. S. 79) at some length; it shows the nature of a petition in error and the difference between a proceeding in error and an appeal and on page 70 we find this language:

"But an appeal is very different from a proceeding in error, as is shown by the decision of the Supreme Court referred to by Judge Smith in announcing the decision of the general term in that case. The former is a continuance of the original action, and it would be affected by any statute relating to the remedy in such cases, only if it was stated therein, that it would affect pending actions."

This case holds directly that an appeal is a continuance of the original action, that it would not be affected by any statute changing or modifying the laws relating to it, unless it expressly provided that it should do so as required by Lan. R. L. 98 (R. S. 79).

That case is persuasive with us, but we think the case of Travelers Ins. Co. v. Myers, 59 Ohio St. 332 is practically decisive of the question. I read from the syllabus:

"Section 6710 Rev. Stat. as amended April 25, 1898 (93 O. L. 255), does not affect the jurisdiction of this court to review a judgment of a lower court, where the right to prosecute error in this court existed at the time the amendment took effect."

On page 333 the court say:

"It is evident that if Sec. 3 had been omitted, the act, being one relating to the remedy, would not have applied to this case; for by Lan. R. L. 98 (R. S. 79), no amendment or repeal relating to the remedy, applies to an existing cause of action, prosecution or proceeding, unless otherwise expressly provided in the amending or repealing act."

This amendment that we are now considering (amendment to Lan. R. L. 8736; R. S. 5227) does not provide that it shall apply to pending cases. Therefore from the doctrine in Travelers Ins. Co. v. Myers, supra, it is evident that it cannot apply to this case. In other words this act is an act relating to the remedy, and therefore the law as it existed at the time the action was commenced, instead of the law at the time the judgment was rendered, shall govern. That being true we think the notice of appeal was properly given and the motion to dismiss the appeal will be overruled.

Voorhees and McCarty, JJ., concur.