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much of the testimony, which is vague and uncertain on many points which the statements of the briefs of counsel do not clear up, but leave in "confusion worse confounded." The transaction seems to have been, first, an option sale to George B. Kerper of all but 25 shares of the Fremont Company stock. Then he organized the Traction Company and negotiated for a sale to it of the Fremont property for its bonds and shares of its stock. He raised money on the bonds to pay for the Fremont stock, and to get a resolution of the stockholders of the Fremont Company to convey its property, not to him, but directly to the Traction Company, which was done. The Fremont stock was destroyed, and some of the Fremont shareholders got stock in the new company. How, when, in what method or order these changes took place counsel have not shown us, and we cannot figure out from the transcript.

R. S. Holbrook, C. R. Banker, and G. B. Keppel, all of Toledo, for plaintiff in error. King, Tracy, Chapman & Welles, of Toledo, for defendant in error.

WILKIN, J. (after stating the facts as above). It is apparent from the foregoing statement of facts and of the altercation between the parties that the contention narrows down to two questions of fact, namely: (1) Whether the plaintiff was a creditor of the Fremont Company at the time of the sale of its property to George B. Kerper and his associates; (2) whether the sale was a bona fide transaction for a valuable consideration, or a mere collusive transfer of title to a reorganization of the vendor company in fraud of its creditors, or a consolidation of the Fremont railway with the Findlay street railway by a merger of those two companies into a consolidated company under a new name known as the Traction Company.

It is unnecessary to consume time and space with a commentary on the facts. It is sufficient to say that this case was heard twice in each of the courts below. It comes to this court upon error to the judgment of the Court of Appeals rendered January 18,

1913.

ion of the court, rendered by Wildman, J., will exhibit the view which that court took of the case:

"Both the circuit court and the judge of the common pleas court, to whom the cause was submitted without a jury, seem in accord as to the good faith of the transaction, so far as the Traction Company is concerned, and there is not much attempt to charge the Fremont Company with such actual fraud. The trial judge, howbeen transcribed and filed with the briefs of ever, as we gather from his opinion, which has counsel, takes the view that by virtue of section 8618 of the General Code, the transaction between the companies was a conveyance constructively in fraud of creditors of the grantor, the Fremont Company. * While it was

not embodied in an entry making separate statements of fact and law, we feel justified in considering it as an expression of the ground upon which the judgment was rendered.

*

*

"The question which addresses itself to us is whether Pfisterer, at the time of the conveyance by the Fremont Company to the Traction Company, was a 'creditor' within the meaning of that part of the statute of frauds embodied in the section of the General Code relied upon by the trial court, and to which reference has already been made. * The current of authorities is unbroken that, as to subsequent creditors, transfers will be set aside only upon proof of actual intent to defraud. In the case of Evans et al. v. Lewis, 30 Ohio St. 11, the third paragraph of the syllabus is as follows: in tort, against such grantor, at the time of such 'One having a valid cause of action, sounding conveyance, upon which an action was subsequently brought and judgment recovered, is to be regarded as a subsequent creditor.' of Evans v. Lewis was cited approvingly with "In White v. Gates, 42 Ohio St. 109, the case the statement that the fact that an action was pending for damages at the time of the sale and transfer of the property was immaterial. The case of Evans v. Lewis was again followed in Stuard v. Porter, 79 Ohio St. 6 [85 N. E. 1062]. The circuit court of this county has also had occasion to pass upon the question with the same holding. Detwiler v. Louison, 10 O. C. D. 95, 97.

