Lessee of Kemper v. Cincinnati, Columbus & Wooster Turnpike Co.

The defendants are authorized by their charter, to lay out, survey, and make a turnpike road, between certain termini, and to take from the land occupied by said road, when surveyed and located, any stone, gravel, timber, or other necessary materials; and in case sufficient can not be procured on the land located for the road, they are further authorized to enter upon any unimproved lands adjoining, or in its vicinity, and to take so much stone, gravel, or other materials, as may be necessary to construct the road. They are directed to open the road, for a width not exceeding 100 feet, thirty of which shall be made an artificial road. And they are authorized to erect gates on said road, and collect toll, upon compliance with certain requisitions in their charter.

The premises in dispute consisted of a lot of ground, on which a toll-house were erected, outside the strip of ground 100 feet wide. The defendants claimed a right to occupy the ground for a toll-house, by virtue of the powers conferred by their charter. The court below instructed the jury that the charter conferred upon the defendants authority to take and hold the plaintiff's land for this purpose. And the point is raised on this reoord, whether the right of the defendants to possess the plaintiff's land, extended beyond the land covered by the survey of the road.

CHARLES FOX, for plaintiff in error, insisted that the charter only authorized the company to survey and take so much *land as is necessary to construct the road 100 feet wide, [393 and that no authority was given for the permanent occupation of the land for any other purpose. That charters should be strictly construed. He cited 9 Pick. 110; 2 Mass. 122; Cooper's Eq. 77; 2 Dows. Parl. 520; 2 Maule & Selwyn, 32.

V. WORTHINGTON, for defendants, maintained that they were authorized, by their charter, to locate a road, erect gates, and collect toll. That, for the exercise of these rights, toll-houses were necessary. They had, therefore, the right to appropriate land for a toll-bouse, as an incident to the rights expressly granted by their charter. He cited 1 Caine, 179; 10 Johns. 389; 23 Wend. 193; 8 Ohio, 38; 2 Ohio, 112, pt. 2; 4 Ohio, 253; 5 Ohio, 118; 18 Johns. 397; 17 Pick. 434; 12 Conn. 364; 10 Conn. 157; 11 Conn. 467; 2 Johns. 190.

LANE, C. J. A corporation created for any lawful purpose, is

Wilcox and Welch v. Kellogg et al.

invested with such powers as are directly conferred, and likewise with such powers as are necessary to execute its lawful functions, and no more. Beyond this, the grant is to be taken strictly.

A turnpike company, being an association formed to accomplish a useful and public object, may lawfully possess powers to occupy another's land, on making due compensation, when necessary to accomplish its end. 5 Ohio, 488; 7 Ohio, 112, pt. 2. The charter, therefore, very properly confers authority to acquire a right to the land for the road, and to the materials lying upon it; and where these are insufficient to construct it, the authority is given to take them from the adjoining unoccupied lands. The right to maintain toll-houses is undoubted; but the right to place them on any other land than that devoted to the road, is not conferred by the express terms of the charter, nor is any necessity shown o believed to exist, for subjecting other property to this purpose. Judgment reversed.

394]

*EDMUND WILCOX AND JONATHAN WELCH V. CHARLES F. KELLOGG, DAVID G. WILLIAMS, MILO G. WILLIAMS, AND ETHAN S. WILLIAMS, ADMINISTRATORS OF JACOB WILLIAMS, DECEASED,

ET AL.

A transfer by a firm to one partner, bona fide, and by him to a third person in like manner, for valuable consideration, passes both the legal and equitable title to the property, against the creditors of the firm.

The equity of creditors upon partnership property for debts due them, is only the equity of the partners in the property, and can only be reached through the partners.

An absolute transfer of property does not come within the provisions of the act of February 23, 1835, relating to fraudulent assignments.

THIS is a bill in chancery, from the county of Hamilton.

The bill states that, at the February term of the court of common pleas, 1837, the complainants recovered a judgment, at law, against Charles F. Kellogg and David G. Williams, partners in trade, under the firm of Kellogg & Williams, for the sum of $872.57, besides costs of suit, on a promissory note made by said Kellogg & Williams, due September 4, A. D. 1836; and also for goods sold

Wilcox and Welch v. Kellogg et al.

by the complainants to said Kellogg & Williams. That an execution issued upon said judgment, and was returned by the sheriff, no goods, chattels, lands, etc., found, whereon to levy, and that said Kellogg & Williams have no property within the reach of execution for the satisfaction of the aforesaid judgment.

The bill further states that, in the month of October, A. D. 1836, and about the time the suit was commenced in which their judg ment was obtained, Kellogg & Williams were in possession of a large stock of goods and wearing apparel of different kinds, in a store in Cincinnati, to the value of $6,000 or $7,000, debts due them to more than $2,000, besides other property. About that time, by some agreement between them, Williams took possession of the goods, debts, and other property, and exercised the [395 exclusive control, and undertook, with the proceeds of the property, to pay the debts of the firm, and, among others, that of the complainants; that, since that time, the said Williams has converted the goods and wearing apparel into money, either at public or private sale, or placed them in the hands of third persons, for the purpose of covering and concealing them from the complainants, and to prevent them, or the avails, from being applied to the satisfaction of their judgment.