*

"That the conveyance might be attacked, if made with the intent to defraud subsequent creditors, is, of course, true, but to establish such intent the burden is upon the party asserting it, and it is not apparent in the case at bar that. that burden has been sustained. Indeed, it is clearly indicated by the record that all existing creditors whose claims amounted in the aggregate to some $70,000, including some claims then in litigation, were taken care of in the transaction. There is no suggestion that the Traction Company participated in any fraudulent intent, even if it existed in the minds of the Fremont Company or the persons arrangOne of the errors alleged in the Court of ing the transfer. It is almost inconAppeals was that the common pleas court on ceivable that such a transfer as that of the a second trial refused "to follow the opinioning to over $200,000 in value, would be made for entire assets of the Fremont Company, amountand judgment of the circuit court of Lucas the purpose of avoiding payment of this one county, Ohio, rendered and entered on sub- comparatively small claim. In our view of this stantially the same evidence, in the former case, it is of no moment that the transfer was proceedings in error herein." The Court of made by a corporation instead of an individual. Numerous authorities might be cited in support Appeals reversed the judgment of the com- of this opinion, but it is hardly necessary. Atmon pleas court for the reason that the de- tention may, however, be called to the case of cision and judgment of the latter court is Graham v. Railroad Company, 102 U. S. 148 against the weight of the evidence. And the of the question by Mr. Justice Bradley, pages [26 L. Ed. 106], and especially the discussion plaintiff assigns here as one ground of error 153, 160, and 161 [of 102 U. S. (26 L. Ed. 106)]. that the Court of Appeals has no power to The closing words which are especially pertireverse for that reason; the circuit court nent to this point are as follows: 'We see no reason why the disposal by a corporation of any having once reversed for that reason. of its property should be questioned by subse

than a like disposal by an individual of his prop- | judgment is right on any ground, it must be erty should be so. The same principles of law affirmed. apply to each.'

*

"As the character of the plaintiff's claim and the facts bearing upon the question which we have considered in this opinion are undisputed, the judgment will be entered in this court which should have been entered in the court of common pleas, dismissing the action of the plaintiff below."

We concur in this opinion of the Court of Appeals. While it does not say in exact words that there is no evidence in support of the plaintiff's contention, the language of the opinion seems to import as much. The finding in its journal entry is "that the judgment and decree entered by the court of common pleas * * is not sustained by sufficient evidence, and is against the weight of the evidence," which is precisely the finding made by the circuit court upon its review of the first trial. The record of the second trial shows a persistent effort of the plaintiff's counsel to bring to light details of the transaction and of the relations of the parties from which collusion and fraud could be inferred; but the testimony and the documents thus brought upon the record can hardly be said to give rise to such inference, and hence do not have the force and the value of proof of the fraud alleged. Nor do we think that the probative effect of the facts established by the testimony and the documents tends to establish constructive fraud; that is to say, a transaction not inspired by an actual evil purpose to deceive, but tending nevertheless to mislead innocent persons and to beguile them of their rights, contrary to good public policy. Hence we might say there is no proof to sustain this branch of the plaintiff's case. Such is the impression the facts make upon the mind of this court.

However that may be, the plaintiff has utterly failed to make any proof that he was a creditor of the vendor company at the time of the sale, and therefore he has established no title to maintain this suit as a prior creditor. Nor has he made any proof of actual fraud which would entitle him to maintain the action as a subsequent creditor. His evidence proves conclusively that he was not a creditor when the sale was made, and failing entirely to produce evidence of intentional design by the vendor or the vendee to defraud creditors, he has established no grounds for the remedy which he seeks. This puts an end to his contention. It is therefore not necessary to consider the other proposition which he makes, namely, that the Court of Appeals had no power to reverse the case the second time on the weight of the evidence, contrary to section 11577, General Code.

Judgment affirmed.

SHAUCK, DONAHUE, and NEWMAN, JJ., concur. JOHNSON and WANAMAKER, JJ., dissent. NICHOLS, C. J., not participating.

(89 Ohio St. 288)

FIRST NAT. BANK OF CORTLAND v. LOGUE et al. (No. 13728.) (Supreme Court of Ohio. Feb. 3, 1914.)

(Syllabus by the Court.)

EXECUTION (§ 42*) "VESTED INTEREST."

PROPERTY SUBJECT

The interest of a vendee in the possession of real estate under a contract of purchase, the est within the meaning of that phrase as used legal title being in the vendor, is a vested interin section 11655, General Code, and such interest is bound, under the provision of section 11656, General Code, for the satisfaction of a judgment against such vendee.

[Ed. Note.-For other cases, see Execution, Cent. Dig. §§ 53, 104-116; Dec. Dig. § 42.* For other definitions, see Words and Phrases, vol. 8, pp. 7303, 7304.]

Error to Circuit Court, Cuyahoga County. Action between the First National Bank of Cortland and J. C. Logue, trustee of H. C. Christy, bankrupt, and others, to determine interest in certain property of the bankrupt. From the judgment, the First National Bank of Cortland brings error. Reversed, and judgment for plaintiff in error.

The judgment the reversal of which is here sought was rendered in the circuit court of Cuyahoga county on appeal. The case was submitted to that court upon the cross-petition of plaintiff in error, in which it sought to subject the real estate hereinafter mentioned to the satisfaction of certain judgments, the answer of J. C. Logue, trustee, the cross-petitions of H. C. Christy and Mary E. Christy, and an agreed statement of facts.

Henry C. Christy was adjudicated a bankrupt on an involuntary petition in bankruptcy filed in the United States District Court at Cleveland on the 9th day of June, 1911. In 1910 plaintiff in error recovered two judgments in the common pleas court of Cuyahoga county against Christy, one for $2,880 and the other for $3,420.63. On March 6, 1911, execution was issued on these judgments, and on March 7, 1911, a levy was made on the interest of Christy in the real estate described in the cross-petition of plaintiff in error.

Prior to the year 1910 Christy acquired a The Court of Appeals having, as stated in land contract for the purchase from one Lizits opinion, based its judgment on the plain-zie H. Neff of the real estate described in tiff's total failure to prove his title to main- said cross-petition, by the terms of which tain the suit, its judgment, both to reverse contract said real estate was to be purchased and to dismiss, was right in both aspects. by Christy for the sum of $14,500. At the Even though its journal entry does not ac- time of the rendition of the judgments in facurately or fully state the grounds, if the vor of plaintiff in error there had been paid For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

on said contract the sum of $6,500, leaving due a balance of $8,000, and interest. At all the times herein before mentioned Christy had full possession of the property under said contract, and he and his wife occupied the dwelling house situate on the premises. The legal title to said property at all of said times was held by Lizzie H. Neff.

The First National Bank of Cortland filed a motion for a new trial, which was overruled, and it is here asking for a reversal of the judgment of the circuit court.

Myers, Green & Keough, of Cleveland, for plaintiff in error. White, Johnson & Cannon and Ford, Snyder & Tilden, all of Cleveland,

for defendants in error.

NEWMAN, J. (after stating the facts as above). The circuit court found that plaintiff in error had acquired no lien prior to the four months before the filing of the involuntary petition in bankruptcy against Henry Counsel challenge the correct

During the pendency of this action in the common pleas court, by agreement of all the parties interested, the real estate was sold for the sum of $12,000. Out of this there was paid to Lizzie H. Neff her claim, amounting, with interest, to $9,333.57; to said Christy, to apply on his claim for ex-C. Christy. emptions, the sum of $500, and taxes, costs, ness of this finding. and expenses, amounting to $299.77. The The section of the Bankruptcy Act (Act balance, $1,866.73, is now held by J. C. July 1, 1898, c. 541, 30 Stat. 564 [U. S. Comp. Logue, trustee of the estate of Henry C. St. 1901, p. 3449]) which invalidates and nulChristy, bankrupt, subject to the final de-lities certain judgments and liens is as foltermination of the issues in this case, and this fund is substituted for and instead of the property, and the rights of the parties are transferred to said fund.

The plaintiff in the common pleas court, the Western Reserve National Bank, and certain other defendants who claimed an interest in the property in that court, not desiring to further prosecute their claims, and not desiring to appeal from the judgment of the common pleas court, released and discharged the property in question and the

fund derived from the sale of the same from any and all claims which they had, and con

lows:

"Section 67f. That all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filshall be deemed null and void in case he is ading of a petition in bankruptcy against him, judged a bankrupt, and the property affected by the levy, judgment, attachment, or other lien from the same, and shall pass to the trustee as shall be deemed wholly discharged and released a part of the estate of the bankrupt, unless the court shall, on due notice, order that the right lien shall be preserved for the benefit of the esunder such levy, judgment, attachment, or other

tate."