The bill further states that Williams has paid none of the debts of Kellogg and Williams; that he has collected a large portion of the debts of the firm, but applied no part thereof to the payment of complainants' judgment.

It is also averred that Jacob Williams, Albert Kellogg, Thomas Johnson, William Little, and Horace S. Edwards, have in their possession some part of the goods, or the proceeds thereof, held under some agreement with the said David G. Williams and Jacob Williams, or one of them; that after David G. Williams took exclusive possession of the goods, he transferred them, or some part thereof, to the said Jacob Williams, who has since controlled the goods, but for the benefit of the said David G., and which goods ought to be subjected to the satisfaction of complainants' judgment, etc.

The bill prays, among other things, that David G. Williams and Charles F. Kellogg may set forth, specifically, on oath, what amount of goods, clothing, and other property they had at the time the complainants' note fell due, or at any time since, and what disposition they have made of it, and, if sold, to whom, and VOL. XI-22 337

Wilcox and Welch v. Kellogg et al.

for what consideration; and that the other defendants may, in like manner, answer all and singular the premises charged; prayer for an injunction for satisfaction of complainants' judgment, etc.,

and for other relief.

To this bill David G. Williams and Jacob Williams have answered fully, and their answers substantially agree. All fraud is denied. From these sources, it is in proof, that when David G. Williams went into the firm with Kellogg, he, Williams, furnished 396] all the capital then advanced, except about *$400, which was advanced by Kellogg. That in order to raise the necessary funds to commence business, by the purchase of goods, Jacob Williams, the father of said David G., and his father in law, Phillips, indorsed his note to the Ohio Life Insurance and Trust Company, for $550. He had $600, and, with these sums, Kellogg proceeded to the east and purchased $3,000 worth of goods, about one-half on a credit of six and twelve months. After five months it became necessary to make new purchases; the business had not been profitable, but the said David G. Williams relied on the assurances of Kellogg that it would become so; and, to keep up the credit of the firm, and to pay off the bills given at six months, the said David G. borrowed of Jacob Williams, his father, $1,000, on January 29, A. D. 1836. Kellogg again went east, bought $4,000 worth of goods, at six months' credit. The purchases were too large, business dull, and the said David G. was convinced the debts could not be paid from the business of the firm. He therefore took the property with the intention of closing the concern for the benefit of the creditors in good faith. He received of the firm $5,000 in goods, and $1,500 in book accounts, and repaid Kellogg $100, advanced by him, and $150 for his services. The said David G. then wrote to all the creditors in the east advising them of his apprehensions that their debts would not be met as soon as due, and asking further time, or offering to surrender the goods. His offer was declined by all except the complainants, who did not answer his letter. The said David G. then formed a partnership with Isaac Stokes, but it was unsuccessful; he was taken sick, and, when he recovered, he found the stock much reduced, and nothing on the books. He then determined to break up the concern, and transfer the goods to those who had advanced almost the entire capital, and accordingly did so.

He was indebted to said Jacob Williams, besides tho $1,000 bor

Wilcox and Welch v. Kellogg et al.

rowed of him, for $224, *before that time advanced to him, and [397 $400 due on the note to the Life Insurance and Trust Company, paid or assumed by the said Jacob, in the whole, including interest, $1,627; also, in the further sum of $409 on a note discounted at the Franklin Bank of Cincinnati, and used by said David G., and paid by said Jacob. He therefore transferred the goods to said. Jacob, on December 11, A. D. 1836, for his benefit, and, if anything remained, for other creditors, with no understanding nor belief that any part of the avails was to be returned to him. The goods were all sold by auctioneers, in Cincinnati, gradually, not forcing them into the market; and, after paying expenses, there is a balance still due to Jacob Williams from the said David G., of at least fifty or sixty dollars.

Many of the allegations, and much of the proof, is omitted, not being, in the opinion of the court, essential to be considered, in order to correctly dispose of the case.

The case was argued by WRIGHT & HODGES, for the complainants, who cited Root v. French, 13 Wend. 570; Coddington v. Bay, 20 Johns. 651; Bay v. Coddington, 5 Johns. Ch. 54; 33 Ohio L. 13.

V. WORTHINGTON, for defendants, cited Story on Part. 508; Hoxie v. Carr, 1 Sumn. 181; Phillips v. Cook, 25 Wond. 399; Ex parte Ruffin, 6 Ves. 119; 11 Ves. 3; 17 Ves. 514, 2 Ves. & Bea. 172. The discussion being chiefly as to the question of fraud, is omitted.

WOOD, J. It is contended by the complainants, that the whole proofs disclose a frandulent attempt to place this property beyond the reach of creditors. If so, the complainants are entitled to relief. The law, says Mr. Justice Wilmot, breaks through all the forms with which fraud may surround itself, and exposes it, odious and hateful, to the public gaze. At law, however, it has [398 become a truism, that fraud must be proved. In equity, it is sometimes said, the rule is not so strict, but it is nevertheless certain that the evidence of facts and circumstances must be such that it can reasonably be inferred, or else, in legal parlance, it does not

exist.

The substantial facts relied upon in the case at bar, by which fraud is attempted to be fixed upon the transaction, are:

1. The ties of blood between David G. and Jacob Williams.