In determining whether a judgment is a

sented to the dismissal of the petition and lien, when the above section is to be applied, their cross-petitions without in any way the law of the state where the judgment was prejudicing the rights of said J. C. Logue, rendered controls. This requires then an exas trustee, the First National Bank of Cort- amination of two sections of the General land, Henry C. Christy, and Mary E. Chris-Code relating to executions and judgment ty, the four parties last named agreeing to save them free and harmless from all costs in the action.

liens against property:

"Section 11,655. Lands and tenements, including vested interests therein, permanent leasehold estates renewable forever, and goods and chattels, not exempt by law, shall be subject to the payment of debts, and liable to be taken on execution and sold as hereinafter provided.

"Section 11,656. Such lands and tenements within the county where the judgment is enterfirst day of the term at which it is rendered, exed shall be bound for its satisfaction from the cept that, judgment by confession and judgments rendered at the same term at which the action is begun, shall bind such lands only from the day on which such judgments are rendered. All other lands, as well as goods and chattels of the debtor shall be bound from the time they are seized in execution."

The circuit court found that the First National Bank of Cortland acquired no lien prior to the four months before the filing of the involuntary petition in bankruptcy against Henry C. Christy; that by reason of the act of Congress relating to bankruptcy its said lien, acquired within four months of the filing of said petition in bankruptcy, is void and of no effect, and it now has no lien upon said premises or the funds derived from the sale thereof; that the said Henry C. Christy is not entitled to $1,000, in lieu of a homestead, from said fund, but is enti- The judgments obtained by plaintiff in ertled to the sum of $500 as exemptions, which ror against Christy were rendered in the amount he has received; that Mary E. year 1910, more than four months before the Christy is not entitled to dower in said prop-filing of the petition in bankruptcy. If these erty, and that said fund derived from the judgments became liens on the real estate in sale of said premises is the property of J. question at that time, the liens would not be C. Logue, as trustee of said Henry C. Chris-invalidated by the provisions of section 67f ty, bankrupt. of the Bankruptcy Act, supra.

Judgment was rendered in favor of J. C. Logue, as trustee, for the amount in his hands growing out of the sale of the property, and against the First National Bank of Cortland, Henry C. Christy, and Mary E.

In the year 1910, at the time plaintiff in error obtained the judgments, Christy had full possession of the real estate in question, under and by virtue of a land contract with one Lizzie H. Neff for the purchase of the

land contract the real estate was to be pur- the provisions of the statute did not apply chased by Christy for the sum of $14,500. At under the ruling of this court. If the provithe time the judgments were rendered in sions of section 11,655, General Code, apply favor of plaintiff in error there had been to legal interests only, the insertion of the paid on account thereof the sum of $6,500. words "including vested interests therein" It appears from the agreed statement of would serve no purpose. facts that during the pendency of this pro- A vendee in the possession of land under ceeding in the common pleas court, by agree- a contract for its future conveyance to him ment of all the parties to the case, the real has an equitable interest in the land. Jaeger estate was sold for the sum of 12,000. Out v. Hardy, 48 Ohio St. 335, 27 N. E. 863; of the proceeds of this sale Lizzie H. Neff Coggshall v. Marine Bank Co., 63 Ohio St. was paid her claim, amounting, with interest, 88, 57 N. E. 1086. to more than $9,000, and the sum of $500 was paid to Henry C. Christy to apply upon his claim for exemptions. Taxes, costs, and other expenses also were paid, and the balance, amounting to $1,886.73, is in the hands of the trustee of the estate of Henry C. Christy, bankrupt, subject to the final determination of this case. By agreement, the fund arising from the sale of the property was substituted for, and instead of, the property, and the rights of the parties thereto were transferred to said fund without prejudicing in any way their respective claims.

Section 11,655, General Code, was formerly setcion 5374, Revised Statutes, but the words "including vested interests therein" were not in the section as originally enacted. They were added by the amendment of 1880. This section, as it stood before the amendment, was before this court in a number of cases, and it was the holding of the court that an equity could not be levied upon and sold to pay debts, and that a judgment did not create a lien upon an equity. These cases are cited by counsel in their briefs as throwing light upon the question arising here under the statute as amended: Manley v. Hunt, 1 Ohio, 257; Haynes v. Baker, 5 Ohio St. 254; Baird v. Kirtland, 8 Ohio, 21; Gorrell v. Kelsey, 40 Ohio St. 117; Schuler v. Miller, 45 Ohio St. 325, 13 N. E. 275.

An equitable interest, as well as a legal interest, in real estate may be a vested one. "An estate is vested in interest when there is a present fixed right of future enjoyment, and ment is to accrue on an event, which is dubious an estate is contingent when a right of enjoyand uncertain." Strode v. McCormick, 158 Ill. 142, 41 N. E. 1091.

Christy was in the possession of the real estate under a contract of purchase. His interest was not a contingent one, but a vested interest. There was a recognition of this fact when the property was sold by agreement of all the parties in interest, including the holder of the legal estate, and the proceeds, after the payment of the balance due under the contract, were turned over to Christy's trustee.

The case of National Bank of Columbus v. Tennessee Coal, Iron & Rd. Co., 62 Ohio St. 564, 57 N. E. 450, bears upon the question involved here. The court uses this language:

"The statute was amended in 1880, section 5374 [section 11,655, General Code], so as to make lands and tenements, including vested interests therein,' subject to levy and sale for the payment of debts. Manifestly the interest which Mr. Patton retained in the surplus of the value of the real estate over and above the amount required to pay his note, and which was to be returned to him by the terms of the instrument, was a vested interest, and therefore subject to levy and sale to pay his debts. By the next section, 5375 [section 11,656, General Code], it is provided that: 'Such lands and tenements, within the county where the judgment is entered, shall be bound for the satisat which judgment is rendered.' faction thereof from the first day of the term 'Such lands and tenements,' in this section, embraces the same as 'lands and tenements, including vested interests therein,' in the preceding section. It is therefore clear that the judgment in question became a lien upon the vested interest of Mr. Patton in the lands covered by this instrument, from the 1st day of the April term, 1894, of the and that the lien of the judgment attached, by court of common pleas-that is, April 7, 1894relation, under the statute, to such vested interest as he then had in said lands."

Were it not for the fact that there has been a considerable and substantial change, as we regard it, in the statute, those cases, of course, would be helpful to us here. It is to be presumed that the Legislature, in adopting the present form of the statute, did so with full knowledge of the decisions of this court bearing upon the statute as originally enacted. It knew that the provisions of sections 5374 and 5375, Revised Statutes, which bound "lands and tenements" for the satisfaction of judgments, were applicable to legal interests only. It cannot be claimed, then, This vested interest of Christy became that the words "including vested interests bound for the satisfaction of the judgments therein" were inserted without purpose or of plaintiff in error in 1910. The judgment design. The same construction cannot pre- lien attached then. These liens not having vail when there has been a substantial been obtained within four months prior to change in the law. To give to the amended statute here the same construction as was given it in its original form would not, we think, conform to the manifest intent of the Legislature. Obviously the additional words were inserted to extend the operation of the statute and make a judgment binding upon certain interests in land to which formerly

the filing of the petition in bankruptcy, the provisions of section 67f of the Bankruptcy Act do not apply.

Plaintiff in error is entitled to the funds in the hands of the trustee, the same to be applied to the payment of its judgments against Christy.

Inasmuch as the vested interest of Christy

in the real estate became bound for the satis- | which will shift the belt from a loose pulley faction of the judgments of plaintiff in error to a power pulley; the table may be raised in 1910, and as a levy was unnecessary to per- or lowered by means of a crank; the drill fect these judgment liens, the question wheth- is fastened into and held by what is known er the lien acquired by the levy made within as a shank or shoulder by means of a set four months from the time of the filing of screw; and the head of said drill may be the petition in bankruptcy is void under the raised and lowered by means of a crank. provisions of the federal statute is of no importance in the disposition of this case.

The judgment of the circuit court is reversed, and judgment is here rendered for plaintiff in error.

Plaintiff alleges that on the 23d day of December, 1910, he was operating the drill press, and was engaged in boring holes through steel plates; that he had finished boring several holes, and was in the act of

Judgment reversed, and judgment for shifting the steel plates so as to get the plates plaintiff in error.

NICHOLS, C. J., and SHAUCK, JOHNSON, DONAHUE, WANAMAKER, and WIL KIN, JJ., concur.

(89 Ohio St. 297)

into position to drill another hole, when suddenly and without any warning, and without any knowledge on his part of impending danger, the sleeve of his shirt suddenly caught upon the set screw which held the drill into the shank or shoulder, and which set screw projected out from the side of the shank or

VARIETY IRON & STEEL WORKS CO. v. shoulder about 11⁄2 inches, the drill at the

POAK. (No. 14265.)

(Supreme Court of Ohio. Feb. 3, 1914.)

(Syllabus by the Court.) 1. MASTER AND SERVANT (§ 121*)-GUARDING

MACHINERY-NEGLIGENCE.

Section 1027, General Code, imposes upon the owners and operators of shops and factories the absolute and positive duty to cover, cut off, or countersink keys, bolts, set screws, and all parts of wheels, shafting, or other revolving machinery projecting unevenly beyond the surface of such revolving machinery.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 228-231; Dec. Dig. § 121.*]

2. MASTER AND SERVANT (§ 121*)-GUARDING MACHINERY-NEGLIGENCE.

In an action for damages predicated upon the failure of such owner or operator to comply with the requirements of this statute, it is the duty of the court to instruct the jury that such failure is negligence per se.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 228-231; Dec. Dig.

121.*]

time being in operation in the shaft, and the set screw revolving at a high rate of speed; that, as a result of being caught upon said set screw, the sleeve of his shirt was wound about the screw, and plaintiff was raised from the ground and whirled around the machine, and his right arm was torn, mutilated, and broken to such an extent that the same had to be amputated at the shoulder. It is alleged that the said set screw was included in the class of set screws required by the statutes of Ohio to be countersunk.

Plaintiff bases his right of recovery upon the failure of the company to cover, cut off, or countersink the set screw, as required by the provisions of section 1027, General Code. He alleges, among other things, that the defendant was guilty of negligence and carelessness in having and maintaining and permitting to be operated the drill press ma8chine with the projecting set screw, well knowing that the projecting set screw was exposed, and that the same projected unevenly beyond the surface of the revolving machinery, and that, should any portion of the clothing of plaintiff come in contact with the same while he was at work upon said machine in the performance of his regular duties, the same would result in serious and

Error to Court of Appeals, Cuyahoga County.

Action by Cortes Poak against the Variety Iron & Steel Works Company. A judgment for plaintiff was affirmed by the Court of Appeals, and defendant brings error. Affirmed.

The action out of which this error proceed- | permanent injuries to the plaintiff. ing arises was brought in the common pleas court of Cuyahoga county by Cortes Poak against the Variety Iron & Steel Works Company to recover damages for injuries alleged to have been sustained by reason of the negligence of the company.

Plaintiff avers that at the time of the accident he was without fault on his part in any way contributing to the accident, that by reason of the injury sustained he was confined in a hospital for several months and confined to his house for a long period thereafter, during all of which time he suffered great and excruciating pain, both of body and mind, that he will continue to suffer for a long period of time, and that he has been rendered a helpless cripple for the balance of his life, and judgment in the sum of $20,000 is asked.

Poak was in the employ of the company in the capacity of a drill press operator. The drill press, as described in the petition, consists of a table, two arms or rods extending upwards, and joined at the top by an arm to hold the rods firmly, and a shank which is attached to a shaft by means of a belt, from which shaft the drill gets its power; the belt is manipulated by a belt shifter

The answer of the company admits its corporate existence, the employment of plain

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